UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  LAW  RELATING 


TO 


OIL  AND  GAS 


INCLUDING 


Oil  and  Gas  Leases  and  Contracts,  Production  of  Oil  and  Gas,  both  Natural 

and  Artificial,   and  Supplying  Heat   and  Light  therel)y,  whether 

by  Private  Corporations  or  Municipalities 

With  Statutes  pertaining  to  Natural  Gas  and  Oil 


SECOND  EDITION 


BY 

W.  W.  THORNTON 

Author   of    Gifts    and    Advancements,     Lost    Wills,     Railroad    Fences    and 
Private   Crossings,    etc. 


CINCINNATI 

THE  W.  H.  ANDERSON  CO. 

LAW  BOOK  PUBLISHERS 
1912 


Copyrighted    1904 
THE   W.   H.   ANDERSON   CO. 

CINCINNATI. 

Copyrighted   1912 
THE   W.   H.   ANDERSON   CO. 

CINCINNATI. 


PREFACE  TO  SECOND  EDITION. 


It  is  more  than  eight  years  since  the  first  edition  of  this  work 
appeared.  It  was  then  the  most  comprehensive  work  on  Oil 
and  Gas  that  had  ever  been  issued ;  and  it  remains  so  today. 
No  other  work  has  combined  the  subjects  of  Oil,  Natural  Gas, 
and  Artificial  Gas,  and  discussed  all  the  questions  decided  by 
the  courts  which  have  arisen  by  reason  of  their  production, 
and  their  use  as  fuel  and  for  lighting  purposes. 

During  the  last  eight  years  many  questions  on  the  subject- 
matter  of  this  work  have  been  before  the  courts,  especially 
questions  concerning  Oil  and  Gas  Leases,  and  it  has  been 
thought  that  another  edition  of  the  work  ^should  be  offered  to 
the  legal  profession.  Efforts  have  been  made  to  cite  every 
case  in  this  country,  in  England,  and  in  her  provinces,  bearing 
upon  the  subject  of  Oil  and  Gas,  until  the  date  of  going  to 
press,  July  1,  1912. 

W.  W.  THORNTON. 

Indianapolis,  Ind.,  July  1,  1912. 


^y^C^C\r^^ 


PREFACE  TO  FIRST  EDITION. 


The  production  of  petroleum  in  this  country  annually 
amounts  to  millions  of  barrels,  and  in  value  to  millions  of 
dollars.  It  is  one  of  the  greatest  industries  of  this  country. 
The  value  of  natural  gas  annually  flowing  from  the  earth  is 
of  almost  inestimable  value.  Since  i>etroleum  and  natural 
gas  became  commercial  products,  thousands  of  cases  concerning 
their  production,  sale  and  transfer,  involving  new  and  unusual 
questions,  have  been  decided  in  our  courts,  many  of  which  have 
been  reported  in  official  and  unofficial  publications.  These 
"  new  and  unusual  questions  "  have,  at  times,  sorely  tried 
the  courts  to  determine  and  settle  the  rights  of  the  contending 
parties  according  to  legal  principles  and  in  accordance  with 
justice.  Cases  have  come  before  the  courts  involving  many 
questions  of  so  unique  a  character  that  no  precedents  could  be 
found.  Necessarily,  there  has  grown  up  quite  a  body  of  law, 
unknown  to  the  past  generations.  To  collate  and  discuss  the 
many  cases  involving  questions  concerning  p<^troleum  and  nat- 
ural gas,  and  the  rights  and  liabilities  involved  in  their  produc- 
tion, sale  and  transportation,  has  been  one  of  the  objects  of 
the  author  in  the  preparation  of  this  volume. 

The  subject  of  oil  contracts  has  also  been  discussed  at  length. 

Much  prominence  has  been  given  to  the  subject  of  oil  and 
gas  leases, —  by  Avhich  is  meant  leases  of  lands  for  the  purpose 
of  developing  them  to  secure  petroleum  and  natural  gas, —  and 
questions  growing  out  of  that  subject.  Early  in  the  prejiara- 
tion  the  author  perceived  the  impossibility  to  reconcile  all  the 
cases  upon  this  subject,  and  to  harmonize  them  in  a  satisfactory 
manner.  What  he  has  attempted  to  do  has  been  to  state  the 
questions  decided,  at  times  giving  his  own  views  for  whatever 

iii 


IV  PREFACE. 

they  may  be  worth.  lie  has  cited  many  cases,  where  he  thought 
them  applicable,  upon  the  subject  of  mining  of  solid  minerals, 
• —  coal  mining  cases, —  believing  that  those  using  this  work 
would  find  such  cases  of  value  and  aid  tliem  in  their  practice. 
In  this  he  has  gone  far  beyond  the  line  adopted  by  writers  upon 
the  subject  of  oil  and  gas.  Especial  care  has  been  taken  to 
secure  citations  of  all  cases  upon  this  subject. 

The  work  is  not  confined  merely  to  the  subject  of  petroleum 
and  natural  gas,  and  their  production.  The  production  and 
supplying  of  artificial  gas  has  been  treated  at  length, —  much 
more  so,  it  is  believed,  than  can  be  found  elsewhere  either  in 
this  country  or  England.  The  duty  of  a  gas  company  to  furn- 
ish gas  to  the  consumer,  its  liability  for  failure  to  furnish  him 
gas,  and  its  liability  to  him  for  neglect  whereby  he  or  others  are 
injured  by  leaking  or  exploding  gas  has  been  treated  at  con- 
siderable length. 

Particular  attention  has  been  given  to  the  powers  of  munici- 
palities to  light  their  streets,  to  furnish  gas  to  their  inhabitants, 
and  their  relations  to  gas  companies,  and  the  right  of  these  com- 
panies to  use  streets  and  highways  for  the  laying  of  their  pipes 
or  mains  therein.  It  is  believed  that  nowhere  else  has  the 
subject  of  exclusive  or  monopolistic  grants, —  the  right  to  oc- 
cupy the  streets,  to  the  exclusion  of  all  other  competitors, — 
been  treated  as  exhaustively  as  in  the  present  work. 

The  right  of  a  municipality  or  a  legislature  to  regulate  gas 
companies  and  to  control  their  rates  to  customers  has  received 
particular  attention. 

Upon  these  subjects  electric  lighting  and  street  railway  cases 
have  been  frequently  cited,  as  well  upon  the  subject  of  the  right 
of  electric  and  street  railway  companies  using  the  streets  of 
a  city. 

A  chapter  has  been  devoted  to  the  subject  of  insurance  in 
connection  with  use  and  storage  of  oil  and  gas  in  the  building 
insured. 

The  aim  has  been  to  not  only  make  this  volume  a  useful 
and  convenient  work  for  the  practitioner  having  an  oil  or  gas 
lease  or  contract  under  consideration,  but  also  for  attorneys  of 


PREFACE.  V 

municipalities  and  artificial  and  natural  gas  ■companies  who 
are  investigating  the  rights  and  duties  arising  between  munici- 
palities and  gas  companies,  as  well  as  tlie  rights  and  duties  of 
gas  companies  to  the  inhabitants  of  such  cities  and  to  their 
patrons  or  customers. 

Forms  of  oil  and  natural  gas  leases  and  contracts  used  in 
Pennsylvania,  West  Virginia,  Ohio,  Indiana,  Kansas  and  Texas 
have  been  inserted  in  the  Appendix,  which  it  is  believed  will 
be  found  to  be  useful. 

W.  W.  Thornton. 
Indianapolis,  Inch 

January  1,  lOOJf. 


CONTENTS. 


CHAPTER    I. 
HISTORICAL    SKETCH. 

SEC.  PAGE. 

1.  Petroleum    known   to   ancients 1 

2.  Early  discoveries  of   petroleum  in  United  States 3 

3.  Early  account  of  a  western  New  York  oil  spring 5 

4.  Washington  county,  Ohio,  oil  well 8 

5.  The  first  oil  well  in  United  States 9 

6.  Other  first  oil  wells  in  United  States 12 

7.  In  what  countries   petroleum  found 13 

8.  Natural  gas  was  known  to  ancients 15 

9.  Early  natural  gas  in  America 16 

10.  Sources  and  composition  of  petroleum  and  gas 18 

11.  'Composition   of   petroleum 21 

12.  Composition  of  natural  gas 23 

13.  Early  attempts  at  distilling  or  refining  petroleum 24 

14.  Early  use  of  petroleum  as  a  medicine 25 

15.  Transportation     20 

16.  Tlie  first  oil  lease 28 

17.  Early  use  of  artificial   illuminating  gas 29 

CHAPTER    II. 

LEGAL   STATUS    OF   OIL   ^VND  NATURAL  GAS. 

18.  Oil  and  natural  gas  a  mineral 31 

19.  Part   of   realty 32 

20.  Ownership   in   earth 33 

21.  Compared  with  animals  farie  naturae 33 

22.  When  title  vests   in   owner 34 

23.  0^vnership  of  oil  difi"ers  from  that  of  water 35 

24.  Owner  of  land  has  only  a  qualified  ownership 38 

25.  Qualified    ownership    in    oil — power   of    legislature 40 

25a.  Depriving  owner  of  soil  of  right  to  oil  and  gas  beneath  surface.  .  43 

26.  Severance  of  oil  or  gas  from  realty 43 

27.  Recovery  of  severed  product — Trover 44 

27a.  Ejectment  for  possession  of  oil 45 

28.  Wasting    gas  — Injunction 45 

29.  Increasing  flow  of  gas  by  pumping  well 46 

vii 


VIU  CONTENTS. 

SKC.  PAGE. 

30.  Pumping    oil    wells 49 

31.  Exploding  nitroglycerin  in  well  to  increase  flow 50 

32.  Maliciously  boring  well  to  injure  another 50 

33.  Measure   of    damages    for    unlawfully    taking   oil    and   gas   from 

the    soil 50 

34.  When  lessee  acquires  title  to  oil 51 

35.  Waste — Part  of  realty 53 

36.  Partition     54 

37.  Oil  and  gas  not  synonymous 54 

38.  "Other  valuable  volatile   substances" 54 

39.  Natural  gas  not  heat 55 

40.  Gas  and  oil  articles  of  commerce 55 

4 1.  Judicial     notice 55 

42.  Judicial  knowledge  of  oil  and  gas  properties 57 

43.  Plugging  wells 57 

44.  Not  subject  to  tariff  law  of   1890 58 

45.  Entry  of  government  oil   lands 58 

46.  Property  in  oil  tanks  or  pipe-lines 58 

CHAPTER    III. 

OIL  AND  GAS  LEASES. 

47.  Peculiarity    63 

48.  Name  applied  to  instrument  does  not  determine  its  legal  effect.  .  65 

49.  Lex   loci    governs 65 

50.  License  and  incorporeal  hereditaments 66 

51.  Interest  of  lessee  is  a  chattel  real 66 

52.  'Contract  giving  interest  in  real  estate 67 

53.  Estate  does  not  vest  if  oil  or  gas  not  found 71 

54.  Vesting  title  subject  to  condition  precedent — Diligence 73 

55.  Tenancy  from  year  to  year  or  at  will 74 

66.  Unilateral    contract 76 

57.  Legal  interest  of  lessee  in  various  leases — Digest 77 

57a.  Digest  of  cases  continued 81a 

58.  Sale  of  oil  and  gas,  and  not  a  lease 87 

59.  Presumption  as  to  ownership  of  oil  or  gas  is  ground 88 

60.  Administrator's  right  to  lease  or  contract — Presumption 88 

61.  Lease  and  not  a  license 89 

62.  License    90 

63.  License — Consideration — Revocation    93 

64.  License,  revocation 94 

65.  Merger     95 

66.  Consideration     96 

67. .  Option  to  purchase  after  development 99 

68.  Option   to  extend  lease 100 

69.  Acceptance  of  second  lease  by  lessee  in  first  lease 101 


CONTEXTS.  IX 

SFC  PACK. 

70.  Extension  of  time  of  lease  may  amount  to  a  new  lease ll)3 

70a.  Effect  of  payment  of  rent  upon  extension  in  point  of  time 104 

71.  Options — Revocation    10(5 

72.  Options    continued 110 

73.  Option  to  pay  rent  or  drill  well 112 

74.  Appurtenances,  wiiat  will  pass  as  such 112 

75.  Statute   of    frauds 113 

76.  Description  of  leased  premises 114 

77.  Right   of  lessor   to  use   surface 110 

78.  Construction    1 1^ 

79.  Construction  of  instrument  by  parties 110 

80.  Unfilled  blanks — Written  and  printed  clauses 120 

81.  Execution    of    lease 120 

82.  Defective   execution    or    acknowledgment 121 

83.  Parol  change  of  written  lease 121 

84.  Acceptance — Estoppel    121 

85.  Lessee  need  not  sign  lease — deed 122 

86.  Separate  owners  giving  joint  lease 122 

87.  Notice  to  one  of  several  lessees 124 

88.  Second    lease — Notice 124 

88a.  Right  of  way  of  railroad 125 

88b.  Enjoining  trespass   on  adjoining  land 127 

89.  Agent  of  lessee  may  take  lease  after  forfeiture 127 

90.  Exclusive  right  of  licensee  of  lessee — Solid  mineral  oil 127 

91.  Implied     covenant 129 

92.  Covenant   running   with    land 131 

93.  Personal    covenants 132 

94.  Assignment    of    contract    giving    interest    in     land — Incorporeal 

hereditament — Lease — Surrender     133 

95.  Lessee  liable  after  assignment  on  express  covenants 135 

96.  When  work  must  be  begun 136 

97.  Diligence   in   operating  leased   premises   after   development 137 

08.     Agreement  as  to  what  constitutes  due  diligence 130 

99.     Unprofitable    lease 130 

100.  Lessor  cannot  impair  value  of  lease  by  drilling  wells  on  his  own 

land    140 

101.  Lessee  draining  premises  by  operations  on  adjoining  territory.  ..  142 

102.  Drilling  well  near  boundary   line 143 

103.  Injunction — Quieting    title 145 

104.  Damages     147 

105.  Damages  for  failure  to  keep  covenant 148 

106.  Damages  for  neglect  to  develop  or  operate  leased  premises 140 

107.  Damages  for  neglect  to  operate — Res  judicata 151 

108.  Damages  for  taking  oil  or  gas 151 

109.  Boundaries — Location    of    wells 152 

110.  Selection  of  site 154 

111.  Number  of   wells 155 


X  CONTENTS. 

SEC.  Px\GK. 

112.     Number  of  wells — Protecting  lines 159 

1  j3.     Test  wells — Excuse  for  not  drilling 161 

114.  Test  well,  when   need   not  be   drilled 163 

1 15.  Test    well— Depth 105 

IIG.  Lessor  and  lessee  by  mistake  locating  well  on  stranger's  land.  .  .  166 

1 1 7.  "Shooting"    well 1 07 

118.  Oil  lease,  who  entitled   to  gas 167 

119.  Oil  lease  gives  no  right  to  gas  if  oil  bo  not  found 170 

120.  Eviction— Ejectment     171 

121.  Failure  of  title,  reimbursement  of  operator 172 

122.  Lessee   denying   tenancj^ 174 

123.  Uncertainty  on  lease — Unconscionable 174 

124.  Diameter   of  wells 174 

125.  C!ontract  to  drill  wells  "in  the  vicinity" 175 


CHAPTER    IV. 

DURATION  OF  LEASE. 

126.  Ordinary    leases 180 

127.  Diligent   search — Implied  covenant 181 

128.  Holding  for   speculation   purposes 182 

129.  Non-development  of   leased   premises   where   no   limit   fixed — For- 

feiture     183 

129a.  Time  for  termination  of  lease  fixed  therein 186 

130.  Greater  diligence  required  in  developing  oil  than  coal  lands 188 

130a.  What  is  reasonable  time — Question  of  fact 189 

131.  Acquiescence  in  delay — unavoidable  accident 190 

132.  Acquiescence   in   abandonment — damages 191 

133.  Actual  mining  operations  must  be  commenced 191 

134.  In    paj'ing    quantities 192 

135.  Paying   quantities,    continued 192d 

136.  Gas  in  paying  quantities 196 

136a.  Gas  used  for  manufacturing  purposes 198 

136b.  Paj'ment  as  a  renewal  of  term 199 

136c.  Non-paying  well   as  a  termination   of  the   lease — Abandonment — 

Drilling   or    completing   well 200 

1 37.  Abandonment    202 

138.  Lessee  may  abandon   non-productive   premises 202b 

138a.  No  express  forfeiture  clause  necessary  for  an  abandonment 203 

13Sb.  Abandonment  under  mutual   mistake  of  law  concerning  rifjhts  to 

hold  leased   premises 205 

139.  Completion    of    non-productive    well — Title 206 

140. .    Instances    of    abandonment 206 

14 1.  Cessure  of  work   after   operations   begim 210 

142.  Surrender    212 


CONTENTS.  XI 

SEC.                                                                                                                                                             PACK. 
142a.  Surrender  of  premises  which  are  not  definitely  described — Selec- 
tion   by    lessee 214a 

143.  Surrender  by  substitution  of  tenants  or  assignment  of  lease.... 214 

144.  Parol    surrender 217 

144a.  Reservation  of  right  to  surrender  lease — Completion  of  surrender..218 

145.  Payment   of  rental   instead  of  developing  premises 219 

146.  Rescission  for   fraud 220a 

CHAPTP]R   V. 

FORFEITURE  OF  LEASE. 

147.  Forfeiture  not  a  favorite  of  the  law 222 

148.  Rule  in  gas  or  oil  leases 222 

149.  History  of  change  in  rule  giving  lessor  exclusive  right  to  declare 

a    forfeiture 225 

150.  Forfeiture  favored  by  equity  when  it  will  promote  justice 22S 

151.  Lessor   only  can  declare   forfeiture 228 

152.  Heirs  or  assignees  of  lessor  may  declare  forfeiture — Assignee.  .  .228c 

153.  Stranger  cannot  avail   himself  of  forfeiture 22Sd 

154.  Lease  may  Be  voidable  at  election  of  lessee  on  his  default,  sur- 

render      229 

155.  Lessee  cannot  insist  on  forfeiture  to  escape  rent 231 

156.  Forfeiture   clause   omitted 232 

157.  Implied  covenants   do   not  authorize   forfeiture 232 

158.  Notice  of  election  to  declare  forfeiture 234 

159.  Waiver   of   forfeiture 236 

100.     Waiver  of   forfeiture  by   accepting   payment 239 

160a.  Waiver  of  forfeiture  by  receipt  of  gas 240c 

160b.  Acceptance    of    rent    for    definite    period — Waiver    of    right    to 

declare  forfeiture 240c 

161.  Eviction   of   lessee 240d 

162.  Failure  to  operate  and  not  for  failure  to  develop 24()d 

163.  Continuance    of    operation 241 

164.  Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease.... 243 

165.  Covenant    uncertain 243 

166.  Re-entry    244 

167.  Release  of  premises  equivalent  to  a  re-entry 245 

168.  Surrender    after    assignment — Forfeiture 247 

169.  Forfeiture  of  only  part  of  lease 247 

170.  Partial     development — abandonment 250 

171.  Lessee  draining  leased  premises  by  wells  on  adjoining  territory.  .252 

172.  Lessee  draining  away  oil  by  sinking  wells  on  adjoining  premises.  .253 

173.  Inability  to  complete  work 253 

174.  Mortgage  of  leasehold  may  work  a  forfeiture 254a 

175.  When  work  must  be  completed 254a 

176.  Excavating  for  oil  means  bringing  it  to  the  surface 2541) 


Xll  CONTENTS. 

SEC.  PAGE. 

177.  Failure  to  pay  royalty  or  report  them 254b 

178.  Payment    of    rent    will    not    prevent    forfeiture    for    neglect    to 

develop    254c 

179.  Must  pay  rent  althougli  no  oil  on  premises 254d 

180!     Lessee  must  pay  past  rents — Damages 25'.'} 

181.  Lessor  consenting  to  abandonment 256 

182.  Estoppel   of  lessor 257 

183.  Demand  for  compliance  with   lease 258 

184.  Abandonment   a  question  of   intention 258 

185.  Forfeiture   a   question  for   jury 259 

186.  Suit  to  cancel  lease  for  non-development  of  territory 260 

187.  Relief   from    forfeiture 262 

188.  Time  to  avoid  forfeiture 262b 

189.  Lessee  cannot  recover  premises  after   forfeiture 262c 

190.  Reimbursement  for  expenses 262c 

191.  Removal  of   fixtures   and   machinery 262c 

192.  Damages  instead  of  declaring  a  forfeiture 263 


CHAPTER   VI. 

ASSIGNMENT  AND  SUBLETTING  OF  LEASE. 

193.  Lessor — Lessee    264 

194.  Interest  assignee  secures 265 

195.  Assignee  cannot  take  advantage  of  default  in  lease 266 

196.  Refusing   consent   to   assignment 207 

197.  Sublease — Division     268 

198.  Assignment    carries    option 268 

199.  Transfer  of  lease  by  judicial  sale 26S 

200.  Equitable  assignee  in   possession 270 

201.  Lease    unassignable 270 

202.  Assignment    of    royalties 271 

203.  Assignee    of    lessee    bound    by    agreements    in    lease — Privity    of 

estate    274 

204.  Ground  of  assignee's  liability  to  lessor 274a 

205.  Assignee's    liability    broadened    by    terms    of    assignment    or    by 

outside  contract 274d 

206.  Extent  of  assignee's   liability 274d 

207.  Liability  of  assignee  of  a  part  interest  in  lease 277 

208.  Liability  of  occupier  imder  unassigned  lease 277 

209.  Assignee  not  taking  possession  liable 278 

210.  Several   successive   assignees 279 

211.  Lease   not   executed   by    lessee,   but    possession    taken    under    the 

lease,    eflTect 279 

212.  ■  Lessee  released  by  substitution  of  assignee 280 

213.  Trustee  of  lessee  and  not  his  cestuis  que  trustent  liable 282 

214.  Cestuis  que  trustent  may  be  liable 283 


CONTENTS.  XI 11 

SEC.  PAGE. 

215.  Liability  of  assignee  to  his  assignor 283 

216.  Assignor  liable  on  account  of  lease  as   a  surety 284a 

217.  Sublease — Liability    of    sublessee 2,S4b 

217a.  Ejectment    284d 

217b.  Lessee  denying   landlord's   title 284d 

217c.  Liability  of  a  trustee  assigning  a  lease 284d 

CHAPTER    VII. 

.  RENTS  AND  ROYALTIES. 

218.  Limitations  of  chapter 286 

219.  Construction   of    leases 286 

220.  Various  methods  of  fixing  rents  or  royalties 2S7 

221.  A  royalty  is  rent — "Mining  rent" 28S 

222.  Definition  of  rent  and  rent  charges 289 

223.  Payment  so  much  per  well 290 

224.  Royalty,  percentage  of  profits  or  income 292 

225.  Payment  of  operating  expenses  first — Free  gas 294 

226.  Free   gas 294a 

227.  Royalty  in  gas  or  oil  used  to  operate  leased  premises 295 

228.  When  royalty  due — Removal  of   oil    from   premises 296 

229.  When  rent  is  due  for  failure  to  develop  land 297 

230.  To  whom  payable — Joint  lessors 300 

230a.  Payment  of  rent  to  preserve  right  to  mine — Tender 301 

231.  Damages  for  failure  to  deliver  lessor  his  share 302a 

232.  Interest    on    royalties 302a 

233.  W^aiver — Parol    evidence 302a 

234.  Surrender — Tract    "retained" 302a 

235.  Interdependent    conditions 302b 

236.  New    lease 302c 

237.  Termination  of  lease  by  failure  to  keep  its  terms 302c 

238.  Lessee   cannot   avoid   payment   by   taking   advantage   of   forfeiture 

clause    303 

239.  Forfeiture   clauses   and   liability   for    rent 305 

240.  Surrender  of  lease  necessary  to  escape  liability  for  rent 307 

241.  Eviction     308 

242.  Rent  to  be  paid  if  well  not  drilled 308 

243.  Minimum    production    allowed 310(; 

244.  Consideration  for  lease  may  be  purchase  money 310d 

245.  Consideration  for  grant  part  of  minerals,  creates  an  exception.  .31 1 

246.  One  well  draining  two  tracts  of  land 311 

247.  Oral  change  of  lease  discharging  or  changing  rents 312 

248.  Failure  of  oil,  royalty  ceases 313 

249.  Rent  for  exhausted  well — Flooded  well 313 

250.  Instances  of   lessee's   liability 314 

25L  Account     rendered 315 


XIV  CONTENTS. 

SEC.  PAGE. 

252.  How   collected 315 

253.  Lien  of  royalty  accruing  during  receivership 317 

254.  Assignment  of  lease  does  not  carry  oil  in  tank  on  premises 317 

CHAPTER    VIII. 

WHO  MAY  MAKE  A  LEASE. 

255.  Owner  of  land  may  grant 318 

256.  Infants — Lunatics    318 

257.  Married    women 318a 

258.  Wife  joining  husband  in  lease — Homestead 319 

258a.  Administrator    or    executor 320 

2o8b.  Indian    lands 320 

CHAPTER    IX. 

TENANTS  FOR  YEARS. 

259.  May  work  open  mines 323 

260.  When  may  open  new  mines 323 

2(i0a.  Tenant   by   curtesy 324- 

CHAPTER    X. 

TEXANCTES  FOR  LIFE— DOWER. 

201.  May  work  mines  or  oil  wells  already  open 325 

2G2.  Rule  concerning  life  tenants  applies  to  oil  leases 326 

263.  May  not  open  new  mines  or  bore  new  wells 326a 

264.  Curtesy  estate   of  husband 326b 

265.  When  mines  may  be  opened  or  wells  bored 326b 

266.  Mineral  lands  unfit  for  any  other  purposes  than  mining 32Cd 

267.  Reversioner  or   remainderman  opening  wells 326d 

268.  Life  tenant  must  account  for  waste 327 

269.  Title  to  mineral  or  oil  severed 327 

270.  Destruction  of  corpvis  of  the  estate 327 

271.  Oil  or  gas  may  be  exhausted 328 

272.  Estoppel    of    remainderman 328 

273.  Assignment  of  dower   in  mines 329 

273a.  Remainderman   enjoining  extraction  of  oil  or  gas 330 

273b.  Interest    on    royalties 330 

CHAPTER    XI. 

CO-TENANTS. 

274.  One  co-tenant  may  operate  land  of  co-tenancy  for  oil  or  gas 331 

275.  Lease  of  license  granted  by  co-tenant 332 


CONTENTS.  XV 

SEC.  r\(;\:. 

276.  Partition  of  minca  or  mineral  lands XV.i 

277.  Partition  of  oil  or  gas  lands 334a 

278.  Accounting   between    co-tenants 334b 

279.  Accounting    wlien    tenant   excludes    co-tenant 33H 

280.  Owner    of    surface    not   co-t<'nant    willi    owner    of    mineral    beneatli 

surface     339 

2S1.     Purcliase  by  tenant  of  co-tenant's  interest 339 

282.  Equity   jurisdiction   of    an   accounting 339 

283.  Expense   of   worl<ing  joint   property 340 

284.  When  a  tenant  l)onnd   by   co-tenant's  act 340a 

2S5.     Injunction     340a 

286.  Surrender   of   lease   by  co-tenant 340a 

287.  Payment  of  rent  or  royalties 340b 

288.  Fidelity  relation  between  members  of  a  mining  partnership ....  340b 

CHAPTER    XII. 
COXTRACTS  FOR  A  LEASE. 

289.  Xot  often   drawn   into  controversies 342 

290.  Indefiniteness     342 

291.  What  is  a  sufficient  writing 313 

292.  Effect   of   taking   possession   under   contract 346 

293.  Specific  performance  of  contract  for  lease 347 

294.  Damages  for  breach  of  contract  to  give  lease 349 

CHAPTER    XIII. 

ADVERSE  POSSESSION— STAITJTE  OF  LniTTATIONS. 

295.  Peculiarities  of  oil  and  gas — Possession  of  surface 3.50 

296.  Rule  as  to  oil  and  gas 350a 

297.  Possession  of  surface  not  adverse  to  owner  of  oil  or  gas 3r)(lb 

298.  Possession  of  oil  operator  not  adverse  to  owner  of  surface 350d 

299.  Acquiring  right  to  oil  or  gas  under  statute  of  limitations 3i.)0d 

300.  Receiver — Title    in    dispute — Injunction 351 

301.  Accounting     352 

CHAPTER    XIV. 

RESERVATION  AND  EXCEPTION. 

302.  Distinction  between   reservation   and  exception 353 

303.  Severance  of  mineral  by  reservation  or  exception 354 

304.  Reservation  of  "all  minerals"  includes  oil  and  gas .354 

305.  Reservation  of  right  to  drill    for  oil    restricted 35tJl) 

306.  Ownership  of  gas  or  oil  lieiieatli  |)ulilic  highways,  rivers  or  sea.. 356c 

307.  Reservation  or  exception   subject  to  lien  of  judgment 356d 

308.  Wife's    interest    in    reservation — Construction 35(M 

309.  Location  of  oil  claim  on   public  lands 3.')7 


XVI  CONTENTS. 


CHAPTER   XV. 

PARTNERSHIPS. 

SEC.  PAGE. 

310.  Mining  partnerships  applicable  to  gas  and  oil  operations 361 

31 1.  Tenants  in  common  not   partners 362 

312.  By  agreement  a  mining  association   becoming  an  ordinary  part- 

nership      363 

313.  ^Mining   agreements   that   create   onlinary   partnerships 364 

314.  Working  a  mine  together  creates  a  mining  partiiersliip 364a 

315.  Selection  of   a   partner — Sale   of   interest 364b 

316.  Tenants  in   common  usually   do   not  become  partners 364c 

317.  Illustration  of  what  makes  a  mining  partnership 364d 

318.  Promoters — Prospectors     3(56 

319.  Life  of  mining  partnership — Dissolution 367 

320.  Partition  and  accounting  works  a  dissolution 368 

821.     Majority    control 368 

■  322.     Power  of  partner  in  mining  or  oil  enterprise 368 

323.  Partner's    lien 371 

324.  Liability   of  incoming   partner 372 

325.  Each  partner  liable  for  all  partnership  debts 372 

326.  Limited    partnerships 372 

326a.  Division    of    royalty — Damages 373 

326b.  Accounting — Dissolution     374 


CHAPTER    XVI. 

MECHANICS'  LIENS. 

327.  Lubricating  oil 375 

328.  Labor  or  material  must  be  furnished  under  a  contract 375 

329.  For  what  material   furnished  a  lien  may   be  obtained 376 

330.  For  what  labor  a   lien  may  be  obtained 376b 

331.  Overseer,  custodian  or  superintendent  entitled  to  a  lien 370c 

332.  Upon  what  interest  in  land  lien  may  be  acquired 377 

332a.  Oil   or  gas  leased   premises 378 

333.  Lien   on   oil    well 378 

334.  Forfeiture   of    lease 379 

335.  Pvetroactive    effect 380 

336.  Priority   of   liens 380 

337.  Notice  of  claim  of  lien — Description  of  land 381 

338.  Assignment  of  claims 382 

339.  On   plant  of   public  gas  company 382 

340.'  Oil  refinery — ParafBne  works 383 


CONTENTS. 


CHAPTER    XVII. 
MORTGAGES. 

ABT.  PAGE 

1.  Mortgage  of  oil   or  mining  property 384-.3!)2c 

2.  Mortgage  of  gas  plant 392c 

ARTICLE  1. 

MORTGAGE  OF  OIL  OR  illXIXG  PROPERTY. 

SEC.  PAGE. 

S41.  Leasehold  may  be  mortgaged  by  lessee 384 

342.  Lessor  may   mortgage   premises 384a 

3J3.  Mortgage  of  oil  or  mining  lease  in  Pennsylvania 384c 

344.  Mortgagor  may  remove  gas,  oil  or  minerals 3S5 

345.  Mortgagor    in    possession 385 

346.  Mortgagee    in    possession 38(i 

347.  Mortgagee  in  possession,  English  rule 388 


ARTICLE  2. 

GAS  PLANT. 

348.  Gas    plant 392c 

CHAPTER    XVIII. 
TRAXSPORTATIOX    AND    E:\IIXEXT    DOMAIN. 

349.  Scope  of  chapter 393 

350.  Transportation  of  gas  or  oil  a  public  use 393 

351.  Carriers  of  oil — Tank  cars 395 

352.  Transportation  from  state  cannot  be  prevented 395 

353.  Transportation   by  pipe-line — Interstate   commerce ".  .396 

354.  Regulation    of    transportation 397 

355.  Ownership  of  oil  in   piiio-lincs 399 

356.  May  be  endowed  with   powers   of  eminent  domain 399 

357.  Artificial   gas    companies 40r)a 

358.  Foreign    companies    excluded    from     use     of     power     of     eminent 

domain     400b 

3.j9.     Number  of  lines  tiiat  can  be  laid   in  riglit  of  way  acquired 4001) 

300.     Laying  pipes  in  country  highway 400b 

3ri.     Measure  of  damages,  for  taking  right  of  way 400c 

3G2.     Damages  occasioned  by  gas  company's  trespass  on  land 401 

363.     Prospective  damages  for  fires  and  explosions 401 

3G4.     Removal   of   pipe-line,   damages 402 


Xviii  CONTENTS. 

SEC.  PAGE. 

■365.  Pipe-line  crossing  right  of  way  of  railroad  company 402 

3i''Q.  Revocation   of   license 403 

367.  Route,  specifying  in  petition — More  than  one  route 403 

368.  Coal   mine  beneath  pipe-line — Support 403 

309.  Well  pipe  passing  through   coal  mine 405 

CHAPTER    XIX. 
TRANSPORTATION  OF  OIL  AND  GAS. 

370.  Limit    of    discussion 406 

371.  Injuries    occasioned    in    transporting    oil    by    reason    of    defective 

cars   or    track 406 

372.  Defective  oil  tank — ^Car — Remote   liability — Intervening  agency — 

Crude  petroleum  not  a  dangerous  agency 408a 

373.  Oil  shipped  on  trains  carrying  other  goods 408d 

374.  Shipper's  liability  to  servant   of  carrier — Naphtha — Petroleum — 

Dangerous    agency 408d 

375.  Injury   to    passengers — Train    wreck 410 

376.  Curiosity    seekers — Exploding    oil 411 

377.  Allowing  oil  to  escape  from  pipe-line 413 

378.  Inspection    of    pipe-line 413 

379.  Oil  illegally  stored  at   railroad   station 414 

380.  Storing    oil    in    warehouse 414 

381.  Thief  setting  oil  on  fire 415 

CHAPTER    XX. 

LEGISLATIVE  AND  ^fUNICIPAL  CONTROL. 

382.  Gas  a  dangerous  agency — Police  powers 417 

383.  Regulating    pressure    in    pipes 418 

384.  Prohibiting  transportation  of  gas  beyond  the  state 41Sb 

385.  Plugging   abandoned   wells — Waste   of   gas 41Sb 

386.  Preventing  waste  of   gas — Flambeau  lights 419 

387.  Waste  of  gas  in  operating  oil  well 419 

388.  Inspection    of    oil — Tests 420 

389.  Ordinance  regulating   storage  of  oil 421 

389a.  Transportation    through    a    municipality — License 423 

390.  Regulating  sale  of  naphtha  by  United   States 423 

390a.  Adulteration  of   oils 424 

391.  A  charter  is  a   contract 424 

302.     City  cannot  fix  rates  without  statutory  authority 425 

393.  Municipality  regulating  rates  after   ordinances  granted 427 

394.  .  Rates   fixed   in  ordinance  granting  franchise 428 

395.  Rates   fixed   by   city   in    its    consent    to   assignment   of    franchise 

ricrht     .."..../ 428b 


CONTENTS.  XIX 

SEC.  PAGE. 

30(5.     Gas   company  accepting  provisions  of  subsequent  ordinance.  ..  .428b 

3!  7.     Prohibition   to   change    for    speciticd   time 428o 

3i)S.      Police     power — Rates 42Sd 

3i'9.     Municipality  regulating  gas  companies 42S(i 

400.  Power  to  change  rates — Rates  established  must  be  reasonable..    420 

400a.  Rates  fi.xed  must  be  reasonable — Evidence 430 

400b.  It  must  be   clearly   shown   that   rate   fixed   is  too   low — Duty   of 

gas  company  to  make  disclosures  of  its  condition 437 

400c.  In   fixing  rates  each  case  stands  on  its  own  peculiar  facts 43!) 

400d.  Value  of  good  will,  when  not  to  be  considered   in   fixing  rates — 

Risks    of    promotion — ^Cost   of   ])romotion 440 

400e. ' Difficulty  of  determining  values  and  fixing  rates — Practical  test.  .442 

400f.    Rates    for    municipality — Mandamus 443 

400g.  Rates   for   consolidating  companies 444 

400h.  Unlawful  combination  defeating  right  to  have  reasonable  rates.. 444 

400i.    Legislature  fixing  maximum   rates 444 

400j.    Statute  requiring  excessive  pressure   in   pipes 445 

400k.  Consumers  cannot  complain  of  rates  fixed  by  legislature 445 

4001.    Continuing   supply   of   gas    pending    litigation 446 

400m.  Parties  to  suit  to  enjoin  enforcement  of  ordinance  or  statute.  ..446 
400n.  Refunding  illegal  amounts  collected  during  pending  litigation.  .446a 
400o.  Power  to  authorize  common  council  or  a  commission  to  fix  rates. .446b 

401.  Gas     companies     quasi     public      corporations — Rates     may     be 

changed     446d 

402.  Same — ^Continued     448 

403.  Same — Continued — Rates  may  be  changed 451 

404.  Municipality  delegating  power   to   change   rates 454 

405.  Annexing  territory  after  contract  made 455 

406.  Police   power   regulations 456 

CHAPTER    XXI. 

CONTRACTS  FOR  MUNICIPAL  LIGHTING. 

407.  Power  to   make   contract 457 

408.  Constitutional  or   statutory  limitations  on   indebtedness 45Sa 

409.  Length   of  term   of  contract 459 

4C'9a.  No  term  fixed  in  ordinance  or  contract 4(i2 

410.  Extending  term   of   contract 463 

411.  Bids    for    lighting : 4(i3 

412.  How    contract    e.xecuted 465 

413.  Liability  of  city  for  breach  of  contract — Damages 4<)6 

413a.  Failure  of  grantee  of  franchise  to  carry  out  its  provisions 408 

414.  Assignment    of    lighting    contract 468 

415.  Rescission    of    contract — Breacli 46Sh 

415a.  Quality   of   gas 4(iSc 

416.  Discontinuing  use   of   gas 408J 


XX  CONTENTS. 

SEC.  PAGE. 

417.  Chanfjing    contract 469 

418.  Gas  furnished  not  covered  by  contract — Xo  contract 409 

419.  ^lunicipality   extendinj,'    limits    after    making    contract 470 

420.  Muni(ii)aiity  receiving  liglit   under  a  void  contract 471 

421.  Contracts    void    for    uncertainty 472 

422.  Moonlight    schedule 472 

423.  The  price  to  be   paid 473 

424.  Free    light 473 

425.  Exemption  from  taxation   in  fixing  price  of  gas 475 

426.  Cost  of  light,  out  of  what  fund  paid 475 

427.  Appropriation  for  light,  when  necessary  to  validity  of  contract.  .475 

428.  Exhaustion  of  appropriation  as  a  defense 476 

429.  Tax  to  pay  for  gas  or  to  support  gas  plant 476 

430.  Assigning   cost  of   public   lighting  upon   abutting   property — ^Cost 

of    municipal    plant 477 

431.  Mandamus  to  compel  auditing  or  payment  of  bills 478 

432.  Action  to   recover  for   gas  supplied , 478 

433.  Interest     478a 

434.  Lamps— Posts    478a 

435.  United   States   revenue  tax 478c 

436.  Waiver  as  to  quality  of  gas  or  light 478c 

437.  Extending  mains,  failure  to  pay  for  light 478d 

438.  Receiver  bound   by    contract 478d 

439.  Municipal   officer   interested   in   contract 478d 

CHAPTER    XXII. 

MONOPOLISTIC  GRANTS  AND  CONTRACTS. 

440.  Division   of    subject 480 

4^1.     Legislature  may  authorize  monopolistic  grants 481 

442.  Same — Continued — Pennsylvania    484 

443.  Sam(--Continued     487 

443a.  Curtailing  territory   occupied  by  gas   company 488 

444.  Statute  authorizing  exclusive  grant 489 

445.  A  grant  to  use  of  streets  to  exclusion  of  all  others  must  rent  on 

statutory    power 490 

446.  Grant  of  exclusive  franchise  strictly  construed 400c 

446a.  Exclusive    grant    to    a    gas    company    not    preventing    grant    to 

individual    493 

4-lGb.  Consolidation  of  gas  companies 494 

417.     Legislature     cannot     revoke     mono])olistic     clause     of     c.)mpany's 

charter   495 

4-18.     Municipality  agreeing  not  to  compete  witli  gas  company 497 

449.     Legislature  may  not  authorize  monopolistic  grants 498b 

4.'»0.  Estoppel  to  cont<>st  validity  of  monopolistic  grant  ratification.  .498b 
451.     A   federal   question 499 


CONTENTS.  XXI 

SEC.  PAGE. 

4.')2.     ^lonopolistic  clause  does  not  avoiil  whole  contract ')f>0 

453.     Enjoining  passajje  of  onlinaiuc o()() 

4t>4.     Forfeiture  of  exclusive  franchise .KU) 

455.     Exclusive    franchise    for    artificial    gas    does    not    exclude    natural 

gas    oOl 

45G.     Extension   of   time   for    completion    of    work — Additional    require- 
ments      501 

457.  Gas  works  built  under  void  grant  or  franchise 502 

458.  Municipality's  right  to  purchase  existing  works  is  optional fjOi 

459.  Unlawful  combinations  betwe<^n  gas  companies 505 

4G0.     Granting  privilege  to  use  streets  does  not  re(juire  a  general  ordi- 
nance— General  ordinance  regulating  streets 5()<5 

4fil.     Contracts  for  light,  length  of  term 507 

462.     Dating  contract  ahead 509 


CHAPTER    XXIII. 
STREETS  AND  HIGHWAYS. 

463.  Definitions— Street  a  highway 512 

464.  Oontrol  of  streets  or  highways 512 

465.  Use  for  private  purposes 513 

466.  Consent  of  municipality  to  occupy  streets  necessary 514 

467.  Right  to  a  franchise  not  property  of  miinicipality 517 

468.  When  consent  of  municipality  not  necessary 517 

469.  Nature  of  a  grant  to  occupy  streets  or  highways — A  mere  priv- 

ilege      5 1  Sa 

470.  Nature  of  grant  to  occupy  streets  or  highways — A  franchise 520 

471.  Acceptance  of  grant 522 

472.  Gas  company  must  comply  with  conditions  of  grant 523 

473.  Grant  to  occupy  streets  construed  strictly 52 1 

474.  What   streets  company   may  occupy — Sidewalk 525 

475.  Territory  annexed  to  another  municipality  after  grant  made.... 525 

476.  New  streets,   right  to  occupy — No   streets  sjiecified 526 

477.  Sale  or  assignment  of  right  in   streets 527 

478.  Change  of  use  of  franchise — Natural  gas 528 

479.  Ordinance    void — Estoppel 530 

480.  Gas  company  occupying   streets   is   subject  to   municipal   regula- 

tions     531 

481.  Injunction  to  protest  company's  rights   in   streets 534- 

482.  Grant  before  company  is   organized 53  + 

483.  Length  of  grant  of  franchise 53  t 

484.  Termination  of  life  of  corporation  before  expiration  of  franchise.  .535 

485.  Con.solidation  of  gas  companies r)35 

4S6.  Town   becoming  a  city 536 

487.  .Injunction  to  restrain  laying  of  pipes  in  streets 537 

488.  Pipe  laid  in  street  unlawfully  laid  out 537 


Xxil  CONTENTS. 

SEC.  PAGE. 

4t'9.  Revocation  of  grant ."jSS 

490.  Forfeiture  of  riglit  to  occu])y  .strc<'ts  for  failure  to  jx-rform  duty.  .o.'JO 

491.  Action   to   declare   forfeiture — Quo   warrants    5.'}9 

4!)2.  Waiver  of  riglit  to  declare  forfeiture 541 

493.  Changiufj  grade  of  street 541 

494.  Tearing  up   streets — Obstruction — Indictment 542 

495.  Cutting   into  modern  pavements — ^Repairs — Permission 543' 

496.  Injury  to  pipes  in  repairing  streets 545 

497.  Support  of  gas  mains 546 

498.  Gas  boxes  in  street 547 

499.  Leaving  gasposts   in   street 547 

500.  Pip<?s  in  streets  not  an  additional  burden 548 

501.  Pipes  laid   in  navigable  river 548 

502.  Grant  right  to  use  suburban  highway — Compensation  to  abutting 

landowner    549 

503.  Condemnation  of  landowner's  interest  in  highway 550 

504.  Landowner   acquiescing  in   occupation   of   rural  highway — Injunc- 

tion— Estoppel 550 

505.  Pipe-lines  in  country  highway  an  additional  burden  on  easement.  .552 

506.  Consent  of  county — public  highways,  crossing 553 

507.  Revocation  of  license  to  use  highway 554 

508.  Abutting  landowner  removing  pipe-lines 554 

509.  Company  may   not   remove   pipes  unlawfully  laid    in   rural   high- 

way     554 

510.  Pipes  on  surface  of  highway  or  street 555 


CHAPTER    XXIV. 

MUNICIPALITY  SUPPLYING  GAS. 

511.  Municipality  may  be   aiithorized  to  own  gas  plant 557 

512.  Sufficiency  of  statute  to  authorize  municipality  to  furnish  gas  for 

commercial    purposes 559 

513.  Insufficiency    of   statute    to    authorize    a    municipality   to    furnish 

commercial   gas 502 

514.  Construction   of  municipal    charters 563 

515.  Municipality's  protit 504 

516.  Competition  with  private   plant 565 

617.     Election   to  authorize  purchase  or  erection  of   plant 505 

518.  Municipality  must  be  sole  proprietor  of  plant — Taking  stock.... 567 

519.  Right  to  purchase  plant  of  gas  company 568 

520.  Trustees   for  gas  works 569 

521.  Sale   of   municipal    plant 57  1 

522.  Mimicipality  may  lease   its  own  gas  works 572 

523.  Rules  and  regulations 573 


CONTENTS.  Xxiii 

CHAPTER    XXV. 
THE  GAS  COMPANY  AND  CONSUMER. 

SEC.  PAOK. 

524.  No  requirement  at  common  law 574 

525.  Company  must   supply  gas 570 

526.  No    discriminations 580 

527.  Failure  of  supply  of  natural  gas — Discrimination 58()b 

528.  Supply  only  to  abutting  property  owners 582 

5C9.     Extension   of  mains   or   pipes 58;{ 

530.  Inspection  of  premises 584 

531.  Mandamus  to  compel   supply 5HG 

532.  Mandamus  to  compel  furnishing  of  gas 582 

533.  Penalties  for  failure  to  supply   gas — Damages 582 

534.  Damages  for  failure  to  supply  gas — Sickness 58!) 

535.  Limiting  liability  for  failure  to  supply  gas 592 

636.     Application   for    gas 593 

537.  Rules  and  regulations 595 

538.  Subscribing  to  rules  and   regulations 597 

539.  Price   to  be  charged 598 

640.     Payment  in   advance (i02 

54 1.     Deposits    602 

642.     Discrimination    in    use — Rates G02b 

543.     Classification   of    customers — Rates 603 

644.     Recovering  back  overcharges 604 

545.  Collection  of  rents — Action 605 

546.  Collection  of  rents  by  distress 606 

547.  Shutting  off  gas  for  failure  to  pay 607 

548.  Injunction  to  prevent  cutting  off  gas  supply — Rates 612 

549.  Consumer's  riglit  to  discontinue  vise  of  gas 613 

550.  Ownership  of  supply  pipe 616 


CHAPTER    XXVI. 

METERS  AND  MIXERS. 

651.  Definitions    617 

652.  Who  must  furnish (117 

653.  Control   of  meter ti  1  <) 

654.  Unreasonable    requirements (121 

555.  Inspection  of  meters  by  company (521 

656.  Official  inspection  and  tests 022 

557.  Officially  tested  meters  conclusive 622 

558.  Measurements  of  quantity  of  gas  used 623 

659.  Delivery  of  gas 024 

500.  Rules  and  regulations  concerning 024 


Xxiv  CONTENTS. 

SEC.  PAGE. 

fjin.     Extra  eliargos  for  meters  and  mixers — Oovernment  tax 62.5 

5i;2.     Kotiuiriiifj  use  of  a  certain  quantity  of  gas   per  month  or  pay  a 

meter    rent 626 

.'")(>:5.     Discrimination   in   use  of  meter 626 

504.      lieniovai    of    meters ti27 


CHAPTER    XXVII. 

FIXTURES. 

ART. 

1.  Domestic  fixtures. 

2.  'i'rade  fixtures. 

.3.     Oil  and  gas  lease  fixtures. 

SEC.                                                                                                                                                                      PAGE. 
505.     Division   of   subject 62S 

ARTICLE   1. 
DOMESTIC  FIXTURES. 

500.  Intent — 'Common  law — Public  policy 628 

507.  Agreement — Innocent  purchaser — Injury  to  freehold 630 

508.  Cias    chandeliers — Stoves — Meters,    etc 631 

509.  .Judicial  sale  of  premises 633 

570.  Gas  fixtures  may  pass  to  vendee 633 

ARTICLE  2. 
TRADE  FIXTURES. 

STL     Between  mortgagor  and  mortgagee 036 

572.  Gas  pipes  in   houses 636 

573.  Landlord  and  tenant 637 

574.  When  tenant  must  remove 638 

ARTICLE  3. 
OIL  AND  GAS  LEASE  FIXTURES. 

575.  Coal  and  mineral  leases 040 

576.  Oil  and  gas  lease  fixtures 642 

577.  Conveyance  or  mortgage  of  fixtures 644 

578.  Special  contract  controls 647 

57'.).  Gas  and  oil  pipe-lines 048 


CONTENTS.  XXV 


CHAPTER    XXVIII. 

NUISANCES, 

SEC.  PAGE. 

580.  Scope   of   chapter 050 

581.  Pollution  of  well  or  spring  by  artificial  gas ()50 

5S2.     Pollution  of  running  streams tw3 

583.  Pollution   of   subterranean   waters (559 

584.  Damages  occasioned  by  storing  or  bringing  oil  on  land Otil 

585.  GJases   destroying   trees   and   vegetation 662 

586.  Noisome  smells (i()3 

587.  Odors  from  operation  of  oil  wells  and  works 665 

588.  Other  disagreeable  odors  in  neighborhood 666 

589.  Degree   of   annoyance — Question   for   jury 667 

6!'0.     Gas  or  oil  well  near  hovise  or  building 66S 

591.  Business  authorized  by  government  no  defense 671 

592.  Duty  of  owner  to  prevent  continuance  of  damages 672 

593.  Evidence     673 

594.  Injunction     674 

595.  Enjoining  erection  of  gas  plant 675 

596.  Former    recovery   a   bar 676a 

5C'7.     Indictment  for   nuisance 676b 

598.  Waste  of  natural  gas  or  oil 676b 

CHAPTER    XXIX. 

LEAKS  AND  EXPLOSIONS. 

599.  Duty  of  gas  companies  in  general 680 

600.  Care   required   of   gas  companies 681 

601.  Gas  company  must  keep  its  gas  constantly  under  control 682 

602.  Degree  of  care  required  of  gas  company 686 

603.  Night    watchman 689 

604.  Gas  company's  act  or  neglect  must  have  caused  the  damage.  ..  .690 

605.  Two  or   more   defendants   liable (i92 

606.  Statute  permitting  recovery  although   there   is  no   negligence.  ..  .69.1 

607.  Explosion  occasioned  by  a  violation  of  a  statute (196 

608.  Laying  gas  main  in   navigable   river 696 

609.  Overwhelming    disaster 6!>7 

610.  Burden    of    proof 698 

611.  Presumption   of   negligence   docs   not    arise    from    proof   of   explo- 

sion     699 

612.  Presunii)tion  of  negligence  arising  from  proof  of  ex])losion 703 

613.  Stoj)-cock  on   street   line 704 

614.  Intervening    agency 705 

615.  Inspection  of  pipes  or  mains 706 


XX\T  CONTENTS. 

SEC.  PAGE. 

616.     Duty  to  make  repairs  immediately — Available  force 710 

G17.     Notice  of  leaks 712 

618.     Notice — Failure   to   discover   place   of   leak 714 

6!9.     Notice  of  leak,  when  not  necessary  to  fix  liability 714a 

620.  Evidence  of  notice  to  gas  company  of  danger  to  mains 714a 

621.  Evidence    of    other    leaks 7  14b 

622.  Evidence   of    leaks 715 

623.  Breaks  occasioned   by  ordinary  use   of  streets 71<) 

624.  Action    of    frost 717 

625.  Pipes  breaking  from  lack  of  support — Excavations  near  pipe-line.  .717 

626.  Property  owner's  duty  to  notify  gas  company  of  leaks 719 

627.  Company  misleading  plaintiff  as  to  extent  of  danger 721 

628.  Municipality  operating  plant 721 

629.  Gas  following  supply  pipe  from  main — Percolating  through  soil — 

Sewer     722 

6"0.     Withdrawing  gas  from  mains  without   notice 723 

60 1.     Undue  pressure  in  mains 725 

632.  Evidence  of  undue  pressure  at  other  places 726 

633.  Explosion  caused  by  act  of  servant  of  gas  company 72S 

634.  Company  undertaking  to  repair  consumer's  pipes  or  fixtures 729 

635.  Injury  to  shade  trees — Shrubbery 730 

636.  Illuminating  gas  driving  sewer  gas  into  house 730b 

6;i7.     Explosion  caused  by  act  of  third  person 730b 

638.  Gas  fitter  igniting  escaping  gas 733 

639.  Negligence   of   fellow   servant 735 

640.  Person  on  premises  by  license 737 

641.  Guest  or  inmate  of  family  may  recover  from  gas  company  where 

owner    is    negligent 737 

642.  Lessee's  right  of  action  against  the  gas  company 737 

643.  Third  person  causing  gas  to  escape,  liability 737 

644.  Gas  turned  on  by  owner  or  stranger 738 

645.  Landlord's  right  of  action  against  tenant 740 

646.  Tenant's  right  of  action  against  landlord 740 

647.  Owner  of  premises  liable  to  injured  person 741 

648.  Plaintiff  must   show   due   care   on   his   part — ^Contributory   negli- 

gence     743 

649.  Owner   removing  from   his   premises 743 

650.  Duty  of  property  owner  to  cut  off  supply  of  gas 744 

651.  Searching  for   leaks   with  a  light 745 

652.  Contributory  negligence  a  question  for  tlic  jury 750 

653.  Negligence  of  parent,  wife  or  servant 751 

654.  Contributory  negligence  of  tenant  may  bar  landlord — Reversionary 

interest     753 

655.  Negligence    of    contractors — Lessee 754 

656.  Right  of  action  over 756 

657.  Liability    of    gasfitter 756 

658.  Evidence  to   show  due  care  on  gas  company's  part 756 


CONTENTS.  XXVll 

SEC.  ••^^'■R- 

659.  Expert  evidence  to  show  effoct  on  electrolysis 7.'>H 

660.  Evidence  in  cases  of  inhalation  of  gas 75S 

661.  Expert  evidence  on  inhahition  of  <;as 760 

062.     Proof  of  efl'ect  upon  growinii  vejjetation  or  prass 761 

663.     Wliat  acts  of  neglifxence  a  question  for  the  jury 762 

663a.  Sliipping    explosives 768 

663b.  Stove  polish  explodinj,' 769 

663c.  Pleading  charge  of  explosion  caused  hv  negligence 769 

CHAPTER    XXX. 

INJURIES  NEGLIGENTLY  CAUSED  BY  OIL  AND  GAS. 

604.  Scope   of   chapter "70 

665.  Fire  on  railroad  communicating  to   I'efinery 77  1 

666.  Neglect  in  not  providing  stop-cock — Injury  to  servant 771 

667.  Injuries  from   shooting  wells 776 

G68.  Oil  escaping  into  sewers 777 

669.  Injury  occasioned  by  exploding  gasoline  firepot 778 

670.  Use   of   false   brands — Explosion 779 

671.  Negligent    care    of    grounds — Fire    communicating    to    adjoining 

liouses     780 

672.  Oil  escaping  from  and  exploding  refinery 781 

673.  Rescuer  injured  by  negligence  of  an  oil  or  gas  company 782 

674.  Minor  employee's  oil-soaked   clothes  catching  fire 782a 

€75.     Explosion  of  benzine  used   in  paint 782a 

676.  Servant  of  oil  company  injured  by  defective  appliances 782b 

677.  Injuries  to  servant  of  purchaser — Sale  in  violation  of  statute.  .  .  .783 

678.  Sale  of  oil  of  low  fire  test,  explosion — Deception 785 

679.  Implied  warranty  in  sale  of  illuminating  oil 786 

680.  Gas  box   in   sidewalk 787 

681.  Negligence   of   contractor 7?7 

682.  Streets  rendered  dangerous  by  laying  gas  mains 788 

683.  Imperfectly  constructed  gas  building 790 

684.  Exploding   tank   injuring   servant 790 

685.  Servant  entitled  to  safe  place  in  which  to  work 791 

686.  Servant  injured  by   use  of  defective  ladder 792 

CHAPTER    XXXI. 

INSURANCE. 

687.  Extent  of  discussion 795 

688.  Conflict  between  rider  or  written  part  and  printed  part  of  policy.  .795 

689.  "On    the    premises" 795 

690.  "Contiguous"  to  insured  building 797 

691.  Oil    for    illumination 799 


XXVm  CONTENTS. 

SEC.  PAGE. 

602.     Time  of  filling  lamps 799 

693.     Failure  to  extinguish  lamps 800 

6r4.     The  oil  prohibited 800 

695.  Prohibited  user  not  occasioning  loss SOI 

696.  Owner  himself  must  violate  terms  of  policy — Tenant 802 

697.  Explosions — Xo  cause  of  exemption 802 

698.  Explosions  of  oil   or  gas 804 

699.  Failure  to  disclose  use  of  oil 807 

700.  Warranty — Hazard   not   increased 807 

701.  Particular   use    allowed 807 

702.  Extent    of    proliibited    usage 807 

703.  Occasional  use  of   hazardous  articles 808 

704.  Increase  of  risk 808 

705.  Proof  of  custom  or  the  usual  practice 810 

706.  Implied  consent  to  prohibited  use — 'Custom 810 

707.  "Storing" — "Keeping"     812 

708.  Store    815 

709.  Grocery  816 

710.  Watchmaker     817 

711.  Furniture    store — Wagonshop 817 

712.  Factory    818 

713.  Drug    store 818 

714.  Laundry    819 

715.  Patent   leather   factory 819 

716.  Painter — Paintshop    or    factory 820 

717.  Torch  to  remove  paint  from  house 820 

718.  Cleaning    clothes — Destroying    vermin 822 

719.  Cleaning  or  lubricating  machinerj-^ 822 

'720.     Waiver  by  knowledge  of  acquiescence  in  use  of  building 822 

721.  Waiver  by  knowledge   of   acquiescence    in   use   of   building — 'Con- 

tinued      824 

722.  Waiver  by  receiving  premium  with  knowledge  of  proliibited  user. .826 

723.  Waiver  by  adjusting  loss  or  accepting  proof  without  objection.  .  .826 

724.  Insurance  company's  right  of  action   to   recover   damages — Eflfect 

of  insurance  on  right  of  action 827 

725.  Gas  company  causing  fire  liable  to  insurance  company 828 

720.  Inhaling  gas,  accident  or  life  insurance  policy 829 

CHAPTER    XXXII. 

TAXATTOX. 

727.     Scope  of   chapter 832 

12S.     When  corporate  stock  taxed  property  of  company  exempt 832 

729.  Exempt  as  a  manufacturing  company 833 

730.  Gas  mains  of  city  plant  taxed  as  personal  property 833 

7C1.     Assessing   franchise 834a 


CONTENTS.  Xxix 

SEO.  rA(;E. 

732.  Valuation  of  stock — Certificates  ns  to  surplus 8:}41> 

733.  P^Xfinptioji  of   municipalities   from   taxation H.*}') 

734.  Rates  ciiargod   consumers  not   taxes 835 

735.  Cost  of  inspection  of  meters 835 

736.  Object  of   tax — Ohio  statute  unconstitutional 83U 

737.  United  States   revenue 830 

738.  Set    off 837 

739.  Product    in   pipe-line — Interstate   commerce 837 

740.  Exemption    from    taxation 838 

741.  Taxes  on   leases   and   minerals 839 

CHAPTER    XXXIII. 
MISCELLANEOUS. 

742.  Artificial  gas  statutes  do  not  relate  to  natural  gas 842 

743.  Larceny  of  gas S43 

744.  "Shut  off  gas,"  meaning 844 

745.  Contract  for  purchase  of  oil 845 

74(5.  Term  "fireproof  oil"   as   a  trade-mark 84G 

747.  Gas  company's   liability   for   supplies 840 

748.  Gas  not  a  necessary  of  life 846 

CHAPTER    XXXIV. 
LESSOR^S  REIVfEDY. 

756.  Want  of  consideration 852 

757.  Failure  to   explore   premises 852 

758.  Failure  of  lessee  to  begin  operations 853 

759.  Reservation  for  farming  purposes S54 

7C0.     Removal    of    fixtures 855 

7(>1.     Cutting  off  supply  of  gas 855 

702.  Reservation    around    buildings 855 

703.  Rental   for   gas   developed 850 

704.  Lessor's   option    where    there    be   forfeiture    and    rental    clause    in 

lease     858 

705.  Lessee's  option   to   prevent   a   forfeiture   or  pay  rent 801 

7C0.     Surrender  clause  in   lease 8()1 

707.  Liability    of    assignee 802 

708.  Breach   of   implied   covenants 803 

709.  Ten  acres   for   each   well — Failure   to   develop    after   drilling   first 

paying    well SCO 

770.  Measure  of   damages   for   breach  of    implied    covenant    to   develop 

or    operate 871 

771.  Declaration  of  forfeiture  after  waiver  has  been  made 871 

772.  Paying  gratuities 872 

773.  Forfeiture   by   abandonment 873 

774.  Landowner's  remedy  for  unlawful  extraction  of  oil  and  gas 870 


XXX  CONTENTS. 

SEC.  PAGE. 

775.     Trespass — Void    loase — Remedy 878 

770.     Want   of   mutuality 879 

777.     Tenant  in  common  or  joint  tenant 880 

77S.     When  dry  liole  is  developed 880 

779.  Payment  of  rental   in  bank 881 

780.  Life    tenant's    remedy 881 

7S1.     Remaindermen's    remedy 882 

782.  Failure  of  lessee  to  begin  operations 882 

783.  Drainage  of   premises 883 

7S4.  Landowner's  liability  for   injuries  caused  by  drilling  well  on  his 

land 883 

785.  Enjoining  well  as  a  nuisance 884 

786.  Malicious  or  negligent  waste  of  gas 885 

787 .  Reservation  of  oil  or  gas 885 

788.  Several  tracts  under  one  lease 886 

789.  Enforcing  forfeiture — Court  of   equity  powerless 887 

CHAPTER    XXXV. 

LESSEE'S  REMEDY. 

790.  No  consideration   for   lease 889 

79L     Exploration   of  premises 889 

792.  Right  to  continue  operations  after  expiration  of  terms  of  lease.. 891 

'793.     Reservations  for  farm  purposes 801 

794.  Removal    of    fixtures 892 

795.  Reservation    around    buildings 892 

796.  Discovery  of  gas  and  oil  in  paying  quantities 893 

797.  Forfeiture  or  payment  of  rent — ^Lessor's  option 894 

798.  Forfeiture  or  payment  of  rent — Lessee's  option 896 

799.  Surrender  of  lease — Lessee  purchasing  prcmisos 896 

600.     Assignee,  when  not  liable 898 

801.  Remedy  of  second  lessee  or  the  assignee 8'98 

802.  Lessee's  defense  in  equity  for  breach  of  implied  covenants 899 

803.  Waiver  of  forfeiture 899 

804.  Discovery  of  oil  and  gas  in  paying  quantities 900 

805.  Forfeiture  by  abandonment 900 

800.  Relief    from    forfeiture 901 

807.  Unlawful  extraction  of  gas  and  oil  in  place 902 

808.  Want  of  mutuality 902 

609.     Mining    partnership 903 

810.  Joint  owners  of  leasehold  mining  property  in  Pennsylvania 90o 

811.  Partition  of  oil  and  gas  rights 906 

812.  Tenants  in  common  or  joint  tenants 907 

813.  Dry   hole fl08 

814.  Payment  of  rental  in  bank 909 

815.  Life    tenant 910 


CONTENTS.  XXXI 

SEC.  PAGE. 

816.  Beginning    operations 010 

817.  Failure  to  plug  well '.UO 

818.  Exclusive  grant  to  construct  and  operate   pipe-line All 

819.  Reservation  of  oil  and  gas 911 

820.  Several  tracts  under  one  lease 912 

821.  Eival   lessee   claimants 912 

822.  Specific    performance 914 

S23.  Necessary  parties  to  settle  controversy  between  rival  claimants.  .91.5 

824.     Ejectment    915 

APPENDIX    A. 

Forms  of  oil  and  gas  leases  and  agreements 916  to  943 

APPENDIX    B. 

STATUTES  COXCERXIXG  PETROLEU:\I  AND  NATURAL  GAS. 

California    944  to     947 

Colorado     948 

Illinois     949  to     952 

Indiana    952  to     975 

Kansas    975  to     990 

Kentucky     990  to     994 

Louisiana    995  to   1001 

Nebraska    1001  to   1002 

New    York 1003  to  10;)4 

Ohio     1004-  to  1010 

Oklahoma    1010  to   1030 

Ontario    1030  to  1035 

Pennsylvania    1035  to  1061 

Tennessee    1061  to  1065 

Texas     1065  to  1070 

United    States 1071  to  1081 

West    Virginia 1081   to   1097 

Wyoming    1097  to  1 101 

ADDENDUM. 

SEC.  PAGEX 

18.  Oil    and    gas    a    mineral 1 102 

20.  Ownership    in    earth 1 102 

57.  Legal  interest  of  lessee  in  various  leases — Digest 1102 

76.  Description   of   lea.sed   premises    1 102 

78.  Construction  of  lease 1 103 

85.  Lease  need  not  be  signed — Deed 1 103 

96.  When  work  must  begin — Title  defective 1 103 

103.  Injunction — Quieting   title     1103 

109.  Boundaries — Tjocation   of   well — Reservation   of   space 1104 

110.  Selection  of  site  of  wells 1104 


XXXIl  CONTENTS. 

SEC.  PAGE 

120.     Eviction — Ejectment      1104 

137.     Abandonment     1 104 

145.     Payment  of  rental  instead  of  developing  premises 1105 

ISS.     Notice  of  election  to  declare  a  forfeiture 1105 

150.     Waiver  of  forfeiture — Title  defective 1105 

178.  Payment    of    rent    will    not    prevent    forfeiture    for    neglect    to 

develop       1106 

186.     Suit  to  cancel  lease  for  non-development  of  territory 1106 

103.     lessor — Lessee — ^Subletting    1 10'6 

194.     Interest  assignee  secures    1 106 

268.     Life  tenant  must  account  for  waste 1106 

270.     To  wliom  rent  payable   1 107 

377.     Allowing  oil  to  escaj)e  from  pipe-line 1107 

388.     Inspection— 'I'ests   1 107 

407.     Power    to    make    contract    1 107 

411.     Bids  for  lighting — Damages 1107 

434.     Lamps — Posts   1 108 

441.     Legislature    may    autliorize    monopolistic    grants    1108 

455.  E.xclusive   franchise   for  artificial   gas   does   not  exclude   natural 

gas    1 108 

457.     Gas  works  built  under  void  grant  or  franchise 1109 

493a.  Tunnel    under    street     1109 

519.     Right  to   purciiase   plant  of   gas   company 1109 

529.     Extension  of  mains  or  pipes 1110 

534.     Damages  for  failure  to  supply  gas 1110 

5L9.     Prices   to   be   charged 1110 

544.     Recovering  back  overcharges   1110 

648.     Injunction  to  prevent  cutting  off  of  gas  supply — Rates 1111 

561.     Extra   charge   for   meters   and  mixers 1111 

564.     Removal  of  meters   1111 

568.     Gas  chandeliers — ^Stoves — Meters,  etc 1112 

576.     Oil  and  gas  lease  fixtures   1112 

602.     Degree  of  care  required  of  a  gas  company 1113 

617.     Notice  of  leaks   1113 

635.     Injury   to    shade    trees — Shrubbery 1114 

637.     Explosion  caused  by  act  of  third  person 1114 

648.  Plaintiff  must  sliow  due   care   on   liis  part — ^Contributory  negli- 
gence     1114 

676.     Servant  of  city  injured  by  defective  gas  appliance 1114 

678.     Sale  of  oil  below  fire  test,  explosion — Deception 1114 

682.     Streets   rendered  dangerous  by   laying  gas  mains 1115 

707.     "Storing" — "Keeping"     1115 

720.     Waiver  by  knowledge   or  acquiescence   in  use  of  building 1115 

732.     Fixing    gross    earnings     1116 

739.     Product    in    pipe   line — Interstate    commerce 1116 

Index   1117 


TABLE  OF  CASES. 


(References  are  to  pages.) 


A 

Abendroth   v.   Greenwich    (29   Conn. 

35G),   564. 
Acme  Coal   Co.   v.   Stroud    (5  Lack. 

Leg.  News    (Pa.),   169),  262. 
Acme    Oil    &    M.    Co.    v.    Williams 

(140  Cal.  681;   74  Pac.  29G),  130, 

138,  240,  242,  244,  245,   864. 
Acheson  v.   Stevenson    ( 146   Pa.   St. 

299;   23  Atl.  331,  396),  32,  33. 


Aetna   Ins.    Co.   v.   Boon    (95   U.    S. 

117),    803. 
Aetna    Ins.    Co.    v.    Humboldt,    etc., 

Ry.   Co.    (3   Dill.   2),   828. 
Agerter    v.    Vandergrift     (138    Pa. 

St.    576;    27    W.    N.    C.    230;    21 

Atl.  202),  228a,  238. 
Agua  Pura  Co.   v.  Las  Vegas    (10 

N.  M.  6 ;  60  Pac.  208 ;  50  L.  R.  A. 

224),   430,   452. 


AcUlin     V.     Waltermier      (10     Ohio      Ahrns  v.  Chartiers  Valley  Gas   Co. 

C.    C.    Dec.    629;     19    Ohio    C.   €. 

372),   269,   377,   379. 
Ackley  v.  Phenix  Ins.  Co.   (25  Mont. 

272;   64  Pac.  665),  811,  812,  819. 
Acton,   Ex  parte    (4  L.   T.    (N.   S.) 

261),  633. 
A.     A.     Dewey      (9     Copp's     L.     0. 

51),  58. 
Adair    v.    Southern,    etc.,    Ins.    Co. 

(107  Ga.  297;  33  S.  E.  78),  802. 
Adams  v.  Briggs  Iron  Co.    (7  Cush. 

361),   88,  334a. 


(188    Pa.    St.    249;    41    Atl.   739), 

122,   156,  163,  232,  251,  316,  352, 

896. 
Akin  V.  Marshall  Oil   Co.    (188   Pa. 

St.    602;    41    Atl.   748),    132,   247, 

268,    274c,    284c,    293,    294a,    296, 

340,  352. 
Akron  Water  Works  Co.  v.  Brnwn- 

Icss     (1     Ohio    Dec.     1;     10    Oliio 

C.   C.   620),  468c. 
Albert   v.   Davis    (49   Neb.   579;    68 

N.   W.    945),    618. 


Adams  V.  Harrington   (lUInd.  66;       Alden's    Appeal    (93    Pa.    St.    182), 


14   N.   E.    603),   512 
Adams   v.    Ore    Knob,    etc.,    Co.     (7 

Fed.   634),   87,  237,  244. 
Adams    Express    Co.    v.    Cincinnati 

Gaslight    &    Coke    Co.     (10    Ohio 

Dec.   389;    21    Weekly   Law   Bull. 

18),  587,  607,  627. 
Adams  v.  Stage   (18  Pa.  Super.  Ct. 

308),  130,   139,   140.  313. 
Aderhold    v.    Oil    Well    Supply   Co. 

(158    Pa.    St.    401;    28    Atl.    22), 

67,   135,  266,  269,  274c,  275,  307, 

309,  461. 

XXX  Hi 


354. 
Aldorson    v.    Aldorson    (46   W.   Va. 

242;    33   S.   E.  228),   326b. 
Alexander   v.  Ellison    (79   Ky.   148), 

340a. 
Alexandria,    etc.,    Co.    v.    Irish     (16 

Ind.    App.    534;    44    N.    E.    Rep. 

680),    55,    696,   '699,    706,     714a, 

714b,  723,  725. 
Alexandria,  etc.,   Co.  v.  Painter    (1 

Ind.    App.    587;    28    N.    E.    113), 

725. 


XXXIV 


TARLE   OP    CASES. 


(Rercii'iiccs  lire  to  pages.) 


Algonquin    Coal    -Co.    v.    Northern, 

etc.,    Co.     (1G2    Pa.    St.    114;    28 

Atl.  402),  GC. 
Allegheny,  Appeal  of   (11  Atl.  (Pa.) 

658),   518b. 
Allegheny  v.  Peoples,  etc.,  Co.    ( 172 

Pa.    St.    632;    37    W.    K    C.    442; 

33    Atl.    704;     26    Pittsb.    L.    J. 

(N.   S.)    410),    523. 
Allegheny     County     Light     Co.     v. 

Shadyside    El.     L.    Co.     (37    Pa. 

Sup.  Ct.   79),   580b. 
Allegheny    Heating    Co.    v.    Rohan 

(118   Pa.   St.   223;    11   Atl.   789), 

735,    767. 
Allegheny   Imp.    Co.    v.    Weir     ( 132 

S.   W.    (Ark.)    462),  — . 
Allegheny   Oil    Co.   v.    Bradford   Oil 

Co.    (86  N.   Y.  638;   affirming  21 

Hun,   26),   244,   245. 
Allegheny   Oil   Co.   v.    Bradford   Oil 

Co.     (21    Hun,    26;    affirmed,    86 

N.   Y.   638),   234. 
Allegheny   Oil    Co.   v.    Snyder    (106 

Fed.   764;    45  C.  C.   A.   604),   96, 

97,   125,    130,    138,    145,   181,   863, 

865,   889. 
Allen   V.   Augusta  Factory    (82   Ga. 

76;    8  S.  E.  68),  790. 
Allen    V.    New    Gas    Co.    (L.    R.    1, 

Exch.    Div.    251;    45    L.    J.    Exch. 

668),   790. 
Allen  V.  Palmer    (136  Pa.   St.  556; 

26   W.    N.    C.   514;    20   Atl.    516), 

262c. 
Alliance,    etc..    Gas    Co.    v.    Dublin 
(Gas  J.,  June  26,  1900,  p    1733), 

546. 
Alliance,    etc.,    Co.    v.    TaaflFe     (27 

Gas.  J.   206),   624. 
Allison's  Appeal   (77  Pa.  221),  142, 

145,  855,  893. 
Allison    V.     Coal     Creek,     etc.,    Co. 
(    3   Pick.    (Tenn.)    60;    9   S.   W. 

226),  317. 


Allison     Mfg.     Co.     v.     MeCoruiick 

(118    Pa.   St.   519;    12   Atl.    273), 

782a. 
Aloway   v.    Braine    (26    Beav.    575; 

33    L.   T.    109),   343. 
Alton  Ry.,   etc.,   Co.   v.   Foulds    (81 

111.    App.    322;    affirmed,    190    111. 

367;    60  X.   E.  537),  687. 
Altoona    v.     Shellenberger     (6     Pa. 

Dist.  Rep.  544),  574,  610, 
Altoona    Gas     Co.    v.    Gas    Co.     of 

Altoona     (17    Pa.    Co.    Ct.    Rep. 

•662),  530. 
Alverdes   v.    St.    Paul    Gaslight    Co. 

(132  X.  W.    (Minn.)   275),  730. 
A.  ]\Iartcl   V.  Jennings-Heywood  Oil 

Syndicate    (38   So.    253;    114   La. 

351),  217. 
Ames    V.    Ames     (160    111.    599;     43 

N.  E.  592),  334. 
American  Central  Ins.  Co.  v.  Chan- 

cey   (127  S.  W.    (Tex.  Civ.  App.) 

577),  815. 
American   Fire   Ins.    Co.   v.   Xugent 

(7  Ky.  Law  Rep.  597),  815,  823. 
American,    etc.,    Ins.    Co.    v.    Green 

(16  Tex.  Civ.  App.  531;  41  S.  W. 

74),   810,    811. 
American    Lighting    Co.    v.    Public 

Service  Co.    (132  Fed.  794),  580b, 

583. 
American    Steam,   etc.,   Ins.    Co.   v. 

Chicago,   etc.,    Co.    (57    Fed.   294; 

21  L.  R.  A.  572),  803. 
American      Trust      Co.      v.      North 

Quarry  Co.  v.  Older   (31  X.  J.  Eq. 

89),   385,    386. 
American     Water     Works     Co.     v. 

Farmers     Loan     and     Trust     Co. 

(73   Fed.   956;    20  C.    C.  A.    133; 

36   W.   S.   App.   563),   392d,   468a, 

527. 
American   W.   W.   Co.  v.   State    (46 

Neb.    194;    64    N.    W.    711),    578, 

601,  610. 


tabijE  op  cases. 


XXXV 


(References  are  to  pnsjes. ) 


American  Window  Glass  Co.  v. 
Williams  (30  Ind.  App.  G85 ;  GG 
X.  E.  912).  33,  182,  185,  lf)2a, 
194,  200,  219,  220a,  222,  240c, 
241,   260,    294d,   853. 

American  Window  Glass  Co.  v. 
Indiana  Natural  Gas  &  Oil  Co. 
(37  Ind.  App.  439;  76  X.  E. 
1006),  187,  190,  192b,  211,  240, 
909. 

American,  etc..  Union  v.  Yoiint 
(101  U.   S.  352),  400b. 

American  Oil,  etc.,  Co.  v.  Trager 
( ),    13G. 

Ammons  v.  Soutli  Ponn.  Oil  Co. 
(47  W.  Va.  GIO;  35  S.  E.  1004), 
150,  254b,  854,   864,  865,   899. 

Ammons  v.  Ammons  (50  W'.  Va. 
390;  40  S.  E.  490),  326,  330,  881. 

Ammons  v.  Toothman  (59  W.  Va. 
165;    53   S.   E.    13),   356b. 

Ampt  V.  Cincinnati  (56  Ohio  St. 
47;  37  Weekly  L.  Bull.  161;  46 
X.  E.  69;  35  L.  R.  A.  737;  modi- 
fying 12  Ohio  C.  C.  119;  1  Ohio 
C.  D.  356),  568a. 

Ampt  V.  Cincinnati  (6  Ohio  (X.  P.) 
401),    515,    549. 

Anaconda,  etc.,  Co.  v.  Butte,  etc., 
Co.  (17  Mont.  519;  43  Pac.  924), 
364a,  366. 

Anderson  v.  Kapler  (34  Til.  436), 
45. 

Anderson  v.  Savannah  (G9  Ga. 
472),  786. 

Anderson  v.   Standard   Gaslight  Co. 

(40   X.    Y.    Supp.   671;    17    X.    Y. 

Misc.   625),    688,    730. 
Andrew    v.    Xational    Foundry    Co. 

(76   Fed.    166;    22   C.   C.    A.    110; 

36  L.    R.  A.    139;    4G   U.    S.   App. 

281;     rehearing    denied,    77     Fed. 

774;    23   C.    C.   A.    454;    46    U.    S. 

App.   619),  392c,  392d. 


Andrews  v.  Andrews    (31   Ind.  App. 

189;    G7   X.  E.  461),   32Ga. 
Andrews    v.    Nortli    River,    etc.,    Co. 

(23    X.    Y.    Misc.    Rep.    512;    51 

X.   Y.   Supp.   872),  588a,  597. 
Andrews    v.    Senter    (32    Me.    394), 

244. 

Anoka    W.    W.,   etc.,    Co.    v.    Anoka 

(109    Fed.    580),    458,    458a,    502. 
Anse    La    Butte    Oil    Co.    v.    Babb 

(122   La.   415;    47   So.   754),    198, 

265,  284a. 
Apfelbach    v.    Consolidated   Gas  Co. 

(54   All.    (Pa.)    359),  758,  759. 
Appleby  v.  Astor  Fire  Ins.  Co.    (54 

X.   Y.   253),   809. 
Archer   v.   Mercliants,  etc.,   Co.    (43 

Mo.    434),    818. 
Ardesco   Oil   Co.   v.   Gilson    (63   Pa. 

St.    146),    782b. 
Argall    V.    Pitts     (78    X.    Y.    239), 

384b. 

Arkell    v.    Commerce    Ins.    Co.     (69 

X.    Y.    191;    25    Amer.    Rep.    168; 

amrming   7    Hun,   455),   796,    798. 

Armbruster  v.  Auburn  Gaslight  Co. 

(18    X.    Y.     App.    Div.     447;     46 

X.  Y.  Supp.  158),  682,  6S8,  730a, 

827. 
Armitage    v.     Mt.    Sterling    Oil     & 

Gas   Co.     (80    S.    W.    (Ky.)     177; 

25    Ky.    L.    22«2),    74,    186,    219, 

254,   303,   889. 
Armstrong  v.   Caldwell    (53   Pa.    St. 

284),    350,    350d. 
Arnold    v.    American    Ins.    Co.     ( 148 

Cal.  660;    84  Pac.   182),  808. 
Arnold   v.    Stevens    (24    Pick.    106), 

350b. 
Ascha    v.     Fitch     (46    Pac.     (Cal.) 

298),  381. 
Ashenfflter    v.    Williams     (7    Colo. 

App.  332;   43  Pac.  GG4),  364a. 
Asher    v.     Hutciiinson    Water,    etc., 

Co.    (71    Pac.  813),  535. 


XXXVl 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Aspen    Mining,   etc.,   Co.    v.    Rucker 

(28    Fed.    220),    333. 
Ashton    V.    Eccles    Corporation     (71 

J.   P.   55),   478b. 
Astor  V.  Iloyt   (5  Wend.  603),  384. 
Astor   V.    :Millor    (2   Paige  €h.    68), 

384. 

Atchison  Street  Ry.  Co.  v.  Missouri- 
Pacific  Ry.    (31  Kan.  600;   3  Pac. 

284),  490b. 
Atherton    v.    British,    etc.,    Co.     (91 

Me.  289;   39  Atl.   1006),  809. 
Atkins   V.   New    Staunton   Coal    Co. 

(147  111.  App.  241),   779. 
Atkinson  v.  New  Castle  W.  W.  Co. 

(L.    R.    2     Exch.     Div.    441;     46 

L.  J.   Exch.   775;    25   W.   R.   794; 

36    L.    T.    761;    reversing    L.    R. 

6  Exch.  Div.  404;   20  W.  R.  35), 

588. 
Atlanta   v.   Gate   City   Gaslight  Co. 

(71    Ga.    106),    517. 
Atlantic   City  Water   Works   Co.   v. 

Atlantic  City   (39  N.  J.  Eq.  367), 

484. 
Atlantic  City  W.  W.  Co.  v.  Atlantic 

City     (48    X.    J.    L.    378;    6    Atl. 

24),  482,  498b. 
Atlantic   Citj'   Water   Works    Co.   v. 

Consumers  Water  Co.    (44   N.   J. 

Eq.  427;    15   Atl.  581),   484,  492. 
Atlantic    City    Gas    &    W.    Co.    v. 

Consumers  Gas  &  F.  Co.   (65  Atl. 

(N.    J.    L.)     1119;     affirming    70 

N.  J.  Eq.  536;   61   Atl.  750),  537, 

547. 
Atlantic    City    Water    Co.    v.    Con- 
sumers Gas  &  Puel  Co.    (72  N.  J. 

Eq.   346;    65   Atl.    1119),  535. 
Atlantic   City   W.    W.    Co.    v.    Reed 

(50   N.   J.   L.    665;    15    Atl.    10), 

461,   475,    476,   499. 
Atlantic   Dock,   etc.,   Co.   v.   Leavitt 
(54  N.  Y.  35;    13  Am.  556),  122. 
Attersoll     v.     Stevens      ( 1     Taunt, 

183),  44. 


Attorney  General  v.  Ashton  Gas 
Co.  (73  L.  J.  Ch.  673;  [1904] 
2  Ch.  621;  91  L.  T.  673;  53 
W.  R.  49;  68  J.  P.  477;  20 
T.  L.  R.  601;  affirmed,  75  L.  J. 
Ch.  1;  22  T.  L.  R.  82;  [1906] 
A.  C.  10;  93  L.  T.  676;  70  J.  P. 
19;    13  ]Mason,  35),  478c. 

Attorney  General  v.  Cambridge 
Consumers  Gas  Co.  (L.  R.  4  Ch. 
71;  38  L.  J.  Ch.  94;  19  L.  T. 
(N.  S.)  508;  17  W.  R.  145,  over- 
ruling L.  R.  6  Eq.  282;  38  L.  J. 
Ch.  94,  111;  17  W.  R.  145;  17 
Gasi  Jr.,  427,  593,  867),  537,  543, 
€74. 

Attorney    General     v.    Consolidated 

Gas    Co.    (124    N.    Y.    App.    Div. 

401;    108   N.  Y.   Supp.   Rep.   823; 

affirming  56  N.  Y.  Misc.  Rep.  49; 

106  N.  Y.   Supp.   Rep.  407),   493, 

518,   525,   527,   536b. 
Attorney    General    v.    Gaslight    Co. 

(L.  R.   7   Ch.  Div.  217;    47   L.  J. 

Ch.  534;   37  L.  T.  746;   26  W.  R. 

125),    665,    671,    674. 
Attorney  General  v.  Hudson  County 

Water    Co.     (70    N.    J.    Eq.    695; 

65   Atl.   489),   43. 
Attorney     General     v.     Manchester 

Corporation     [1893]     2     Ch.    87; 

€2   L.  J.  Ch.  459;    68   L.  T.   608; 

41    W.   R.    459;    57    J.    P.    343;    3 

Rep.   427),   063,  675. 
Attorney   General    v.   Mayor    of    St. 

Helens      ( W.     X.      [1870]      150), 

568b. 

Attorney  General  v.  Sheffield  Gas 
Consumers  Co.  (3  De  (iex.  McN. 
and  G.  304;  17  Jur.  C77;  22 
L.  J.  Ch.  811;  2  Gas  J.  396,  419; 
19  E;  L.  and  Eq.  639;  1  W.  R. 
185),    537,    543. 

Atwood  V.  Small  (7  B.  &  C.  390), 
360. 


TABLE   OF    CASES. 


XXXVll 


(Roferences  are  to  pnges.) 


Audenried  v.  Woodward    (4   Dutch. 

(N.  J.)    265),    641. 
Auer    V.    Penn     (92    Pa.    St.    444), 

897. 
Aurora    El.,   etc.,    Co.   v.   'McWotky 

(104  111.  App.  479;   amrmed,  202 

111.   218;    G7   N.   E.   9),  459. 
Aurora  Gaslight  Co.  v.  Bishop    (81 

111.    App.    493),    706,    714a,    717, 

730b,   751. 
Austin    V.    Bartholomew    (107    Fed. 

Rep.  349;  46  C.  €.  A.  327),  46Sa, 

528. 
Austin  V.  Cambridgeport    (^1    Pick, 

215),  228d. 
Austin  V.  Huntsville  Coal,  etc.,   Co. 

(72  Mo.  535),   87. 
Aye   V.    Philadelphia    Co.    (193    Pa. 

St.   457;    44    Atl.    556),    124,    139, 

155,  163,  202b,  860,  881. 


Bahcock    v.    Fitchburg    R.    R.    Co. 

(140   X.   Y.   308;    35   X.   E.   596), 

702. 
Bnbcock    v.    Scoville    (56    111.   461), 

278. 
Babcnck    v.    Stewart     (58    Pa.    St. 

179),   372. 
Backer    v.    Penn.    Lubricating    Co. 

(162     Fed.     Rep.     627),     53,     72, 

151,    152,   890. 
Bacon    v.    United    States,    etc.,    Co. 

(123    X.    Y.   304;    25    X.    E.   399; 

9  L.  R.  A.  617;  reversing  3  X.  Y. 

Supp.  237),   829. 
Badger    v.    Platts    (68   N.    II.    222; 

44    Atl.    296),    802,    828. 
Badger  Lumber  Co.  v.  Marion,  etc., 

Co.    (48   Kan.    187;    30   Pac.    117; 

affirming  29  Pac.  476),  382. 
Baen    Avon    Coal    Co.    v.    McCuUoh 

(59  Md.  403;   43  Am.  Rep.  560), 

620. 


Bagley  v.  Consolidated  Gas  Co.    (13 

X.    Y.    Misc.    Rep.    6;     34    X.    Y. 

Supp.  187),  792. 
Bailey  v.  Citizens  Gaslight  Co.    (27 

X.   J.    Eq.    196),    536a. 
Bailey     v.     Fayette     Gas     Fuel    Co. 

(193    Pa.    St.    175;    44    Atl.    257; 

44  W.  N.  C.  505),  570,   578,   599, 

■603. 
Bailey    v.    TTainos     (15    Q.    B.    533; 

19  L.  J.   g.   15.  73;    14  .lur.  835), 

366. 
Bailey  v.  Philadelphia    (184  Pa.  St. 

594;    41    W.    X.    C.    529;    39    Atl. 

494;   39   L.   R.  A.   837),  560,  570, 

573,  574. 
Baird     v.     Reilly     (92     Fed.     884), 

71)1. 
Bailey  v.   State    (163    Ind.   165;    71 

X.  E.  Rep.  655),  57,  418d,  678. 
Baker  v.  Atherton    (15   Pa.  Co.  Ct. 

Rep.   471),   385,   645. 
Baker    v.    Brennan    (12    Ohio    C.   D. 

211;    22    Ohio    C.    C.    Dec.    241), 

340,  370. 
Baker   v.   Clark    (128   Cal.    181;    60 

Pac.    677),    93. 
Baker  v.  Hart    (123  X.  Y.  470;    25 

X.   E.    Rep.   948),   51. 
Baker     v.     Kellogg     (29     Ohio     St. 

663),   124. 
Baker    v.    McDowell     (3    W.    &    S. 

358),  354. 
Baker    v.    San    Francisco    G.    &    El. 

Co.    (141  Cal.  710;   75  Pac.  342), 

579,   58Sb. 
Baker    v.    Stow    (30    Ohio    Cir.    Ct. 

724),   104,   106,   130.   182,  255. 
Baldwin     v.     Xorth     Branford     (32 

Conn.    47),    564. 
Baldwin   v.   Ohio  Oil   Co.    (13   Ohio 

Cir.   Ct.    519;    7    Ohio    Dec.    50), 

156,  248,  254a. 
Balfour    v.    Russell     (167    Pa.    St. 

2S7;     31     Atl.     570),     155,     192a, 
192d. 


XXXVIU 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Baltimore   v.   Consolidated   Gas    Co. 

(99  Md.  540;    58   Atl.  216),  622. 
Baltimore  'Consolidated   Gas    Co.   v. 

•Getty    (54  Atl.    (Md.)    660),  749. 
Baltimore  Gaslight    Co.   v.   Colliday 

(25    Md.    1),    577,    590,    599,    607, 

609. 
Baltimore   Consolidated  Gas  Co.   v. 

Getty     (54    Atl.     (Md.)     660;    96 

Md.  683),  710. 
Baltimore,  etc.,  Co.  v.  People    ( 200 

111.    623;     66    N.    E.    246),    458a, 

567. 
Baltimore    County,    etc.,    Co.     ( 105 

Md.  424;  66  Atl.  439;   9  L.  R.  A. 

(X.   S.)    684),  549,   551. 
Baltimore  Trust,  etc.,  Co.  v.  Mayor 

(64   Fed.   153),   425. 
Bandler  v.   Peoples   G.   &   C.   Co.  v. 

Amphlett      (93     111.     App.     194), 

746,   750. 
Bandler     v.      Peoples     Gaslight     & 

Coke    Co.     (108    111.    App.     187), 

723,  726. 
Bank  of  Augusta  v.   Earl    (13   Pet. 

519),  518b. 
Bank  of  Ogdonsburgh  v.  Arnold    (5 

Paige   Ch.   38),   384a. 
Bankart  y.   Tennant    (L.  R.   10   Eq. 

141;    39   L.  J.  Ch.  809;    23  L.  T. 

137;    18  W.  R.  639),  344. 
Barclay,   In   re    (L.   R.    9   Ch.   App. 

576),   647. 
Barker   v.    Dale    (2    Fed.    Cas.    810; 

3  Pittsb.  190),  77,  117,  127.  • 
Barksdale     v.      Hairston      (81     Va. 

764),  92,  94,   95. 
Barksdale   v.   Parker    (87   Va.    141; 

12  S.  E.  342),  89. 
Barnerd    v.     Monongahola     Natural 

Gas    Co.    (216   Pa.   362;    65   Atl. 

801),  143,  252,  253,  883. 
Barnard   v.   National   Fire   Ins.   Co. 

(27  Mo.   App.   26),   816. 
Barnes   v.    Bee    (149    Fed.    727;    79 

C.  C.    A.  433),  886. 


Barnes  v.  Stonebraker   (28  Okl.  75; 

113   Pac.   903),   322. 
Barney   v.    Burstenbinder    (7   Lans. 

210),  409. 
Barmford   v.   Ix'high   Zinc  and   Iron 

Co.    (33  Fed.  677),  97. 
Barnhart    v.     Lockwood     ( 152     Pa. 

St.    82;     25    Atl.    879),    78,     185, 

206,  207,  211,  213,  254b,  881. 
Barnsdall  v.  Boley   (119  Fed.  191), 

118,   120,   121,   123,   138,  228,  232, 

233,    241,     242,    251,    260,     326b, 

854,  872. 
Barnsdall  v.  Bradford  Gas  Co.   (225 

Pa.   338;    74   Atl.   207),   172,   891, 

915. 
Barnum  v.  London   (25  Conn.  137), 

334c. 
Barrett   v.   McAlIester    (33   W.   Va. 

738;    11   S.  E.  220),   107,   111. 
Barrickman   v.  Marion  Oil   Co.    (45 

W.    W.    634;     32    S.    E.     17;     44 

L.  R.  A.  <)2),  688,  691,  702,  710, 

725,   720,   727. 
Barrs   v.    Lea    (33   L.    J.   Ch.    437), 

311. 
Barry     v.     Worcester      (143     Mass. 

476;    10  N.  E.   186),  94. 
Bartholomew    v.    Austin     ( 85    Fed. 

359;     52     IT.     S.     App.     512;     29 

C.  C.  A.  568),  483,  491,  498b. 
Bartholomew  v.  Merchants  Ins.   Co. 

(25  Iowa,  507;   96  Am.  Dec.  65), 

823. 
Bartles  Oil  Co.  v.  Lynch  ( 109  ?klinn. 

487;   124  N.  W.  1),  424. 
Bartlett  v.  Boyles   (66  W.  Va.  327; 

66    S.    E.    474),    364b,    368,    371, 

374,  903. 
Bartlett     v.     Boston     Gaslight     Co. 

(122    Mass.    209),    713,    720,   737, 

741,  742,  746,  749,  754. 
Bartlett  v.  Gaslight  Co.   (117  Mass. 

533;    19  Am.  Rep.  421),  742,  753, 

845. 


TABLE   OP    CASES. 


XXXIX 


(Keferciicos  nre  to  piiges. ) 


Bartley  v.   Phillips    (165    Pa.    325; 

30    Atl.    842),    202,    202a,    22SI), 

228d,  246,  260,  895,  8!)8,  915. 
Bartley   v.    Phillips    (179    Pa.    175; 

36  Atl.  217),  124,  139,  202a,  246, 

266,   859,  895,  898,   908,   915. 
Bartley    v.    Phillips     (199    Pa.    St. 

175;    36   Atl.   217),   266. 
Bartlott  V.  Phillips    (4  DeG.  and  J. 

414),   326. 
Barton    v.    Laclede    Oil    &    Mining 

€o.    (27  Okl.  416;   112  Pac.  965), 

294. 
Barton  Coal  Co.  v.  Cox  ( 39  :\Id.  1 ) , 

51. 
Bath    Gaslight    <Co.    v.    Claffy     (74 

Hun,  638;    26  X.   Y.   Supp.   2J-7), 

425,  527,  578,  579. 
Bastian   v.    Keystone    Gas    Co.     (27 

X.   Y.    App.   Div.    584;    50   N.   Y. 

Supp.  537),  682,  687,  709,  714. 
Basye    v.    Paola    Refining    Co.     (79 

Kan.  755;    101  Pae.  658),  220b. 
Batcheller    v.    Tunbridge-Wells    Gas 

Co.   (65  J.  P.  680;  84  L.  T.  765), 

653,  672,  696. 
Batchelor    v.    Gates     (38    Ch.    Div. 

112),    647. 
Bateman   v.    Bluck    ( 14   Eng.   L.   & 

Eq.    69),    512. 
Baumgardner      v.      Browning       ( 12 

Ohio   Cir.   Ct.    13;    5    Ohio   C.   D. 

394),    211,    254. 
Baumgardner  v.  Ins.  Co.  ( 1  W.  X.  C. 

119),  818. 

Baxendale     v.     MclNiurray      (L.     R. 

2  Ch.  790;    16  W.  R.  32),  675. 
Bay    V.     Oklahoma     Southern    Gas, 

etc.,   Co.    (13    Okl.    425;    73   Pac. 

936),   322,  357. 
Bay   State   Petroleum    Co.    v.   Penn 

Lubricating  Co.   (87  S.  W.    (Ky.) 

1102;    27    Ky.   Law,    1133),    192c, 

210,   257,  854,   872. 
Beale's  Case    (506),  844. 


Bear     River,     etc.,    Co.     v.     N.    Y. 

Mining  Co.    (8   Cal.   327),   654. 
Beardsley   v.   Kansas   Nat.   Gas   Co. 

(78   Kan.   571;   96   Pac.  589),  54, 

334b,    906. 
Beatty  v.  Gregory    (17   la.    109;   85 

Am.   Dec.  546),  95,  202. 
Beatty-Xickle    Oil    Co.    v.    Smethers 

(96  X.  E.    (Ind.  App.)    19),   138, 

143,    156,    171,    192c,    20Sa,    210, 

211. 
Beaufort    (Duke)    v.  Bates    (3  DeG. 

F.  and  J.  381;  31  L.  J.  Cr.  481), 

048. 

Beck   V.    O'Connor    (21    Mont.    109; 

53   Pac.   94),   340a. 
Becker  v.  Werner  (98  Pac.  St.  555), 

254a. 

Bedding    v.    Imperial    Gaslight    Co. 

(7   Gas  J.  418),  590. 
Bedford  v.  Terhune   (30  X.  Y.  457), 
2S4b. 

Bedford's  Appeal    (126  Pa.  St.  117; 

17  Atl.  538),  326c. 
Behling  v.   Southwestern,   etc..  Pipe 

Lines    (160   Pa.    St.   359;    28   Atl. 

777),  408a. 
Beinville     Water     Supply     Co.     v. 

Mobile    (186   U.   S.   212;    22   Sup. 

Ct.  820;  affirming  175  U.  S.  109; 

20  Sup.  Ct.  40),   481,   490b,   490, 

502. 

Beittenmiller    v.    Eergner,    etc.,    Co. 

(12  Atl.    (Pa.)    599),   736. 
Bel  V.  Balls  [1897]    (1  Ch.  663;   66 

L.  J.   Ch.  397;   76  L.  T.  254;   45 

W.  R.  378),  343. 
Bell  v.  Truit   (9  Bush,  257).  101. 
Bellaire   Goblet    Co.    v.    Findlay    (3 

Ohio  C.  Dec.  205;  5  Ohio  Cir.  Ct. 

418),    433,    571,     595,     598,     607, 

610. 
Bellamy     v.     Debenham     [1801]      1 

Ch.    412;    60    L.    J.    Cli.    166;    64 

L.  T.  468;  39  VV.  R.  257),  344. 


xl 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Belleviie  Oil  &  Gas  Co.  v.  Pannell 
(7G  Kan.  785;  92  Pac.  1101), 
S'J4. 

Belfast   Water    Co.   v.    Belfast    (02 

Me.   52;    42  Atl.  235),   542. 
Belvidcre    Gaslight    &    Fuel    Co.    v. 

Jackson    (81   111.   App.   424),   G74, 

683,  688,  695,  704,  710. 
Benaivder   v.    Hunt    (79    Tex.    383; 

15  S.  W,  3/9Q),  243,  254c. 
Bender  v.  Brooks  (127  S.  W.   (Tex.) 

168),  34. 
Benedict  v.  Columbus,  etc.,  Co.    (40 

K.  J.  Eq.  23;    23  Atl.  485),  417, 

418b,   428d. 
Benedict    v.    Construction,    etc.,    Co. 

(49  X.  J.  Eq.   23;    23   Atl.  485), 

418a. 
Benfield    v.    Vacuum    Oil    Co.     (75 

Hun,    209;    27    N.    Y.    Supp.    16), 

783. 
Benfieldside  L.   B.   v.    Consptt   Iron 

Co.    (3   Exch.    Div.    54;    47    L.    J. 

Exch.    491;     38    L.    T.     530;     26 

W.  R.  114),  548. 
Benjamin  v.  Gulf  C.  &   F.   Ry.  Co. 

(49     Tex.     Civ.     App.     473;     108 

S.  W.  408),  658,  672,  673. 
Bennett    v.    East    Chester    Gaslight 

Co.     (40    N.    Y.    App.    Div.    169; 

57  N.  Y.  St.  Rep.  847),  602b,  611. 
TBennett  v.  North  British,  etc.,  Ins. 

Co.    (8  Daly,  471),  56,  798. 
Bennett  v.  North  British,  etc.,  Ins. 

Co.    (81   N.  Y.  273;    37  Am.  Rep. 

501),  798. 
Bennett   v.   Thompson    (13    I  red.   L. 

146),  50. 
Bennington  v.   Smith    (29  Vt.  254), 

513. 
Benson    v.    Allegheny    Heating    Co. 

(188   Pa.    St.   614;    41    Atl.    729), 

691. 

Benson,  etc.,  Co.  v.  Alta,  etc.,  Co. 
(145  U.  S.  428;  12  Sup.  Ct.  Rep. 
877),  50. 


Bentley    v.    Lumberman's    Ins.    Co. 
(191    Pa.   St.   276;    43  Atl.  209), 

808. 
r.entley  v.  Bates    (4   Y.  &  C.  E.\ch. 

182;    9    L.    J.    Exch.   30;    4   Jur. 

552),  388,  392a. 
Benton   v.   Elizabetli    (61    N.    J.   L. 

693;    40    Atl.    1132;    anirming   39 

Atl.  683),  532,  533,  534. 
Berentz  v.  Kern  King  Oil,  etc.,  Co. 
(148   Cal.   577;    84   Pac.   45,   47), 

364. 
Berger    v.    Hoerner     (36    111.    App. 

360),  640. 
Berger  v.  Minneapolis,  etc.,  Co.   (60 

Minn.   296;    62   N.   W.  336),  602, 

666. 
Berns     v.     Gaston     Coal     Co.      (27 

W.  Va.  285),   726. 
Berridge  v.  Ward  (10  C.  B.   (N.  S.) 

400;    30   L.  J.   C.   P.  218;    7   Jur. 

(N.    S.)     876;    2    F.    &    F.    208), 

356c. 
Berry  v.  Woodburn    (107  Cal.   504; 

40  Pac.  802),  365. 
Berwick  v.  Fletcher   (41  Mich.  625), 

641. 
Berwick  v.   Muir    (83   Cal.  373;    23 

Pac.  390),  376,  381. 
Bestwick  v.   Ornisby   Coal    Co.    ( 129 

Pa.   St.   592;    18  Atl.  538),   202a, 

213. 
Bettman    v.    Harness     (42    W.    Va. 

433;     26     S.     E.     Rep.     271;     36 

L.  R.  A.  566),  54,   118,  145,  146, 

219,    228,    326a,     852,    853,    876, 

894,  913,  914. 
Bettman    v.    Shadle    (22    Ind.    542; 

53  N.  E.  66'2),  214,  232,  255,  260, 

307,  862. 
Beyer   v.   Consolidated  Gas  Co.    (44 

N.    Y.   App.   Div.    158;    60   N.   Y. 

Supp.  628),   724,   758,  766. 
Bicknell   v.   Austin    (62    Fed.   432), 

121. 
Biddle  v.  Wayne  W.  W.  Co.   (7  Del. 

Co.   Rep.    161),  552b. 


TABLE   OF    CASES. 


xli 


(References  nre  to  papes.) 


Beinenfeld  v.  Consolidated  Gas  Co. 
(119  N.  Y.  App.  Div.  855;  103 
X.  Y.  Supp.  1116),  G02a. 
Bienville  Water  Supply  Co.  v. 
Mobile  (112  Ala.  200;  20  So.  742; 
33  L.  R.  A.  59),  609,  612. 
Bigjrs   V.   Elder    (22   Pa.    Super.   Ct. 

324),   302d. 
Billings  V.  Alfsen  Mining,  etc.,   Co. 

(51   Fed.  338),  220b. 
Billings   V.   Taylcr    (10   Pick.   460), 

325. 
Binkley  v.   Forkner    (117    Ind.   176; 

19  X.   E.    753),   629,  G31. 
Birch    V.    Wright     (1    T.    R.    378), 

384b. 
Bird  V.  Crabb  (30  L.  J.  Exch.  318), 

648. 
Birmingham,     etc.,     Co.,     Ex    parte 

(L.   R.    11    Eq.  615),  606. 
Birmingham    v.     Leason      (77     Me. 

494),  875. 
Birmingham      Fire      Ins.      Co.      v. 
Kroegher     (S3    Pa.     St.     64;     24 
Am.    Rep.    147),    810,    817,    824, 
825. 
Birmingham,    etc.,    Co.    v.    Ratcliire 

(L.  R.  6  Exch.  224),  605. 
Bishop   V.    North   Adams    Fire   Dis- 
trict   (167   Mass.    364;    45    N.   E. 
925),  400c. 
'Bishop  of  Winchester  v.  Knight   ( 1 

P.  Wms.  406),  315. 

Bissell   V.    Foss    (114   U.    S.  252;    5 

Super.   Ct.   851;    affirming  4   Fed. 

694;   2  McCrary,  73),  364n,  364c. 

Bivon    V.    Ohio    Oil    Co.     (11     Oliio 

C.    C.    Doc.    810:    21    Oliio    C.    C. 

117;    afrirmed,    65    Ohio    St.    507; 

63   X.  E.   76),   103. 

Black  V.  Chester   (175  Pa.  St.   101; 

34   Atl.   354),   462. 
Black   V.   Delaware,   etc.,   R.   R.   Co. 

(22  N.  J.  Eq.   130),  527.  528. 
Black    Lick    Co.    v.    Saltsburg    Gas 
•Co.    (139    Pa.    St.    448;    21    Atl. 
432),    140,   592,   610,   613. 


Blackmarr    v.    Williamson    (57    W. 

Va.    249;    50    S.    E.    254),    364b, 

368,  903. 
Blaco    V.    State     (58    Neb.    557;     78 

N.   W.    1056),   420,   421. 
Bladen    v.    Philadelphia    (60  Pa.  St. 

404),    476. 

P.lair  -v.    Northwestern,    etc.,  Cas 

Co.    (5    Ohio  C.    D.   620;    12  Ohio 

Cir.    Ct.     78),     192a,     192b,  194, 

208,   284. 

Blair  v.  Peck  (1  Penny  (Pa.)  247), 
148,    805. 

Blakeley  v.  Marshall    (174  Pa.   St. 

425;    34    Atl.    5(54;    38    W.   N.    C. 

74),   38,   88,   32Ga,   328,   330,   876, 

877. 
Blaker    v.    Sands     (29    Kan.    551), 

307. 
Blend  v.  Bowie   (53  Ala.  152,  159), 

209. 

Blenkiron  v.  Great  Central  Gas, 
etc.,  Co.  (2  F.  &  F.  437;  9 
Gas  J.  292,  770;  3  L.  T.  R.  317), 
686,   764. 

Blindert  v.   Kreisor    (81   Wis.    174; 

51    X.   W.   324),   378. 
Block    V.    Murray     (12    IMont.    545; 

31   Pac.  550),   376,  377. 
Blodgett   V.   Lanyon    Zinc    Co.    (120 

Fed.  893;    58   C.    C.   A.    79),    148, 

909. 
Blondell    v.    Consolidated    Gas    Co. 

(89    Md.    732;    43    Atl.    817;     46 

L.  R.  A.   187),  620,  624,  625. 
Bloodwortli     V.    Stevens     (51     Miss. 

475),  289. 

BloomfioM,  etc.,   Co.  v.   Cnlkins    (62 

X.   Y.  3SG;    1    T.  &  C.  549),  400, 

401,  552b,  762. 
Bloomfield,   etc.,   Co.    v.    Richardson 

(63    Riirb.    437),    394,    400,    40()l), 

5521),  586. 

Bloomfield  Coal,  etc.,  Co.  v.  Ti'^rick 
(99   la.  83;   68  X.  W.  570),  95, 


zlii 


TABLE   OF    CASES. 


(Rofpronces  are  to  pagps.) 


Bloomington  v.  Wohl    (10  111.  48!)), 

490b. 
Bluestone     Coal     Co.    v.     Bell      (3S 

W.  Va.  297;    18   S.  E.  493),  208, 

874,   863. 
Blewett    V.    Coleman     (40    Pa.     St. 

45),   331. 
Bly  V.  United  States    (4  Dill.  409), 

331. 
Boal   V.   Citizens  Xat.   Gas   Co.    (23 

Pa.  Super.  Ct.  339),  74,  123,  159, 

589. 
Board  v.  Hopkinsville   (95  Ky.  239; 

24  S.   W.   872;    44   Am.   St.   222; 

23  L.  R.  A.  402),  459. 
Board    v.     Boatman's    Ins.    Co.     (5 

Mo.  App.  91),  278. 
Board     v.     Indianapolis,     etc.,     Co. 

(134    Ind.    209;    33    N.    E.   972), 

400,   400b,   513,   551,  552,  554. 
Board  v.  People    (91  111.  80),  518b. 
Board,    etc.,    Co.    v.    Barnett     ( 107 

111.  507),  553. 
Boardman  v.  Wilson   (L.  R.  4  C.  B. 

57),   2S4b. 
Boatman's   Fire  Ins.  Co.   v.   Parker 

(23   Ohio   St.   85),   803,   804. 
Bockover  v.  Post  (25  X.  J.  L.  285), 

284c. 
Boerth  v.  Detroit  City  Gas  Co.   (152 

Mich.     654;      116     N.     W.     628), 

428b,  580a,   598. 
Bogot    V.    Bogot     (32    Beav.    509), 

326. 
Bohan  v.  Port  Jarvis  Gas  Co.    ( 122 

]N.    Y.     18;     25     N.    E.    246;     9 

L.  R.  A.  711),  664,  666,  672,  685. 
Bonetti   v.   Treat    (91    Cal.   223;    27 

Pac.  612;    14  L.  R.   A.    151),  274, 

274c,  284a. 
Boone  v.   Stover    (60   Mo.   430),   93. 
Boothman  v.   Mayor,   etc.,   of   Burn- 
ley  (20  Gas  J.  585),  722,  764. 
Borland's  Appeal    (66  Pa.  St.  470), 

274c. 
Borough  of  Edgewood  v.  Scott    (29 

Pa.    Super.   Ct.    156),   429. 


Boston  V.  Binney   (11  Pick.  1),  316. 
]?()ston    V.     Richardson     ( 13     Allen, 

100),  549. 
Bostcm    Franklin,   etc.,   Co.   v.    Con- 

ditt    (19   N.  J.  Eq.  394),  — . 
Boucher     V.     IMulverhill      (1     Mont. 

300),  307. 
Bovven    v.    Bo  wen    (18    Conn.    535), 

244. 
Bowen  v.   Detroit   City   R.   Co.    (54 

Mich.    496;     20    N.    VV.    559;     52 

Am.  Rep.  822),  190. 
Bower  v.  United  Gas  Imp.  Co.    (37 

Pa.  Sup.  Ct.  113),  580b,  601,  607, 

613. 
Bowling  Green  v.  Carson   ( 10  Bush, 

64),  490b. 
Bown    V.    Stenson     (24    Beav.    631), 

346. 
Boyd   V.    Brown    (47    W.   Va.    238; 

38  S.   E.  668),  902,  915. 
Boyd   V.  McCombs    (4   Pa.  St.   146), 

289. 
Boydell     v.     Dummond      (11     East, 

142),   343. 
Boydston     v.     Meacham      (28     Mo. 

App.   494),   277. 
Boyer  v.  Fulmer    (170  Pa.  St.  282; 

35   Atl.   235),  203. 
Boyer    v.    Grand    Rapids    Fire    Ins. 

Co.     (124    Mich.    455;    83    N.    W. 

124),  797,  816. 
Boyer  v.  Little  Falls   (5  N.  Y.  App. 

Div.    1;    38    X.    Y.    Supp.    1114), 

547. 
Boylo    v.    Mountain,    etc.,    Co.     (50 

Pac.    (X.  M.)    347),  377. 
Boys  v.  Robinson  (38  Atl.  (N.  .J.  L.) 

813),    231,    239,    240,    244,    254c, 

201. 
Boyston  v.  Miller    ( ,  — ), 

334. 
Brace  v.   Xew  York   ■Central   R.  R. 

Co.    (27   X.  Y.   209),  512. 
Bracken  v.  Sobra  Vista  Oil  Co.   (77 

P.   649;    143    Cal.   678),    152. 


TABLE  OP   CASES. 


xliii 


(References  are  to  pnges.) 


Bradford  Oil  Co.  v.  Blair    (113  Pa. 

St.    &3;     4    Atl.    218),    131,    130, 

149,     274,     274c,     279,     802,     8G5, 

871. 
Bradley  v.   Harkness    (20   Cal.  G9), 

303,   304d. 
Brady    v.    Detroit,    etc.,    Co.     (102 

Mich.    277;     62    N.    VV.    687;    26 

L.  R.  A.  175),  662,  606,  085,  777. 
Brand    v.     Hammersmith     Rat    Co. 

(L.    R.    4    H.    L.    171;    38    L.    J. 

Q.  B.  265;   21  L.  T.   (X.  S.)    238; 

18   W.   R.    12),    071. 
Braintree     Water     Supply     Co.     v. 

Braintree     (146    Mass.     482;     16 

N.  E.  420),  503. 
Brass  v.  Rathbone   (153  X.  Y.  435; 

47  N.  E.  905;   affirming  40  N.  Y. 

Supp.   '466;    8    N.    Y.    App.    Div. 

78),   574,   596,   611. 
Brass    v.    Rathbone    (8    N.   Y.    App. 

Div.    78;    40    X.    Y.    Supp.    466; 

affirmed,  153  X.  Y.  435;  47  X.  E. 

905),    607. 
Breckenridge      v.      Delaware,      etc. 

R.  R.  Co.    (33  Atl.   (X.  J.)    800), 

402. 
Breckinridge    v.    Parrott     ( 15    Ind. 

App.    411;     44    X.    E.    66),     135, 

274,    275,    276,    284a,    284b,    297, 

307,   310,   862. 
Breener  v.  Hicks    (230  HI.  536;   82 

X.  E.  888),  72. 
Brenham    v.    Brenham    Water    Co. 

(67    Tex.    542;    4    So.    143),    492, 

508b,   542. 
Brentford     Gas     Co.     v.     Chiswick 

Urban  Council    (6  L.   G.  R.   725; 

72   J.  P.   378),  468d. 
Brentz   v.   Kerr    Oil,    etc.,    Co.     (84 

Pac.    (Cal.  App.)    45,  47),  378. 
Brewster   v.   Lanyon   Zinc   Co.    ( 140 

Fed.   801;    72   C.   C.   A.   213),   74, 

82,  93,  96,  110,  112,  129,  130,  137, 

138,  139,  159,  181,  185,  190,  192b, 

229,    233,    253,    260,    302d,    312, 

852,  853,  804,  805,  875,  889,  895, 

897.  902. 


Brick,   etc.,  Co.   v.   Pond    (38   Ohio 

St.    05),    203. 
Bridge    Proprietors   v.    Hoboken    ( 3 

Wall.  51),  495. 
Bridgeport  v.  Xew  York,  etc.,  R.  R. 

Co.    (36   Conn.  260),  519. 
Briggs  V.  Davis   (81 14  Pa.  St.  470), 

89. 
Briggs  V.   Elder    (22  Pa.  Super.  Ct. 

324),   305. 
Briggs     V.     Xorth     American,     etc., 

Ins.  Co.    (53  X.  Y.  446),  805. 
Brinkley    v.     Hambleton     (67     Md. 

109;    8  Atl.   904),  284. 
Bristol,    etc.,    Co.    v.    Bristol,    etc., 

Co.   (99  Tenn.  371;  42  S.  W.  19), 

381,  382. 
Bristol  V.   Bristol,  etc.,   W.  W.    Co. 

(19    R.    I.   413;    34   Atl.    359;    32 

L.   R.   A.   740),   504. 
Bristol    Gas    Co.    v.    Bristol    Tram- 
way,   etc.,    Co.    (78   L.    J.    K.    B. 

772;     [1909]    2    K.    B.    297;    100 

L.     T.     909;     73     J.    P.     323;     7 

L.   G.    R.    093;    affirmed,   54    Sol. 

Jr.  47;   20  T.  L.   R.  75),  509. 
Broadbent  v.  Imperial  Gaslight  Co. 

7  H.  L.  Cas.  600;  6  Jur.   (X.  S.) 

221;  5  Gas  J.  349;  9  Gas  J.  751; 

affirming  7  DeG.  M.  and  G.  430; 

26  L.  J.  Ch.  276;  5  Jur.   (X.  S.) 

1319),  662,  665. 
Broadway,  etc.,  Co.  v.   Hankey    (31 

Md.   346),  482. 
Broman   v.   Young    (35    Hun,    173), 

384,   384a. 
Bronson  v.   Lane    (91  Pa.  St.   153), 

128. 
Bronx   Gas,   etc.,   Co.   v.   Xew   York 

(17   X.   Y.   Misc.   433;    41    X.   Y. 

Supp.  358),  459,  464,  477. 
BrookljTi   V.    Fulton   Municipal    Gas 

Co.    (7    Abb.   X.   C.    19),   537. 
Brooklyn    Gas    Co.    v.    Xew     York 

City    (115    X.    Y.   App.    Div.    09; 

100    X.    Y.    Supp.    Ct.    Rep.    (ilo; 

affirmed,  188  X.  Y.  334;  81  X.  E. 

141),  430,  445,  440,  492,  498. 


xliv 


TABLE   OP    CASES, 


(References  are  to  pages.) 


Brooklj-n  v.  Jourdan   (7  Abb.  N.  C. 

23),  521. 
Brooklyn    Union    Gas    Co.    v.    New 

York  City    (50  N.  Y.   Misc.   Rep. 

450;    100  N.  Y.  Supp.  570),  430, 

445,  446. 

Brooks  V.   Ilanna    (19   Ohio   C.   Ct. 

216;   10  Ohio  Dec.  480),  325,  326. 
Brooks    V.    Kunkle     (24    Ind.    App. 

624;   57   N.  E.  260),  302d. 
Brookshire     Oil     Co.     v.     Casmalia 

Eanch,    etc..    Oil    Co.     ( 15G    Cal. 

211;  103  Pac.  927),  403,  493,  911. 
Brown    v.    Beechor     (120     Pa.     St. 

590;     15    Atl.    608),    07,    80,    93, 

244,  266,   364d,  371,  872. 
Brown  v.  Corry    (175  Pa.   St.   528; 

34  Atl.  854;  affirming  4  Pa.  Dist. 

Rep.    645;     17    Pa.    Co.    Ct.    Rep. 

490),  458d. 
Brown   v.   Corey    (43   Pa.   495),   89. 
Brown  v.  Fowler    (65  Ohio  St.  507; 

63    N.    E.    76),    75,    90,    97,    99, 

119,    192a,    192e,    219,    220,    853, 

889,  895,  897. 
Brown    v.    Illius     (25    Conn.    583), 

651,    665,    723. 
Brown    v.    Jaquette     (94     Pa.     St. 

113),   364c. 
Brown  v.  Kidger    (3  H.   &  N.   853; 

28  L.  J.  Exch.  66),  369. 
Brown  v.  Magorty    ( 156  Mass.  209 ; 

30  N.  E.   1021),  316. 
Brown   v.   Morris    (83   N.   C.   251), 

43. 
Brown    v.   New   York    Gaslight    Co. 

(Anthon's  N.  P.  351),  716,  749.' 
Brown    v.    Ohio    Oil    Go.     (21    Ohio 

C.    C.    117;     11    Ohio    C.    C.    Dec. 

810;    affirmed,    65    Ohio    St.    507; 

63   N.   E.   76),   97. 
Brown  v.  Spilman    (155   U.   S.   665; 

15    Sup.   Ct.    Rep.   245 ;    reversing 

45  Fed.  Rep.  291),  32,  38,  53,  56, 

116,    699,   855,    892. 
Brown    v.     Torrence     (88     Pa.     St. 

186),  654. 


Brown    v.   Vandergrift    (80   Pa.    St. 

142),     34,     183,    224,     228,    240b, 

304,   858. 
Bruce  v.   Indianapolis   Gas  Co.    (46 

Ind.    App.    193;    92    N.    E.    189), 

592,  593. 
Bruner  v.   Hicks    (230    111.   530;    82 

N.  E.  888),  53,  92,  319. 
Bruner   v.   Miller    (59    W.   Va.    36; 

52  S.  E.  995),  220c. 
Brunot's    Estate    (29    Pittsb.    L.    J. 

(N.    S.)    105),    73,   272. 
Bruns,    Appeal    of    (12    Atl.     (Pa.) 

855),   607,   608. 
Brunswick    Gaslight   Co.   v.    United, 

etc.,    Co.     (85    Me.    532;    27    Atl. 

525;  35  Am.  St.  Rep.  385),  468a, 

527,  578. 
Brunswick    Gaslight    Co.    v.    Bruns- 
wick   (92   Me.   493;   43  Atl.    104), 

540. 
Brush   V.    Seabury    (8    Johns.    418), 

490b. 
Brush    Electric    Light    Co.    v.    Cin- 
cinnati    (28    Weekly    Law    Bull. 

29;    27   Weekly  L.  Bull.   412;    11 

Ohio  Dec.  581),  464. 
Brush    Electric    Light,    etc.,    Co.    v. 

Montgomery     (114    Ala.    433;     21 

So.   960),  469. 
Brush   Electric  Light   Co.   v.   Phila- 
delphia   (8  Pa.  Dist.  231),  838. 
Brushwood   Developing  Company  v. 

Hickey     (16     Atl.     (Pa.)     70;     2 

Mon.    (Pa.)    65),  302b. 
Brushwood,  etc.,   Co.  v.  Hickey   ( 16 

Atl.    (Pa.)    70),   292. 
Bryan  v.  Bancks    (4  Barn,  and  Aid. 

401),   228. 
Bryant    v.    Poughkeepsie,    etc.,    Ins. 

Co.    (17   N.  Y.  200;    affirming  21 

Barb.  154),  817,  818. 
Brymer   v.   Butler    Water   Co.    ( 179 

Pa.     St.     331;     27     Pitts.     L.    J. 

(N.   S.)    285;    39   W.  N.   C.   439; 

36    Atl.    249;    36   L.   R.    A.    260), 

435. 


TABLE    OF    CASES. 


xlv 


(Rofcrpnocs  nre  to  pngca.) 


Bryn    Mawr    Water    Co.    v.    Ijowcr 

Marion  Tp.    (15  Pa.  Co.  Ct.  Rep. 

527;    4  Pa.  Dist.  Rep.   157),  542. 

Bullmaster   v.   St.   Joseph    (70   Mo. 

App.   60),   722. 
Buchanan  v.  Exchange  Fire  Ins.  Co. 

(61   N.   Y.   20).   798. 
Buchanan    v.    Cole     (57    Mo.    App. 

11),  80,   90. 
Buckeye  Pipe  Line  Co.   v.   Fee    (15 

Ohio  C.   C.  673),   399. 
Buckley  v.  Kenyon   (10  East,  139), 

50. 
Budd    V.    New    York     (143    U.     S. 

517;    12   Sup.   Ct.   468),   434. 
Buesching  v.  St.  Louis,  etc.,  Co.   (73 
Mo.  219;    11    Rep.  675;    reversing 
6  Mo.   App.  85),  789. 
Buffalo    V.     Buffalo    Gas     Co.     (80 
K.  Y.  Supp.   1093),  601,  618,  025, 
626. 
Buffalo    V.    Buffalo    Gas    Co.     ai2 
N.  Y.  Supp.   Rep.    (X.  Y.)    468), 
443,  468. 
Buffalo  V.  Webster   (10  Wend.  100), 

490b. 
Buffalo    Natural     Gas     Co.,    In    re 

(73   Fed.   191),   32. 
Buffalo    Valley    Oil    &    Gas    Co.    v. 
Jones   (75  Kan.  18;  88  Pac.  537), 
74,    130,    137,    139,    182,  242,  259, 
864,  874. 
Buhl  V.  Thompson    (3  Penny   (Pa.) 

267),  202a. 
Bullmaster   v.   St.   Joseph    (70   Mo. 

App.  00),  722. 
Burbank    v.    Pillsbury     (48    X.    H. 

475),  122. 
Burdon  v.  Barkas    (3  Ciff.   142;   31 
L.    J.    Ch.    521;    8    .lur.     (X.    S.) 
130;   5  L.  T.  573),  371. 
Burgan   v.  Lyell    (2   Mich.   102;    55 

Am.    Dec.   53),    363,    370. 
Burnham    v.    Roberts     (103    Mass. 
379),   316. 


r.urkhardt    v.    Striger     (67    S.    W. 

(Ky.)    270),    420,    421. 
Burlington  v.  Burlington  St.  R.  Co. 
(49  Iowa,  144;  31  Am.  Rep.  145), 
425. 
Burlington  Water  Co.  v.  Wno.lward 

(49   la.  58),   458d. 
Burmester     v.    Norris      (21     L.     J. 
(X.    S.)    E.xch.   43;    6    E.\ch.    796; 
17  L.   T.  232),  369. 
Burnell  v.  Brown    (1  J.  &  W.  108), 

346. 
Burnes  v.  McCubbin    (3  Kan.  221), 

284c. 
Burnett    v.    Lynch     (5    B.    and    C. 
589;    8    D.    and    R.   368;    4   L.   J. 
(0.  S.)    K.  B.  274),  284,  284a. 
Burrows  v.  March  Gas  &  Coke  Co. 
(L.    R.    5    Exch.    67;     22    L.    T. 
(X^   S.)    24),   693. 
Burrows  v.  ^March  Gas  &  Coke  Co. 
(L.    R.     7    Excli.    96;     41    L.    J. 
Exch.     46;     26     L.    T.     318;     20 
W.  R.  493),  585,  710,  731,  734. 
Burton   v.    Barclay    (7    Bing.    745), 

278. 
Burton  v.  Forest  Oil   Co.    (204  Pa. 
349;  54  Atl.  266),  167,  171,  274c, 
277,    279,    284,    284b,    862. 
Busby  V.  Russell    (18  Ohio  Cir.  Ct. 
12;   10  Ohio  C.  D.  23),  293,  311. 
Busch-Everett  Co.  v.  Vivian  Oil  Co. 
128    I^.    886;     55    So.    564),    87, 
106,   120. 
Bush   V.    Sullivan    (3    Greene    (Ta.) 

344;    54    Am.    Dec.   506),   95. 
Buskirk  v.  King   (72  Fed.  22),  146. 
Butcher  v.  Providence  Gas  Co.    ( 12 
R.     I.     149;     34     Am.    Rep.     626; 
18    Alb.    L.    Jr.    372),    688,    718, 
730a,  735,   7.59,  762,  763,  765. 
Butchers'   Union,   etc.,  Co.   v.   Cres- 
cent   Citv,    etc.,    Co.     (Ill    U.    S. 
746;    4   Sup.    Ct.   652),   425,   664, 
670a. 


xlvi 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Butt  V.  Imperial  Gaslight  Co.  (L.  R. 

2    Ch.    158;    14    L.    T.   Rep.    349; 

15  Gas  J.   139),  674. 
Butler    Savings    Bank    v.     Osborne 

(159    Pa.    St.    10;     28    Atl.     1G3; 

39  Am.   St.  665),   361,  364c,  905. 
Butt     V.     Ellett      (19     Wall.     544), 

272. 
Butt  V.    Imperial    Gaslight   &    Coke 

•Co.   (L.  R.  2  Ch.  158;   14  T.  L.  R. 

349;    15   Gas.   J.   139),   665. 

C 

'Caballero    v.    Home    Insurance    Co. 

(15    La.    Ann.    217),    804. 
Cadwell    v.    Copeland     (37    Pa.    St. 

375;  72  Am.  Dec.  760),  350. 
Cahoon  v.  Bayaud   (123  X.  Y.  298; 

25  N.  E.  376),  91,   107. 
Caldwell    V.    Alton     (33    111.    417), 

490b. 
Caldwell   v.    Copeland    (37    Pa.    St. 

427;   78  Am.  Dec,  436),  89,  350c, 

350d. 
Caldwell  v.  Fulton  (31  Pa.  St.  475), 

78,  89,  92,   128. 
Caldwell  v.  Glazier   ( 138  N.  Y.  App. 

Div.  826;    123  N.  Y.   Supp.  622), 

376a. 
Caley  v.  Portland    (71  Pac.    (Colo.) 

892),  241. 
Caley   v.    Portland    (12    Colo.    App. 

397;   56  Pac.  350),  293. 
Calhoon  v.  Neely    (201   Pa.  St.  97; 

50  Atl.  967),  202,  211,  874. 
California  Oil  Gas  Co.  v.  Miller   ( 96 

Fed.   12),    172,   352. 
California  Oil  &  Gas  Co.  of  Arizona 

V.   Miller    (9G   Fed.   12),   146. 
Calkins  v.   Bloomfield,  etc.,  Gas  Co. 

(1  T.  and  C.   (N.  Y.)    541),  400b. 
Calor    Oil    &    Gas    Co.    v.    Franzell 

( 109  S.  W.   ( Ky. )   328 ;  33  Ky.  L. 

Eep:   98),   400,   400a,    400c,   400d, 

403,  490c,  885,   911. 


Calor    Oil    &    Gas    Co.    v.    Franzell 
(122    S.    VV.    (Ky.)     188;    34    Ky. 

L.     Rep.    — ),     400,    400a,    400c, 

400d,  403. 
Calor  Oil  &  Gas  Co.  v.  Withes   (133 

S.  W.   (Ky.)   210),  400a,  400c. 
Calson      V.      Portland      (Fed.      Cas. 

3275),  459. 
Caliart  v.  Auburn  Gaslight  Co.    (22 

Barb.   297),   673. 
Camden    v.    Murrey     ( 16    Ch.    Div. 

161;    50  L.   J.  Ch.  282;    43   L.  T. 

661;  29  W.  R.  190),  318. 
Campbell    v.    Lloyd's    Bank     ( 1    Clu 

136,   note),  387,   392. 
Campbell  v.  Rock  Oil  Co.   (151  Fed. 

191;    80  C.  C.  A.  467),    190,  235, 

237,  240d,  860,  890,  899. 
Campbell   v.    Roddy    (44   N.   J.    Eq. 

244;    14  Atl.  279),  630,  631. 
Campbell  v.  Seaman   (63  N.  Y.  568; 

20  Am.  Rep.  567),   663. 
Campbell  v.  Wardlow   (L.  R.  8  App. 

Cas.  641),   325. 
Canfield    v.    Ford    (28    Barb.    336), 

89,   334a. 
Capehart  v.   Foster    (61    Minn.   132; 

C7  N.  W.  257;   52  Am.  St.  582), 

636. 
Capital   City    Light   &    Fuel    Co.   v. 

Dcs   Moines    (72    Fed.   822),   426, 

427,   428d,  429,   430,  433,  434. 
Capital    'City    Gaslight    Co.   v.    Des 

Moines    (93  Iowa,  547;   61  N.  W. 

1066;    48  Am.  &  Eng.   Corp.  Cas. 

138),   468d. 
Capital  City-Gaslight  Co.  v.  Charter 

Oak  Ins.  Co.   ( ),  834a, 

Capital      City     Gas,      etc.,     Co.     v. 

Gaines    (20  Ky.  L.  Rep.   1464;  49 

S.   W.   462),   605,  618. 
Capital     City,     etc.,     Co.    v.    Talla- 
hassee  (42  Fla.  462;  28  So.  810), 

490b. 
Capital    City    Water    Co.    v.    State 

(105   Ala.   406;    18   So.   Rep.   62; 

29   L.  R.  A.   743),  523,  539,  540. 


TABLE   OF    CASES. 


xlvii 


(References  are  to  pnges.) 


Capital,  etc.,  Gas  Co.  v.  Gaines  (20 
Ky.  L.  Rep.  14G4;  49  S.  W.  4G2), 
625. 
Capital  Gas  Co.  v.  Young  ( 109  Cal. 
140;  41  Pac.  869;  29  L.  R.  A. 
463),  479. 
Capner    v.    Mining    Co.     (2    Greene 

Ch.    (X.  J.)   467),  385,  386. 
Capron    v.    Strout     (11    Xev.    304), 

376d. 
Carey    v.    Bight    (58    Pa.    St.    70), 

041. 
Carliart    v.     Auburn    Gaslight    Co. 

(22  Barb.   297),   654,   663. 
Carleton  v.  Lombard,  etc.,  Co.    (149 
N.    Y.    35,    137;    43    X.    E.    183, 
422),   786,    787. 
Carley  v.  Lewis   (24  Ind.  23),  274b. 
Carlin    v.     Western,    etc.,    Ins.    Co. 
(57  Md.  515;    40  Am.  Rep.  440), 
796,  799,  800,  822. 
Carlisle  Gas  &  Water  Co.  v.  Carlisle 
Water    Co.    (182    Pa.    St.    17;    37 
Atl.   821),   486,   514,   515. 
Carlow  V.   Aultman    (28   Xeb.   f7-; 

44  X.  W.  873),  400b. 
Carlyle  v.  Carlyle,  etc.,  Co.   (52  III. 

App.  577),  449. 
Carmichael   v.   Texarkana    (94   Fed. 

561),   664. 
Carmody    v.     Boston    Gaslight    Co. 
(162   Mass.   599;    39  X.    E.    184), 
703,  767. 
Carne    v.    Mitchell     (15    L.    J.    Ch. 

(X.   S.)    287),  347. 
Carnegie  Xatural  Gas  Co.  v.   Phila. 
Co.    (158    Pa.    317;    27    Atl.    95), 
124,  163,  235,  245,  266,  897,  898, 
913,  914. 
Carnegie    Xat.    Gas    Co.    v.     South 
Penn.    Oil    Co.     (50    W.    Va.    402; 
49*8.  E.  548),  265. 
earner     v.     Peters     (9    Pa.    Super. 
Ct.  Rep.   29;    43   W.   X.   C.   261), 
349. 
Carney  v.  Barnes   (56  W.  Va.  5S1; 
49   S.   E.   423),  852,   913. 


Carother's     Appeal      (118     Pa.     St. 
468;    12   Atl.   Rep.   314;    11    Cent. 
48),   394,   191,   501,   530. 
Carr  v.   Benson    ( L.   R.  3   Ch.   .Vjip. 
524;     78    L.    T.    696;     16    W.     K. 
744),  90. 
Carr   v.  Huntington   L.   and   F.   Co. 
(33   Ind.  App.    1;   70   X.  E.   Rep. 
552),  53,   84,   232,    235,  263. 
Carr   v.  Loco,Tiotive   Co.    (29    R.   I. 

276;    70  At!.   196),  768. 
Carrhart    v.    Montana,    etc.,   Co.    (1 

:Mont.    245),    89. 
Carrigan  v.  Lv  coming  Fire  Ins.  Co. 
(53   Vt.   418;    38   Am.  Rcp-  687), 
820. 
Carroll    v.    Erie    County,    etc.,    Fuel 
Co.   (13  Out.  W.  R.  795;  affirming 
10    Out.    W.    R.    1017),    295,   589, 
591. 
Carroll   v.   Provincial,  etc.,  Co.    (26 

Can.   S.   C.  591),   95. 
Gary  v.  Blodgett  (10  Cal.  App.  463; 

102  Pac.   668),  .560. 
Gary  Hardware  Co.  v.  McCarty   ( 10 
Colo.     App.     200;     50    Pac.     Rep. 
744),   65. 
Case    V.     Ilaight     (3     Wend.     632), 

353. 
Cassell   V.   Crothers     (193    Pa.    359; 
44    Atl.    446),    172,    192a,     192b, 
192c,  262c,  262d,  853,  873,  892. 
Carter  v.  County  Court   ( 45  W.  Va. 
806;    32   S.   E.  216;    43   L.   R.   A. 
725),   44,    840,    840a. 
Carter  v.  Ilammett   (18  Barb.  608), 

278. 
Carter    v.    Producers',    etc..    Oil    Co. 
(lt:4   Pa.    St.   463;    30   Atl.    391), 
373. 
Carter    v.   Tyler    County    Court     (45 
W.   Va.   806;    32   S.   E.  Rep.  216; 
43   L.   R.   A.    725),   38,   54. 
Carterville    Improvement,    etc.,    Co. 
V.    Carterville     (89    Ga.    083;     16 
S.   E.  25),  475. 


slviii 


TA15LE   OF    CASES. 


(  UolofcMices  are  to  pages.) 


Catlin  Coal  Co.  v.   Lloyd    (176  111. 

275;   52  N.  E.   144),  350,  351. 
Catlin   Coal  Co.  v.  Lloyd    (180  111. 

398;   54  N.  E.  214),  350,  351. 
Cedar  Rapids  Gaslight  Co.  v.  Cedar 

Rapids      (144     Iowa,     426;      120 

N.    W.    9(>G),   430,   433,   435,   436, 

436a,   434ib,   43Cc,   436d,   439,   441, 

443,  602. 
Central    Fuel    Co.    v.    Wallace     (93 

X.    E.     (I lid.)     65),    295. 

Central  Land  Co.  v.  Laidley  (32 
W.  Va.  134;  9  S.  E.  61),  318b. 

Central  Oliio  Kat.  Gas  &  Fuel  Co. 
V.  Eckert  (70  Ohio,  127;  71  N.  E. 
281),  86,  96,   100,  853,  889. 

Central  Oil  Co.  v.  Southern  Refin- 
ing Co.  (154  Cal.  167;  97  Pac. 
177),  845. 

Central  Transportation  Co.  v.  Pull- 
man Palace  Car  Co.  ( 139  U.  S. 
24;    11    Sup.   Ct.   Rep.    478),   528. 

Central  Trust  Co.  v.  Berwind-White 
Coal  Co.  (95  Fed.  391),  316,  384c. 

Central  Trust,  etc.,  Co.  v.  Cincin- 
nati, etc.,  Co.  (26  Weekly  L. 
Bull.  149;  11  Ohio  Dec.  348), 
633,  635. 

Central  Trust  Co.  v.  Xew  Amster- 
dam Gas  Co.  (167  Fed.  983), 
446a. 

Central  Trust  Co.  v.  Sheffield,  etc., 
'Co.    (42   Fed.    106),   370a. 

Center  Hall  Water  Co.  v.  Center 
Hall  (186  Pa.  St.  74;  40  Atl. 
153),    471,   483,    486,    487. 

Cerf  V.  Home  Ins.  Co.  ( 44  Cal.  320 ; 
13  Am.  Rep.   165),  812,   817. 

Chadvvick  v.  Corporation  of  Wigan 
(28   Gas   J.   562),    718,   722,    763. 

Chambers  v.  Smith  (183  Pa.  St. 
122;    38  Atl.  522),   130,   174,  308. 

Chamberlain  v.  Dow  (16  W.  N.  C. 
(Pa.)    532),  67,  77,  277,  318. 

Chambcrlin  v.  Parker  (45  N.  Y. 
569),    140,    149,  303. 


Chamberlain  v.  Summit  Gas  Co.   (3 

Penn.    (Pa.)    261),  615. 
Chandler    v.    Pittsburgh,    etc.,    Co. 

(20    Ind.    App.     165;     50    N.    E. 
.  400),   272. 
Chaney     v.     Ohio-Indiana     Oil     Co. 

(32  Ind.  App.  193;  69  N.  E.  477), 

195,  274a,  274d,  i75,  898. 
Chapman    v.    Crays'    Gas    Co.     ( 13 

Gas  J.  448),  537. 
Chapman  v.   Warden    (50  Tex.   Civ. 

App.   282;    110   S.  W.  533),    178. 
Chapman  v.  Pfarr    (145  Iowa,  196; 

122  X.  W.  992;   123  X.  W.  992), 

420,  421. 
Chapman    v.    South,    etc.,    Co.     (61 

Gas  J.  359,  415,  460),  651. 
Charity    Hospital    v.    Xew    Orleans 

Gaslight  Co.    (40   La.   Ann.   382; 

4  So.  433),  475. 
Charles  v.  Eshleman    (5  Colo.   107), 

364a,    364c,   365,   369,   904. 
Charlees   v.    Froebel    (47    Mo.    App. 

45),   216,   284a. 
Charleston  Xatural  Gas  Co.  v.  Low 

(52  W.  Va.   662;    44   S.   E.  410), 

400,  578,  580. 
'Charlotte    v.    Shepard     (120    N.    C. 

411;    27    S.   E.    109),   504. 
Charron  v.  Union  Carbide  Co.    (151 

Mich.  687;    115  X.  W.  718),  682, 

722,    743. 
Charter  of  Gas  Companies    (18   Pa. 

Co.  Ct.  Rep.  136;  5  Pa.  Dist.  Rep. 

396),  486,  530. 
Chartiers  Block  Coal  Co.  v.  Mellon 

(152    Pa.    St.    286;    25    Atl.    597; 

18    L.    R.    A.    702;    34    Am.    St. 

645),   38,    113,  405,   886. 
Chartiers  Valley   Gas  Co.  v.  Lynch 

(118   Pa.    St.   302;    12    Atl.    435), 

755. 
Chartiers  Valley  Gas  Co.  v.  Waters 

(123    Pa.    St.    220;    16    Atl.    423; 

25  Am.  and  Eng.  Corp.  Cas.  400), 


TABLE   OP    CASES. 


xlix 


(References  are  to  pages.) 


Obasemore    v.    Richards     ( 7    II.    L- 
Cas.    340;    2    H.    and    N.    lOS;    2!) 

L.  J.   Exch.   81;   5   Jur.    (X.    S.) 

873;   7    W.   R.   685),  50. 
Chase   v.   Savage,   etc.,  Co.    {2  Nov. 

9),   370. 
Cheesnian  v.   Shrove    (40   Fed.    Kop. 

787),   51. 
Chetham    v.    Williamson     (4     East, 

469),  127. 
Cheney  v.  Cook    (7  Wis.  357),  114. 
Cheney   v.    Ohio,   etc..    Gas   Co.    (32 

Ind.    App.    193;    69    X.    E.    477), 

853. 
Cherokee  Const.  Co.  v.  Bishops    (86 

Ark.   489;    112   S.    W.    189),    138, 

182,  228a,  317,   S40a. 
Cherokee,    etc.,    Co.    v.    Wilson    (47 

Kan.  460;   28  Pac.  Rep.   178),  50, 

699. 
Chester    Emery    Co.    v.   Lucas    (112 

Mass.   424),   87,   88. 
Chester  Xat.  Bank  v.  Southern  Pipe 

Line  Co.    (40  Pa.  Super.  Ct.  87), 

408,  415. 
Cheney  v.  Barker    (198  Mass.  350; 

84   X.    E.   492),    549. 
Chevington    &    Bum    Co.    v.    Lewis 

(10   W.    X.    C.    (Pa.)     196),    83!). 
Chicago  V.  Rumpff    (45   III.  90;    92 

Am.   Dec.   196),   490b. 
Chicago     Economic      Fuel      Co.      v. 

Myers     (168    111.    139;    48    X.    E. 

66;    affirming    64    111.    App.    270; 

1   Chic.  L.  J.   Weekly,  276),   694. 
Chicago,  etc.,  Co.  v.  Lake    (130  111. 

42;    22   X.    E.   616;    affirming   24 

111.  App.  346),  434,  513,  514,  515, 

520,   524,   538. 
Chicago,  etc.,  Ry.  v.  Minnesota  ( 134 

U.  S.  418),  432,  433. 
Chicago    &    R.    I.    P.    Ry.    €o.    v. 

Rhodes    (35   Tex.   Civ.   App.   432; 

80  S.  W.  869),  411. 
Chicago,  etc.,  Co.  v.  United   States 

Co.     (57     Pa.     St.    83;     Duke    v. 

Hague    (107   Pa.   St.   60),   77,   92. 


Chicago,  etc.,  Ry.  v.  Wcllinan    (143 

U.  S.  339),  433. 
Chicago  Gaslight  and  Cdke  Co.  v. 
PiHjple's,  etc.,  Co.  (121  III.  530; 
13  X.  E.  169;  2  Am.  St.  Rej), 
124;  reversing  20  III.  App.  473), 
46Sb,  505,  527,  536a. 
Chicago    R.    R.    Co.    v.    People     (73 

111.   541),   520. 

Chicago  .Smokeless  Fuel   Gas  Co.   v. 

Layman    (62   III.  App.  538),   380. 

Child  V.  Starr    (4  Hill,   3G9),   112. 

Childeers  v.  Xeely    (47  W.  Va.  70; 

34  S.  E.   828;    49   L.   R.  A.  468), 

317,    326a,    328,    361,   364b,    364c, 

367,  368,  370,  371,  372,  374,  903, 

904. 

Childs    V.   Clark    (3    Barb.   Ch.    52; 

49  Am.  Dec.   164),  274b,  384. 
Childs    V.    Gille.spie     (147    Pa.    St. 

173;   23  S.  E.   312),  99. 
Giilds  V.  Hurd    (32   W.  Va.   66;    9 

S.  E.  362),  384a,  385,  638,  639. 
'Childs    V.     Kansas    City,    etc.,    Co. 
(117    Mo.    414;    23    S.    W.    373), 
331. 
Chillicothe    v.    Logan    Xatural    Gas 
Co.    (8   Ohio    X.   P.   88;    11    Ohio 
S.   &    C.    P.    Dec.    24),    436d,    529, 
843. 
Chisholm    V.    Atlanta    Gaslight    Co. 

(u57  Ga.  28),  682,  688,  711,  763. 
Chisholm  v.  Halifa.x    (29   Xov.  Sco. 

402),  533,  789. 
Chouteau  v.  St.  Louis  Gaslight  Co. 

(47  Mo.  App.  320),  624. 
Chung   Kee   v.    Davidson     ( 102    Cal. 

188;    30   Pac.  519),  364c,  366. 
Churchill  v.  Lammors   (60  Mo.  App. 

244),  3J0a. 
Chrisman  v.  Miller  (197- U.  S.  313; 
25  Sup.  Ct.  468;  49  L.  Ed.  770; 
affirming  140  Cal.  440;  73  Pac. 
1083;  74  Pac.  444;  98  Am.  St. 
63),  360. 


TABLE   OP    CASES. 


(Reforeiices  nre  to  paRCs.) 


Christy's  Appeal    (110  Pa.  St.  538; 

5  Atl.    205;    9    Morr    Min.    Rep. 
42),  334b. 

Chynovvitch  v.  Granby,  etc.,  Co.   (74 

Mo.   173),  95. 
Cincinnati    v.    Cincinnati     Gaslight 

6  Coke   Co.     (53    Ohio    St.    278; 
41   X.   E.  230),   599,  GOO: 

Cincinnati  Gasliglit,  etc.,  Co.  v. 
Avondale  (43  Ohio  St.  257;  1 
N.  E.  527;  reversing  8  Ohio 
N.  P.  210;  11  Weekly  L.  Bull. 
216;  13  Weekly  L.  Bull.  407;  14 
Weekly  L.  Bull.  15),  428c,  446d, 
455,  456,  470,  409. 
Cincinnati,  etc.,  Rj-.  Co.  v.  Bowling 
Green  (57  Ohio  St.  336;  40  N.  E. 
121),  430,  446d,  578,  580,  588b, 
598,  599. 
Cincinnati,  X.  0.  &  T.  P.  Ry.  Co. 
V.  Gillespie  (130  Ky.  213;  113 
S.  W.  89;  34  Ky.  L.  Rep.  — ), 
C73. 
Cincinnati,    etc.,    Co.    v.    State    (18 

Ohio   St.   237),   4.56,  022,   836. 
Circleville  L.  and  T.  Co.  v.  Buckeye 
Gas    Co.     (69    Ohio    St.    259;    69 
N.  E.  436),  501,  529,  843. 
Citizens    Gas,    etc.,    Co.    v.    Ehvood 
(114  Ind.'  332;   16  N.  E.  624;    20 
Am.    and    Eng.    Corp.   €as.    263), 
490b. 
Citizens    Gas    &     Oil     :Min.     Co.     v. 
Whipple    (32    Ind.    App.   203;    69 
N.   E.    557),    583,   593,    GIG,    681, 
686,   687,    689,   726. 
Citizens   Gaslight   Co.   v.    Wakefield 
(161   Mass.   432;    37   X.   E.   444), 
559,  567. 
Citizens   Gaslight  &  Heating  Co.   v. 
O'Brien     (15    III.    App.    400;    af- 
firmed, 118  111.  174),  736. 
Citizens  Gaslight  &  Heating  Co.  v. 
O'Brien    (19   111.   App.   231),   736. 
Citizens      Gasliglit,      etc.,      Co.      v. 
O'Brien     (118    111.    174;     8    X.    E. 
310),   736,  751,   752,   761,    f92a. 


Citizens  Ins.  Co.  v.  McLaughlin   (53 

Pa.   St.   485),   810,   819. 
Citizens    Xatural    Gas    Co.    v.    She- 

nango,   etc.,  Co.    (138  Pa.  22;   20 

Atl.  947),  145. 
Citizens    Water    Co.    v.    Bridgeport, 

etc.,    Co.     (55    Conn.    1;    10    Atl. 

170),  483. 
Citizens    Water    Company's    Charter 

(6   Pa.   Dist.   Rep.   80),   486. 
City  of  Erie  (91  Pa.  St.  308),  458d. 
City    Fire    Ins.    Co.    v.    Corlies    (21 

Wend.  367),  803. 
City  of  New  York  v.  Brooklyn  Fire 

Ins.  Co.    (41   Barb.   231),   824. 
City  of  Xew  York  v.  Hamilton  Fire 

Ins.   Co.    (10  Bosw.  537),  814. 
City   R.   Co.   V.   Citizens   St.   R.  Co. 

(166  U.  S.  5:7;    17  Sup.  Ct.  653; 

41  L.  Ed.   1114),  425. 
City   Water    Co.   v.    State    (88   Tex. 

GOO;    32    S.    W.    1033;    33    S.    W. 

259),  541. 
City  Water  Co.  v.  State    (33  S.  W. 

(Tex.)    259),  527. 
City  Water  Supply  Co.  v.  Ottumwa 

(120    Fed.   309),   458d. 
Clark   V.   Brown    (83    Cal.    181;    23 

Pac.  289),  367. 
Clark  V.  Jones    (1  Denio,  516).  244. 
Clark  V.  Midland,  etc.,  Co.    (21  Mo. 

App.  58),   203. 
€lark     v.     Ritter      (59     Cal.     669), 

364c,   368. 
Clark    V.    Rumsey    (59   X.    Y.    App. 

Div.    435;    69    X.    Y.    Supp.    102; 

52  X.  Y.  Supp.  417),  370. 
Clark    V.    Wall     (79     P.     1052;     32 

:\Iont.   219),  217. 
Clarke    v.    Curtis     (1    Gratt.    289), 

384a. 
Clarksburg    Electric    Light    Co.    v. 

Clarksburg    (47   W.   Va.   739;    35 

S.  E.  994;  50  L.  R.  A.  142),  522, 

535. 
Clason    V.    Corley    (5    Sandf.    447), 

384b. 


TABLE   OF    CASES. 


li 


(References  are  to  nnges.) 


Clavoring  v.  Clavering    (2  P.  Wms. 

388),   32Ga. 
Clavering  v.    Wostlpy    (3    P.    Wms. 

402),  313. 
Clegg  V.    Enrbv   Oa.s   Co.    [1890]     (1 

Q.   Jl.   ,)!)2;    (;.■)   L.   .J.    Q.    ]J.   33!)), 

588. 
'Clement  v.  Crosby  &  Co.   (122  X.  W. 

{:\Iich.)     2(53;     lU     Det.    Log.    N. 

542),  709. 
Clement     v.     Younger      (4     Wright 

(Pa.)    341),   92. 
Clement  v.   Youngman    (40   Pa.   St. 

341),  60. 
Clements    v.    Philadelphia    Co.    ( 184 

Pa.     St.    28;     38     Atl.     1000;     28 

Pitts.    L.    J.     (X.    S.)     344;     41 

W.  X.  C.  321;    39  L.  R.  A.  532), 

402,   413,  649. 
Clements    v.    Philadelphia     (3     Pa. 

Super.   Ct.  Rep.   14;    39  W.  N.  C. 

299;    reversed,    184    Pa.    St.    28; 

41  W.  X.  C.  321;  28  Pittsb.  L.  J. 

(X.    S.)    344;    39    L.    R.   A.   532; 

38  Atl.  1090),  400d. 
Cleminger    v.    Baden   Gas    Co.    ( 159 

Pa.  St.   10;   33  W.  X.  C.  480;  28 

Atl.  293),  72,   191,  211,  236,  238, 

240a,   254b,   257,   883. 
Cleveland    v.    Citizens    Gaslight    Co. 

(20    X.    J.    Eq.    201),    004,    007, 

672,    674,    075. 
Cleveland,  etc.,  Co.  v.  Backus    (133 

Ind.     513;      13     X.     E.     421;      18 

L.  R.  A.  729;    affirmed,   154  U.  S. 

439;    14  Sup.  Ct.   1122),  837. 
Cleveland,   etc.,    Ry.   Co.   v.   Ballen- 

tine   (84  Fed.  935;   56  U.  S.  App. 

266;   28  C.  C.  A.  572),  410,  412. 

Cleveland,  etc.,  R.  R.  Co.  v.  Closser 

(120  Ind.  348,  354:  20  X.  E.  159, 

161;   9  L.  R.  A.  754:    22  Am.  St. 

593),   620. 
Cleveland    Gaslight  &    Co.   v.    Cleve- 
land  (71  Fed.  010;   35  Ohio  L.  J. 

155),    427,    430,    454. 


Cleveland,  etc.,  Ry.  Co.  v.  Conners- 

ville     (147    Ind.    277;    40    X.    E. 

579),  5SSb. 
Clift  V.  Clift   (3  Pickle   (Tenn.)    17; 

9   S.   W.   3()()),  326. 
(line    V.     Kirkbindoe     (12    Ohio    C. 

Dec.  517;   22  Ohio  Cir.  Rep.  527), 

(iOS. 
Cline  V.   Springfield    (7   Ohio   X.   P. 

020;     10    Ohio    S.    &    C.    P.    Dec. 

389),  428b,  436,  529,  843. 
Clippens   Oil  Co.  v.   Edinburgh,  etc. 

(25  Rettie,  370),  553. 
Clowes   V.    StafTordshire   W.   W.    Co. 

(L.   R.    8    Ch.    125;    42    L.   J.    Ch. 

107;   27  L.  T.  521:    21  W.  R.  32), 

675. 
Clowser    V.   Joplin   ^Mining   Co.    ( — 

,   — ),   331. 

Coal  Co.  V.  Pierce    (153  Pa.  St.  74; 

25   Atl.    102G),    132. 
Coaldale,    etc.,     Co.     v.     Clark     (43 

W.  Va.   84;    27  S.  E.   294),  310d. 
Coalinga   Pacific   Oil   &    Gas   Co.   v. 

Associated     Oil     Co.      (116     Pac, 

(Cal.   App.)    1107),   34,   75. 
Coates    V.    Cheever     (1    Cow.    400), 

325,   32Ga,   329. 
Coates    v.     !Mnyor      (7     Cow.     585), 

425,  676a. 
Coatsville    Gas    Co.    v.     County    of 

Chester    (97    Pa.   St.  470),   833. 
Coelirarie  v.  Justice  Alining  Co.    (26 

Pac.    (Colo.)    780),   343,   345. 
'Cochran  v.   Pew    (159  Vn.   St.    184; 

28    Atl.    219),     1(12,    228a,    228b, 

230,  267,   306,  858. 
Cochran    v.    Philadelphia,    etc.,    Co. 

(1S4    Pa.    St.    5()5;    39    Atl.   290), 

705. 
Cochran   v.   Shenango,  etc.,  Co.    (23 

Pittsb.   Leg.   J.    (X.  S.)    82),  213, 

217. 

Codman  v.   Jenkins    (14  Mass.  93), 
316. 


lii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Coe  V.  Hobby    (72  N.  Y.  141),  217. 
Coffeyville    Alining    &    Gas    Co.    v. 

Carter     (65    Kan.    505;     70    Pac. 

G35),  723. 
Cofleyville,     etc.,     Co.     v.     Citizens' 

etc.,   Co.    (55    Kan.    173;    40   Pac. 

326),   513,  5.35. 
Codin    V.    Davenport     (20    la.    515), 

475. 
Coffinberry  v.  Run  Oil  Co.   (OS  Ohio, 

488;    67    X.    E.    106!)),    ].'-'3,    184, 

208a,  222,  233,  235,  242,  248,  252, 

262,  804,   870. 
Colby   V.    Gadsden    (34    Beav.    310; 

11    Jur.    (X.    S.)     700;     12   L.    T. 

197),  348. 
•Cole    V.    Pennoyer     (14      111.     158), 

318a. 
Cole   V.    Taylor     (8    Pa.    Rnper.   Ct. 

19),   192a,   20-2a,   211,   241,  271. 
Coleman's  Appeal    (62  Pa.  St.  252; 

affirming    1    Pearson,    470),    334, 

334c,    335. 
ColemaTi    v.    Blcwett     (43    Pa.    St. 

176),  331. 
Colgan  V.   Forest   Oil   Co.    (194  Pa. 

St.    234;     75    Am.    St.    09.j;     30 

Pittsb.    L.    J.     (N.    S.)     213;    45 

Atl.     119;     reversing     30     Pittsb. 

Leg.    (N.  S.)    213),  130,  140,  159, 

248,  312,   854,  804,   899,   900. 
Colgan  V.  Forest  Oil  Co.   (30  Pittsb. 

L.  J.   (N.  S.)    OS),   130.   l.-,7.  248. 
Collier  v.  Cunningham   (2  Ind.  App. 

254;   28  N.  E.  341),  284c. 
Collier    v.    ?ilunger     (75    Knn.    550; 

8-9  Pac.   1011),  05,  70,  287. 
Collins   V.    Abel    (151    Ala.    207;    44 

So.  109),  76. 
■Collins  V.  Chartiers  Valley  Gas  Co. 

(131     Pa.     143;     18    Atl.     1012), 

8S4. 
Collins   V.    Cincinmti,   etc.,    Co.    (13 

Ky.  Pep.  670;   18  S.  W.   11),  791. 
Collins    V.    Hnsbrouck     (56    N.    Y. 

157;    15  Am.  407),  284b. 


Collins   V.    Mechling    (1    Super,    Ct. 

(Pa.)    594;    38   W.  N.  C.  235;    26 

Pitts.   L.   J.     (X.    S.)    459),    192c, 

193.' 
Collins   V.  Mt.   Pleasant   Oil   &   Gas 

Lo.    (118  Pac.    (Kan.)   54),  195. 
Collins  V.  South  Penn.  Oil  Co.   (222 

Pa.   345:    71    Atl.   319),    101. 
Collins    V.    Toronto,    etc.,    Co.     (13 

Ont.    W.    Pep.    165),    729. 
Columbia,     etc.,     Co.     v.     American 

Fire  Ins.  Co.    (59  Mo.  App.  204), 

812,   822. 
Columbus  V.  Columbus  Gas  Co.   (76 

Oliio  St.  309;   81  X.  E.  44),  501, 

515,  524,  538,  834b. 
Columbia   Conduit   Co.   v.   Common- 
wealth   (90  Pa.  St.  307),  55,  549, 

553. 
Columbian    Oil    Co.    v.    Blake     (13 

Ind.    App.    080;    42    X.    E.    234), 

32,    103,   307,   309,   318c. 
Columbus,    etc.,    Co.    v.    Columbus 

(50  Ohio  St.  65;   33  X.   E.  292), 

19   L.  R.   A.   510),   542. 
Columbus,   etc.,    Co.    v.    Tucker    (48 

Ohio  St.  41;   26  X.  *E.  630),  654. 
Columbus   Gaslight   Co.  v.   Freeland 

(12  Ohio  St.  392),  651,  653,  667. 
Columbus    Water    Co.    v.    Columbus 

(48  Kan.  99;   28  Pac.  1097),  400, 

502. 
Colorado  &    Portland   v.   Prj'or    (71 

Pac.    (Colo.)    892),  2G>6. 
Colorado,    etc..     Co.    v.    Pryor     (25 

Colo.   540;    :7    Pac.  51),   241. 
Colorado,     etc..     Co.    v.    Turck     (70 

Fed.    Hep.    294),    51. 
Colvin    V.    Woimer     (04    :Nrinn.    37; 

05    X.    W.    1079),    378,   379. 
Comes  V.  Dnbney   (102  Pac.   (Kan.) 

488),    692. 
Commercial,     etc.,     Co.    v.     Tacoma 

(17  Wash.  661;  50  Pac.  592),  522, 

527,  541. 


TABLE   OF    CASES. 


liii 


(Roferences  are  to  pnges. ) 


Commercial    Bank    v.    London    Gas 

Co.     (20    Ap.    Can.    Q.    B.    233), 

577,  580. 
Commercial   Oas  Co.  v.  Poplar   Bor- 
ough  Council    (94  L.   T.   222;    70 

J.  P.   178;    4  L.  G.  R.  2G7),  54G. 
Commercial  Gas  Co.  v.  Scott   (L.  R. 

10  Q.  B.  400;   44   L.  J.  Mc.    171; 

32  L.  T.    (N.  S.)    765;   23  W.  R. 

874;    44   L.    J.    Q.    B.    715),    570, 

588. 
Commercial    Ins.    Co.    v.    Mchlnian 

(48   111.   313),  801. 
Commercial    Ins.    Co.    v.    Robinson 

(04  111.  265),  803. 
Commercial   Union   Fire  Ins.   Co.  v. 

Lister   (23  Gas  J.  304).  827. 
Commonwealth    v.     Consumers    Gas 

Co.  (214  Pa.  St.  72;  03  Atl.  463), 

493. 
Commonwealtli  v.  Dingman    (26  Pa. 

Super.   Ct.    615),   44,    844. 
Commonwealth    v.    Lowell    Gaslight 

■Co.     (12    Allen,    75),    400b,    576, 

618,   833. 
Commonwealth     v.     McKibbon     (90 

Ky.  384;    14  S.  W.  372),  835. 
Commonwealth   v.    Nashua,   etc.,   R. 

R.   Co.    (2    Gray,   54),   514. 
Commonwealth  v.   Old   Colony,   etc., 

R.  R.   Co.    (14   Gray,   93),  514. 
Commonwealth  v.  Philadelphia   (132 

Pa.    St.   288;    19    Atl.    130),    007, 

608. 
Commonwealth  v.  Russell    (172   Pa. 

St.  206),   658. 
Comegys    v.    Russell     (175    Pa.    St. 

166:   34   Atl.  657),  276. 
Commonwealth  v.  Sauters    (6  Kulp, 

407),  405. 
Commonwealth    v.    Shaw     (4    Alien, 

308;   81   Am.  Dec.  706),  844. 
Commonwealth  v.   Standard  Oil   Co. 

(129    Ky.    546;    112    S.    W.    632; 

33  Ky.  L.   1074),  420,  421. 
Commonwealth     v.     Steinling     (156 

Pa.  St.  400;  27  Atl.  297),  43,  44. 


Commonwealth    v.    Tovvanda    Water 

Works    (15   Atl.    (Pa.)    440),  539, 

540. 
Commonwealtli    v.     I'rent     (117    Ky. 

34:    77    S.    W.    \Iv\k   390:    2.1    Ky. 

L.   Rep.    1180),  57,  58,  418d,  078. 
Commonwealth    v.    Wili<esl)arr('    (Jas 

Co.   (2  Kulp   (Pa.)   499),  r>n .  579, 

582. 

Commonwealtli  v.  Wentworth  (118 
Mass.  441),  424. 

Compton  V.  People's  Gas  Co.  (75 
Kan.  572;  89  Pac.  1039;  10 
L.  R.  A.  (N.  S.)  787),  102,  123, 
124,  125,  206,  207,  333,  529,  843, 
898,  907. 

Connnt  v.  Smith  (1  Aikon.  07), 
333. 

Conemaugh     Gas     Co.     v.     Jackson 

Farm.  Gas  Co.    (186  Pa.  St.  443; 

40  Atl.  1000),  615. 
Confers  v.  New  York,  etc.,  R.  R.  Co. 

(140    Pa.    St.    31  ;    23    Atl.    202), 

771. 
Congdon    v.    Olds     (IS    :Mont.    487; 

40   Pac.   201),  904. 
Conger    v.    National    Transportation 

Co.    (165   Pa.   501:    30  Atl.   10.38), 

228b,  858. 
Congle  V.    National,    etc.,    Co.     (165 

Pa.    St.  561:    30   Atl.    1038),   304. 
Conkling  v.  Krandusky    (  127   N.   V. 

567;     112    N.    Y.    Supp.    13),    53, 

65,  72,  202a,  202b,  225,  240d,  245, 

287., 
Conier    v.    New    Albany    (1    Blackf. 

43),   513. 

Connersville  Natural  Gas  Co.  v. 
Mollett  (164  Ind.  585;  73  N.  E. 
894),   582,  592. 

Conrad  v.  1.  W.  Grnhnm  &  Co. 
(54  Wash.  041  :  l():i  I'nc.  1  122), 
779,   780. 

Conrad  v.  "Moorehead  (89  N.  C. 
31),  74,   233. 


Uv 


TABLE    OF    CASES. 


(References  are  to  pages.) 


Conroy    v.    Chicago,    etc.,    Co.     (96 

Wis.    243;     70    N.    W.    486;     38 

L.    R.   A.   419),   411. 
Conshohockcn    Gasliglit    Co.    (5    Pa. 

Co.  Rep.  585),  525. 
Consolidated  -Coal  Co.  v.  Peers    (150 

111.   344;    37   N.  E.  937;   affirming 

30    111.     App.    453),    80,    87,    90, 

274d,  284a,  294d,  310d. 
Consolidated  Coal  Co.  v.  Savitz   (57 

111.  App.  659),   113. 
Consolidated    Coal    Co.   v.    Peminger 

(79    III.    App.    45(i;    affirmed,    179 

111.   370),    094,    754. 
Consolidated    Gas    Co.     (50    X.    Y. 

Misc.    49;    106   N.   Y.   Siipp.    407; 

affirmed,     124    N.    Y.    App.    Div. 

401;    108  N.  Y.  Supp.  Rep.  823), 

522,  536b. 
Consolidated    Gas   Co.   v.   Baltimore 

(01   Atl.    (Md.)    532),  834b. 
Consolidated    Gas    Co.    v.     Cannon 

(114  I\Id.  140;    78  Atl.  725),  682, 

680,   711,   714,  730. 
Consolidated    Gas    Co.    v.    Commis- 
sioners  (99  -Aid.  403;  58  Atl.  Rep. 

214),   494,   513,   549,    551. 
Consolidated    Gas     Co.    v.     Crocker 

(82    Md.    113;    33    Atl.    423;     31 

L.  R.  A.  785),  086,  698,  7(J,  70S, 

711,  723,   746,  748. 
Consolidated    Gas    Co.    v.    Mitchell 

(1   Dauph.  Co.   71),   486. 
Consolidated  Gas  Co.  v.   Xew  York 

Citj'    (157    Fed.   849),  4180,'  436c, 

440. 
Consumers  Gas  Trust  Co.  v.  Amer- 
ican   Plate    Glass    Co.     (162    Iiul. 

393;    68    N.    E.     1020),    49,    126, 

127,     142,     145,     147,     318,     356d, 

855,   878,    892. 
Consumers  Gas  Trust  Co.  v.  Chrys- 

tal   Window  Glass   Co.    (163  Ind. 

190',  70  N.  E.  366;  71  N.  E.  489), 

857,   861,  803,  894. 


Consumers  Gas  Co.  v.  Corbaley    ( 14 

Ind.    App.    549;    43    X.    E.    237), 

708,   714b,   723,   757. 
Consumers  Gas  Trust  Co.  v.  llurless 

(131    Ind.    446;    20    X.    E.    1002; 

15  L.  R.  A.  505),  399,  400,  400b. 
Consumers  Gas  Trust  Co.  v.  Howard 

(163    Ind.    170;    71    X.    E.    493), 

240,  240d,   254d,  298,  899. 
Consumers,    etc,    Co.   v.    Huntsinger 

(14  Ind.  App.  156;  42  X.  E. 
■640),  400,  400b,  513,  518,  551, 
552a,  552b,  553,  554. 

Consumers  Gas  Trust  Co.  v.  Littler 
(162  Ind.  320;  70  X.  E.  963;  72 
X.  E.  360),  106,  130,  1.36,  166, 
190,  235,  236,  239,  240,  240c, 
240d,  251,  252,  254d,  298,  857, 
860,  861,  872,   890,  894,  899. 

Consumers  Oil  Co.  v.  Xunnemaker 
(142  Ind.  500;  11  X.  E.  1048; 
51    Am.    St.    193),    505. 

Consumers  Gas  Trust  Co.  v.  Perrego 
(144  Ind.  350;  43  X.  E.  306;  32 
L.  R.  A.  146),  7141),  715,  721, 
723,   715,   742,   702. 

■Consumers  Gas  Trust  Co.  v.  Quimby 
(137   Fed.   882),   843,  850. 

Consumers  Gas  Trust  Co.  v.  Toronto 
(27  Can.  S.  C.  453;  afHrmed,  23 
App.  Rep.  551),  833,  834. 

Consumers  Gas  Trust  Co.  v.  Worth 
(163  Ind.  141;  71  X.  E.  489;  163 
Ind.  143),  235,  236,  239,  240,  240d, 

241,  254d,   298,    890. 
Consumers  Heating  Co.  v.  American 

Land     Co.      (31     Pittsb.     Leg.     J. 

(X.  S.)   24),  99,   197. 
Conyers    v.    Kirk     (78    Gn.    480;    3 

S.  E.  442),  458,  464,   46!). 
Cook    V.    Anderson     (F5    Ala.    99;    4 

So.    713),    778. 
Cook  V.  .Andrews   (30  Ohio  St.  174), 

161,  203. 
Cook    V.    Columliinn    Oil,    etc.,    Co. 

(144  Cal.  070;   78  Pac.  287),  177. 


TABLE   OF    CASES. 


Iv 


(Rofercncos  are  to  pages.) 


Cooke  V.  Forbes   (L.  R.  5  Eq.   16G; 

37  L.  J.  Ch.  178;   17  L.  T.  (N.  S.) 

371),   663,  674. 
Cooke    V.    Gulf    Refining    Co.     (127 

La.   592;    53   So.   874),    136,    159, 

171,  192a. 
Cook  V.  Harris   (1  Ld.  Raym.  367), 

278. 
Cooney  v.  Hayes  (40  Vt.  478),  284c. 
Cootsville  Gas  Co.  v.  West  Chester 

Co.    (97  Pa.  St.  376),  838. 
Copp  V.   German-American   Ins.   Co. 

(51  Wis.  637;  8  X.  W.  127,  616), 

800. 
Corbet  v.  Oil  City  Fuel  Supply  Co. 

(5  Pa.  Super.  Ct.  19;  40  W.  N.  C. 

480),  613. 
Corbin  v.  Philadelphia   (195  Pa.  St. 

461;    45    Atl.    1070;    49    L.   R.    A. 

715),   782. 
Corcoran    v.    Milwaukee,    etc.,     Co. 

(81    Wis.    191;    51    X.   W.    328), 

792a. 
Core  V.  X.  Y.,  etc.,  Co.    (52  W.  Va. 

276;  43  S.  E.  128),  130,  131,  138, 

150,   233,  261,   865,   896. 
Cornell    v.     Lamb     (2     Cow.     652), 

289. 
Cornish   v.    Farmers,    etc.,   Ins.    Co. 

(74  X.   Y.   295),   810. 
Cortelyou    v.    Barnsdall     (236    111. 

138;   86  X.  E.  200;   affirming  140 

in.    App.     163),     108,     109,    800, 

895. 
Cosgrove    v.    Troesclicr     (62    X.    Y. 

Supp.   Div.    123;    70   X.    Y.   Supp. 

764),  634,  630. 
Cosmos,  etc.,  Co.  v.  Gray  Eagle  Oil 

Co.    (104   Fed.  20),  357. 
Costigan    v.    Hastier     (2    Scli.    and 

Lef.  160),  384b. 
Cosulich   V.  Standard   Oil   Co.    (122 

N.  Y.  118;   25  X.  Y.  259;   revers- 
ing  55    X.    Y.    Super.    Ct.    384), 

702,   781. 
Cotling    V.    Kansas    City,    etc.,    Co. 

(183   U.   S.   85;    22   Sup.  Ct.   30), 

618. 


Couch    V.    Rochester,    etc.,    Ins.    Co. 

(25   Ilun,   469),   801,  823. 
Couch   V.   Steel    (3   E.  and   B.  402), 

588. 
Coulter     V.      Conomaiigh     Co.      (30 

Pittsb.   L.   J.    (X.   S.)    281),  230, 

310. 
Covington     v.     Commonwealth      (19 

Ky.   L.   Rep.    105;    39   S.   W.  836; 

173  U.  S.  231),  835. 
Covington  Gaslight  Co.  v.  Covington 

(58  S.  W.    (Ky.)    805;   22  Ky.  L. 

Rep.    796),   4081),   530. 
Covington  Gaslight  Co.  v.  Covington 

(84  Ky.  94),  833. 
Covington,     etc..     Turnpike     Co.     v. 

Sandford     (164    U.     S.    578;     17 

Sup.    Ct.    198;     41    L.    Ed.    460), 

432,  436. 
Covington  &  L.  Turnp.  Road  Co.  v. 

Sandford     (164     U.     S.     586;     17 

S.  Ct.   198;    41   L.    Ed.   562),  444. 
Cowan  V.  Radford  Iron  Co.   (83  Va. 

547;    3  S.  E.    120),  75,  208,  260, 

400b. 
Cox  v.  Bishop  (8  DeG.  ^L   and  G. 

815;  26  L.  J.  Ch.  3S9 ;  3  Jur. 

(X.  S.)  499;  29  L.  T.  44;  5 

W.    R.    437),    270. 
Cox  V.  Maiden,  etc.,  Co.   (199  Mass. 

324;    85    N.    E.    180),    608,    609, 

610. 
Coy    V.    City    Council     (17    In.    1), 

475. 
Coy  V.    Indianapolis   Gas    Co.    (146 

Ind.     655;      46     X.     E.      17;      36 

L.   R.  A.   535 ;    8  Amer.  and  Eng. 

Corp.    Cas.     (X.    S.)     771),    570, 

578,  582,  589,  590. 
Cozulich   v.   Standard   Oil   Co.    (122 

X.  Y.  118;   25  X.  E.  259),  703. 
Craig   v.    Hukill    (37    W.   Va.   520; 

16  S.  E.  363),  222,  353,  887. 
Crane  v.  Columbus  Con-truction  Co. 
(73    Fed.  894;    46  U.  S.   .\pp.  52; 

20  C.  C.  A.  233),  714a,  717. 


Ivi 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Crawford  v.   Bellvere,  etc.,  Gas  Co. 

(183    Pa.    St.   227;    38    Atl.   595), 

113,   312,   5()2a,   890. 
Crawford    v.    Forest    Oil    Co.    (208 

Pa.    5;    57    Atl.    47),    326a. 
Crawford    v.    Oman,    etc.,    Co.     (34 

S.   C.  90;    12   S.   E.  929),  297. 
Crawford    v.    Ritchie     (43    W.    Va. 

252;   27  S.  E.  220),  72,  185,  211, 

260,  2e89,  852,  874,  913,  914. 
Crawford    v.     Withcrbee     ( 77     Wis. 

419;   46  X.   VV.  545),   132. 
Crawfordsville  v.   Bradcn    ( 130   Ind. 

149;    28   X.   E.  849;    14  L.   R.   A. 

268;    30   Am.   St.   Rep.   214),  559, 

561. 
Crawshay  v.  ^laule   (1  Swanst.  521; 

1  Wils.   181),  363. 
Creel    v.    Charleston,    etc..    Gas    Co. 

(51    W.   Va.    129;    41    S.   E.    174), 

740,  753. 
Crescent    City   Gaslight   Co.  v.   New 

Orleans     Gaslight     Co.      (27     La. 

Ann.   138),  495,  502. 
Crescent  Steel  Co.  v.  Equitable  Gas 

■Co.    (23   Pittsb.   Leg.   J.    (X.   S.) 

316),  578,  580a,   591,  592,  599. 
Cressy  v.   South,   etc..   Gas   Co.    (94 

L.     T.     790;     70     J.     P.     405;     4 

L.  G.  R.  1049),  788. 
Creston  W.  W.  Co.  v.  Creston    (101 

la.    687;     70    N.    W.    739),    434, 

458d,   477,   47Sc. 
Creveling    v.    DeHart    (54    X.   J.   L. 

338;  23  Atl.  Oil),  215.  2S1,  284a. 
Creveling  v.  West  End  Iron  Co.   (51 

X.  J.  L.  34;    16  Atl.  184),  267. 
Crew  V.   Wilson    (22   Xev.   385;    4J 

Pac.   1076),   340c. 
Crocker    v.    Rarteau     (110     S.     W. 

(Mo.)    1062),   293. 
Croft,    etc.,    Gas    Co.    v.    Pryor    (31 

Gas   J.   386),    788. 
Cromwell  v.  Stephens   (2  Daly,  15), 

612. 
Crookb  V.   Flatbush  W.  W.   Co.    (29 

Hun,   245),  549. 


Crosby    v.    ^lontgomery     ( 108    Ala. 

498;    IS   So.  72.-}),   588b. 
Crosbe.v    v.    .Mi>iit;4omery    (108    Ala. 

498;    18  So.  723),  603. 
Crossley    v.    Lill     (77    L.    J.    K.    B. 

199;    [1908]    1    K.  B.  SO;  97  L.  T. 

850;    24  T.  L.  35),  638,  040,  642. 
Croucli   V.   Puryear    (1   Rand.   258), 

326. 
Crowder  v.  Sullivan    (128  Ind.  486; 

28   N.   E.   94;    13   L.    R.   A.   047), 

458,  458d,  302,  490b,  507. 
Crowley     v.      Ellsworth      (114     La. 

308;    38    So.     119;     09    L.    R.    A. 

270),  421,  422. 
Crown   Oil  Co.  v.  Probert   (28   Ohio 

Cir.   Ct.   739),    148,    151,    150,  309. 
Crumley    v.     Watauga    Water    Co. 

(99   Tenn.   420;    41    S.   W.   1058), 

578,   580. 
Cryan    v.    Ridelsperger     (7    Pa.    Co. 

Ct.   473),   211,   248,   253. 
Crystal  Tee,  etc.,  Co.  v.  Marion  Gas 

Co.    (35    Ind.  App.  295;    74  X.  E. 

15),   35,   44. 
Crystal  Palace  Gas  Co.  v.  Tdris   (82 

L.  T.  200;   64  J.  P.  452),  478b. 
Culbertson   v.   Fulton    (127   Til.   30; 

18   X.   E.    781),   45Sd,   459. 
Cumberland    Gas    Co.   v.   West   Va. 

and    .Md.   Gas  Co.    (188  Fed.  585; 

allirming  182  Fed.  607),  458,  5Q1. 
Gumming   v.    Prescott    (2   Y.    &    C. 

E.xcli.    4S8),    373. 
Cunningham   v.    C.   R.   Pease   House 

Furnishing    Co.     (75    X.    H.    290; 

7;J    Atl.    405),   709. 
Cunningham    v.    Knight     (1     Barb. 

399),  353. 

Curless  v.  Diamond  PHto  Glass  Co. 
(33  ln<].  A])p.  099;  70  X.  E. 
1112),   75. 

Currant  v.  Fulton  (10  Tnd.  App. 
617;  38  X.  E.  419),  615. 


TABLE   OF    CASES. 


Ivii 


(References  are  to  pages.) 


D 


Daoflish,   In   re    (L.   R.   8   Ch.  App. 

1072),  G47. 
Dailey  v.  Heller   (41  Ind.  App.  379; 

81    N.    E.    219),    149,     157,     158, 

274c,   279,   293,   802. 
Daly  V.  Elton    (195   U.   S.   242;    25 

Sup.    Ct.    22;     49    L.    F^.     177; 

reversing    139   Cal.   216;    72    Pac. 

1097),  488. 
Dalzell  V.  Findlay    (5.  Ohio  Cir.  Ct. 

Rep.  435;    3   Ohio  Cir.   Dec.  214; 

affirmed,  27  Weekly  L.  Bull.  128), 

598,   599. 
Damainville    v.    Mann     (32    N.    Y. 

197),  278. 
Daniels  v.   Detwiler    ( 14   Mont.    Co. 

L.     Rep.    58;     15    Lane.    L.    Rev. 

1'65),  634,  635. 
Danville  Water  Co.  v.  Danville   (180 

U.     S.     619;      21     .St.     Ct.     505; 

affirming    186   111.   326;    57   K.   E. 

1129),   451. 
Dark  v.  Johnston   (55  Pa.  154,  104; 

9   Morr.   Min.   Rep.   283;    93   Am. 

Dec.   732),   90,   91,   93,   94. 
Darling  v.   Crowell    (6  N.  H.  421), 

353. 
Darlington  v.  Allegheny   (28  Pittsb. 

L.  J.    (X.  S.)    381),  401. 
Dartmouth    College    v.    Clough     (8 

N.  H.   22),   284b. 
Daughtee  v.   Ohio  Oil   Co.    (151    111. 

App.  102),   138. 
Davenport  v.  Kelly    (7   Iowa,   102), 

490b. 
Davenport  v.  Klenschmidt   (6  ^Tont. 

502;     13    Pac.    249),    4n8b,    .lOSb, 

509. 
Davenport    v.     Richmond     (81     Va. 

636),   420. 
Davenport    Oa.slitilit    Co.    v.    Daven- 
port (13  la.  229),  458,  467,  478a, 

478b. 
Davenport   Gaslight   &   Coke   (^o.   v. 

Davenport   (15  Iowa,  6),  467. 


Davenport,  etc.,  Ry.  Co.  v.  Daven- 
port Gaslight  Co.  (43  Iowa,  301), 
547. 

Davern  v.  Merchants,  etc.,  Ins.  Co. 
(7   La.  Ann.  344),  812,  817. 

Davidson  v.  Hughes  (76  Kan.  247; 
91  Pac.  913,  915),  148,  309,  310a. 

Davidson  v.  Humes  (188  Pa.  335; 
41    All.  649),  50. 

Davidson  v.  Jennings  (27  Colo. 
1^7;  60  Pac.  354;  48  L.  R.  A. 
340),  375. 

Davis  V.  Chautauqua  Oil  &  Gas  Co. 

(78    Kan.    97;    96    Pa.    47),    232, 

2o4b,   294,  857. 
Davis  V.  Clark  (2  Mont.  310),  350b. 
Davis    V.    Jeflerson    Gas    Co.     (147 

Pa.  St.   130;   23  Atl.  218).   404. 
Davis    V.    Mayor     (14    X.    Y.    506; 

67   An.  Dec.   186),  490b. 
Davis   V.   Moss    (38   Pa.    346),   226, 

239,   241,   641. 
Davis    V.    Shepherd     (L.    R.    1    Ch. 

App.   410;    35   L.   J.    Ch.   581;    15 

L.  T.    122),  347. 
Davis    V.    Smith     (130    :\Iass.     113), 

512. 

Dawson  v.  McFaddin    (22  Xob.  131; 

34  X.   W.   338),  344. 
Dawson  v.  Kirby    (6  Pa.  Dist.  Rep. 

13;   27  Pitts.  L.  J.    (X.  S.)    234), 

633. 

Dawson  v.  Shaw  (28  Pa.  Super.  Ct. 

563),   57,  418d,  678. 
Dawson   v.   Water   Works   Co.    ( 106 

Ga.   696;    32    S.    E.   907),-  459. 
Dayton    v.    Quiglcy     (29    X.    J.    Eq. 

77),  605,  607. 
Decatur    Gaslight    &    Coke    Co.    v. 

Howell   (92  111.  19),  676a. 
Decatur    Gaslight    &    Coke    Co.    v. 

Decatur    (120    111.   67;    11    X.    E. 

406;    affirming  24   111.  App.  544), 

GOO. 

Dopi  er  v.  Howrll  (42  Cal.  636), 
3(!3,   364,    :^:■f).   ;{72,   004. 


Iviii 


TABLE   OF    CASES. 


(Ilpferonees  nre  to  pages.) 


Deckert  v.   Municipal,  etc.,   Co.    (57 

N.   Y.   Supp.   225),    757. 
Deckert   v.    Municipal,   etc.,    Co.    (9 

N.   Y.   App.   Div.   573;    41    N.   Y. 

Supp.  6&2),  682. 
D'Enycourt  v.  Gregory   (L.  R.  3  Eq. 

382),  638. 
Deer    Lake    Co.    v.    Michigan,    etc., 

Co.     (89    Mich.     180;    50    N.    W. 

807),  356a. 
Deere  v.  Guest    (1   My.  and  C.  516; 

6  L.  J.  Ch.  69),  537. 
Deering,    In    re     (93    N.    Y.    361), 

542. 
Deffcnbaugh  v.  Hess    (225  Pa.  638; 

74  Atl.  608),  324. 
Defiance   Water   Co.   v.   dinger    (54 

Ohio  St.  532;   35  Ohio  L.  J.  323, 

350;   44  N.  E.  238;    32  L.  R.  A. 

736),   685,   736. 
Deihl    V.    Oliio    Oil     Co.     (30    Ohio 

Cir.   Ct.  750),   105,  235. 
Delaware,  etc.,  Canal  Co.  v.  Hughes 

(183   Pac.    66;    63   Am.    St.    743), 

351,  886. 
Delaware,     etc.,     Co.     v.     Sanderson 

(109    Pa.    St.   583;    1    Atl.    394), 

65,   87,   310d,   839. 
Delaware,    etc.,    Co.   v.   Von    Storch 

(196   Pa.   St.   102;    46  Atl.  375), 

840. 
Demars    v.    Koehler     (60    N.    J.    L. 

314;    38   Atl.   808),    171. 
De  Mattos  v.   Gibson    (4   DeG.   and 

J.  276),  620. 
Den  V.  Post  (25  N.  J.  L.  285),  244. 
Denning  v.  Terminal  Ry.    (49  N.  Y. 

App.   Div.    493;    67    N.    Y.   Supp. 

615),  755. 
Denninger     v.     Pomona      (145     Cal. 

629;    79  Pac.  360).  427. 
Denniston    v.    Philadelphia    Co.     (1 

Super.  Ct.   (Pa.)   599;  38  W.  N.  C. 

332;     27    Pittsb.    L.    J.     (X.    S.) 

14),  401,  730a. 
Densmore   Oil   Co.  v.  Densmore    (64 

Pa.    St.   43),   341. 


Dcntley   v.   Anderson    (94  C.   C.  A. 

647;    169   Fed.  391),  890. 
Denver  v.  Hubbard    (68  Pac.    (Colo. 

App.)    993),   462. 
Denys  v.  Shuckburgh    (4  Y.  and  C. 

Exch.   42;   5   Jur.  21),   333,  334b. 
Desloge    v.    Pearce    (38    Mo.    588), 

91,  93,  94,  95,  640. 
Des    Moines   v.   Des   ^loines   W.   W. 

Co.    (95  la.  348;  64  N.  W.  269), 

435,  470,  471,  472. 
Des  Moines  v.  Hall   (24  Iowa,  234), 

356c. 
Des    Moines     St.    Ry-    Co.    v.    Des 

Moines   (73  Iowa,  513;   33  X.  VV. 

610;    35    N.    W.   602),    483,    490c, 

4!)0d,   5081). 
Des  Moines   Gas  Co.  v.  Des  Moines 

(44  Iowa,  505),  483,  49£b,  500. 
Des   Moines   Water   Co.,    In   re    (48 

Iowa,   324),  834a. 
Des     Moines     W.     W.     Co.    v.     Des 

Moines    (95  Iowa,  348;  64  X.  W. 

2tJ9),    613. 
Detlor  V.  Holland   (57  Ohio  St.  492; 

49  X.  E.  690;   40  L.  R.  A.  266), 

88,    95,    124,    136,   202b,   206,   220, 

254b,  356a,  876,  8F2,  885,  911. 
Detroit    v.    Detroit,    etc.,    Co.     (184 

U.  S.  368;   22  Sup.  Ct.  Rep.  410), 

425,  435. 
Detroit  v.   Hosmer    (79   Mich.   384; 

44    X.    W.   622),    464. 
Detroit  v.  Mutual  Gaslight  Co.    (43 

Mich.  594;   5  X.  W.    1039),  536a. 
Detroit     Citizens     St.     Ry.     Co.     v. 

Detroit    Ry.    (171    U.    S.    48;    18 

Sup.  Ct.  732;  affirming  110  Mich. 

732;    68    X.    W.    304),    490c,  564, 

565. 
Detroit   Gns    Co.  v.   ]\Ioreton-Trrich, 

etc.,  Co.  (Ill  Mich.  401;  69  X.  W. 

659),  591.  627. 
Detroit  Pliarmacal  Co.  v.  Burt  (124 

Mich.   220;    82   X.   W.   893),  216, 

282,  284a. 


TABLE   OF    CASES. 


lix 


(References  are  to  imRes.) 


Devine     v.     Taylor     ( 1     Ohio     Dec. 

(N.  P.)    153;    12  Ohio  €.  i'.  723; 

4    Ohio    C.    Doc.    248),    07.    37(i:i, 

379,  380. 
Dewey    v.     Rogers     (2    Land.    Dec. 

707),   58. 
Diamond    Plate    Glass    Co.    v.    Cur- 
less    (22  Ind.  App.  346;   52  N.  E. 

782),   75,    199,  256,   303. 
Diamond  Plate   Glass  Co.  v.   Echel- 

barger    (24    Ind.    124;    55    N.    E. 

233),  75,   199. 
Diamond   Plate  Glass  Co.   v.  Knote 

(38  Tnd.  App.  20;   79  JSl.  E.  954), 

199. 
Diamond  Plate  Glass  Co.  v.  Tennell 

(22    Ind.    App.     132;     52    N.    E. 

168),    114,    154,  297,   314. 
Dicken  v.  Hamor    ( 1  Drew  and  Sm. 

284;    39    L.   J.    Ch.    778;    2   L.   T. 

276),   329. 
Dickey   v.  Coffey ville,   etc.,   Co.    (69 

Kan.     106;     76    Pac.    Rep.    398), 

53,    72,    75,   84,   192a,    192d. 
Dickenson  v.  Bolyer    (55   Cal.  285), 

376a,  376b. 
Dickinson   v.    Dodds    (L.    R.    2    Ch. 

Div.   463;    45    L.    J.    Ch.    777;    34 

L.  T.  607;   24  W.  R.  594),  343. 
Dickinson    v.    Valpy     (10    B.    &    C. 

128;    5    M.    &    Ry.    126;    8    L.    J. 

(0.  S.)    K.  B.  51),  366,  3G9. 
Dickson    v.    Fertig    (21    Pa.    Super. 

Ct.  283),  123. 
Diehl   V.   Adams    County,    etc.,    Ins. 

€o.    (58  Pa.  St.  443),  801. 
Diehle  v.  United  Gas  Imp.  Co.   (225 

Pa.  494;    74   Atl.    349),   689,   691, 

712,   729,   7.35. 
Dietz   V.   Mission    Transfer  'Co.    (25 

Pac.  (Cal.)   423),  3i50d,  354,  356d. 
Dietz   V.   Mission  Transfer    Co.    (95 

Cal.  92;   30  Pac.  380),   113,  356b, 

645. 
Dill    V.    Frazee     (165    Ind.    53;     79 

N.  E.  971),  65,  219,  242,  263,  861, 

875,  889. 


Dill    V.    Frazee     (169    Ind.    53;     79 

X.    E.    791),    98,    256,    262b,    263, 

2S7,  299,  302(1,  305,  31  Ob,  875,  889, 
Dillon    V.    Acme    Oil    Co.    (49    Hun, 

565),    662. 
Dillon    V.   Washington   Gaslight  Co. 
(1  Mac  Arthur    (D.  €.)   626),  789. 
Disher  v.  Disiier    (45   Neb.    100;    63 

N.   W.    368),   326d. 
District  of  Columbia  v.  Washington 

Gaslight  Co.    (20  D.  C.  39),   429, 

484,  518. 
District  of  Columbia  v.  W^ashington 

Gaslight  Co.    (9  Mackey,  39;    161 

U.  S.  316),  756. 
District  of  Columbia  v.  Weston    (23 

App.   D.   C.   363),   422. 
Dittmer    v.    Germania    Ins.    Co.    (23 

La.  Ann.  458;  8  Amer.  Rep.  600), 

809. 
Dively  v.  Cedar   Falls    (27  la.  227), 

458d. 
Dixon  V.  Entriken   (6  Pa.  Dist.  Rep. 

447;     19    Pa.    Co.    Ct.    414),    477, 

565,   566. 
Dix    River    Barytes    Co,    v.    Pence 

(123  S.  W.   (Ky).  263;  34  Ky.  L. 

Rep.  — ),  263,  297. 
Doe  V.  Jepson    (3  B.  and  Ad.   402; 

1   L.  J.  K.   B.   154),   244. 
Doe  V.  Martin    (4  B.  and  Ad.  78t5), 

347. 
Doe  V.  Masters    (2  B.  and  C.  490), 

244. 
Doe    &    Hanley    v.    Wood     (2    Barn, 

and  Aid.   724),   128. 
Dobbins    v.    Los    Angeles     (2.)    Sup. 

Ct.  18;    195  U.  S.  223;   49  L.  Ed, 

169;    reversing    139   Cal.    179;    72 

Pac.    9/0;    96    Am.    St.    95),    421, 

488. 
Dobschuetz     v.     Ilolliday      (82     111. 

371),  641. 
Dodridge,    etc.,    Co.    v.    Smity     (154 

Fed.   Rep.  970),  28d,  53,   72,    119, 

138,   148,  159,   181,  228,  229,  2<62, 

719,  865,  890,  899. 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Doddridge    Co,    Oil    &    Gas   Co.    v. 

Smith    (173   Fed.   386),   152,  890. 
Dohoney   v.    Womack    ( 1    Tox.   Civ. 

App.     354;     19     S.     \V.     883;     20 

S.   W.  950),  214b,   no. 
Donahue  v.  Kelly    (181   Pa.  St.  03; 

37    Atl.    186;    59    Am.    St.    032), 

781. 
Donahue  v.  "Rich    (2  Tnd.  App.  540; 

28  N.  K.   100]),  217,  282. 
Donahue   v.    Wabash,    etc.,    Co.     (83 

Mo.  560),  782. 

Donaldson    v.     Orchard     Crude    Oil 

Co.    (6    Cal.    App.    641;    92    Pac. 

1046),    376d. 
Doolcy    V.    Watson     (1    Gray,    414), 

151. 
Dorr  V.   Dansville  Gaslight  Co.    (18 

Hun,  274),  664. 
Dorrance   v.   Bristol    (224   Pa.   464; 

73  Atl.  1015),  517,  535. 
Double    V.    Union    Heat.,    etc.,    Co. 

(172  Pa.  388;  33  Atl.  694),  192d, 

853,  873,  894. 
Doubleday  v.  Muskett    (4  Moo.  and 

P.    750;    7    Bing.    110;    9    L.    J. 

C.  P.   (0.  S.)    35),  366. 
Dougherty  v.   Creary    (30  Cal.   290; 

89  Am.  Dec.  116),  368. 
Doughatce  v.  Ohio  Oil  Co.    (151  111. 

App.  102),  136. 
Douglass    V.     Placcrville     ( 18     Cal. 

644),  564. 
Douthett    V.    Gibson     (11    Pa.    Sup. 

Ct.  543),  307. 
Dover  v.  Maine  Water  Co.    (90  Me. 

180;  38  Atl.  101),  833. 
Dover    Gaslight    Co.    v.    Dover     (7 

DeG.    M.    and    G.    545;    4    Gas    J. 

129,    176;    1    Jur.    (X.    S.)    812), 

400b. 
Dow  V.  Winneposaukee  Gas,  etc.,  Co. 

(69  N.  H.  312;    41   Atl. "288;    42 

L.  R.  A.  569),  707,  713,  730a. 
Dowe  V.  Faneuil  Hall  Ins.  Co.   (127 

Mass.   346),   805. 


Dower  v.  Richards   (151  U.  S.  658; 

14  Sup.  €t.  452),  360. 
Dowing  V.  State   (66  Ga.  160),  786. 
Doyle  V.  Burns    (123  Iowa,  488;   99 

N.  W.    195),  364a. 
Drake    v.    Lacoe    (157    Pa.    St.    17; 

27  Atl.  538),  261,  274c,  315. 
Dresser    v.    Transportation    Co.     (8 

W.  Va.  553),  317. 
Driscoll   v.   Public   Board   of  Works 

14  T.  L.   Rep.  99;    62  J.   P.   40), 

546. 
DuBois    v.    DuBois,    etc.,    Co.     (176 

Pa.     St.    430;     35    Atl.    248;     38 

W.  N.   C.   417;    34  L.  R.  A.  92), 

458a,  468c. 
DuBois  V.  Luthmer   (147  Iowa,  315; 

126  N.  W.  147),  792b,  779,  780. 
Dubuque  v.  Benson   (23  Iowa,  248), 

356d. 
Dudley  v.  Worde   (Amb.  113),  642, 

646. 
Due  v.   Standard   Oil   Co.    (2   Tenn. 

Ch.  App.   118),  421. 
Dutl's   Appeal    (21    W.  N.   C.   490), 

288,   310d,  385,  386. 
DulT    V.    Bailey    (96    S.    \Y.    (Ky.) 

5:7  ;  29  Ky.  L.  919),  149,  151. 
Duffield  V.  Hue   (129  Pa.  St.  94;   18 

Atl.  560),  78,   114,   129,  171,   190, 

237,  890,  899. 
Duffield   V.    Hue    (136    Pa.    St.   602; 

20   Atl.   520),    129,   145,    155,   856, 

876,  892,  902. 
Duffield  V.  :\Iichaels    (97   Fed.   825), 

127,  240a. 
Duffield  V.  Michaels    (102  Fed.  820; 

42  C.  C.  A.  649),   190,  237,  240b, 

257. 
Duffield  V.  Rosenzweig    (114  Pa.  St. 

520;    23   Atl.   4),    129. 
Duffield  V.  Rosenzweig    ( 144  Pa.  St. 

520;    23    Atl.    4),    146,    151,    152, 

850,  871,  893. 
Duffield     V.     Rosenzweig      (150     Pa. 

643;   24  Atl.  785),   129,  856,  865, 

871. 


TABLE   OF    CASES. 


bd 


(References  are  to  pnges. ) 


Duffield    V.    Russell     {19    Ohio    Cir. 

<.-t.  Rep.  2G6;   10  Ohio  C.  D.  472), 

36,   192. 
DufTiis  V.  Howard   Furnace    Co.    (8 

K.   Y.   App.    Div.   567;    40   N.    V. 

Supp.  925),  631,  636. 
Duke   V.   Hague    (107    Pa.    St.   57), 

77,  80,  92. 
Dull    V.    Blum     (68     Tox.     299;     4 

S.  W.  489),  214b,  eZO. 
Dunat's  Est.   (29  Pittsb.  L.  J.  105), 

87. 
Duncan    v.    Sun    Fire    Ins.    Co.     (6 

Wend.  488),  801,  802. 
Dunham    v.    Kirkpatrick     (101    Pa. 

St.    43;    47    Am.    Rep.    696),    31, 

354,   356,   885. 
Dunham   v.   Loverock    ( 158    Pa.   St. 

179;    2i/    Atl.    990;    38    Am.    St. 

838),    361,    3G4c,    366,    90-5. 
Dunlap    Steenbaad    v.    Reliance     (2 

Fed.  249),  704. 
Duntley  v.  Anderson  (169  Fed.  391; 

94  C.  C.  A.  647),  laO,  220d,  237, 

240c,  295,  899. 
Diu-ant   Mining    Co.   v.    Percy,    etc., 

Co.    (93   Fed.   Rep.   166),  51. 
Duryea  v.  Burt   (28  Cal.  569),  371, 

372,  904. 
Dyke   v.   National    Transit   Co.    (22 

N.    Y.   App.    Div.    360;    49    N.    Y. 

Supp.  180),  51,  151. 


E 

Eads  V.  Rethcrford    (114    Tnd.   273; 

16  X.   E.  5S7),  340a. 
Eads    V.    Williams    (24    L.    J.    Ch. 

(N.   S.)    531;    4  DeG.   M.  and   G. 

674;     11     Jur.     (N.    S.)      193;     3 

W.  R.  98;   24  L.  T.   162),  348. 
Eakin  v.  Hawkins   (48  W.  Va.  364; 

37  S.  E.  622),  326,  330,  880,  881, 

882,  913. 
Eaman  v.  Bashford  (37  Pac.  (Ariz.) 

24),  376. 


Earl  of  Mansfield  v.  Blackhurne  (3 
Scott  (N.  S.)  820;  6  Bing.  N.  C. 
427),    (M7. 

Early  v.  Friend  (16  Gratt.  21;  78 
Am.  Dec.  649),  335. 

East  Jersey  Co.  v.  Wright  (32 
N.  J.  Eq.  248),  66,  91,  94,  128, 
207. 

East  Ohio  Gas  Co.  v.  Akron  (81 
Ohio  St.  33;  90  N.  E.  40),  427, 
462,   539,   580b. 

East  River  Gaslight  Co.  v.  Don- 
nelly   (25   Hun,   614),  464. 

East  River  Gas  Co.  (190  N.  Y. 
528;  84  N.  E.  1112;  affirming 
119  App.  Div.  350;  104  N.  Y. 
Supp.   Rep.   239),   400a. 

East  St.  Louis  v.  East  St.  Louis 
Gas,  etc.,  Co.  (98  111.  415;  38 
Am.  Rep.  97),  429,  458d,  471. 

East  Sugar  Loaf  Coal  Co.  v.  Wilbur 
(5  Pa.  Dist.  Rep.  202),  639. 

Eastern  Oil  Co.  v.  Conlchan  (65 
W.  Va.  531;  64  S.  E.  836),  53, 
56,  72,  137,  139,  262,  303,  856, 
863,    893,    895,    902,    913. 

Eastern  Oil  Co.  v.  McEvoy  (75 
Kan.  515;  89  Pac.  1048),  378, 
380. 

Eaton  V.  Alleghany  Gas  Co.  (122 
N.  Y.  416;  25  N.  E.  981;  revers- 
ing 42  Hun,  61),  72,  101,  192a, 
195,  202,  202a,  232,  233,  853, 
859. 

Eaton  V.  Wilcox  (42  Hun,  61),  67, 
120,   174. 

Eaves  v.  Estes   (10  Kan.  314),  631. 

Echelbarger  v.  Diamond  Plate  Glass 
•Co.  (33  Ind.  App.  699;  7o  N.  E. 
1112),   75. 

Eclipse  Oil  Co.  v.  South  Penn.  Oil 
Co.  (47  W.  Va.  84;  34  S.  E.  923), 
96,  17.  Ill,  246.  852.  859,  860, 
862,   879,   889,   895,   913,   914. 

Eclipse  Oil  Co.  v.  Garner  (53 
W.  Va.  151;  44  S.  E.  131),  294, 
299,   879. 


Ixii 


TABLE   OF    CASES. 


(Heferonops  are  to  pages.) 


Economic    Fuel    CJas    Co.    v.    Myors 

(1(38     111.     139;     4!)     X.     K.     00; 

affirming     04     111.     A])|).     270;     1 

€hic.  L.  J.  Weekly,  270),  755. 
Edgevvare    Highway    Board    v.    Plar- 

row   District   Gas   Co.    (L.    R.    10 

Q.   B.   92;    44   L.    J.    Q.    B.    I;    31 

L.  T.   (X.  S.)    402;  23  W.  R.  90), 

-543. 
Edgewood   v.   Scott    (29   Pa.   Super. 

Ct.  Rep.   156),  515. 
Edinger    v.    Soutli<>rn    Oil    Co.     (71 

S.  E.    (W.  Va.)   200),  368,  374. 
Edison   Electric,  etc.,   Co.  v.  Jacobs 

(8   Kulp.    120),   462. 
Edmonds  v.  Mounsey    ( 15  Ind.  App. 

399;     44    X.    E.    196),     135,    267, 

274,     274c,     278,     297,     307,     310, 

340b. 
Edwardi9  v.  Allouez  INIining  Co.    (38 

Mich.   40),   654. 
Edwards  v.   Hale   (37   W.  Va.   163; 

16   S.   E.  587),  245. 
Edwards  v.  lola  Gas  Co.    (65   Kan. 

362;  69  Pac.  350),  138,  2)22,  254b, 

262,   262a. 
Edwards  v.   McClurg    (39   Ohio   St. 

41),  89. 
Edwards   v.   Woodbury    ( 1    McCray, 

429;    3    Fed.    14),    3S4a. 
Edwards    County    v.    Jennings     (89 

Tex.    618;     35    S.    W.     1053;     33 

S.  W.  5S5),  498b. 
Effinger  v.  Hall   (81  Va.  94),  327. 
Elder   v.    Leyken's   Valley   Coal    Co. 

(157    Pa.    St.   490;    27    Atl.   545), 

654. 
Eldredge   v.    Bell     (64    la.    125;    19 

N.  W.  879),  284c. 
Electric    City,     etc.,     Co.     v.     West 

Bridge,    etc.,    Co.     (187    Pa.    St. 

500;  41  Atl.  458),  132. 
Eley's   Appeal     (103    Pa.    St.    300), 

325,  326c. 


Elias  V.  Griffiths    (8  Ch.  Div.  521 

4   L.   J.   Ch.   806;    26  W.  R.   &69 

38   L.   T.  871;    4  App.   Cas.  454 

48    L.    J.    Ch.   203),    387,    391. 
Elias  V.  Snowdon  Slate  Co.   (4  App. 

Cas.    455;    48    L.   J.    Ch.    811;    41 

L.    T.    289;    28    W.    R.    54),    326, 

386,  389,  391. 
Elizabeth  City  v.  Banks   (150  N.  C. 

407;    64    S.    E.    189),    458a,    516, 

520,  522. 
Elk  Fork  Oil  &.  Gas  Co.  v.  Jennings 

(84    Fed.    839;    affirmed,    90    Fed. 

178;    32    C.    C.    A.    560),    72,    95, 

101,  137,  138,   146,   184,   190,  237, 

246,  250,   852,   859,   913. 
Elk   Fork   Oil  &  Gas   Co.   v.   Foster 

(.99  Fed.  495;   39  C.  C.  A.  615), 

864,   914. 
Elkins  V.  McKean   (79  Pa.  St.  493), 

785,  786. 
Ellinwood    v.    Reedsburg    (91    Wis. 

131;    64    N.   W.    885),    562. 
Ellis    V.    London    Gaslight    Co.     (32 

Gas   J.   819),   620,   714,    703. 
Ellis     V.     Republic     Oil     Co.      (110 

N.  W.    (Iowa)    20),  792a. 
Ellis  V.   Sheffield   Gas,  etc.,   Co.    (2 

Ell.   and    B.    757;    18    Jur.    146), 

788. 
Elliott   V.    Bisliop    (24    L.    J.    Exch. 

39;  42  L.  J.  Exch.  229;    10  Exch. 

490),    038. 
Elliot    V.    Bishop     (10    Exch.    512), 

638. 
Elmhurst  v.  Spencer    (2  MacN.  and 

G.  45),  075. 
Elniira    Gaslight  Co.   v.    Elmira    (2 

Alb.  L.  Jr.  392),  471,  498b. 
■Elms    V.     Randall     (4    Dana,    519), 

2S4b. 
Elyria  Gas,  etc.,  Co.  v.  Elyria    (57 

Ohio    St.    374;     49    N.    E.     335; 

reversing    14    Ohio   C.    C.   219;    7 

Ohio    Dec.     527;     38     Weekly    L. 

Bull.    200;     39    Weekly    L.    Bull. 

139),   507. 


TABLE   OF    CASES. 


Ixiii 


(References  are  to  imges. ) 


Emerine  v.  Steel    (8   Ohio  Cir.  Ct. 
Kep.    381;     4    Ohio    C.    Dec.    92), 
132. 
Emerson  v.  Lowell  Gaslight  Co.    (3 
Allen,    410),    682,    715,    716,    743, 
758,  759,  760,  761,  762. 
Emerson  v.   Lowell   (iaslight  Co.    (6 
Allen,    146;  .  83    Am.    Dec.    621), 
758,  761. 
Emerson     v.     Commonwealth      (108 
Pa.    St.    Ill;    15    W.   N.    C.    425; 
42    Leg.    Int.    81),    55,    491,    501, 
530. 
Emery    v.    League    (31    Tex.    App. 

474';   72  S.  W.  603),  54,  90C. 
Emery  v.  Ledeque   (6  Tex.  Civ.  App. 

719;   72   S.  W.   602),  7t). 
Empire  Transportation  Company  v. 
\Yamstla,    etc.,    Co.     (63    Pa.    St. 
14),    408d. 
Engel  V.  Fitch   (L.  R.  3  Q.  B.  314; 
9  B.  J.  S.  85;  37  L.  J.  Q.  B.  145; 
18    L.    T.    318;     16    W.    R.    785), 
349. 
Engleherth  v.  Troxell   (40  Neb.  195; 

58  N.  W.  852),  318a. 
Enterprise     Oil     and     Gas     Co.     v. 
National    Transit    Co.     (172    Pa. 
St.   421;    33   Atl.  687),   59,  334b, 
334c,   336,   373,  399,   906. 
Entwhistle  v.  Henke    (211  111.  273; 
71   N.   E.   990;    affirming   113   111. 
App.  572),  94. 
Epping    V.    Columbus      (43     S.     E. 

(Ga.)    803),   459. 
Erie  City  v.  Erie  Gas,  etc.,  Co.    ( 78 

Kan.  348;   97  Pac.  468),  437. 
Erie  v.  Erie  Gas,  etc.,  Co.   (78  Kan. 

348;  97  Pac.  468),  436. 
Erie  Crawford  Oil  Co.  v.  Jones  (86 
N.  E.  1027;  43  Ind.  App.  187), 
102. 
Erie  Crawford  Oil  Co.  v.  Meeks  (40 
Ind.  App.  156;  81  N.  E.  518), 
106,  120,  136,  186,  298,  310b, 
888.  896. 


Erie  Mining  &  Natural  Gas  Co.  v. 
Gas  Fuel  Co.    (15  W.  N.  C.  399), 
491. 
Ernest  v.  New   Orleans  W.   W.  Co. 

(39   La.  Ann.  550),   til 9 
Erskine  v.  Forest  Oil   Co.    (80  Fed. 

583),    144,    146,    172,  351,   352. 
Ervin  v.   Masterman    (16   Ohio  Cir. 
Ct.    Rep.    62;    8    Oliio   Dec.   516), 
370,  :7i. 
Erving    v.    New    York    City     (131 
N.  Y.  133;  29  N.  E.  1101;   affirm- 
ing  16   N.  Y.   Supp.  612),   464. 
Esberg-Trust  Cigar  Co.  v.  Portland 
(34  Ore.  282;   55  Pac.  961),  722. 
Etowah    Mining    v.    Wills     Valley, 
etc.,    Co.    (121    Ala.    672;    25    So. 
720),   133. 
Eufaula    Water    Co.    v.    Addystone 
Water    Co.    (89    Ala.    522;    8    So. 
25),  382. 
Eureka  Light  &  Tee  Co.  v.  Eureka 
(5  Kan.  App.  609;   48  Pac.  935), 
501. 
Evans  v.   Consumers  Gas  Trust  Co. 
(29  N.  E.   (Ind.)  398;  31  L.  R.  A. 
•673),   294d,   297. 
Evans    v.    Grand    Rapids,    etc.,   Ry. 
(68   Mich.   602;    30   N.  W.   687), 
319. 
Evans    v.    Hoggatt     (9    Kan.    App. 

540;  59  Pac.  381),  778. 
Evans    v.    Haefner     (29    Mo.    141), 

356c. 
Evans  v.  Keystone  Gas  Co.  ( 148 
N.  Y.  112:  42  N.  E.  513;  30 
L.  R.  A.  651;  51  Am.  St.  681; 
affirming  72  Hun,  503;  25  N.  Y. 
Snpp.  191;  28  Chic.  L.  News, 
160).  730a,  702,  766a. 
Everett    v.    London    Assurance    Co. 

( ,  — ),  804. 

Everett  v.  Tp.  of  Raleigh    (21   Ont. 
Rep.  91),  788. 


Ixiv 


VVkU.K    vH     V"  VSt>v 


^K*<V«v«>v>^^*   ««V    l\»   |\ACV«*-  * 


F*ir    V.    Hvmv   !«**,    k^Ic,   V\v    O* 

<.\»i,  An^  TiVi;   Uv\  )\»v\  :.v»». 

V^»^.    Aj^p.    ^S^».     IU>    Tao     S4T^ 

F«m-h\Kl   V.    PunK-»r    v  ^:s    l\*.    Si, 

45y>;  IS  Ati,  44S^  s:.  S^>.  V»5. 
Faiu-hiW  V,  Fsiu-hiia  \V>  AtK  \»\»J 

ici^K  SUM.  SiW  S:^K 
Fan    Kivt^r    v,     Rrisu^l     Cw     v  liJ 

M*ss,  5(;7K  SS4A. 
Fsu\ker    V.    Aa<Wr*»«    ilTS    l\*.    St, 

!^;   S4  AtL  4S4K  *tV4«.  2d4o. 
Faiv  v.  UAth  0*!ai^s;ht  Ow    vi5  ».»«* 

FsmitTTS,  etc.  Ins.  Cw  v.  "NiwMt  vi 
CoKx.  Ap^v  2t«;   Sv>  l>»v'.  4:iK  SiS. 

Fiaruwrs  Iavau.  etc..  Ovx  v.  low* 
Water  Co.  (TS  Ferl.  Js^lK  S^>:ivl. 

Farmers,  etc..  Ins.  Ow  v.  Simiuow* 
(S\^  H^  St.  e9i>).  5ii>>, 

Fanmm    v.    PUtt     ^S    mok.    S5\n. 

s:v4. 

Far  West   Oil  Ow  v.  Witmer  l^vs, 

U4S  Oal.  Sli^;  ::  Fae.  til>.  179. 

S50. 
Farv>  V.  Bath  0.-«sli^hl  vt  iVl^e  CV 

(25  Gas.  vl.  5t>t«K  T64. 
Faulkiwr   v.    Central    Firv   Ins.   l\v 

{\  Kerr  tN.  Fv)   27^ K  SOI. 
Faust    v.    Aiwerii'an.    ete..    Ins.    0«.v 

1 01  Wis.  UV<.   tU  N.  W.  SSS:   SO 

L.  R.  A.  TSSK  790.  S17. 
Faweeit     v,    Whitehouse     *.  I     Kuss. 

and  M.  1S:»K  S4L 
Fechet   V,    Drake    1 12   l^»o.    ( -\rir.  > . 

i'«>!>  ^ .  645. 
Federal  Oil  Co.  v.  Western  Oil  Co. 

iU2  Feil.  373;  aftirn\«xl.  121  Fevl. 

674;    57    C.   C.    -\.    42SK    97.    98. 

17-*.  1S2.  242.  S60.  S63.  S74,  S75, 

S76,  S79.  SSO,  915. 


Ke^le^>^l  Uetterujeut  v\\  \.  lUek« 
(75  Ka«.  i^».  5sS  »N»e.  «5>.  IST. 
h?ii.  2iM.  2i»2.  2tHi.  212.  240h. 
{474. 

Feli\   V.   Patriek    (IW   V.  iS.  317: 

12  Suiv  vt,  !4<i2K  Ul. 
Fellows^   V.   Walker    iS9   Fe^l.  M\K 

44<h1.  477.  5tU». 
Vellwv^Hl    V.    WuAM\     i^;S    v'.H*    .1, 

24i5).   TS4.   7  in 

Fennel!  v.  Outtev    i  IS9  INu  st.  S*l: 

2\»  All.  UM.S^  1.^.  Iv^.  274.  2T4<k, 

27 4e.   275.    279.   2S9.   SOcJ. 
Fenttell  v.  l^utTey    055   ^^».  St.  J»: 

29  Atk  7SJi).   IS2.  27S. 
Fere»\s  v.  O'lVien    (U    t^    Ik    Uiv. 

21;   15  Civ\  C.  C.  SS2K  S44. 
Ferjius   Vails  Water  i\x  v.   Fer>:ua 

Falls    (rv5    Fe^l.   5Sti).  4tKV.  5lKSK 
Fer>:»»s\vn    v,    IV^ston    Gaslight    <.\v 

vl70   Mass,    1S2;   49  N.    K.    115 K 

7W.  729.  7Slk  7<5tV;> 
Feri;us\m  v.  Metr\^^H*ln.n>,  oto,.  CV». 

(S7    How,    IV.     IS9>.    579.    5SkSa, 

<-.is. 

FergnsiMt    v.   Wils^MX    iL.   R.  2   Oh. 

Apiv  77;   15  W.  R.  271.  S7S. 
Fernamlea    v,    li\irlesv>«     (1 10    Oal. 

llJ4;    42    INe,    5ti6K   SSI. 
Fertiliriivji   Cw    v,    H\vle    Park    (97 

l\  S,   (459).  4A%.  litis.  t57tJA. 
hldelit.v.  ete,.  Cw  v.  Waterman  >  U»l 

III.  tiS2:  44  N,  K.  2SS;  S2  L.  R.  .\. 

t«4;   amrmitt^  59  III.  .\pp.  297). 

S50. 
Fimllay  v.   Carson    (97  Iowa.  5S7: 

titi  N.  W.  759  K   ISS. 

Findlay  v.  Parker    ( 17   Ohio  C.  C. 

294:  9  Ohio  Cir.  Dec.  'Un,  572. 
Fimllav  v.  Smith    (t?  Munf,   1S4:   S 

Ahk    1\v.    ::«S^   S2t?.   S2tSa.   32tHi. 

SSvV 

Fimnc4\  v....  it  Civ  V.  FimHay  (2 
Ohio  nr.  Ct.  2S7;  I  Ohio  ar. 
l\v.  4tsSK  529. 


TAHUr.   OF    CAHE8. 


Ixv 


I ftffi-rfiifi-n  Br*?  to  r'"K**-> 


Finf^an    v.    Fall    lJiv«T   dnft    W'ork<» 

(]r,U   Ma«H.   311;    34   N.   K.  523), 

741,  751. 
Finnpgan      v,     Penn»ylvnnia     Tru»t 

Co.    (144  Pa.  St.  013),  310r]. 
Finnfjran    v.    HUeinncr     (28    Pitttib, 

L.  J.    (X.   S.)    6S;    58    I'a.   Hu],4rT. 

Ct.    Rc-p.    127),    351. 
Fir«'man'H  Inn.  Co.  v.  Cfcil    (12  Ky. 

I..    Puff..   48,  269),   79'J. 
Fireman's   Fiind    In«.  -Co.   v.   Hhi-ar- 

man    (20    Jfx.  Civ.  App.  343;   5^) 

8.   W.   598),  815. 
First     Congrpjjational     Church      v. 

Iloiyolw-,  He,  Inn.  Co,   n58  .Ma**. 

475;    33    N.   E.   572;    35    Am.   St. 

50S;    19  L.  R,  A.  587),  797,  814, 

821. 
Fir»t  Xat.   Bank  v.   Vrm    (41    ifun, 

13),   67,    89,    35f>*I,    384a, 
Firwt    Xational    Rank    v,    7Iarkn<s!» 

(42   \V,    Va.    ]',H;    24    S.    K.    'AH; 

32  L.  K.  A.  408),  59. 
First     Xational     Bank     v,     Shftaff;r 

(149   Pa.   St.   2.36;    24    Atl.   221), 

384r]. 
Fiw:h*!r    v.    l^mHon,    f.U:.,    In«,    Oi. 

(83    F#?d.   807;    affirmed,   92    FwJ. 

600),  82.5. 
Fisher  t.  BarV-n   <■;»«  Co,    (138  Pa. 

St.   .301;    22   Atl.  29),   400d. 
Fishr-r    v.    Dixon     (12    f.l.    arc!    F. 

312),  042,  fAC. 
Fiih'T    V.    Dtinrinj?     i'i?>    .NJo.     App. 

548),  2-35. 
Fishr-r  V.  CufTw    n93   Pi.   393;    44 

Atl.  456),   133,  274c,  279,  284. 
Fisher  V.  Milliken  (8  Pa.  Ill ),  2fi9, 

2«4a. 
Fish'T  V.  Rochester    '6  Lans.  225), 

3.56c. 
Fitch^itjr^h,    etc.,    Torp.    v,    Melren 

(15   Ma9S.  268),  384a. 


VhuV,   Jn    re    [1900]    (2  Q.    B.  32). 

610. 
FJa<;iiH  V.  W««t  I'enn,  Cas  Co.    (213 

Pa.  .561;   W  Atl.    Ill),  5W)a,  582, 
Fla((»taff,   eU;.,    (  o.    v,   Cullins    (104 

U,  S,  176;  amrmin«  2  L'Uh,  219), 

377. 
Flanagan     v,     .Vfarsh     (105     S,     W, 

(Ky.)    424;    32   V.y.  L.   184),  74, 

IW,  2.36,  874. 
Flcniin;^    v.    .Montjromery    Light   Ho. 

(13  S^».  618   (Ala.)   687),  627. 
Fleming  Oil   and   Ca»  O.  v.  South 

Penn.   Oil    Co.    (37    W.   Va,   645; 

17  S,  E,  203),  137,  166,  2.^4,  2.'/4h, 

259,   910, 
Jletcher  v,  Rylands  (  L.  li.  1  Fxch. ) , 

6H3, 
Flick   V.  B«:II    (42  Pac.   (<:al.)    813), 

403, 
Flint    V,    aUnmif^   Gaslight   Co,    (3 

Allen,    343),    693,    709,    733,    739, 

755. 
Florence  <)i],  etc.,  Co.  v,  .\fe<^-'iiml«'r 

r-38  Colo.  366;   88  Pa«,  2^;5),  861, 

874, 
Florence    Oil,    etc.,    Co,    v,    i'Mnan 

(19  f  olo-  App,  79;  73  Pac,  678), 

136,    )92a,    2r>2a,    289,    852,    86*), 

881,  895. 
Flore*!  V.  Diamond  Plate  f/lasx  Co. 

(.33    Ind-    App.    7W;    71     .V.    K. 

1143),  75. 
Floyd,  In  re  [1897]    (1  Ch.  633;  C", 

U  J.  Cli.   3.5^);    76  L.  T.   251;    45 

W.  R.  435),  6^)6. 
Flory  V.  Heller   (1  M^/naghan   'Pa.> 

478),  8.39. 
rUiTHati    V.    TTiomhill     (2    W.    BI, 

1078),   349. 
Flynn  v.  Whit/-  Breast  <^'oal  fo.  (12 

la.  738;   32  X.  \V.  471),  9f),  110, 

296. 
Ffjjrarty  r.  .Iiinetion  City,  «H«,,  Co. 

f.50  Kan.  478;    31    Pa*.   10-52;    18 

L.  R.  A-  7-56),  663. 


Ixvi 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Poland  V.   Frankton   (142   Ind.  546; 

41  X.  E.  1031),  462,  475. 
Foley    V.    Fletcher     (3    H.    and    N. 

779;    2   L.   J.   Exeh.    100;    5   Jur. 

(N.    S.)     342;    7    VV.    R.    141;    33 

L.  T.  11),  310d. 
Folkstone   v.    Downing    {54    Gas    J. 

>313),  348. 
Folsom  V.  Cragen   (11  Colo.  205;   17 

Pac.  515),  376,  380. 
Fond  du  Lac  Water  Co.  v.  Fond  du 

Lac  (82  \Yis.  322;  52  N.  W.  439), 

834a. 
Fonda  v.  Sage    (46  Barb.   lOD),  244 
Poor    V.     Edwards     (45    Ind.    App 

2o9;   90  N.  E.  785),  667. 
Foote  V.   Fire  Department    ( 5   Hill 

99 ) ,  420. 
Footway,  Mitcham  Gas  €o.  v.  Wim 

bledon    Local    Board    (30   Gas   J 

600),  40Oc. 
Forbes   v.   Gracey    (94   U.   S.   762) 

43,  840. 
Ford   V.    Brooklyn   Gaslight   Co.    ( 3 

Hun,  621),  602a. 
Ford  V.  Buchanan    (111  Pa.  St.  CI; 

2  Atl.  Rep.  339),   55. 
Ford  V.  Cobb    (20  X.  Y.  344),  631. 
Forney   v.    Ward    (62    S.   W.    (Tex. 

•Civ.  App.)    108),    137,  254,  254b, 

259,  883. 
Port    Orange    Oil    Co.    v.    Wichman 
(17    Ohio    €ir.    Ct.    57;     9    Ohio 

Cir.   Dec.   650),    120,   292. 
Ft.  Pitt  Gas  Co.  v.  Semckley    (198 

Pa.  St.  201;   47  Atl.  957;   affirm- 
ing 30  Pittsb.  L.  J.   (X.  S.)   419), 

615,  516. 
Ft.    Smith    L.   &    T.    Co.   v.    Kelley 

(94    Ark.    461;    127    S.    W.    975), 

468a,  468b,  489,  505,  536b,  579. 
Forty  Fort  v.  Forty  Fort  Water  Co. 

(9    Kulp     (Pa.),    241),    474. 
Fosdick   V.   Schall    (99    U.   S.   235), 

631. 
Foss   V.    Harbottle    (2    Hare,    489), 

340d. 


Foster   v.    Cape   May    (00   X.   .1.   L. 

78;    36   Atl.    1089),    479. 
Foster  v.  Elk  Fork  Oil  and  Gas  Co. 

(90    Fed.   Rep.    178),   50,   72,    96, 

151,   184,  859,   874,   875,  876,  881, 

895. 
Foster  V.   Findhiy    (5   Ohio   Cir.   Ct. 

455;    3   Oliio  Cir.   Dec.   224),  448, 

455,   571. 
Foster    v.    Philadelphia    Gas    Works 

(12    Phila.   511),   620,  625. 
Foster  v.   Kunk    (109  Pa.  St.  291), 

354. 
Foster  v.  Weaver    (118  Pa.   St.  42; 

12  Atl.  313),  327,   338,  373,  905. 
Fowler   v.    Chartered    Gas   Co.    ( 17 

Gas  J.  908),  602b. 
Fowler   v.    Delaplain    (79    Ohio    St. 

279;  £7  X.  E.  260),  117,  853,  855. 
Fowler    v.    F.    C.    Austin    iMfg.    Co. 

(5  Ind.  App.  489;  32  X.  E.  596), 

475. 
Fox  V.   Frith    (10   M.   and  W.    131; 

■Car  and  M.  502;    11   L.  J.  Excli. 

336),  337. 
Fox  V.   Simmons    (251    111.  316;    96 

X.  E.  233),   102,  126. 
Fraim    v.    Xational    Fire    Ins.    Co. 
(170  Pa.  St.  151;  32  Atl.  613;  37 

W.  X.   C.  39),  818. 
Fraim    v.    National    Fire    Ins.    Co. 

170  Pa.  St.  151;  37  W.  X.  C.  39; 

32  Atl.  613),  811. 
Francoeur    v.    Xewhouse     (43    Fed. 

236),    360. 
Frank   v.   Maguire    (42  Pa.   St.  77), 

216,   2S4a. 
Frankfort  v.  Capital   City,  etc.,  Co. 

(16   Ky.   L.   Rep.   780;    29    S.   W. 

855),  572. 
Franklin   Co.  v.  Coal   Co.    (43  Kan. 

518;    23  Pac.  630),  79. 
Franklin   Coal  Co.  v.  McMillan    (49 

Md.   549),  51,  326b. 
Franklin   Land  Co.  v.  Wea  Gas  and 

Coal    Co.    (43   Kan.   518;    23  Pac. 

630),   319,  324. 


TABLE   OF    CASES. 


Ixvii 


(References  are  to  pages.) 


Fratt  V.  Whittier    (58  €al.   12C;   41 

Am.  Rep.   251),  635. 
Frothingham   v.    Benson    (20   X.   Y. 

Misc.    132;    44   N.   Y.    Supp.    79), 

625. 
Frodonia    Gas    Co.    \.    Bailey     (77 

Kan.  296;  1)4  Pac.  258),  179. 
Freer  v.   Davis    (52   W.   Vn.    1;    43 

S.    E.    164;    52    W.    Va.    35;    43 

S.  E.  172),  876,  877,  913,  914. 
Freer  v.   Stotenbur    ( 2  Keyes,   467 ; 

2    Abb.    Dec.     189;     reversing    36 

Barb.  641),   323. 
Freeland    v.    South    Penn.    Oil    Co. 

( ,  — ),  896. 

Freeman    v.    Freeman     (43     X.    Y. 

34;   3  Am.  Rep.  657),  344. 
Freeman    v.     Mememway     (75    Mo. 

App.   611),   3G4. 
Frencli  v.  Burlington    (42  la.  614), 

458(1. 
French   v.   Macale    (2   Dru.   and   W. 

274),    151. 
Freeport  v.  Enterprise  Natural  Gas 

Co.    (18  Pa.  Super.   Ct.  73),  528. 
Freeport     Borough     v.      Enterprise 

Xatural   Gas   Co.    (18   Pa.   Super. 

Ct.   73),  468a. 
Freeport   School   District    v.    Enter- 
prise  National   Gas    Co.    ( 18   Pa. 

Super.    Ct.    73),   579,    601. 
Freeport     Water     Co.     v.     Freeport 

City    (18    U.    S.    587;    21    S.    Ct. 

493;    amrming    186    111.    179;    57 

N.   E.   862),   426,    450,    451. 
Freeport     Water    Co.     v.     Freeport 

(180    U.    S     587;     affirming    186 

111.  179;   57  X.  E.  862),  426,  450, 

451. 

Freeport   W.   W.   Co.   v.   Prager    (3 

Pa.   Ct.   Rep.   371),   484. 
Friburk    v.    Standard    Oil    Co.     (66 

Minn.  277;    08  X.   W.   lOilO),  664, 

665,  666. 

Friclander  v.   Rider    (30  Xeb.    783; 
47   X.  W.  83),  639. 


Friend  v.   Mallory    (52   W.   Va.  53; 

43  S.  E.  114),  96,  236,  239,  240a, 

247,   302,  315,  889,  894,  909,  913, 

914. 
Frost    V.    Belmont     (0    Allen,    152), 

564. 
Fryc    V.    B:i(h    Gas.    etc.,    Co.     (94 

Me.   17;    46  Atl.   804),  792. 
Fuchs  V.   St.   Louis    (133  Mo.    168; 

31   S.  W.   115;    34   S.  W.  508;    34 

L.   R.   A.    18),  699,   778. 
Fuller    V.    Buckeye    Supplj'    Co.     (5 

Ohio   C.    PI.    187;    7    Ohio   X.    P. 

420),    392c. 
Funk    V.    Brigaldi     (4    Daly,    359), 

633. 
Funk  V.  Haldeman    (53  Pa.  St.  220, 

247),    32,    38,   77,    90.   91,   93,   94, 

95,  117,  127,  128,  289,  356,  914. 
Fulmer's   Appeal    (128   Pa.    St.   24; 

18  Atl.  493),  331,  334c. 
Furbach   v.    Consolidated,   etc.,   Ins. 

Co.    (140   Iowa,   240;    118    X.   W. 

371),    804. 

Fulton  V.  Stuart  (2  Ohio,  215), 
284b. 

G 

G.  B.  Ming  Co.  v.  First  National 
Bank  (95  Fed.  35;  35  C.  C.  A. 
510;  affirming  89  Fed.  449),  371, 
384c. 

G.  C.  T.  Railroad  Tax  Cases  (92 
U.   S.  575),  837. 

Gadbury  v.  Ohio,  etc..  Gas  Co.  (162 
Ind.  9;  67  X.  E.  259),  70,  71,  73, 
74,  138,  155,  158,  181,  182,  185, 
211,  219,  220a,  222,  228,  234,  241, 
244,   254d,  S63,   867,   875,  876. 

Gadbury  v.  Ohio,  etc.,  Gas  Co.  (65 
X.  E.  (Ind.  Ai)p.)  289),  234,  241, 
254d,  2o0. 

Gage  V.  Wheeler  (129  111.  197;  21 
N.  E.  1075),  319. 


Ixviii 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Gagnon    v.    French    Lick,    etc.,    Co. 

(103    Ind.    687;     72    N.    E.    Rep. 

^7!)),   50. 
Gaines  v.   Green  Pond   Iron   Mining 

Co.    (33  N.  J.  Eq.  603;    reversing 

32   N.  J.    Eq.    80),   325,   326. 
Galbreath  v.  Amour    (4  Boll.  App. 

Cases,   374),   552b. 
Gale  V.  Kalamazoo    (23  Mich.   344; 

9  Am.   Rep.   80),   490b. 
Gale   V.   Petroleum    Co.    (6    W.   Va. 

200),  SO. 
Galey    v.    Kellerman    (123    Pa.    St. 

491;    23    W.    N.    C.    139;    16    Atl. 

474),    147,    148,    227,    228a,    300. 

858. 
Gallagher  v.  Equitable  Gasli<j;ht  Co. 

(141  Cal.  699;  75  Pac.  329),  578, 

579. 
Gallagher    v.    Kemmerer     (144    Pa. 

St.   502;    29   Atl.  970),  654. 
Galloway    v.     Campbell     (142    Ind. 

324;  41  N.  E.  597),  913,  914. 
Gannon  v.   Peterson    (193   111.   372; 

62  N.   E.   210),   326. 
Ganter   v.   Atkinson    (35    Wis.   48), 

79. 
Gardner  v.  Resumption,  etc.,  Co.   ( 4 

Colo.    App.    271;    35    Pac.    674), 

380. 
Garman  v.  Potts   (135  Pa.  St.  506; 

20   W.  N.  C.  305;    19   Atl.    1071), 

192d,  195. 
Gardner  v.  Webster   (64  K  H.  520; 

15    Atl.    144),   214b,    870. 
Gordon  v.   Butler    (105  U.  S.  553), 

220a. 
Garretson    v.    ^Merchants,    etc.,    Co. 

(i81   Iowa,  727;   45  N,  W.  1047), 

825,  827. 
Garrett  v.  South  Penn.  Oil  Co.    (66 

W.    Va.   587;    66    8.   E.   741),   56, 

101,     103,     202,    202b,     258,     200, 

356b,  880,   901. 
Garrison  v.  Chicago    (7  Biss.   480), 

428d,    458,    476,    490b,    507. 


Gartlan  v.  Hickman  (56  W.  Va, 
75;    49  S.  E.   14),  262c,  892. 

Gartside  v.  Outley  (58  111.  210), 
79,   324. 

Gas  Co.  V.  George   (161  Pa.  47;   28 

Atl.    1004),   894. 
Gas    Company    v.    Pittsburgh     ( 101 

U.    S.    219),    836. 
Gas  Co.  V.  Ullery   (68  Ohio  St.  271; 

67    N.   E.   494),  38. 
Gaslight  Co.  v.  Donnelly    (93  N.  Y. 

557),   464. 
Gaslight    Co.    v.    South    River     (77 

N.  J.  Eq.  487;   77  Atl.  473),  429, 

481,  518a,  518b. 
Gaslight    &    Coke    Co.,    In    re     (57 

Gas   J.    1196),    624. 
Gaslight,    etc.,   Co.   v.    New   Albany 

(156    Ind.    400;    59    N.    E.    176), 

458,   461,   467,  468d,  472. 
Gaslight  &  Coke  Co.  v.  Hardy    ( 17 

Q.   B.   Div.  619;    56   L.  J.   Q.   B. 

108;   55  L.  T.  585;   36  W.  R.  60; 

51  J.  P.  6),  606,  632. 
Gaslight    &    Coke    Co.     v.    Herbert 

Smith    (3  T.  L.  R.  15),  632. 
Gaslight   &   Coke   Co.   v.   Mead    (45 

L.  J.  M.   C.   71),  607. 
Gaslight  &  'Coke   Co.  v.   St.   George 

(42    L.    J.    Q.    B.     (N.    S.)     50), 

588. 

Gaslight  &  Coke  Co.  v.  Vestry  of 
St.  Mary  (15  Q.  B.  Div.  1;  54 
L.   J.   Q.    B.    414;    53    L.   T.    457; 

33  W.  R.  892;   49  J.  P.  459),  401, 
546. 

Gas  &  Water  Co.  v.  Dowington  ( 175 

Pa.    St.    341;    38    W.    N.    C.  376; 

34  Atl.  799),  484,  498a. 
Gavigan  v.  Atlantic   Rep.   Co.  ( 186 

Pa.    St.    604;    40   Atl.   834),   662, 

665,   660. 
Gayton    v.    Day     (178     Fed.    249), 

170. 
Gearhart  v.   Gwinn    (32  Pa.   Super. 

Ct.  507),  262c. 


TABLE   OF    CASES. 


Ixix 


(References  are  to  pages.) 


Gee   V.   Pearse    (2      DeG.     ami   Sin. 

325),  348. 
Geiger    v.    Green     (4    Gill     (Md.), 

472),  94. 
Genet    v.    Delaware,    etc.,   Co.     (130 

N.  Y.  593;  32  N.  E.  1078;  revers- 
ing   122    N.    Y.    505;    25    N.    E. 

956),  65. 
Georgia    Home    Ins.    Co.    v.    Jacobs 

(56  Tex.   3()G),   825. 
Georgia    R.    &    Bkg.    Co.    v.    Smith 

(128  U.   S.   174;    9  S.   Ct.  47;    32 

L.   Ed.  377),  444. 
Gerkins  v.  Kentucky  Salt  Co.    (100 

Ky.    734;    39    S.    W.    444),    32tia, 

328,  329. 
German  Fire  Ins.  Co.  v.   Board    (54 

Kan.  732;   39  Pac.  697),  802. 
German-American  Ins.  Co.  v.  Hyman 

(42  Colo.    156;    94  Pac.  27),   803, 

804. 
German    Fire    Ins.    Co.    v.    Klewer 

(129    111.    599;     22    N.    E.    489), 

801. 
German-American  Ins.  Co.  v.  Roost 

(55  Ohio  St.  581;  45  X.  E.  10!)7; 

36  L.   R.   A.   236),   804. 
German-American  Ins.  Co.  v.  Stand- 
ard Gaslight  Co.    (34  N.  Y.  :Misc. 

Rep.    594;    70    X.    Y.    Supp.    384; 

€7  N.  Y.  App.  Div.  539;   73  N.  Y. 

Supp.  973),  729,  827. 
German-American  Ins.  Co.  v.  Stand- 
ard Gaslight  Co.    (67  X.   Y.  App. 

Div.   539;    73   N.   Y.    Supp.    973), 

735,  742,   746,   750. 
German  Mining  Co.,  In  re    (4  DeG. 

M.  and  G.    19;    24   L.   J.  Ch.   41; 

18    Jur.    710;    23    L.    T.    (0.    S.) 

200;   2  W.  R.  543),  309. 
Germania     Refining     Co.     v.     Alum 

Rock    Co.    (226    Pa.    St.    433;    75 

Atl.   715).   219,   228d,   229. 
Gesner  v.  Cairns   (2  Allen   (N.  B.), 

595).   32. 
Gesner    v.    Gas    Co.     (James    Rep. 

(X.   B.)    72),   32. 


(iliee    v.    Xortliern    Union    Gas    Co. 

(158   X.    Y.   510;    53    N.    K.    092; 

reversing  31  X.  Y.  App.  Div.  551; 

5i}  X.  Y.  Supp.  450),  515. 
Gibben  v.  Atkinson    (64  Mich.  051; 

31  X.  W.  570),  81. 

Gibney  v.   State    (137   X.  Y.   1;    33 

X.    E.    142;     19    L.    R.    A.    365), 

792. 
Gibbs  V.  Consolidated  Gas  Co.    (130 

U.  S.  396;    9   Sup.   Ct.  553),  505, 

527,   536a,   538,   578. 
Gibson    v.    Leonard    (143    111.    182; 

32  X.    E.    182;    affirming    37    111. 
App.   344),   412. 

Ci])son  v.  Mullican  (58  Tex.  430), 
284b. 

Gibson  V.  Oliver  (158  Pa.  277;  27 
Atl.   961),  85S. 

Gibson  V.  Oliver  (158  Pa.  St.  277; 
27   Atl.   961),    162. 

Gilbert's  Case  (L.  R.  5  Ch.  App. 
559;    18   VV.  R.  938),  373. 

Gilbert  v.  Joss    (31  Wis.  110),  125. 

Gill  V.  Weston  (110  Pa.  317;  1  Atl. 
921),   38,   355,   384d,   045. 

Gillespie  v.  Fulton  Oil  &  Gas  Co. 
(140   III.   App.   147),  79,  91,  31-9. 

Gillespie  v.  Fulton  Oil  &  Gas  Co. 
(236  111.  188;  80  X.  E.  219),  46, 
54,  74,  79,  91,  96,  124,  136,  145, 
171,  ISO.  li-7,  220b,  220c,  225, 
229,  203,  200,  284d,  299,  302, 
310b,   319,   889,   896,   909. 

Gillespie  V.  Fulton  Oil  &  Gas  Co. 
(239  111.  320;  88  X.  E.  Rep.  192), 
51,  52,  53,  54,  72,  73,  85,  127. 

Gillespie  v.  Tsemnn  (210  Pa.  1;  59 
Atl.    200),    287,    29.1. 

Gillispie  Tool  Co.  v.  WiNon  (123 
Pa.  St.  19;    10  Atl.  36),  175. 

Gillett   V.   Treganza    (6   Wis.    343), 

00. 

Gird  V.  California  Oil  Co.  (60  Fed. 
531),  5S,  357. 


Ixx 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Given   v.    State    (100    Ind.   552;    60 

N.    E.    750),    32,    43,   40,   57,   418, 

418d,   419. 
Glading  v.   Frick    (88  Pa.  St.  460), 

384d. 
Gladys   City   Oil,  etc.,   Co.   v.   Eight 

of  Way  Oil  Co.   (137  S.  W.   (Tex. 

Civ.  App.)    171),  51. 
Glasgow    V.   Chartier    Oil   Co.    (15'2 

Pa.  48;  25  x\tl.  232;  affirming  22 

Pittsb.  L.   J.    (N.   S.)    181),    130, 

138,   140,   148,   197,  231,  263,  303, 

305,  861,  889. 
Glasgow  V.  Glasgow,  etc.,  R.  R.  Co. 

[18!>5]    (App.  Cas.  376;   64  L.  J. 

P.  C.  171;   72  L.  T.  809;  59  J.  P. 

788;   11  Rep.  226),  518a. 
Glasgow  V.  Griffith  (22  Pittsb.  L.  J. 

(N.  S.)    181),   109,   230,  305. 
Glasgow    V.    Patrick,    etc.,    Co.     (22 

Gas  J.  54),  027. 
Glasgow      Gas      Commissioners      v. 

Solicitor    (at  3  Court  of  Sessions 

Rep.    (4th  Series)    857),  837. 
Gleason  v.   Dalton    (28   N.   Y.  App. 

Div.   555;    51    N.   Y.    Supp.    337; 

85  X.  Y.  St.  Rep.   337;   reversing 

23  X.  Y.  Misc.  18;  50  N.  Y.  Supp. 

90),  464. 
Glidden    v.     Strupler     (52    Pa.    St. 

400),  318b. 
Gloag    &    Miller's    Contract,    In    re 

(23   Ch.   Div.   .320;    52    L.  J.   Ch. 

654;  48  L.  T.  ■629;  31  W.  R.  001), 

346. 
Gloninger  v.  Franklin  Coal  Co.    (65 

Pa.  St.  9),  128. 
Gloucester   Bank   v.  Rudry   Colliery 

Co.   [1895]    (1   Ch.  629;    64   L.  J. 

Ch.  451;   72  L.  T.  375;   43  W.  R. 

480;   2  Manson,  223;    12  R.   183), 

387,  392. 
Goddard's   Appeal    (1    Walk.    (Pa.) 

97),  274,  274d. 
Gold  V.  Peoria    (65  111.  App.  602), 

458d,  466. 


Golden  Reward  ^Mining  Co.  v.  Bux- 
ton  (97  Fed.  Rep.  413),  51. 
Goller  V.  Felt    (30  Cal.  481),  334c. 
Goodlander  Milling  Co.  v.  Standard 

Oil    Co.    (03    Fed.    400;    24    U.   S. 

App.  7;  27  L.  R.  A.  583),  408a. 
Goodright  v.  Cator   (2  Dougl.  485), 

244. 
Groodson  V.  Richardson  (L.  R.  9  Ch. 

221;.  43  L.   J.   Ch.    790;    30  L.  T. 

(N.    S.)     142;     22    W.    R.    337), 

535,   537,   553. 
Goodson  V.  Sunbury   (75  L.  T.  Rep. 

251;    00  J.  P.   585),   788. 
Goodtitle   v.    Alker     (1    Burr,    143), 

35Gc. 
Goodwin  v.   Gilbert    (0  Mass.  510), 

122. 
Gordon    v.    George     (12    Tnd.    408), 

:.74,  274b. 
Gosport  v.  Pritchard   (156  Tnd.  400; 

59  N.    E.   1058),  458,  458u,   458d, 

406,   407,   471,   478,   478a. 
Goss    V.    Brick    Co.     (4    Super.    Ct. 

(Pa.)    107),   272,  274c. 
Goss   V.   Helbing    (77    Cal.    190;    19 

Pac.  277),   376a,   382. 
Gould  V.  Glass   (19  Barb.  179),  358. 
Gould     V.    Winona     Gas    Co.     (100 

Minn.    258;    111    N.    W.   254;    10 

L.  R.  A.    (N.   S.)    889),  686,  687, 

717,  730a. 
Graciosa   Oil   Co.  v.   Santa  Barbara 

County    (155    Cal.    140;    99    Pac. 

Rep.   483),  53,  05,  07,   71,  72,  84, 

840. 
GrnofT  v.  Felix   (24  Pa.  Co.  Ct.  Rep. 

6r)7),  559. 
Graham    v.    Pioree     (10    Gratt.    28; 

100  Am.  Dec.  058),  335. 
Graham   v.   Van  Drinen's   Land   Co. 

(11    Exch.   101),   190. 
Grand  Rnpids.  etc.,  Co.  v.  American 

Fire   Ins.   Co.    (93   Mich.   390;    63 

N.  W.  538),  809. 


TABLE   OP    CASES. 


Ixxi 


(Uoferenccs  nro  to  pages.) 


Grand  Rapids  v.  Grand  Rapids  Hy- 
draulic Co.  (66  Mich.  G06;  33 
N.   W.  749),  536b. 

Grand  Island  Gas  Co.  v.  West  (28 
Xeb.  852;  4.5  X.  W.  242),  472, 
478d. 

Grange    v.     Patcly,     etc.,     Co.     (14 

Gas  J.  309),  651.  664. 
Grant    v.    Davenport     (36    la.    396), 

458d. 
Graves   v.    Key   City    Gas    Co.     (83 

Iowa,  714;    50  X.  W.   2S3),  294b, 

609,   612,   613. 
Graves    v.    Key    City    Gas    Co.    (93 

Iowa,   470;    61   N.   W.   937),   578, 

609,  613. 
Gray   v.   P.oston    Gaslijiht   Co.    (114 

Mass.   149),  400b. 
Gray  v.  Pullen    (5   B.   and   S.   970; 

.34  L.  J.  Q.  B.  265;    11  L.  T.  509; 

13   W.   R.   257),   755. 
Gray  v.  Spring    (129   La.   345;    56 

S.  E.  305),  202. 
Greaney     v.     Holyoke      (174     Mass. 

437;  54  X.  E.  880),  718. 
Great    Central    Gas    Consumers    Co. 

V.  Tallis   (3  Gas  J.  5),  588. 
Great    Falls    W.    W.    Co.    v.    Great 

Xorthern  Ry.  Co.   (21  Mont.  487; 

54  Pac.  963),  400,  520.     - 
Great  Western,  etc.,  Co.  v.  Hawkins 

(66  X.  E.   (Ind.  AppO   765),  400a. 
Great  Western  Oil  Co.  v.  Carpenter 

(43  Tex.  Civ.  App.  229;  95  S.  W. 

57),  230,   861,   880,   915. 
Green  v.   Asliland  Iron  Co.    (62   Pa. 

St.  !)7),  43. 
Greenfield    Gas    Co.    v.    Trees     (163 

Ind.  200;    75  X.  E.   2),  589,   592, 

597. 
Greenlee  v.   Steelsmitli    (64  W.   Va. 

353:    (12    S.    E.    45!t),    .3fi-lb,    368, 

371,   903,   004. 

Greenougli's  Appeal  (9  Pa.  St.  18), 
316. 


(iroensboro  Xat.  Gas  Co,  v.  Fayette 

County  Gas  Co.   (200  Pa.  388;  49 

Atl.   768),   849,  891,   914. 
Greensburg  Fuel  Co.  v.   Irwin,  etc., 

Co.     (162     Pa.     St.     78;     29    Atl. 

274),  67. 
Grenslade   v.    Dower    (7    P>.    and    ('. 

635;    1   M.   and   Ry.   640;   C   L.  J. 

K.  B.    (0.  S.)    155),  369. 
Creenwabl    v.    Ins.    Co.     (3    Phila. 

323),  803. 
Greenway    v.    Adams    ( 12    Vcs.    Jr. 

395),  2S4e. 
Greaney  v.   Holyoke,  etc.,   Co.    (174 

Mass.  437;   54  X.  E.  880),  766a. 
Gregg  V.  Roaring  Springs,  etc.,  Co. 

(97  :Mo.  App.  44;   70  S.  W.  920), 

332. 

Gribhen  v.  Atkinson   (64  "SUch.  651; 

31   X.  W.  570),  203,  839. 
Grimn    v.    Follows     (SIV,     Pa.    St. 

114),  324. 
Griffin  v.  Goldsboro  Water  Co.    (122 

X.    C.   206;    30    S.    K.    319),    578, 

580a,   582,  598,  601. 
Griffin  v.  Southwest,  etc..  Lines  (172 

Pa.  St.  580;    33  Atl.  37s),  45. 
Griffiths  v.  City  of  London  Gas  Co. 

(16  Gas  J.  139),  731,  71)5. 
Grimsley  v.  Hawkins   (46  Fed.  400), 

704. 
Grinstone   (Amb.  70S),   318. 
Grinor    v.    Ohio    Oil    Co.    (26    Ohio 

tir.    Ct.    Rop.    521),    186. 
Grommes    v.     St.    Paul     Trust    Co. 

(147    111.    634;    35   X.    E.   S20;    37 

Am.  St.  248),  216,  281,  284a. 
Gross   V.    Scott   Mfg.    Co.    (48    Fed. 

35),   2201). 

Grossman  v.  Consolidated  Gas  Co. 
(180  X.  Y.  541;  78  X.  E.  871; 
affirming  114  X.  Y.  App.  Div. 
242;  100  X.  Y.  Supp.  100),  436, 
436d. 


Ixxii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Grossman  v.    Consolidated   Gas   Co. 

(114    X.    Y.    App.    Div.    242;    100 

Is'.   Y.    Supp.   Rep.    100;    affirmed, 

186   N.   Y.   541;    78    N.    E.    871), 

446. 
Grove  v.  Hodges    (55  Pa.  St.   504), 

78,  88,   122. 
Grover    v.    Howard     (31    Me.    546), 

113. 
Grubb's    Appeal    (90   Pa.    St.   228), 

331. 
Grubb's   Appeal    (O'O    Pa.    St.    117), 

331. 
Grubb  V.   Bayard    (2   Wall.  Jr.  81; 

11  Fed.  €as.  89),  60,  93,  94,  127. 
Grubb    V.    Grubb    (74    Pa.    St.    25), 

331. 
Grubb   V.   Grubb    (101    Pa.   St.   11), 

334c. 
Grubb  V.  Guilford    (4  Watts    (Pa.) 

223),  93. 
Grummett    v.    Gingrass     (77    Mich. 

369;    43  N.  W.   990),   349. 
Grundy     v.     Jancsville      (84     Wis. 

574;    54  N.   W.   1085),   7&9. 
Guffey  V.   Clever    (146  Pa.  St.  548; 

23  Atl.  161),  108,  220b,  268,  271. 
Guffey   V.   Deeds    (9    Pa.   Co.    449), 

129. 
Guffey    V.    Hukill     (34    W.    Va.    49; 
11    S.    E.    754;    8    L.    R.    A.    759), 

74,   182,  240a,  244,   245,  859,  803, 

895. 
Guffin    V.    Fellows     (81^^     Pa.     St. 

114),  323. 
Guild    V.    Belcher    (119    Mass.    257), 

372. 
Gummerville  v.  Apollo  Gas  Co.   (207 

Pa.   334;    56   Atl.   876),    198. 
Gunther  v.  Liverpool,  etc.,  Ins.   Co. 
(134  U.  S.  110;   10  Sup.  Ct.  448), 

795,   799,   802. 
Gutekunst     v.     ^lunicipal     Gas     Co. 
(126    N.    Y.    Supp.     1035),    711, 

714a. 
Gutlirie  v.   Jones    (108   Mass.   191), 
638. 


H 

Haas  v.  St.  Paul  Gaslight  Co.   (113 

Minn.  379;    129   N.  W.  759),  692. 
Hacker  v.  London  Gaslight  Co.   (32 

Gas  J.  781),  623,  624,  681,  763. 
Hacker    v.    Philadelphia     (6    Piiila. 

94),  571. 
Haeussler  v.  ^lissouri  Iron  Co.   (110 

Mo.  188;  19  S.  W.  75;   16  L.  R.  A. 

220),   334. 
Hagan  v.  Fayette  Gas  Fuel  Co.    (21 

Pa.   Co.  Ct.  Rep.   503;   29  Pittsb. 

Leg.    J.    (N.    S.)    229),    493,   501, 

530. 
Hague  V.  Wheeler   (157  Pa.  St.  324; 

33  W.  N.  C.  83;  27  Atl.  Rep. 
714;  22  L.  R.  A.  141),  33,  38,  46, 
50,    144,   885. 

Haight    V.    Conners     (24    Atl.     (Pa. 

St.)    302),   113. 
Hail   V.   Reed    (15   B.   Mon.   479;    11 

Mor.   Min.  Rep.   103),  32,  33,  38, 

44. 
Halbrook   v.   Connor    (60  Me.  578), 

220a. 
Hale,    etc.,    Co.    v.    Storey    County 

(1  Nev.  105),  839. 
Haley    V.    Dorchester,    etc.,    Ins.   Co. 

(12   Gray,   545),   817. 
Halford    v.    Hatch     (Dougl.     187), 

2S4b. 
Hall    V.   Alirahnm    (44  Ore.  477;    75 

Pac.  882),  94. 
Hall    V.    Insurance    Co.     (58    X.    Y. 

292;    17  Am.  Rep.  255),  798,  810. 
Hall     V.     Xashvilh',    etc.,    Ry.     (13 

Wall.  367),  828. 
Hall    V.    Vernon     (47    W.    Va.    295; 

34  S.  E.  Rep.  704;  49  L.  R.  A. 
404),  54,  334b,  308,  900. 

Hall    &    Hawkins    v.    Xational    Fire 

Ins.     Co.      (115     Tenn.     513;     92 

S.   W.  402),   803. 
Hamilton    v.    Delhi,    etc.,    Co.     (118 

Cal.     148;     50    Pac.    378),    376a, 

370b,   382. 


TABLE   OF    CASES. 


Ixxiii 


(Referpnccs  nre  to  pagps. ) 


Hamilton    v.    Elliott    (5    S.   and    K. 

375).  244. 
Hamilton  v.   Hamilton  Gasliglit   Co. 

(11    Ohio   Doc.    513),    4GSc,    4001), 

498,    508b,   5G5. 
Hamilton    v.    Pittnck     ( 158    Pa.    St. 

457;  27  Atl.   1079),  155,  174. 
Hamilton    Gaslight   &    Coke    Co.    v. 

Hamilton    (37   Fed.  832),   405. 
Hamilton    Gaslight   &    Coke    Co.    v. 

Hamilton     ( 14G     U.    S.    258;     13 

Sup.    Ct.    Rep.    90;     amrming    37 

Fed.   832),   498,   5f9. 
Hanna    v.     Haverhill     Gaslight    Co. 

(203  Mass.  .-72:   89  N.  E.  1043), 

fi91,  729,   742.  750. 
Hammerschmidt    v.    ilimicipal    Gas 

■Co.     (114    N.    Y.    App.    290;     9!) 

N.  Y.  Supp.   890),   702. 
Hammond   v.   Decker    (46   Tex.   Civ. 

App.  232;    102  S.  W.  453),  177. 
Hammond    v.    Hopkins     (143    U.    S. 

224),    111. 

Hampton  v.  Cradlov  Heath  Gas  Co. 
(14  Gas  ,J.  GOU),  714a,  TIG,  717, 
733. 

Hampton  v.     Oxford    Gas    Co.     (3 

Gas.   J.  G4),   590. 

Hancock's  Est.     (7    Kulp.    36),    87, 

310d. 

Hancock    v.    Diamond    Plnte    Glass 

Co.    (37  Ind.  351;   75  N.  E.  659), 

75,  82,   199,  228a,  22Sc,  232,  239, 

243,   298,  304,   858,   860. 
Handorth    v.    Jackson     (150    Mass. 

149;    22  X.   E.   634),  648. 
Hangen  v.  Albine,  etc.,  Co.   (21  Ore. 

411;    28    Pac.    244;    14    L.    R.    A. 

424),    '578,    5S0a,    582,    584,    586, 

587. 

Hankey  v.  Kramp  (12  Ohio  Cir. 
Ct.  Rep.  95;  5  Ohio  C.  D.  439), 
197. 

Hankey  v.  Philadelphia  Co.  (5  Pa. 
Super.  Ct.  Rep.  148;  41  W.  N.  C. 
27),   400d,   401. 


llaiin    V.    Weymouth,    etc.,    Co.     (18 

Gas   J.    186).   729,   764. 
Hanover    Fire   Ins.   Co.   v.   Stoddard 
(52    Xeb.    745:    73    X.    \V.    291), 

796. 
Hanson    v.     Maverick    Oil     Co.     (67 

X.    H.   201),   421. 
Harbison    v.    Knoxville    Water    Co. 

(53    S.    W.     (Tenn.)     90.3),    580, 

'595,   602. 
Hardaker     v.     Idle     Dist.     Council 

[1896]     (1    Q.    B.    335;    65    L.   J. 

Q.  P.    (X.  S.)    363;   74  L.  T.  R<p. 

60;   4  4  W.  R.  323;   60  J.  P.  196), 

738,    755. 
Hardpsty    v.     Richard«on     (44    'Sh\. 

617;   22  Am.    Rep.  57),  344. 
Hardman  v.  Cabot   (60  W.  Va.  664; 

55  S.  E.  756;   7  L.  R.  A.   (X.  S.) 

506),  516,  549,  551,  553. 
Hargrave  v.  King  (5  Ired.  Eq.  430), 

284c. 

Harkness  v.  Burton  (39  la.  101), 
91,  95. 

Harlan  v.  Lehigh,  etc.,  Co.    (35  Pa. 

St.   287),   89,   90. 
Harlan  v.  Logansport,  etc..  Co.    (133 

Ind.    323;     32    X.    E.    930),     122, 

123. 

Harlem    Gaslight    Co.   v.   Xew   York 

(33  X.  Y.  309;   allirming  3   Robt. 

100),   458,   462,   469. 
Harlow   v.   Lake   Superior,   etc.,   Co. 

(36   Mich.    105),   32.3,   324. 
Harmer   v.    Brantford   Gas   Co.    (13 

Ont.  W.  Rep.   873),  56,  529,   711, 

843. 

Harness  v.  Eastern  Oil  Co.  (49 
W.  Va.  232;  38  S.  E.  062),  123, 
148,  157,  192c,  262,  300,  864,  865, 
899,  902,  912. 

Harrington  v.  Florence  Oil  Co.  (178 
Pa.  St.  444;  35  Atl.  855),  332, 
334c,  336,  340,  374,  905. 

Harris  v.  Cobb  (49  W.  Va.  350; 
38  S.  E.  559),  273,  301,  311,  357. 


Ixxiv 


TABLE   OF    CASES. 


(Rpferences  are  to  pngcs.) 


Harris  v.   Henchman    (G2    la.   411; 

17  X.  W.  592),  210,  284a. 
Harris  v.  Lloyd    { 1 1  Mont.  300 ;   28 

Pac.    7.'?fl),   340b,    305. 
Harris  v.  Ohio  Oil  Co.   (57  Ohio  St. 
118;   48  X.  E.  502;    1   Oliio  N.  P. 
132;     38    Weoi<ly    L.    Bull.    2S3), 
148,     100,     22Sa,    233,    245,     865, 
890. 
Harris    v.    Ohio    Oil    Co.     (57    Ohio 
St.  029;  50  X.  E.   1129;   48  X.  E. 
502),    130,   138. 
Harrislmrgh,   etc.,    Co.   v.    Goodman 
(129    Pa.    St.    200;    19    Atl.   844), 
«37. 
Harrison,   Ex  parte    (13  Q.  B.  Div. 

753),  000. 
Harrison  v.  Barrow   (03  L.  T.  834), 

207. 
Harrison  v.  Vrceland    (38   X.  J.  L. 

306),    123. 
Hart  V.  Plum   (14  Cal.  148),  041. 
Hartford  v.  Hartford,  etc.,   Co.    (65 
•Conn.    324;     32    Atl.    925),     462, 
406. 
Hartman   v.    Citizens   Xat.   Gas   Co. 
(210   Pa.    19;    59    Atl.   315),   68,1, 
686,  687,  715. 
Hartwell  v.  California  Fire  Ins.  Co. 
(84  Me.   524;    24   Atl.   954),   820. 
Hartwell  v.   Camman    (2   Stock  Eq. 

(X.  J.)    128),  88. 
Hashman  v.  Wyandotte  Gas  Co.  (F3 
Kan.    328;     111    Pac.    468),    413, 
418,  687,  092,  711,  714. 
Haskell  v.   Cowhan    (187  Fed.  403), 

34,   294,   400b,   400d,   41Sb. 
Haskell  v.  Gallagher    (20   Ind.  App. 
■224;    50   X.   E.    485;    '67    Am.   St. 
250),  370a,  37  Ob,  379. 
Haskell  v.  Sutton    (53  W.  Va.  200; 
44    S.    E.    533),    5.3,   54,    77,    330, 
■870,  877,  878,  880. 
Hastings  v.  Cutler   (24  X.  H.  481), 
125. 


Hastings  Tramway  Co.  v.  Hastings, 
etc.,   Gas   Co.    (76   L.  J.   Ch.   00 

[1900]    2   Ch.  578;    70  J.   P.  540 
23    T.    L.    P.    95;    95    L.    T.    084 
5  L.  G.  R.'  142),  548. 
Hatcher    v.    Dunn    (10-2    Iowa,    411; 

71    X.    W.    343;    00    X.    W.    905; 

30  L.  P.   A.  089),  787. 
Hatfield    v.    Falloway     (113    S.    W. 

853),   337,   340b. 
Hatherton  v.   Bradbourne    ( 18   Sim. 

599;    13    L.    J.    Ch.    171;    7    Jur. 

1100),   310d. 
Hatfield    v.    St.    John    Gaslight  €o. 

(32  X.  B.  100),  736. 
Hathorn   v.   Xational   Carbonic   Gas 

Co.     (194    X.    Y.    326;    87    X.    E. 

501;    affirming    128    X.    Y.    App. 

Div.    33;    112    X.    Y.    Supp.   374; 

modifying  and  affirming  00  X.  Y. 

Misc.   Pep.  341;    113   X.  Y.  Supp. 

458),  46,  47,  50. 
Hauk  V.  Standard  Oil  Co.    (38  X.  Y. 

App.    Div.    021;    oQ    X.    Y.    Supp. 

273),   783. 
Ilauk    V.   Tidewater    Pipe   Line    Co. 

(153    Pa.    St.   366;    20    Atl.    044; 

20  L.   R.  A.  642),  413,  602,   064, 

600. 
Hawesville  v.  Ilawes   (0  Bush,  232), 

356c. 
Hawks     v.     Taylor     (70     111.     App. 

255),   131. 
Hawkins  v.  Pepper   (117  X.  C.  407; 

23   S.   E.   489),   74,   95,    185,   233, 

244. 
Hawkins    v.    Robinson     (37    J.     P. 

662),  543. 
Hawkins    v.    Spokane,    etc.,    Co.     (2 

Idaho,  970;  28  Pac.  433),  368. 
Ilawtayno  v.  Bourne    ( 7  ]\I.  andl  W. 

'595;    10   L.  J.  Ech.    (X.   S.)    224; 

5  Jur.    118),  309. 
Hay    V.    Springfield     (04    111.     App. 

671),  458d,   459. 
Hayden  v.  Stougliton  (5  Pick.  528), 

228d. 


TABLE   OF    CASES. 


Ixxv 


(References  are  to  pages.) 


Hayford    v.     Wentworth     (54     Atl. 

(Me.)    940),  629. 
Hays  V.   Doane    (11   X.  J.  Eq.  84), 

C34,  638,  639. 
Hays    V.    Forest    Oil    Co.     (213    Pa. 

■536;  62  Atl.  1072),  240.  25G,  263, 

299,  310b,  8S9,  896. 
Hays  V.   Galion,   etc.,  Co.    (29   Ohio 

St.  330),   392d. 
Haywood    v.    Cope     (27    L.    J.    Ch. 

(X.    S.)     468;     25    Beav.     140;     4 

Jur.     (X.     S.)      227;     31     L.     T. 

(0.  S.)   48;  6  W.  R.  304),  347. 
Haven    v.    Emery     (33    X.    H.    66), 

630. 
Haven  v.   Melilgarten    (19   111.   90), 

340a. 
Hazelgreen   Oil   Co.  v.   Collins    (110 

S.  W.   (Ky.)   343;  33  Ky.  L.  Rep. 

661),  853. 
Headlej'  v.  Hoopengarner  (60W.Va. 

626;    55   S.   E.   144),    52,   53,    72, 

85,   129,  222,   240,   262,  289,   301, 

880,   887,  895,  902,  907,  913. 
Heal  V.  Niagara   Oil  Co.    ( 150   Ind. 

483;   50  X.  E.   482),  318d. 
Healey    v.    Mutual,    etc.,    Co.     (133 

111.  556;  25  X.  E.  52),  831. 
Heap    V.    Barton     (12    C.    B.    274), 

646. 
Heath    v.    Sanson     (2    B.    and    Ad. 

291),  364b. 
Hecksher   v.   Shea  for    (17  W.  X.   C. 

(Pa.)    323),   839. 
Ileeter    v.    Eckstein     (50    How.    Pr. 

445),   284c. 
HeflTron  v.  Kittanning  Tns.  Co.   (132 

Pa.    St.    580:    20    Atl.    698),    8;)3, 

804. 

LHeffner  v.  T^wis  (73  Pa.  St.  302), 
641. 
Heh  v.  Consolidated  Gas  Co.  (210 
Pa.  St.  443;  50  Atl.  994;  tS 
Am.  St.  819),  699,  717,  724,  766. 
Heil  v.  Strong  (44  Pa.  St.  264), 
324. 


Heilbron  v.  Cuthbert    (90  Ga.  312; 

23  S.   E.  206),  562. 

Ileinouer  v.  Jones  (159  Pa.  St.  228; 

28  Atl.  228),  260,  908. 
Heinz  v.  Consumers  Light,  etc.,  Co. 

(81    Kan.    261;     IU'5    Pac.    527), 

691,  729. 
Heintz  v.   Shortt    (140  Pa.  St.  286; 

24  Atl.  316),  208a,  211,  251,  874. 
Heiple   v.    East    Portland    ( 13    Ore. 

97),  512. 
Helena   v.   Helena  W.   W.  Co.    (122 

Fed.   1),  490c,  492,  498. 
Heller  v.  Dailey   (28  Ind.  App.  555; 

63   XL   E.    490),    33,   70,   91,    113, 

129,   134,   135,  213,  214,  215,  217, 

268,    274,    274a,    274c,    275,    277, 

278,  279,  282,  284,  284a,  384,  862. 
Heller  v.  Dailey   (34  Ind.  App.  424; 

70  X.  E.  821),  134. 
Hellowel     v.     Eastwood     (20    L.    J. 

Exch.  15;  6  Exch.  295),  638,  642. 
Heman   v.    St.   Louis,   etc.,   Co.    (75 

Mo.  App.   C72),   532,  533. 
Hemphill   v.   Giles    (66   XL  C.   512), 

384a. 
Hem  stead   v.   Phenix   Gaslight,   etc., 

Co.    (3    H.    and   X.    745;    11    Jur. 

(X.   S.)    626;    13   VV.   R.   662;    34 

L.  J.   C.  P.    100;    14  Gas  J.   399), 

756. 
Henderson  v.  Allegheny  Heating  Co. 

(179    Pa.   St.    513;    39    W.    X.   C. 

485;   36  Atl.  312),  713,  724. 
Henderson  v.   Allen    (23   Cal.   519), 

3C4d. 
Henderson    v.    Coal    and    Coke    Co. 

(140  U.  S.  25;    11    Sup.  Ct.   Rep. 

G91),  222. 
Henderson   v.   Consolidated   Gas   Co. 

(179    Pa.    St.    513;    3!)    \V.    X.    C. 

485;    36    Atl.    312),    766b. 
Henderson  v.  Firrell    (183  Pa.  547; 

38  Atl.   1018),   136,   1!)1,  192,  253, 

254b,  257,  266,   901,  910. 


Ixxvi 


TABLE    OP    CASES. 


(References  are  to  pages.) 


Henderson  v.  New  Castle  &  Gales- 
head  Gas  Co.  (37  Sol.  J.  403), 
585,   710. 

Henderson  Bridge  Co.  v.  Henderson 
City    (173  U.  S.  592),  433. 

Hendrie  v.  Lea  Bridge,  etc.,  Co.  (21 
Gas   J.    949,   989),   674. 

Hendrix  v.  McBeth  (Gl  Ind.  473; 
28  Amer.  680),  272,  325,  651. 

Hendy  v.  Dinkersholl  (57  Cal.  3), 
630. 

Henkle  v.  Dillon    (15   Ore.   610;    17 

Pac.   148),   630,   631. 
Henne  v.   South   Penn.   Oil   Co.    (52 

W.  Va.   192;    43   S.  E.   147),   124, 

143,   163,  228,  246,  895,  901,  908, 

914. 
Henry  v.  Cleveland,  etc.,  R.  R.  Co. 

(.67   Fed.  426),  408d,  412. 
Henshaw  v.  Wells    (9  Humph.  568), 

384b. 
Herbert  v.   Parham    (86   S.   C.  352; 

68   S.   E.    504),   768. 
Heron    v.    Phoenix,     etc.,     Ins.    Co. 

(180    Pa.    St.    257;    40    W.   N.    C. 

55;  36  Atl.  740;  36  L.  R.  A.  517), 

'808,  812. 
Herrington    v.    Wood     (6    Ohio    C. 

Ct.    Rep.   326;    3    Ohio   Cir.    Dec. 

475),  78,  80,  98,   192,   198. 
Hersey  v.  White    (9  T.  L.  R.  335), 

■613. 
Hess  V.  Pegg  (7  K  W.  23),  564. 
Heuer    v.    Northwestern,    etc.,    Ins. 

Co.    (144  111.  393;   33  N.  E.  411), 

805. 
Heuer   v.   Winchester   Fire   Ins.    Co. 

(151     111.    331;     37     N.     E.    873; 

affirming  45   111.   App.   239),   805. 
Hewitt   Iron   Mining  Co.   v.   Dessau 

Co,    (129    Mich.    590;    89    N.    W. 

365),    181,   203,    313. 
Hewitt,  etc.,  Co.  v.  General  Electric 

Co.    (61   HI.  App.   168),  641. 
Hewitt,  etc.,  Co.  v.  Watertown,  etc., 

Co.    (65  111.  App.  153),  640,  644, 

646. 


Hewsey   v.   Owens    Borough    Gas   & 

El.  Co.   (47  N.  Y.  Misc.  Rep.  375; 

93  N.  Y.  Supp.    1114),  602,  602a. 
Heysham  v.  Deltre  (89  Pa.  St.  506), 

632. 
Heywood    v.    Cope    (25    Beav.    140; 

27  L.  J.  Ch.  468;   4  Jur.    (N.  S.) 

227;  31  L.  T.  (O.  S.)   48;  6  W.  R. 

304),   342. 
Heywood    Oil     Syndicate    v.    Hous- 

sierre-Eatrelle    Oil    Co.     (119    La. 

793;    44  So.   481),   98. 
Hiberian     Gaslight     Co.     v.     Parry 

(L.  R.   4   Irish.  453),  606. 
Hichens  v.  Congrove   (4  Russ.  562), 

341. 
Plickman   v.  Cabot    (183  Fed,  747), 

580. 
Hicks    V.    American    Nat.    Gas    Co. 

(207  Pa.  570;  57  Atl.  55),  915. 
Hicks  V.  Gas  Co.    (207  Pa.  570;   57 

Atl.   55),    124,  266,  898. 
Hieronymus      v.      Bienville      Water 

Supply    Co.     (131    Ala.    447;     31 

So.  31),  602,  605.  612,  614. 
Higgins  V.  Armstrong    ( 9   Colo.   38 ; 

10  Pac.   232),   364c,   365,   369. 
Higgins  V.  California,  etc.,  Co.   (109 

Cal.  304;   41  Pac.   1087),  96,   123, 

296. 
Higgins   V.    Hopkins    (3    Exch.    163; 

18   L.   J.    Exch.    113;    6   Ry.   Cas. 

75),  366. 
Higgins    V.    San    Diego     (118    Cal. 

524;    45   Pac.  824;   50   Pac.  670), 

471,   574. 
Higgins    V.    Samels     (2    J.  'and    H. 

460;    7  L.   T.   240),   348. 
Hill,  In  re    (6  Ch.  Div.  63),  606. 
Hill   v.    Joy    (149    Pa.    St.    243;    24 

Atl.   293),   151. 
Hill  V.  Schneider  (43  N.  Y.  Supp.  1; 

13  N.  Y.  App.  Div.  299;   4  N.  Y. 

Ann.  Cas.  70),  776. 
Hill   V.    Wallasey    L.    B.    [1894]     (1 

Ch.  133;   63  L.  J.  (  h.   1;  69  L.  T. 

641;    42   W.   R.   81;    7    Rep.   51), 

518. 


TABLE   OF    CASES. 


Ixxvii 


(References  are  to  pages.) 


Heller  v.  Dailey  (28  Ind.  App.  555; 

63   X.   E.   490),   318c. 
Hiller    v.    Walter    Ray    &    Co.     (59 

ria.  285;  '52  So.  Rep.  623),  315. 
Hills    V.    Gasliglit    Co.     (13    Gas    J. 

877),   720. 
Hindson    v.    Markle     (171     Pa.    St. 

138;    33    Atl.    74).    654,    658. 
Hines   v.   Miller    (122    Cal.    517;    55 

Pac.  401),  376. 
Hipkins    v.    Birmineliani.    etc..    Co. 

(5    H.   and   X.    74;    6    H.  and   X. 

250;    9  Gas   J.  63,   778;    30   L.   J. 

Exch.   60;    9    W.   R.    168),   652. 
Hilton's  Appeal    (116   Pa.   St.   351; 

9  Atl.   342),    3S4d. 
Hilton  V.  Woods    (L.  R.  4  Eq.  432; 

36  L.  J.   Ch.   491;    16  L.  T.   736; 

15  W.   R.    1105),   51. 
Hitchcock    V.    Essex    &    H.    Gas    Co. 
(71   X.   J.   L.   565;    61   Atl.   397; 

aOirniing    70    X.    J.    L.    492;    57 

Atl.  135),  627. 
Hoag  V.  Lake  Shore,  etc.,  R.  R.  Co. 

(85  Pa.  St.   293),  408. 
Hobart    v.    Murray     (54    Mo.    App. 

249),  65,  87,  88. 
Hobhs    V.    Guardian,    etc.,    Co.     ( 12 

'Can.   Sup.   Ct.  631),  803,  805. 
Hobson   V.   Gavings    (66    L.    J,   Ch. 

114;    [1897]    1  Ch.  182),  638,  642. 
Hoch  V.  Bass  (133  Pa.  St.  328;    19 

Atl.  360),  244,  261. 
Hoch  V.  Brooklyn   Borough  Gas  Co. 

(117   X.   Y.   App.   Div.    882;    103 

X.   Y.   Supp.   370),   588a,   60S.     ■ 
Hoddesdon  Gas  &  Coke  Co.  v.  Hasel- 

wood     (6     C.    B.     (N.    S.)      239; 

5    Jur.     (X.    S.)     1013;    28    L.    J. 

C.  P.  268;   7  W.  R.  415;  8  Gas  J. 

261),   577. 

Hodges  V.  Price    (32  Tex.  Civ.  App. 

358;   74  S.  W.  590),  879. 
Hodgson    V.    Parkins    (84    Va.    706; 

5  S.  E.  710),  65,  90,  91,  92,  202a, 

271. 


Hudson    V.    Honland    [1S96]     (2    Ch. 

428;    65   L.  J.   Ch.   754;    74   L.  T. 

881;    44   W.   R.   684),   344. 
Hoehle    v.    Allegheny    Heating    Co. 

(5  Pa.  Super.  Ct.  21 ;  40  W.  X.  C. 

553;  28  Pittsb.  L.  J.   (X.  S.)   65), 

578,   589,  590. 
Hoerdt  v.  Hahne   (91  HI.  App.  514), 

216,    282,    284a. 
Hofer's   Appeal    (116    Pa.    St.   360; 

9   Atl.  441),   113. 
Hogsett    V.    Ellis     (17    :Mich.    351), 

38  4  b. 
Horn    V.    Lancaster     (13    Lane.    L. 

Rev.    131),   711,   722. 
Holbrooke   v.    Harrington    (30   Pac. 

(Cal.)    365),   340a. 
Holden    v.    Liverpool    Gas    Co.     (3 

C.    B.    1;    15   L.    J.   C.   P.   301;    10 

Jur.  883),  077,  704,  709,  720,  745. 
Hollan   V.   Campton    Fuel    &   L.   Co. 

(127    Ky.    266;     105    S.    W.    426; 

32  Ky.  L.  Rep.   178),  726,  729. 
Holiiday  v.  Xational  Telephone  Co. 
(68   L.   J.   Q.   B.    1010;    81    L.   T. 

2'52;    47   W.   R.   658;    15  T.  L.  R. 

483:    [1899]   2  Q.  B.  392),  755. 
Hollingsworth  v.  Fry   (4  Dull.  345), 

254d. 
Hollister    v.    Vandergrift    (30    Ohio 

Cir.  Ct.  Rep.  759),  137,  147,  262b. 
Holly    V.    Boston    Gaslight    Co.     (8 

Graj',    123;     69    Am.    Dec.    233), 

681,  687,  688,  698,  699,  708,  710. 

711,  720,  723,  742,  744,   750,  752, 

757,  767. 
Holman's  Appeal    (24  Pa.  St.  174), 

328. 
Holmes    V.    P.cllingham      (7    €.    B. 

(X.   S.)    329),   356c. 
Holt  V.  Gaslight  &  Coke  Co.    (L.  R. 

7   ().  B.  Div.  728;   41   L.  J.  Q.  B. 

351;   27   L.  T.    (X.  S.)    442),  401. 
Hoiton    V.    Camilla    (134    Ga.    560; 

68   S.   E.    Rep.    472),   560. 


Ixxviii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Holyrod  v.  Marshall    (2   Gifl",   382; 

2    DeG.    F.    and    J.    596;    3    L.    J. 

Ch.    655;     30    L.    J.    Ch.    385;     3 

L.  J.   Ch.   193),   646. 
Homestead     in     Oklalioma     Bay    v. 

Oklahoma,     etc.,     Co.     (13     Okla. 

425;   73  Pac.  936),  79. 
Honemaker   v.    Amos    ( 73    Ohio    St. 

170;    76   N.   E.   949;    4    L.   R.   A. 

(N.  S.)    980;    112  Am.    St.  70S), 

38. 
Honeyman  v.  Thomas   (25  Ore.  539; 

36  Pac.   636),  644. 
Hood    V.    Easton     (2    Giff.    692;     2 

Jur.    (N.   S.)    729,  917;   27   L.  T. 

(O.  S.)    295;   4  W.  R.  575),  387, 

391. 
Hook  V.  Garfield  Coal  Co.    (112   la. 

210;  83  N.  W.  963),  326a,  331. 
Hooks  V.    Forst    (165    Pa.    St.    238; 

30  Atl.  846),  208,  213,  217,  340a, 

340b,  875. 
Hoosac    Mining,    etc.,   €o.   v.    Donat 

(10  Colo.  529;    16  Pac.  157),  308. 
Hope's  Appeal    (3  Atl.  23;    2   Cent. 

43;     33     Pittsb.    L.    J.     (N.    S.) 

270),   87,  288,  310d. 
Hope's  Appeal   (29  W.  N.  C.   (Pa.), 

365),  65,  89. 
Hope   Mining   Co.,    In   re    (1    Sawy. 

710),  376b. 
Hopkins   v.    Grazebrook    ( 6    B.   and 

C.  31;    9  D.  and   R.   22;    5   L.   J. 

K.  B.    (0.  S.)    65),  349. 
Hoppes  V.  Bale    (105  Iowa,  648;   75 

N.  W.  495),  379. 
Horberg  v.   May    (153  Pa.    St.  216; 

■25  Atl.   750),  172. 
Hornet    v.    Singer     (35    Pa.    Super. 

Ct.   491),    237,    244. 
Hornby   v.   I>iverpool,   etc..   Gas   Co. 

(47  J.  P.  231),  788. 
Horrigan     v.     Xowoll      (110     Mass. 

470),  786. 
Hosack    V.     Crill     (53     Atl.     (Pa.) 

641),   70,  87,  88. 


Hosie    V.    Gray    (71    Pa.    St.    198), 

3S4d. 
Hot  Springs,  etc.,  Co.  v.  Hot  Springs 

(70    Ark.    300;    67    S.    W.    761), 

426. 
Houghton,    In    re     (20    Hun,    395), 

788. 
Houlgate  v.  Surrey  Consumers'  Gas 

Co.    (8  Gas  J.  261),  577,  602. 
Houma     Lighting     &    Mfg.     Co.    v. 

Houma     (127    La.    726;     53     So. 

970),    558. 
Hourigan     v.     Xowell      (110     Mass. 

470),   786. 
Houston    &   T.   C.    R.   Co.   v.   Crook 

(56  Tex.  Civ.  App.  28;  120  S.  W. 

594),  662. 
Houssierre-Latrcille  Oil   Co.  v.  Jen- 

nings-Heywood  Oil  Syndicate  (115 

La.    107;    38    So.    932),    86,    101, 

229,  889,  890,  897. 
Hovelman    v.    Kansas     City    Horse 

R.  R.  Co.    (79  Mo.  032),  496. 
Howard  v.  Union  Traction  Co.    (195 

Pa.   St.  391;    45   Atl.    1076),  789. 
Howell    V.    Millville     (60    N.    J.    L. 

95;    36   Atl.   691),   564. 
Howerton   v.   Kansas   Nat.   Gas    Co. 

(82    Kan.    307;     108    Pac.    813; 

reversing  81    Kan.  553;    106   Pac. 

47),   74,    130,    138,   147,   159,   182, 

241,   2G2d. 
Hmvlnnd    V.     Coffin     (9    Pick.    52), 

274b. 
Hoyt   V.    Lithnm    (143    U.    S.   553; 

12  Super.  Ct.  56S),  HI. 
Huber    v.    Merkel     (117    Wis.    355; 

94  X.  W.  354),  43. 
Hucknall  Gas  Co.,  In  re  (3  L.  G.  R. 

704:   09  J.  P.  320),  568b. 
Iluddell,   In   re    (16   Fed.  373),   260, 

260. 

Hudopohl    V.    Libert,    etc.,    Co,    (80 
Cal.  553;    22   Pac.   339),   113. 


TABLE   OF    CASES. 


Ixxix 


(References  are  to  pages.) 


Hudersfield   v.   Ravensthorpe   Urban 

District    Council     [1897]     (2    Ch. 

121;   06  L.  P.  €h.  581:   reversing 

[1897]    1    Ch.    652;    (iii   L.   J.    Lh. 

286;    76  L.  T.  377),  470. 
Hudson  River  Electric  Power,  In  re 

(173   Fed.  934),   847. 
Huff  V.   Austin    (46   Ohio   St.    386; 

21  X.  E.   864),  702. 
Huff  V.  McCauIey   (53  Pa.  St.  206), 

95. 
Huff    V.    McDonald     (22    Ga.    131), 

331,  334c. 
Huff    V.    Nickerson     (27    Me.    106), 

122. 
Huffman    v.    State     (21    Ind.    App. 

449;  52  X.  E.  715;  52  X.  E.  713), 

552b,  553,  555. 
Huggins  V.  Daley  (99  Fed.  G06; 

40  C.  C.  A.  12;  48  L.  R:  A.  3*20), 

71,  72,  73,  96,  119,  130,  151,  181, 

182,  183,  206,  208a,  212,  245,  247, 

254b,  287,  852,  853,  863,  f7S,  882. 
Hughes   V.    Bucknell    (8   €.   and    P. 

566),   384b. 
Hughes    V.    Devlin     (23    Cal.    501), 

333. 
Hughes    V.    Maiden,    etc.,    Co.    ( ICS 

Mass.  397;  47  X.  E.  125),  792. 
Hughes  V.  Momence    (163   111.  535; 

45  X.  E.  300),  492,  496,  512,  51ti, 

'506. 
Hughes  V.   United   Pipe  Lines    (119 

X.  Y.   423;    23   X.   E.    1042),   32, 

33,  38,  44,  45,  327,  876,  878. 
Hughes  V.  Williams    (12  Ves.  493), 

386,  387,  388,  389,  391. 
Hukill  V.   Guffey    (37  W.   Va.  425; 

16  S.  E.  544),  240a,  262a,  875. 
Hukill   V.   Myers    (30   W.   Va.   639; 

15    S.    E.    151),    228b,    237,    239, 

240a,  246,  257,  262,  859,  860,  8U0, 

895,  899,  902,  913. 
Hulett  V.   Pudsey  Gas  Co.    (28   Gas 

J.  663),  790. 
Humble  v.  Langston    (7  M.  and  W. 

517),   284,   284a. 


Ilummelstown    v.    Rummer    ( 17    Pa. 

Co.    Ct.     Rep.     140;     5    Pa.    Dist. 

Rep.  8),   562. 
Humphreys  v.  McKissock  (140  U.  S. 

304;    11  Sup.  Ct.  779),  113. 
Hunt's  Case    (37   L.  J.  Ch.  -7^;    10 

W.  R.  472),  373. 
Hunt    V.    Bay    State    Iron    Co.     (97 

Mass.   279),   631. 
Hunt    V.    Lowell     Gaslight    Co.     ( 1 

Allen,    343),    086,    711,    712,    720, 

723,  742,   743,  750,  758,  759,  700. 
Hunt    V.    Lowell     Gaslight    Co.     (3 

Allen,  418),  710. 
Hunt    V.    Lowell    Gaslight    Co.     (8 

Allen,    109;    85    Am.    Dec.    097), 

730b. 
Hunter  v.  Apollo  Oil  &  Gas  Co.   (54 

Atl.    (Pa.)    274),  292,  312. 
Hunter  v.  Savage,  etc.,  Co.    (4  Xev. 

153),   380. 
Huntington  L.   &    F.   Co.   v.   Beaver 

(37  Ind.  App.  4;  73  X.  E.  1002), 

691,  724. 
Hutchinson   v.   Boston   Gaslight  Co. 

(122    Mass.   219),    698,    703,    712, 

767. 
Hutchison    v.     Com.      (82     Pa.     St. 

472),  ii\. 
Hutchinson  v.  Kay   (23  Beav.  413), 

634. 
Hutchinson    v.   Kline    (199    Pa.    St. 

504;   49  Atl.  312),  339. 
Iluxhan    v.    Llewellyn     (21    W.    R. 

570),  343. 
Hyatt  V.   Williams    (148   Cal.   585; 

84  Pac.   41),  558,   564. 
Hyde  Park,  etc.,  Co.  v.  Porter   ( 167 

111.  276;   47  X.  E.  206;   aflirming 

04  111.  App.  152),  400c,  695,  750. 
Hynds  v.  Schenectady,  etc.,  Ins.  Co. 

(16  Barb.  119;  affumed,  11  X.  V. 

554),  813. 
Ilynds  V.  Schenectady,  etc.,  Ins.  Co. 

(11     X.     y.     554;      allirming     10 

Barb.    119),   808. 


Ixxx 


TABLE   OF    CASES. 


(References  are  to  pages.) 


lams  V.  Carnegie,  etc.,  Co.  ( 194 

Pa.  St.  72;  45  Atl.  54),  192d, 

314,  856,  873,  900. 
Ibach   V.   Huntington,   etc.,   Co.    (23 

Ind.    App.    281;    55    N.    E.    249), 

G'JOa,  72(\. 
Idaho  Gold  Mining  Co.  v.  \Yinchfll 

(6  Idaho,  729;  59  Pac.  533),  376. 
Her  V.  Ross  (64  Neb.  710;  90  N.  W. 

869),  490h. 
Illinois    Trust    and     Savings    Bank 

V.   Arkansas   City    (76    Fed.   271; 

22  C.  C.  A.  171;  34  L.  R.  A.  518; 

40    U.    S.    App.    257),    461,    471, 

'490c,  500,  502,   509,   531,  538. 
Illinois,   etc.,    Ry.    Co.   v.    Ogle    (82 

111.  027),  51. 
Illinois,    etc.,    Co.    v.    St.    Louis    (2 

Dill.   70),   490b. 
Imperial  Fire  Ins.  Co.  v.  Fargo   (95 

U.  S.  227),   806. 
Imperial  OasHght  €o.  v.  Broadbent 

(7   H.  L.  Cas.  600;    29   L.  J.  Ch. 

377;     5    Jur.     (N.    S.)     1319;     7 

DeGex.     McN.     and     G.     436;     5 

Gas  J.  342;    9   Gas  J.  751),  674, 

676b. 
Imperial   Gas    Co.   v.    Chountler    (2 

Gas  J.  362),  614. 
Imperial     Gas     Co.     v.     Porter      (5 

Gas  J.   372,   403),  624. 
Imperial    Gaslight    &    Coke    €0.    v. 

London   Gaslight  &  Coke   Co.    ( 10 

Exch.  39;   26  E.  L.  and  Eq.  425; 

3  Gas  J.  483),  844. 
Independent  Refiners  Association  v. 

Western,  etc.,  R.  R.  Co.    (4  Inter. 

St.   Com.   Rep.    162),   395. 
Indiana,   etc..    Gas   Co.    v.    Anthony 
(26    Ind.    App.    307;     58    N.    E. 

868),   589,   604,   624. 
Indiana,  etc.,  Co.  ^.  Long    (27   Ind. 

App.    219:    59    N.    E.    410),    687, 

689,   724,  725,   727,   728. 


Iniliaiia    Natural    Gas   &    Oil   Co.   v. 

iU'aJes     (74    N.    E.     (Ind.    App.) 

551),   104. 
Indiana  Natural    Gas   &   Oil   Co.   v. 

Beales    (166    Ind.    684;    76   N.    E. 

520;    reversing    74    N.    E.    551), 

105,  200,  219,  235,  236,  239,  909. 
Indiana  Natural  Gas  Co.  v.  Gainard 

(45     Ind.    App.    613;     91     N.    E. 

362),    137,    139,    181,    186,    228a, 

293,  295,  310c. 
Indiana,     etc.,     Gas     Co.     v.     New 

Hampshire,     etc.,    'Co.      (23     Ind. 

App.    298;    53    N.    E.    485),    689, 

726,  727,  827. 
Indiana,  etc..  Gas  Co.  v.  State  (158 

Ind.     516;     63     N.     E.     220;     57 

L.  R.  A.  761),  577,  578,  621,  626. 
Indiana    Nat.     Gas   &     Oil     Co.     v. 

Granger    (33    Ind.    App.    103;    69 

N.   E.   477),    192,   192a,   192b. 
Indiana    Nat.    Gas    &    Oil    Co.    v. 

Granger    (36    Ind.   App.   559;    70 

N.  E.  395;  33  Ind.  App.  559),  74, 

106,  186,  219,  220,  254c. 
Indiana,   etc.,   R.  R.   Co.  v.  Hartley 

(67   111.  439),  553. 
Indiana    Nat.    Gas    Co.    v.    Hinton 

(159  Ind.  398;  64  N.  E.  224;   159 

Ind.    395),    132,    135,    274c,   274d, 

294c,   862. 
Indiana  Natural  Gas  and  Oil  Co.  v. 

Jones   (14  Ind.  App.  55;  42  N.  E. 

487;    12  Nat.  Corp.  60),  56,  400c, 

400d,   401. 
Indiana   Natural   Gas  &   Oil   Co.   v. 

Lee    (34  Ind.  App.  119;    72  N.  E. 

492),    106,    302. 
Indiana   Natural   Gas   &   Oil  Co.   v. 

Leer    (34  Ind.  App.  61;    72  N.  E. 

2S3),     287,     295,     303,     857,    864, 

894. 
Indiana,    etc.,    Co.    v.    McMath    (26 

Ind.  App.   154;   57  N.  E.  593;    59 

N.   E.   287),  556,  696. 


TABLE    OF    CASES. 


Ixxxi 


(References  are  to  pages.) 


Indiana  Natural   Gas   &    Oil   Co.   v. 

Sexton     (31    Ind.    App.    575;    68 

N.  E.  692),  262. 
Indiana   Natural    Gas   &   Oil   Co.   v. 

Sexton     {•^'^     lud.    App.    575;     68 

N.  E.   692),   106. 
Indiana   Natural    Gas   &   Oil   Co.   v. 

State     (162    Ind.    690;     71     X.    E. 

133),   578. 
Indiana    Rolling    :\Iill    Co.    v.    Gas 

Supply    Min.    Co.    (37    Ind.    App. 

154;    76   N.  E.  640),   303. 
Indianapolis,    etc.,    Co.    v.    Citizens 

St.    R.    R.    Co.     (Ig7    Ind.    369; 

24   N.  E.    1054;    26  N.   E.  893;    8 

L.   R.   A.   539),   481. 
Indianapolis  Cable  St.  R.  R.   Co.  v. 

Citizens    Street    R.    R.    Co.     (127 

Ind.  369;  24  N.  E.  1054;  26  N.  E. 

&93;  S  L.  R.  A.  539),  490b. 
Indianapolis  v.  Consumers,  etc.,  Co. 

(140  Ind.   107;    39   N.  E.  433;    48 

Am.    and    Eng.    Corp.    Cas.    151; 

■27  L.  R.' A.  514),   427,   429. 
Indianapolis      v.      Consumers      Gas 

Trust  Co.  ( 140  Ind.  107 ;  39  N.  E. 

433;  49  Am.  St.  183;  27  L.  R.  A. 

514;   48  Am.  and  Eng.  Corp  Cas. 

151).,    425,    426,    427,    428a,    429, 

458,    545. 
Indianapolis   v.    Croas    (7   Ind.    9), 

612. 
Indianapolis    v.    Indianapolis    Gas- 

ligiit  and  Coke  Co.   (66  Ind.  390), 

428d,  429,   458,   458a,  508a. 
Indianapolis  Gas  Co.  v.  Indianapolis 

(82   Fed.  245),  430. 
Indianapolis  Natural  Gas  Co.  v.  Kib- 

bey     (135     Ind.    357;     35    N.    E. 

302),   122,  147,  351. 
Indianapolis      v.      Kingsbury      (101 

Ind.  200;   51   Am.   749),  318c. 
Indianapolis,  etc..  Gas  Co.  v.  Pierce 

(25  Ind.  App.  116;  56  N.  E.  137), 

272. 


Indianapolis  Gas   Co.   v.  Pierce    (36 

Ind.    App.    573;    76    N.    E.    173), 

154,  265,  303. 
Indianapolis  Gas   Co.  v.   Rayle    (36 

Ind.    App.    707;    76    N.    E.    176), 

154,   265,   303. 
Indianapolis    Gas    Co.    v.    Shuniack 

(23  Ind.  App.  87;  54  N.   K.  414), 

7:35. 
Indianapolis,    etc.,    Co.    v.     Spaugh 

(17  Ind.  App.  683;  46  N.  E.  091  ), 

114,   152,   154,   155. 
Indianapolis   Gas   Co.  v.  Teters    (15 

Ind.    App.    475;    44    N.    E.    549), 

193,   197,  203. 
Indianapolis    v.     Wann     (144     Ind. 

175;    42   N.   E.   901),   476. 
Indiana    Nat.    Gas    &    Oil    Co.    v. 

Wilhelm     (44    Ind.    App.    100;    86 

N".  E.  86),  147,  197,  290,  291,  856. 
Indian     Refining    Co.    v.    Common- 
wealth   (134  Ky.  822;    117   S.  W. 

274;    34  Ky.  L.  Rep.  — ) ,  658. 
Ingalls   V.    St.   Paul,  :M.  &  M.  Ry. 

Co.     (39    Minn.    479;     40    N.    W. 

524),  648. 
Insurance  Company  of  North  Amer- 
ica V.   Fidelity,  etc.,  Co.    ( 125  Pa. 

St.  523;    16  Atl.  791;   2  L.  R.  A. 

586),  828. 
Insurance    Co.    v.    Tweed     (7    Wall. 

44),  804. 
International  Mercantile  ^Tarine  Co. 

V.  Eels    (164    Fed.   337),   409. 
International  'Moroantilo  ^Inrine  Co. 

v.    Fels    (170    Fed.   275;    aflirming 

164   Fed.   337),   769. 
Iron   Duke   Mine   v.    Braasted    (112 

Mich.  79;    70  N.  W.  414),  316. 
Irwin   V.   Covode    (24   Pa.   St.   163), 

325,  328. 
Isam   V.    Rex    Crude    Oil    Co.     (1-17 

Cal.    659;    82    Pac.    317),    33,    38, 

54,  876. 


Ixxxii 


TABLE   OF    CASES. 


( References  are  to  pages.) 


Island  Coal  Co.  v.  Combs   (152  Ind. 

379;    53    N.    E.    452),    183,    190, 

192,    211,    228c,    228d,    237,    244, 

258,   2G1. 
Ives  V.  Wilden    (114  Iowa,  476;   87 

N.    W.    408;    54    L.    R.    A.    854), 

785. 


Jackson  v.  American  Xatnral  Gras 
Co.  (3.1  Pa.  Super.  Ct.  408),  251, 
302b,  310b. 

Jackson  v.  Cator   (5  Ves.  G87),  344. 

Jackson  v.  Dulaney  (67  W.  Va. 
309;  67  S.  E.  795),  294,  315, 
356b,  885. 

Jackson  v.  Groat  (7  Cow.  285), 
2iS4c. 

Jackson  v.  O'Hara  (1S3  Pa.  St. 
233;  38  Atl.  624),  112,  135,  274c, 
277,  279,  304,  307,  858,  862. 

Jackson  v.  Standard  Oil  Co.  (98 
Ga.  749;   26  S.  E.  60),  782. 

Jackson  County  Transit  Co.  v. 
Interstate  Rapid  Transit  R.  R. 
Co.  (24  Fed.  30-6),  483,  590b,  500. 

Jacksonville,  etc.,  Co.  v.  Jackson- 
ville (36  Fla.  229;  18  So.  667; 
30  L.  R.  A.  540),  560,  503. 

Jamaica  Pond,  etc.,  Co.  v.  Brook- 
line   (121  Mass.  5),  542. 

James  v.  Kentucky  Refining  Co. 
(113   S.  W.   468),   e34b. 

Jamestown,  etc.,  Co.  v.  Egbert  ( 152 
Pa.   St.    53;    25    Atl.    151),    30:b. 

Jamieson  v.  Indiana  Natural  Gas, 
etc.,  Co.  ( 128  Ind.  555 ;  28  N.  E. 
73;  34  Amcr.  and  Eng.  Corp. 
Cas.  1;  12  L.  R.  A.  652;  3  Inter- 
state Com.  Rep.  613),  55,  304, 
395,  399,  417,  418a,  418b,  425, 
428d. 

Janes  v.  Emery  Oil  Co.  ( 1  Penny 
(Pa.),   242),   148. 

Janeway  v.  Duluth  (65  Minn.  292; 
68  N.  W.  243),  498b,  568. 


Jarecki  v.  Philharmonic  Society  (79 

Pa.    St.    403;    21    Am.    Rep.    78), 

632. 
Jarecki    Utg.    Co.    v.    Struther     (8 

Oliio   Cir.   Dec.   5;    14   Ohio    C.   C. 

400),  376a. 
Jashanosky  v.  Volrath    (59  Ohio  St. 

540;    53    N.    E.    46;    69    Am.    St. 

786),  269. 
Jeffreys  v.  Smith   ( 1  J.  &  W.  298), 

363,   387.    392. 
.Jegon  V.  Vivian    (L.  R.  6,  Ch.  App. 

742;    40  L.  J.  Ch.  389;    19  W.  R. 

365),   51. 
Jenkins   v.   Ck)lumbia,   etc.,   Co.    ( 13 

Wash.    502;     43    Pac.    328),    578, 

607. 
Jennings     v.     Broughton     (5     DeG. 

M.  and  G.  126),  348. 
Jennings    v.    Broughton     (17    Beav. 

234;    22    L.   J.   Ch.    586;    17    Jur. 

30-5;    1    W.   R.    441),   348. 
Jennings     v.     Alexander      ( 1     Hilt. 

(W.  Y.)    154),  284b. 
Jennings  v.   Davis    (187   Fed.   703), 

082,   683,    749. 
Jennings  Bros.  &  Co.  v.  Benle   ( 158 

Pa.    St.    283;    27    Atl.    948),    66, 

127,  128. 
Jennings-Heywood   Oil   Syndicate  v. 

Home  Oil  &  Development  Co.  (113 

La.    383;     37    So.    1),    172,    173, 

240d,  308. 
Jennings-Hejnvood   Oil   Syndicate  v. 

Hous-^iere-Latrcille    Oil    Co.     (119 

Li.    7;t3;    44    So.    Rep.    481),    96, 

110,     112,    229,     261,    298,    302d, 

305,  861,  889,  896. 
Jersey  City  Gas  Co.  v.  Dwight    (29 

X.    J.    Eq.    242),    426,    483,    491, 

522,  535,  564,  576. 
Jersey    City,    etc.,    Co.    v.    Passaic 

(52  Atl.    (N.  J.  L.)    242),  539. 
J.  M.  Guffey  Petroleum  Co.  v.  Oliver 

(79  S.  W.   (Tex.  Civ.  App.)  884), 

130,    220d,    237,    260,    262c,    864, 

865,   879. 


TABLE   OF    CASES. 


Ixxxiii 


(References  are  to  pages.) 


J.  M.  Guffey  Petroleum  Co.  v.  JolT 
Chaison  Town  Site  Co.  (48  Tex. 
•Civ.  App.  555;  107  S.  W.  609), 
74,  138,  14:?.  150,  157,  IGO,  183, 
8t)5,  StiG,  871. 

Job  V.  Tatton  (L.  R.  20  Eq.  84; 
44  L.  J.  Ch.  262;   23  W.  R.  588; 

32  L.   T.    110),   332,   334b. 
Johnson  v.  Atlantic  City  Gas  &  W. 

Co.    (65   N.   J.    Eq.    129;    56   Atl. 

550),  579,  586. 
Johnson   v.   Belmar    (58   N.    J.   Eq. 

354;   44  Atl.   106),  610. 
Johnson    v.    North    Port,    etc.,    Co. 
(50    Wash.    507;    97    Pac.    746), 

730a,  762. 
Johnson  v.  Price   (172  Pa.  St.  427; 

33  Atl.  688),  364c,  906. 
Johnson  v.   Sherman    (15   Cal.  287; 

70   Am.   Dec.   481),   274b. 
Johnson  v.  Wiseman   (4  Met.   (Ky.) 

357;   83  Am.  Dec.  475),  634. 
Johnston,  In   re    (137   Cal.   115;    69 

Pac.  974;   69  Pac.  973),  491,  501, 

514,  51Sb,  532,  535. 
Johnston    v.    Cowan     ("50    Pa.     St. 

275),  203. 
Johnston  v.  Consumers  Gas  Co.    (78 

L.  T.  270;    [1898]   A.  C.  447;   67 

L.  J.  C.  P.  33),  605. 
Johnston   v.    Peoples,    etc..   Gas   Co. 

(7  Atl.    (Pa.)    167;  5  Cent.  564), 

394,  400,  491,  501,   530. 
Johnston  v.  Price  (172  Pa.  St.  427; 

33   Atl.   688;    37   W.   N.   C.   387; 

26    Pitts.    L.    J.     (X.    S.)     357), 

336,  339. 
Johnston    v.    Standard   Mining   Co. 

(148   U.    S.    360;     13    Super.    Ct. 

585),  111. 
Johnston  v.  Toronto  Consumers  Gas 

Co.    [ISOS]     (App.    Cas.    447;    78 

L.  T.  270),  588. 
Johnston  Iron  Co.  v.  Cambria  Iron 

Co.    (32  Pa.  St.  241),  92,  128. 


Johnston,  etc.,  R.  R.  Co.  v.  Egbert 

(152    Pa.    St.   53;    25    Atl.    151), 

162,  163,  230. 
Joliet    Gaslight    Co.    v.    Sutherland 

(68  111.  App.  230),  522,  527,  539. 
Jonas  V.  Cincinnati   (18  Ohio,  318), 

476. 
Jones  V.  Barnes   (45  ^lo.  App.  590), 

2S4a. 
Jones    V.    Carter     (15    M.    and    W. 

718),  244. 
Jones    V.    Clark     (42    Colo.     180), 

364c,  368,  369,  370,  372,   904. 
Jones  V.  Forest  Oil  Co.  ( 194  Pa.  St. 

379;     44    Atl.     1074;    30    Pittsb. 

L.   J.    (N.    S.)    58;    48   L.    R.   A. 

748),   34,  46,  47,  40. 
Jones    V.     Howard     Ins.     Co.      (117 

N.   Y.    103;    22   X.   E.   578),   798, 

799,  801. 
Jones    V.    Rochester,    etc.,    Co.     (7 

X.   Y.   App.   Div.   465;    39   N.   Y. 

Supp.    1105,    1110;    affirmed,    158 

X.  Y.  67-8;   52  X.  E.   1124),   579, 

580,  583,  588a,  594. 
Jones   V.    Rochester,    etc.,    Co.    (168 

X.  Y.  65;   60  X.  E.   1044;   revers- 
ing 64  X.  Y.  Supp.   1138),  5S8a, 
Jones   V.    Wood     (2    Ohio    Dec.    75; 

9  Ohio  Cir.  €t.  Rep,  560;   6  Oliio 

Cir.    Dec.    538;    reversing    1    Ohio 

X.  P.   155),  840. 
Jones  V.  Mount    (30   Ind.   App.  59; 

77    X.    E.    10S9),    153,    154,    171, 

868,  870. 
Jones  v.  Mount    (166  Ind.  570;    77 

X.  E.    1089),  214b,  231,  804. 
Jones    v.    Rochester    Gas,    etc.,    Co. 
( 7  X.  Y.  App.  Div.  474 ;  39  X.  Y. 

Supp.  1110),  627. 
Jones  v.   Strong    (5   Kulp.   7),  316, 

326,  326c. 
Jones    V.    Western,    etc..    Gas    Co. 
(146    Pa.    St.    204;    23    Atl.    386; 

29  W.  X.  C.  266),  228a,  238,  858, 

859. 


Ixxxiv 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Jordan  v.  Myers   ( 126  Cal.  505 ;  58 

Pac.   1061),  376. 
Joyce,  In  re  ( L.  K.  9  Ch.  App.  576 ) , 

647. 
Judge   V.    Brnsweld    (13    Bush,    69; 

26  Am.  Rc]).   1S5),  2{i3.  309,  370, 

904. 
Judson   V.   Giant   Powder   Co.    (107 

Cal.     549;      40     Pac.      10*ZO;      29 

L.  R.  A.  718),  704,  781. 
Judson    V.    Los    Angeles,    etc.,    Co. 

( 157  Cal.  168 ;  106  Pac.  581 ) ,  665, 

667,  676. 
Jordeson    v.    Putton,    etc.,    Co.     (G7 

L.  J.  Ch.  666   [1898]    2   Ch.  614; 

79  L.  T.   478;    47   W.  R.   222;   63 

J.  P.  137;  fiffirmed,  68  L.  J.  457; 

[1899]   2  Ch.  217;   80  L.  T.  815; 

63  J.  P.  692),  577. 
Julian  V.  Eagle  Oil  &  "Gas  Co.    ( 83 

Kan.  127;    109  Pac.  996),  274d. 
Jurgenson  v.  Diller    (114   Cal.  491; 

46  Pac.  610),  37-5,  376. 

K 

Kahn  v.  Old  Telegraph  ^Mining  Co. 

(2  Utah,    13),   331. 
Kahn  v.  Central  Smelting  Co.    ( 102 

U.    S.    641),    364a,    364b. 
Kalamazoo  v.  Kalamazoo,   etc.,   Co. 

(124   Mich.   74;    82   N.   W.  811), 

525,  53fi. 
Kamphouse     v.     GafFner      (73     111. 

453),  91,  94. 
Kansas    City    Natural    Gas    Co.    v. 

Haskell    (172   Fed.  585;    affirmed, 

31  Sup.  Ct.  564;   221  U.  S.  229), 

32,    33,    34,    38,    43,    44,    46,    52, 

400b,  400c,  400d,  418b. 
Kansas  Natural  Gas  Co.  v.  Board 

(75  Kan.  335;  89  Pac.  Rep.  750), 

53,  66,   72,   81,   93. 
Kansas  Natural   Gas  'Co.  v.  Harris 

(79  Kan.  1(7;   100  Pac.  72),  191, 

237,  238,  239,  240a,  257,  890,  899. 


Karns  v.  Tanner    (m  Pa.  St.  297), 

258,  259. 
Kasten    v.    Interstate,   etc.,   Co.     (99 
Wis.     73;      74     N.     W.     534;     40 
L.  R.   A.   651),  831. 
Keating,  etc.,  Co.  v.  'Marshall,  etc., 
<o.    (74    Tex.    605;    12    So.    489), 
649. 
Keihl  V.  South  Bend   (70  Fed.  921; 

22   C.  C.  A.   618;    44   U.    S.   App. 

687;   30  L.  R.  A.  228),  458,  458d, 

459,  47 8d. 
Keir  v.  Peterson    (41   Pa.  St.  357), 

33. 
Keiser    v.    Mahanoy    Gas    Co.    ( 143 

Pa.  St.  270;  22  Atl.  759),  666. 
Keith    V.    Johnson     (109    Ky.  -421; 

59    S.    W.    487;    22   Ky.    L.    Rep. 

947),  469. 
Keeler    v.    Keeler     (31    N.    J.    Eq. 

181,   191),   034,  636. 
Keeler   v.   Trueman    (15   Colo.    143; 

25    Pac.    311;     Carrhart    v.    Mon- 
tana, etc.,  Co.,   1   Mont.  245),  89. 
Keenan   v.    Dubuque,   etc.,    Ins.    Co. 

(13    Iowa,   375),   826. 
Kelachny    v.    Galbreatli     (110    Pac. 

(Okla.)    902),  34. 
Keller    v.    Book    (28    Ohio   Cir.    Ct. 

R.   119),   192a,   192c,   192d,  261. 
Kellar  v.   Craig    (126   Fed.  630;   61 

C.  C.  A.  300),  130,  136,  148,  159, 

160,   182,   183,  186,  233,  244,  260, 

202,   805,   891,   899. 
Kelly   V.   Donahoe    (2   Mete.    (Ky.) 

482),   350c. 
Kelly    V.    Keys     (213    Pa.    296;     62 

Atl.  911),  90,   93,  289. 
Kelley  v.  Ohio  Oil  Co.   (57  Ohio  St. 

317;   49   N.   E.  399;   39   L.   R.  A. 

705;   63   Am.  St.  721;   affirming  6 

Ohio    C.    Ct.    Dec.    470;    9    Ohio 

C.    C.    511;    34    Weekly   L.    Bull. 

185),  32,  33,  38,  46,  54,   144,  883. 
Kelly    V.    Worcester,    etc.,    Ins.    Co. 

(97  Mass.  284;   5  Bonn  Fire  Ins. 

Cas.  122),  802. 


TABLE   OF    CASES. 


Ixxxv 


(References  are  to  pages.) 


Kellyville    Coal     Co.     v.     O'Coniu'll 

(134  111.  App.  311),   148. 
Kemble   v.    Kemble    (44    N.   J.    Eq. 

454;    11   Atl.   733),   333. 
Kemble  Coal  and  Iron  Co.  v.  Scott 

(90   Pa.   St.   332),    203. 
Kennard    v.    Standard    Oil    Co.     (89 

Ky.  468;  12  S.  W.  937;  7  L.  R.  A. 

451),  m2. 
Kennedy  v.  Crawford    (138  Pa.  St. 

561;   21  Atl.   19),   193,  208a,  212, 

253,   254b,   259,   858. 
Kennedy  v.  Porter   (109  X.  Y.  526; 

17  X.  E.  426),  367. 
Kennefick-Hammond     Co.     v.     Nor- 

wick    Union    Fire    Ins.    Soc.     (80 

S.  W.  699),  800,  801. 
Kenney  v.  Soutli  Shore  G.  &  F.  Co. 

(91    N.    Y.    App.    Div.    859;     119 

N.  Y.   Supp.  303),   691,   711,  729. 
Kenrick  v.  Smiek    ( ,  — ), 

226,  227. 
Kenton  Ins.  Co.  v.  Downs    (90  Ky. 

236;    13   S.    W.    882;    12    Ky.   L. 

Rep.  115),  811,  823. 
Kenton  Gas,  etc.,  Co.  v.  Dorney  (17 

Ohio  Cir.  Ct.  101 ;  9  Ohio  C.  Dec. 

604),    72,    236,    245,    326a,    328, 

604. 
Kenton  Gas,  etc.,  Co.  v.  Orwick   (21 

Ohio  Cir.  Ct.  274;   11   Ohio  C.  D. 

786),    157. 
Kentucky  Heating  Co.  v.  Hood  (133 

Ky.  383;    118  S.  W.  337;   34  Ky. 

L.  Rep.  — ),  579,  592. 
Kentucky  Heating  Co.  v.  Louisville 

Gas   Co.    (63    S.    W.    (Ky.)    651; 

23  Ky.  L.  Rep.  730),  529. 
Keogh     V.     Pitt>ton.     etc..     Co.     (5 

Lack.   Leg.   X.   242),   515. 
Kerlin    Bros.     Co.     v.     Toledo     (20 

Ohio    C.    Ct.    Rep.    603;    8    Ohio 

X.   P.   62),   70,   88,   572. 
Kerr  v.  Bellcfontaine    (59   Ohio  St. 

446;    52   X.   E.    1024),  572. 


Keyes  v.   Pittsburgh,   etc.,  Co.    (58 

Ohio   St.   246;    50   X.    E.   911;    41 

L.  R.  A.  681),  318a. 
Keystone    Bank    v.    Union    Oil    Co. 

(25  Ohio  Cir.  Ct.  Rep.  464),  266. 
Keystone   Mining   Co.  v.   Gallagher 

(5    Colo.    23),    37i)a,    37'6b. 
Kibele  v.  Philadelphia   ( 105  Pa.  St. 

41),  687,   708,  744,  746,  750,  767. 
Kiddle  v.  Brown    (20  Ala.  412;   56 

Am.  Dec.  202),  94. 
Kier  v.  Peterson    (41  Pa.  St.  357), 

167,  316,  323,  325. 
Kilcoyne    v.    Southern    Oil    Co.    (61 

W.Va.  538;   56  S.  E.  888),   129, 

907. 
Kile  V.   Giobner    (114   Pa.   St.   381; 

7  Atl.  154),  638. 

Killbridge  v.  Carbon,  etc.,  Co.    (201 

Pa.  552;  51  AtL  347),  778. 
Kille  V.   Reading  Iron  Works    (141 

Pa.  St.  440;   21  Atl.  666),  348. 
Kimball    Oil    Co.    v.    Keeton     (101 

S.  W.   (Ky.)    887:  31  Ky.  L.  Rep. 

140),  136,  2.")2.  ^74. 
Kimmpl  v.  Burfeind    (2  Daly,   155), 

741. 
Kiichli  V.  "Minnesota,  etc.,  Co.    (58 

Minn.  418;   59  X'.  W.   1088),  476. 
Kincaid    v.    Indianapolis,    etc.,    Co. 

(124    Ind.   577;    £4   N.    E.    1066; 

8  L.  R.  A.  602).  iiSl,  552a,  552b. 
Kincaid   v.   McGowan    (88   Ky.    91; 

4   S.  W.  802),   88. 
King   V.   Consolidated   Gas   Co.    (90 

X.   Y.   App.    Div.    160;    S5   N.   Y. 

Supp.    728),   747. 
King  V.  Kdwards   (32  111.  App.  55S), 

233. 
King  V.  Jones   (3  Camp,  230),  514. 
King    V.    Morristown    F.    &    L.    Co. 

(31  Ind.  App.  476;  68  X.  E.  310), 

220a,    240c. 
King  V.  National    Oil   Co.    (81   Mo. 

App.   155),  791,  792. 


Ixxxvi 


TABLE   OF    CASES. 


(References  are  to  pages.) 


King  V.  Philarlolphia  Co.    (154  Pa. 

St.  160;  26  Atl.  308;  21  L.  R.  A. 

141;  41  Am.  and  Eng.  Corp.  Cas. 

221),  537. 
Kings     County     Fire     Ins.     Co.    v. 

Swigert    (11   111.   App.  590),  800, 

826. 
Kingsley  v.  Hillside  Coal  Co.    (144 

Pa.    St.    613;    29   W.    N.    C.    368; 

23  Atl.  253),  65,  89,  310d,   350b, 

351. 
Kingsley    v.     ]\IcFarland     (82     Me. 

231;    19   Atl.  442),   648. 
Kinnaird  v.    Standard   Oil    Co.    (89 

Ky.  468;  12  S.  W.  937;  7  L.  R.  A. 

451),  '651. 
Kinnaman   v.   Vyle    (44   Ind.    275), 

318b. 
Kirbv  V.  Delaware,  etc.,  R.  R.  Co. 

(20  N.  Y.  App.  Div.  473;  46  N.  Y. 

Supp.  777),  702. 
Kirchman  v.  Lapp    ( 19  N.  Y.  Supp. 

831),  632. 
Kirchner  v.  Smith   (61  W.  Va.  434; 

58  S.  E.  614),  371,  372,  903,  904. 
Kirk   V.    Mattier     (140   Mo.    23;    41 

S.  W.  252),  80,    171. 
Kirkwood    v.    Meramac    Highlands 

Co.    (94  Mo.  App.  637;   68  S.  W. 

761),    490b. 
Kiser  v.  McLean    (67   W.  Va.  294; 

67    S.    E.    725),    350d,   356b,    839, 

840a,  885,  886. 
Kiskiminetas  Tp.  v.   Coemaugh  Gas 

■Co.    (14- Pa.   Super.   Ct.  67),   556. 
Kitchen  v.  Smith   (101  Pa.  St.  452), 

78,  79,  92,   167,  169. 
Kittanning  v.  Armstronsr  Water  Co. 

(35  Pa.  Super.  Ct.  174),  84 1. 
Kittanning  v.  Consolidated  Natural 

Gas  Co.    (26  Pa.  Super.  Ct.  Rep. 

355),  833,  834a. 
Kittanning  v.   Kittanning,   etc.,   Co. 

(26  Pa.  Super.  Ct.  355),  836,  841. 
Kittanning    Gas    Co.    v.    Leach    (24 

Gas  J.  503),  846. 


Klcppner    \.    Lemon     (176    Pa.    St. 

502;    38    W.   N.    C.    388;    35    Atl. 

109;  27  Pittsb.  L.  J.   (X.  S.)  21), 

109,  130,   138,   143,  155,   160,  185, 

233,   252,   864. 
Kleppner  v.  Lemon  (29  Pittsb.  L.  J. 

(N.    S.)     346;    affirmed,    198    Pa. 

St.   430;    48    Atl.   Rep.   483),   47, 

136,   143,   155,   157,  158,  312,  864. 
Knarr   v.    Conaway    (42   Ind.    260), 

217. 
Knupp  V.  Bright   (186  Pa.  St.  181; 

40   Atl.   414),  284. 
Knight    V.    Indiana,    etc.,    Co.     (47 

Ind.  105),  78. 
Knight    V.    Mfg.    Natural    Gas    Co. 

(23  Atl.   (Pa.)    164;   29  W.  N.  C. 

261),  131. 
Knotts    V.    McGregor     (47    W.    Va. 

566;   35  S.  E.  899),  129,  890. 
Knoxville  v.  Water   Co.    (212  U.  S. 

1;    29  Super.  Ct.   148;   53   L.  Ed. 

— ),   436,    436a,   436b,   439. 
Kock's    Appeal     (93    Pa.    St.    434), 

138. 
Kock    V.    Maryland    Coal    Co.     (68 

Md.  125;   11  Atl.  Rep.  700),  50. 
Koelsch    V.    Philadelphia     (152    Pa. 

St.  355;  25  AtL  522;   18  L.  R.  A. 

759;    34  Am.   St.   653),   682,   687, 

689,   698,   708,   717,   731,   767. 
Koen   V.  Bartlett    (41  W.  Va.   559; 

23    S.   E.   664;    56   Am.    St.    884; 

31  L.  R.  A.  128),  273,  326,  326a, 

326b,  328,   882,  887. 
Kohler  v.  Brick  Co.  &  N.  W.  Ohio, 

etc.,   Gas   Co.    (11    Ohio    Cir.    Ct. 

Rep.  319;   5  Ohio  Cir.  Dec.  379), 

745. 
Kohlmann    v.    Salvage     (34    N.    Y. 

App.   Div.    380;    54    N.    Y.    Supp. 

230),  802. 
Koknmo  Natural  Gas  Co.  v.  Albright 

(18  Ind.  App.  151;  47  N.  E.  682), 

120,    129,    154,    292,   590. 


TABLE   OF    CASES. 


Ixxxvii 


(Rcfoi'Piieps  are   to  piiRcs. ) 


Koplan  V.  Boston  Gaslight  Co.   (177 

Mass.    15;     58    N.    E.    183),    ti!);5, 

707,  714b,  715,  732,  733,  757,  758, 

762. 
Kreutz    v.    Mo  Knight     (53    Pa.    St. 

319),   234,   262c. 
Krueger  v.  Wisconsin  Tel.  Co.    ( 106 

Wis.     <)6;     81     N.     W.     104;     50 

L.   R.  A.   298),  551. 
Kruger    v.    Western,    etc.,    Ins.    Co. 

(72  Cal.  91;   13  Fac.  150),  823. 
Krull    V.    Rose    (88   Neb.    651;    130 

N.  W.   271),   322. 
Krzywoszjaicki   v.   Consolidated  Gas 

Co.    (4   N.   Y.   App.  Div.   161;    38 

N.  Y.  Supp.  929),  690b,  767. 
Kunkle    v.    Peoples,    etc.,    Gas    Co. 
(165   Pa.    St.    133;    30   Atl.   719; 

35  W.  N.  C.  465),  161,  318d. 
Kyffin   V.   East  London   W.   W.    Co. 
(66   Gas    J.   243),   588b,    602. 


Labry    v.    Gilmour    (121    Ky.    307; 

89    S.    W.    231;    28    Ky.    L.    Rep. 

311),   514. 
LaCampagnie    pour    L'Eclairage    an 

Gas    V.    La    Campagnie,    etc.    (25 

Can.  S.  C.  168),  492. 
Lackland   v.   North   Mo.    R.   R.   Co. 

(31    Mo.    180),   504. 
Laclede    Gaslight    Co.    v.    Gas    Con- 
sumers Assn.    (127  Mo.  App.  442; 

106  S.  W.  91),   625,  630,  037. 
Lacustrine,  etc.,  Co.  v.  Lake  Guano, 

etc.,  Co.    (82  N.  Y.  470),  89. 
Ladd  V.  Boston    (170  Mass.  332;  49 

N.  E.  627;  40  L.  R.  A.  171),  618, 

633. 
Ladd   V.   Jones    (61   111.   App.   584), 

558. 
Ladley    v.     Creighton     (70    Pa.    St. 

490),  384d. 
Lafayette   Gas   Co.   v.    Kelsey    (164 

Ink  563;   74  N.   E.  7),   136,  235, 

302,  909. 


LaForcp   v.   Williams,   etc.,    Ins.   Co. 

(43  Mo.  App.  518),  790,  808,  822. 
LaHarpe  v.  Elm  Tp.  Gaslight,  otc., 

Co.    (69    Kan.    97;    76    Pac.    Rep. 

448),   46,   57,   418,   425,  516,  517, 

531,  535,  551. 
Lake  v.  Dean    (28   Beav.  007).    171. 
Lake  Charles  Ice,  etc.,  Co.  v.  Lake 

Charles   (106  La.  65;  30  So.  289), 

458a,  465. 
Lake  Erie,  etc.,  R.  R.  Co.  v.  Lowdor 

(7   Ind.  App.  537;   34  N.  E.  447, 

747),  408. 
Lake    Erie,    etc.,    Co.    v.    Patterson 

(184    Pa.    St.    364;    39    Atl.    OS), 

214. 
Lake   Superior  Co.   v.   McCann    (86 

Mich.    106;    48   N.   W.   692),   039, 

641. 
Lamar    Water,    etc.,  «Co.   v.    Lamar 

(140    Mo.    145;    39    S.   W.    768), 

<t58d,  478c. 
Lambie  v.  Sloss,  etc.,  Co.   (118  Ala. 

427;   24  So.  Rep.   108),  65. 
Lancaster   v.    DeTrafTord    (31    L.    J. 

Ch.    554;    7    L.   T.   40;    10   W.   R. 

474;    8  Jur.    (X.  S.)  "873),  342. 
Lancastire    Fire    Ins.    Co.    v.    Len- 

heim    (89    Pa.    St.    497;    33    Am. 

Rep.  778),  795. 
Lancaster    Gas    Co.,    In    re     (5    Pa. 

Dist.   Rep.    244),   484. 
Lancaster    Gaslight    &    Fuel  Co.    v. 

Lancaster    Gas    Co.     (17    Pa.    Co. 

Ct.  Rep.  453),   483,  486. 
Landoll    v.   Hamilton    (175    Pa.    St. 

327;   34  Atl.  003),   131. 
Landis     v.     :\[illvme     Gaslight     Co. 
(70  N.  J.  Eq.  454;   05  Atl.  710), 

520,   531,  537. 
Lane    v.    Allen     (162    111.    426;    44 

N.  E.  831),  214b,   870. 
Lane  v.  Gordon   (18  X.  Y.  App.  Div 

438;    40    N.    Y.    Supp.    57),    254, 

200. 


Ixxxviii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Langerbough  v.  Anderson    (22  Oliio 

Cir.  Ct.  Rep.  178;    12  Ohio  C.  D. 

341),  682,  778. 
Langdon  v.  New  York,  etc.,  Ins.  Co. 

(1   Hall    (N.  Y.),   226),  812. 
Langmade  v.   Weaver    (65   Ohio  St. 

17;   60  X.  E.  992),   120. 
Langston    v.    Bates     (84    111.    524), 

344. 
Lanigan  v.  Gaslight  Co.    (71   N.  Y. 

29),  705,  747,  750. 
Lannen  v.  Albany  Gaslight  Co.    (46 

Barb.     264;     affirmed,     44    N.    Y. 

459),  709,   729,  732,  752,,  765. 
Lanning  v.   Osborne    (76   Fed.  319; 

affirmed,    178   U.    S.   22;    20    Sup. 

800),  432,  433,  435. 
Lanyon    Zinc    Co.    v.    Freeman     (68 

Kan.   691;    75   Pac.    995),  34,   44, 

89,   320,   876. 
Lapore   v.   Gamewell   Co.    ( 146   Ind. 

46.6;    45   N.   E.   588),  459. 
Lattimore    v.     Harsen     ( 14     Johns. 

330),  312. 
Laiiman  v.  Young   (31  Pa.  St.  306), 

222. 
Lawrence  v.   Kemp    ( 1   Duer,   363 ) , 

639,  646. 
Lawrence     v.    Hennessy     (165     Mo. 

659;   65  S.  W.  717),  50Sb. 
Lawrence   v.   Matheren    (166   Mass. 

206;     44    N.    E.    247),    470. 
Lawrence  v.  Robinson  (4  Colo.  567), 

364,  367. 
Lawson    v.    Kirchener    (50    W.   Va. 

344;   40  S.  E.  344),  88,  256,  289, 

310. 
Lawton  v.  Lawton   (3  Atk.  13),  646. 
Lawton  v.   Solmon    ( 1   H.   B.   259), 

646. 
Laycock    v.    Baton    Rouge     (35    La. 

Ann.   475),   475. 
Laythoorp  v.  Bryant  (2  Bing.  NT.  C. 

7;]5;   5  L.  J.   C.  P.  217;   3   Scott, 

238;    8   Hodges,   25),   343. 
Lazarus'    Est.    (145   Pa.    St.    1;    29 

W.   N.   C.    36),   87,    89,   310d. 


Leatherman  v.   Oliver    (151    Pa.   St. 

046;    31    VV.    N.    C.    205;    25    Atl. 

309),  228a,  228b,  306,  307. 
Leadville    Water    Co.    v.    Lcadville 

(22  Colo.  297;  45  Pac.  302),  600. 
Leadville,   etc.,   Co.   v.   Leadville    (9 

Colo.    App.    400;    49    Pac.    268), 

476. 
Lebanon,    etc.,    Co.    v.    Leap     (139 

Ind.     443;      39     N.     E.     57;      29 

L.    R.    A.    342),     555,    556,    694, 

696,  730b,   788. 
Lebanon   Gas   Co.   v.   Lebanon   Fuel, 

etc.,    Co.    (5   Pa.  Dist.   Rep.   529; 

18    Pa.    Co.    Ct.    Rep.    223),    55, 

501,  522. 
LeClaire    v.    Davenport     ( 13    Iowa, 

210),  490b. 
Lee   V.   Baumgardner    (86   Va.   315; 

10   S.   E.   3),  66,   89. 
Lee     V.     Roundwood     Colliery     Co. 

[1897]     (1  Ch.  373;    66  L.  J.  Ch. 

186;     75    L.    T.    641;    45    W.    R. 

324),   270. 
Lee   V.    Troy   Citizens   Gaslight   Co. 

(98    N.    Y.    115),    721,    742,    750, 

767. 
Lee   V.    Vacuum   Oil   Co.    (54   Hun, 

156;    7    N.    Y.    Supp.    426),    413, 

666,    702,   730b. 
LeFeore  v.   LeFeore    (4    S.   and   R. 

241),    94. 
Leftwich   v.  Neal    (7  W.  Va.   569), 

31Sb. 
Leggett  V.  Aetna  Ins.  Co.   (10  Rich. 

L.  202),  813,  815. 
Lehigh,    etc.,     Co.    v.     Wilkesbarre, 

etc.,   Co.     (8    Kulp.     (Pa.)    540), 

311. 
Lehigh,    etc.,    Co.    v.    Wright    (177 

Pa.  St.  387;   35  Atl.  219),  311. 
Lehigh  Coal  Co.  v.  Wright  ( 7  Kulp. 

(Pa.)    434;    15  Pa.  Co.   Ct.  433), 

87. 
Lehigh    Valley    Coal    Co.    v.    Jones 

(86  Pa.  St.  432),  735,  752. 


TABLE   OP    CASES. 


Ixxxix 


(References  are  to  pages.) 


Lehigh    Water    Company's    Appeal 

(102  Pa.   515),  485. 
Lehigh  Zinc  and   Iron  Co.  v.   Bam- 
ford   (150  U.  S.  G65;    14  Sup.  C^. 
219;      affirming     33     Fed.     677), 
310c. 
Lemfer    v.     Henke     (73     111.    405), 

325,  330,  333. 
Lennox    v.    Vandalia    Coal    Co.    ( 60 
Mo.   App.   560;    158   Mo.   473;    59 
S.  W.  242),  307. 
Leport   V.   Mining   Co.    (3   N.   J.   J. 

Jr.  280),  43,  385,  386. 
LeEoy,  In  re    (23   N.   Y.   Misc.  53; 

56  N.  Y.  Supp.  611),  568. 
Lester   v.   Hardesty    (29    Md.    50), 

384. 
Lester   v.   Lester    (28    Gratt.   737), 

344. 
Levering  v.  Langley   (8  Minn.  107), 

216,  282,  284a. 
Levine    v.    Brooklyn    Gas    Co.     (131 

N.   Y.   Supp.   255),   588b. 
Lewis    V.    Xewton     (75    Fed.    864), 

429,  500. 
Lewis  Water  Co.,  In  re   (11  Pa.  Co. 

€t.  Rep.   178),  470,  486. 
Levy  V.  Water  Works  Co.    (38  La 

Ann.  941),  612,  619. 
Lewis  V.   Boston   Gaslight  Co.    ( 165 
Mass.  411;   43  N.  E.   178),   714b, 
717. 
Lewis    V.    Brooks    (8    Up.    Can.    B. 

576),  216,   282,  284a. 
Lewis    V.    Virginia-Carolina    Chem- 
ical Co.    (48  S.  E.  280;    69  S.   C. 
364),   117. 
Lewisville  Natural  Gas  Co.  v.  State 
(135   Ind.  49;    34   X.   E.   702;    21 
L.   R.  A.   734;    43   Am.  and  Eng. 
Corp.  Cas.  483),  426. 
Lietch    v.    Atlantic,    etc.,    Ins.    Co. 

(66  N.  Y.   100),   810. 
Liggett  v.  Shira    (159  Pa.  St.   350; 
33   W.   X.   C.   553;    25    Atl.   218), 
228a,   228b,   230,   858. 


Light   Co.    V.  Gill    (14   Pa.   Co.   Ct. 

Rep.   6),    3-82,   635. 
Light   &    Fuel    Co.,    In   re    (17    Pa. 
Co.    Ct.    Rep.    113;    4    Pa.    Dist. 
Rep.   668),   483,   486. 
Light,    Heat,    etc.,    Co.    v.    Jackson 
(73  Minn.  598;  19  So.  771),  460, 
468b,   508b. 
Lillibridge  v.  Lackawanna  Coal  Cp. 
(143  Pa.  St.   293;   22  Atl.   1035), 
87,  89,  354,  885. 
Lima  Gas  Co.  v.  Lima   (4  Ohio  Cir. 
Ct.  Rep.  22;   22   Weekly   L.  Bull. 
272;   2  Ohio  Cir.  Dec.   396),  531. 
Lincoln  Gas  &  El.  Light  Co.  v.  Lin- 
coln    (182    Fed.    926),    436,    437, 
439,   441,   834. 
Linden    Oil    Co.    v.    Jennings     (207 
Pa.    254;     56    Atl.     1074),     262d, 
892. 
Linden    Steel    Co.    v.    Imperial    Re- 
fining   Co.     (138    Pa.    St.    10;    20 
Atl.  86,  869),  383. 
Lindsay    v.    Bridgewater     Gas     Co. 
(24   Pittsb.    L.    J.    (X.    S.)    L7a; 
14  Pa.  Co.  Ct.  Rep.   181),  827. 
Lindsley  v.   Xatural    Gas   Co.    ( 162 

Fed.   954),    47,    49. 
Line  v.   Stephenson    (5   Bing.  X.  C. 
183;   7  L.  J.  C.  P.   263;   7   Scott, 
69;    1   Arn.  385),  308. 
Linforth    v.    San    Francisco    Gas    & 
El.    Co.     (156    Cal.    58;     103    Pae. 
320),   715,   716. 
Lingeman   v.   Shirk    (15    Tnd.    App. 

432;   43  N.  E.  33),   114. 
Linn  v.  Chambersburg   ( 160  Pa.  St. 

511;    28   Atl.   842),   559. 
Lithgow  v.  Shook   (39  Ohio  Weekly 

L.  BulL  39),  113. 
Little  v.  Valeria,  etc.,  Co.  v.  Inger- 
soll  (14  Colo.  App.  240;  59  Pac. 
970),  377. 
Littler  v.  Robinson  (38  Ind.  App. 
104;  77  X.  E.  1145),  375,  376, 
378. 


xc 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Littlewood  v.  Equitable  Gas  Co.    (8 

Gas   J.  541),   602a. 
Lithman    v.    New    York    €ity     (3G 

N.  Y.  Div.   189;   55  N.  Y.  Supp. 

383;    affirmed,   159  N.  Y.  559;    54 

N.  E.   1093),  699,   722,  723. 
Liverpool,  etc.,  Ins.  Co.  v.  Guenther 

(116    U.    S.    113;    34    Fed.    501), 

799,  802,   814. 
Livincston    v.    Rawyards     (5    App. 

Cas.  25;   42  L.  T.  334;    28  W.  R. 

357),  51. 
Lloyd  V.  Newell  [1895]    (2  Ch.  744; 

64  L.  J.   Ch.   744;    73  L.  T.    154; 

44   W.   R.    43),   345. 
Lloyd   V.    Washington    Gaslight   Co. 

(1  Mackey  331),  609. 
Llynvi   Coal  Co.  v.  Brogden   (L.  R. 

11;    Eq.    183;    40    L.    J.    Ch.    46; 

24  L.  T,  612),  51. 
Loan    V.    Boston    (106   Mass.    450), 

549,   787. 
Lockhart  v.   Rollins    (2  Idaho,  503; 

21  Pac.   413),  266. 
Lodge  V.   United  Gas   Co.    (209   Pa. 

553;    58   Atl.   925),   691,   747. 
Loeber  v.  Roberts    (17  N.  Y.  Supp. 

378),  702. 
Logan    V.    Farmers    L.    &    T.    Co. 

( ,   — ),   436b. 

Logan   V.   Pjne    (43   Iowa,  524;    22 

Am.  Rep.   261),   490b. 
Logan  V.   Washington   Co.    (29   Pa. 

St.   373),   89,   839. 
Logan  Natural  Gas  and  Fuel  Co.  v. 

Chillicothe    (65  Ohio   St.   1,86;   62 

N.  E.   122),  42Sc,  430,  446d,  460. 
Logan  Nat.  G^s  &  Fuel  Co.  v.  Great 

Southern  Gas  Co.    (126  Fed.  623; 

66  C.   C.   A.  359),   130,   137,    146, 

183,   184,  202a,  874. 
Logansport   v.    Dikeman    (116    Ind. 

15;    17   N.   E.   587),   466. 
Logansport    Gas    Co.    v.    Peru     (89 

Fed.    185),    428a,    433,    434,    435, 

499. 


Logansport    &    W.    V.    Gas    Co.    v. 

Null   ( 36  Ind.  App.  503 ;  76  N.  E. 

125),   65,   287,   858. 
Logansport,    etc.,    Gas    Co.    v.    Ross 

(32  Ind.  App.  638;  70  N.  E.  544), 

203,   200,   208a,   262. 
Logansport   and    W.   V.   Gras   Co.  v. 

Seegar     (165    Ind.    1;     74    N.    E. 

500),   219,    236,   242,   361,   873. 
London    v.    Mitford    ( 14   Ves.    58 ) , 

343. 
London,    etc.,    Ins.    Co.    v.    Fischer 

(92   Fed.   500),  815,  816. 
London,  etc.,   R.   R.   Co.  v.   Trumen 

(11    App.    Cas.   45;    55   L.  J.   Ch. 

354;     54    L.    T.    250;     34    W.    R. 

657;    50   J.   P.   388),   671. 
London  Gaslight  Co.  v.  Nicholls    (2 

C.  and  P.  365),  605. 
London    Gaslight   Co.    v.    Vestry   of 

Chelsea    (8    C.    B.     (N.   S.)    215; 

9   Gas   J.    292),   478,   606. 
Lone   Acre   Oil    Co.   v.    Swayne    (78 

S.    W.     (Tex.    Civ.    App.)     380), 

337. 
Long's    Appeal     (92    Pa.    St.    171), 

172. 
Long  V.  Duluth    (49  Minn.  280;   51 

N.  W.  913),  498b,  508b. 
Long   V.    Forest    Oil    Co.     (194    Pa. 

243;    45    Atl.    121),    891. 
Long  V.  Miller    (4  C.  P.  Div.  450 

48  L.  J.  C.  P.  596;  41  L.  T.  306 

27  W.   R.   720),   343. 
Long  V.  Wade    (70  Me.   358),  384a. 
Long      Island      Water      Supply      v. 

Brooklyn     (166    U.    S.    685;     17 

Sup.  Ct.  718),  491,  492,  566. 
Los  Angeles  v.  Los  Angeles  Water 

Co.    (177  U.  S.  558;    20  Sup.   Ct. 

Rep.    736),    428c,    430,    431,    434, 

468a,  490c,  527,  565,  840a,  845. 
Losee  v.  Buchanan   (51  N.  Y.  476), 

702. 
Louisiana  State   Board  v.   Standard 

Oil    Co.     (107    La.    Ann.    713;    31 

So.    1015),   420. 


TABLE    OF    CASES. 


XCl 


(Keferencos  are  to  pages.) 


Louisville   v.    Louisville    Water    Co. 
(105    Ky.    7.)4;    49    S.    VV.    766), 

517. 
Louisville   v.    Wible     (84    Ky.    290; 

1  S.  W.  605),  483,  490b. 
Louisville  Gas  Co.  v.  Citizens  Gas 

Co.    (115   U.   S.   683;    6   Sup.   Ct. 

265;   10  Am.  and  Eng.  Corp.  Cas. 

671;     reversing    81     Ky.     156;     1 

Am.    and    Eng.    Corp.    Cas.    156 ) , 

424,   427,   428d,   496,   538. 
Louisville  Gas  Co.  v.  Dulaney   ( 100 

Ky.     405;     38     S.     W.     703;     36 

L.   R.    A.    125:    6   Am.    and   Eng. 

Corp.    Cas.     (X.    S.)     241),    433, 

580,    618,    625. 
Louisville    Gas    Co.    v.    Gutenkuntz 

(82  Ky.  432),   732,   740. 
Louisville     Gas     Co.     v.     Kentucky 

Heating    Co.     (117    Ky.    71;     77 

S.  W.  368;  25  Ky.  L.  Rep.   1221; 

70  L.  R.  A.  551;   11  Am.  St.  225), 

34,  45,  46. 
Louisville     Gas     Co.     v.     Kentucky 

Heating   Co.    (Ill    S.    W.    (Ky.) 

374;    33    Ky.   L.   Rep.   912),   419, 

885. 
Louisville     Gas     Co.     v.     Kentucky 

Heating    Co.     (117    Ky.    71;     77 

S.    W.    368;     25    Ky.    Law    Rep. 

1221),  220d. 
Louisville  &  X.  R.  Co.  v.  Memphis 

Gaslight    Co.    (60    C.   C.    A.    141; 

125  Fed.  97),  388,  392d. 
Lovett    V.    West    Virginia    Central 

Gas    Co.     (65    W.    Va.    739;     65 

S.   E.   196),   87,  400. 
Lowenstein    v.    Fidelity    &    C.    Co. 

(88    Fed.    474;    affirmed,    97    Fed. 

17),   831. 
Lowther  v.  Cavendish  (1  Eden,  99), 

646. 

Lowther  Oil  Co.  v.  Guffey  (52 
W.  Va.  88;  42  S.  E.  101),  76, 
S6,  228b,  230,  246,  859,  861,  913, 
914. 


Lowther  Oil  Co.  v.  Miller-Sibley  Co. 
(53   W.    Va.   501;    44    S.   E.    433; 

97  Am.  St.  1027),  34,  43,  51.  74, 

76,   140,   192,  192c,  202,  212,  222, 

289,  852,  853,  854,  872,  874,  878, 

881,  889,  895,  897,  900,  901. 
Loy  v.  Madison,  etc.,  Gas  Co.    ( 156 

Ind.    332;    58    X.    E.    Rep.    844), 

294c. 
Luce    v.    Dorchester,    etc.,    Ins.    Co. 

(105   Mass.   297),   810. 
Luhiy  v.  Barnes    (172  Pa.   St.  331; 

34    Atl.    52;    37    W.   N.    C.    409), 

350. 
Lumsden's  Case    (L.  R.  4  Ch.  App. 

31;    17   W.  R.   65),  373.       • 
Lunsford  v.  LaMotle  Lead  Co.    (54 

Mo.  426),  95. 
Lushington  v.  Sewell    (1  Sim.  435), 

646. 
Luzerne   Water  Co.    v.    Toby   Creek 

Water   Co.    (148   Pa.   St.  568;    24 

Atl.   117),   486. 
Lyddal    v.     Clavering     (Amb.     371, 

note),  318. 
Lykens  Valley  Co.  v.  Dock   (62  Pa. 

St.   232),   43,   269. 
Lyman   v.  Arnold    (5   Mason,   195), 

356c. 
Lyman  v.  Schwartz    ( 13  Colo.  App. 

318;    57   Pac.   735),   366. 
Lynn's  Appeal   (31  Pa.  St.  44),  325. 
Lynde    v.    Hough     (27    Barb.    415), 

284c. 
Lynch  v.  Burford    (201   Pa.  52;   50 

Atl.  228),   142,    145,   856,  892. 
Lynch    v.    Lj'nch     (6    Irish.    L.    R. 

131),  216,  282. 
Lynch    v.    Seymour     (15    Can.    Sup. 

Ct.   341),   93. 
Lynch    v.    Versailles    Fuel    Gas    Co. 

(165    Pa.    518;    30    Atl.    984;    35 

W.    X.    C.    558),    2.37.    238,    240, 

258,   262a,   310a,  872,   890,  899. 
Lyon  v.  Reed   (13  M.  and  W.  285), 

43,   133,   134,   216,  282. 


XCll 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Mc 


MoArthur  v.   Tionesta   Gas  Co.    (28 

Pa.  Super.  Ct.  568),   120,  294a. 
McBee  v.  Lof tis    ( 1   Strob.  Eq.  90 ) , 

350. 
McBee  v.   Sampson    (66   Fed.  416), 

274b. 
McCahan  v.  Wharton    (121   Pa.  St. 

424;    15   Atl.   615),   194,  203. 
McCalla  v.   Louisville   &   K   R.   R. 

Co.    (163  Ala.   107;    50  So.  971), 

605. 
MoCamus   v.    Citizens    Gaslight  Co. 

(40  Barb.  380),  788. 
McCarter   v.    Millville   Gaslight   Co. 

(73  X.  J.  Eq.  739;   69  Atl.  248), 

471. 
McCarter  v.  Pittman,  etc..  Gas  Co. 

(74  N.  J.  Eq.  255;  69  Atl.  211), 

848. 
McCarter  v.  Vineland  L.  V.  P.  Co. 

(73  N.  J.  Eq.  703;  70  Atl.  177), 

536a. 
MeCarty    v.    Mellon     (5    Pa.    Dist. 

425),    236,    239,    240a. 
MoClay    v.     Western     Pennsylvania 

Gas    Co.     (201    Pa.    St.    197;     50 

Atl.   978),    150. 
McClellan  v.   Coffin    (93   Ind.   456), 

875. 
MoClintock   v.    Dana    (106    Pa.    St. 

386),  326c. 
McClung    V.   North    Bend,    etc.,    Co. 

(31    Weekly   L.   Bull.   9;    9    Ohio 

iCir.    Ct.    Rep.    259;    6    Ohio   Cir. 

Dec.  243;    1  Ohio  Dec.  247),  663, 

665. 
McConnell  v.  Denver   (35  Cal.  365), 

364c,   364d,  904. 
IMcConnell     v.     Lawrence     Natural 

Gas     Co.      (30     Pittsb.     Leg.     J. 

(N.   S.)    346),   160,   197,  313. 
McConnell   v.  Pierce    (210  III.   627; 

71   N.  E.  Rep.  622),  53,  67. 
McCord    V.    Mining    Co.     (64    Cal. 

134),  331,  334c,  335. 


McCormick  v.  Sutton   (97  Cal.  373; 

32   Pac.   444),    360. 
MoCulloch,  etc.,  Co.  v.  Philadelphia 

Co.    (223   Pa.   336;    72  Atl.  633), 

5.80b,  582. 

MoCune    v.    Norwich    City   Gas   Co. 

(30     Conn.     521;     79     Am.    Dec. 

278),  576. 
McCurdy    v.    Orient    Ins.    Co.     (30 

Pa.  Super.  Ct.   77),  802. 
McDaniel  v.   Springfield  W.  W.  Co. 

(48  Mo.  App.  273),  607. 
McDermott  v.  Burke   (16  Cal.  580), 

384b. 
McDevitt    V.    Philadelphia    Gas    Co. 

(160   Pa.   St.   367;    28   Atl.   948), 

525. 
McDonald,    In   re    (16   N.   Y.  Misc. 

304;    39   N.   Y.   Supp.   367),   586, 

622. 
McDonald  v.  Carlin   (163  Ind.  342; 

71  N.  E.  Rep.  961;   163  Ind.  432), 

57,   58,  418d,  678. 
MacDonald  v.  O'Neil  (21  Pa.  Super. 

Ct.  364),  284d. 
McDowell  V.  Hendrix   (€7  Ind.  513), 

272,  274,  274b. 
McElhenny   v.    Hubert   Oil    Co.    (61 

Pa.   St.    188),   340c,   340d,   341. 
McElwaine  v.  Brown  (11  Atl.   (Pa.) 

453),  377. 
McElwaine  v.  Hosey   (135  Ind.  481; 

35  N.  E.  272),  376c,  379. 
McFadden    v.    Los    Angeles    County 

(74  Cal.  571;    16  Pac.   397),  434. 
McFarlan     v.     Watson     (3     N.     Y. 

286),  284b. 
McFarland   v.   Peabody   Ins.   Co.    (6 

W.  Va.   425),   807. 
McFarland    v.    St.    Paul,    etc.,    Ins. 

Co.     (46    Minn.    419;    49    N.    W. 

253;   46  Minn.  519),  808,  825. 
McGahan  v.   Tndinnapolis,   etc.,   Gas 

Co.   (140  Ind.  335;  37  N.  E.  601; 

29  L.  R.  A.  355;  49  Am.  St.  199), 

690b,  698,  706,   737. 


TABLE    OF    CASES. 


XClll 


(References  are  to  pages.) 


McGill  V.   Pintsch   Compressing   Co. 
(140  Towa,  429;    118  N.  W.  786), 
665,  667,  676. 
McGillivray  v.  Evans    (27   Cal.  92), 

334,   334b. 
McGowan    v.    Bailey    (179    Pa.    St. 

470;   36  Atl.  325),  364d. 
McGraw  Oil  &  Gas  Co.  v.  Kennedy 
(65  W.  Va.  595;   64  S.  E.  1027), 
34,    52,    53,    72,    131,    192c,    195, 
262,  853,  854,  856,  857,  864,  865, 
878,  891,  893,   899,   913. 
McGregor   v.    Camden    (47    W.   Va. 
193;  34  S.  E.  936),  662,  664, -668, 
884. 
McGregor  v.  Equitable  Gas  Co.  (139 
Pa.     St.     230;     21     Atl.     13;     27 
W.  X.  C.   197),  401,  404. 
McGuffie  V.   Carter    (42   Mich.   497; 

4  N.  W.  211),  272. 
McGuire    v.    Wright     (18    W.    Va. 

507),  317. 
Mcintosh  V.  Robb   (4  Cal.  App.  484; 
88   Pac.   517;    4   Cal.   App.   481), 
130,   860,   874. 
Mclntyre  v.  McTntyre  Coal  Co.   ( 105 
N.  Y.  264;    11   N.  E.  645),   310c. 
McKay  v.   Pennsylvania  Water   Co. 
(6  Pa.  Dist.  Rep.  364),  27  Pittsb. 
L.    J.    (N.    S.)    406),   403. 
McKee  v.  Colwell   (7  Pa.  Super.  Ct. 

€07),  231. 
McKeage  v.  H'\nover   Fire   Ins.   Co. 
(81  X.  Y.  38;   37  Am.  Rep.  471), 
636. 
McKelway  v.  Seymour   (29  X.  J.  L. 

321),  244. 
McKenna  v.   Bridgewater   Co.    ( 193 
Pa.     St.     633;     45     Atl.     52;     47 
L.    R.    A.    790),    691,    724,    730b, 
739. 
McKenzie  v.  Bismark  Water  Co.    (6 
X.  D.  361;    71   X.  W.   608),  392d. 
McKinney     v.     Reader      (7     Watts 
(Pa.),   123),   213. 


McKinney's    Heirs    v.    Central,    etc., 
Co.     (134    Ky.    239;     120    S.    W. 

314),  865,   911. 
McKircker    v.    Hawley     ( 16    Johns. 

289),  384a. 
McKnight    v.    Kreutz     (51    Pa.    St. 

232),   222,  233,   245,  260. 
McKnight    v.     IManufacturers,    etc. 

Gas    Co.     (146    Pa.    St.    1-85;    23 

Atl.   164;   28   Am.  St.  790),   138, 

181,   191,   197,  313,  857,  866,  893, 

900. 
McLaren  v.  Byrnes    (80  Mich.  275; 

45  X.  W.  143),  37<)C,  380. 
McLean  v.  Palmer    (2   Kulp.    (Pa.) 

349),  632. 
McLean   County    Coal    Co.   v.    Long 

(81   111.  359),  51. 
McMillan    v.    Philadelphia    Co.     (1 

Pa.     Super.     Ct.     Rep.     648;     38 

W.  X.  -C.  222 ) ,  400d. 
McMillan   v.    Philadelphia   Co.    (159 

Pa.    St.    142;    -28    Atl.    220),    96, 

107,   220,   228b,   858. 
McMillin  v.  Titus  (222  Pa.  St.  500; 

72  Atl.  Rep.  240) ,  53,  83,  93,  901. 
McXally    v.    Connolly     (70    Cal.    3; 

•11    Pac.   320),   633. 
McXeal,  etc.,   Co.  v.   Rowland    (111 

N.    C.    615;     16    S.    E.    857;     30 

L.   R.  A.   743),   382. 
McXeal  Pipe,   etc.,   Co.  v.  Waltman 

(114   X.   C.    178;    19   S.   E.    109), 

383. 
McXeely    v.    South    Penn.    Oil    Co. 

(58  W.   Va.   438;    44  S.  E.  508), 

337,   880. 
McXish  v.  Stone   (152  Pa.  St.  457; 

23    Pittsb.    L.    J.     (X.    S.)     232), 

72,   188,  211,  212. 
:\IcQuire    v.    Wright     (18    W.     Va. 

507),   644. 
:McRea   v.    Central    Xat.    Bank     (66 

X.   Y.   489),   629. 
McShane  v.  Kenkle   (18  Mont.  208; 
44   Pac.   970;    33   L.    R.   A.   851), 
360. 


XCIV 


TABLE   OF    CASES. 


(References  are  to  pages.) 


M 


Macbride  v.  Weekes   ( 22  Beav.  533 ; 

2    Jur.    (N.    S.)     918;    28    L.    T. 

(0.  S.)    135),  348. 
Mackin    v.    Portland    Gas    Co.     (38 

Ore.    120;    61   Pac.   134;    62   Pac. 

20;    49   L.   R.  A.  596),   578,  607, 

6Q9. 
Madison  v.   Madison  Gas,   etc.,   Co. 

(129    Wis.   249;    108   N.   W.   65), 

426,  427,  430,  434,  436a,  436d. 
Madison     v.     Moristown,     etc.,     Co. 

(52   Atk    (N.   J.   Ch.)    158),  -502, 

516,  517. 
Maher  v.  Slnill  (11  Colo.  App.  322; 

52  Pac.   1115),   376. 
Maine    v.    Grand    Trunk    Ry.     (142 

U.  S.  217;   12  Sup.  Ct.  121,  163), 

837. 
Mairin  v.  Kentuclcy  Heating  Co.  (86 

S.  W.   (Ky.)   676;  27  Ky.  L.  Eep. 

551),   529,  530. 
Maitland  v.  C.  L.  &  R.  Co.   (3  Ohio 

Neg.  News,  289),  759. 
Malcomson    v.    Wappoo    Mills     (85 

Fed.   90.7),   80. 
Malone  v.   Big   Flat,   etc.,    Co.    (76 

Cal.    578;     18    Pac.    772),    376a, 

370c,   381,   382. 
Malone  v.  Lancaster,  etc.,  Co.    (182 

Pa.    St.    309;    43    W.    N.    C.    434; 

15  Nat.  Corp.  Rep.  98;    14  Lane. 

L.   Rev.    321;    37   Atl.   932),   501, 

846. 
Malott   V.    Price    (109    Tnd.    22;    9 

N.   E.  718),   630. 
Manderbach  v.  Bethany,  etc..  Home 

(109    Pa.    St.    231;    2    Atl.    422), 

272. 
Manganese  Co.  v.  Trotler   (29  N.  J. 

Eq.  561),  127. 
Manhattan  Gaslight  Co.   v.   Barker 

(7  Robt.    (X.  Y.)    523),  550,  058, 

674. 
Manhattan  Gaslight  Co.  v.  Ely   (39 

Barb.    174),   605. 


Manhattan  Gas  Co.  v.  Flamme   (12 

X.   Y.   Weekly  Dig.  245),  623. 
Manhattan   Oil  Co.  v.  Oarrell    (164 

Ind.   526;    73    N.   E.    1084),    166, 

192c,   195,   206,   854,    900. 
Manhattan     Trust    Co.    v.    Dayton 

Natural   Gas   Co.    (55   Fed.   181), 

454,  478d. 
Manhattan  Trust  Co.  v.  Dayton   (59 

Fed.    327;    8    C.    C.    A.    140;     16 

U.  S.  App.   588),  454,  461,  42Sd, 

478d,   508b. 
Manly    v.    Howlett     (55    Cal.    94), 

344. 
Mannel    v.     Cumberland     (111    Md. 

196;   73  Atl.  705),  516. 
Manning   v.    Frazier    (96    111.   279), 

53,  67,  87,  91,  310d. 
Manufacturers,  etc.,  Co.  v.  Douglass 

(130   Pa.    St.  -283;    18   AtL  630), 

121. 
Manufacturers    Gas    &    Oil    Co.    v. 

Indiana,  etc.,  Co.    ( 1-55  Ind.  545 ; 

58    N.    E.    706),    33,    35,    46,    47, 

48,  49,  394,  395,  397. 
Manufacturers    Gas    &    Oil    Co.    v. 

Indiana,  etc.,  Co.    (155  Ind.  566; 

58  N.  E.  851),  47,  39^  395,  397, 

399,  418b. 
Manufacturers    Gas    &    Oil    Co.    v. 

Indiana   Nat.   Gas  Co.    ( 156    Ind. 

■679;     59    N.    E.    169;     60    X\    E. 

1080),  47,  49,   395,  399,  418b. 
Manufacturers,    etc.,    Co.    v.    Leslie 

(22    Ind.    App.    677;    51    N.    E. 

5.10),   400c,  401. 
]\[anville    v.    Parks     (7    Colo.    128; 

2  Pac.  212),  364a,  365,  369,  904. 
Maple  V.  John    (42   W.   Va.  30;   24 

S.    E.    608;     32    L.    R.    A.    800), 

144,   153. 
Maril   v.   Connecticut   Fire  Ins.  Co. 

(95    Ga.    604;    23    S.    E.    463;    30 

L.  R.  A.  835),  810,  811,  812,  817, 

818. 
Mark  v.  National  Fire  Ins.  Co.   (24 

Hun,     565;     affirmed,    91     N.    Y. 

663),   56.  800. 


TABLE   OF    CASES. 


XCV 


(References  iire  to  pages.) 


Marks  v.   Rushville  Gas   &   Oil  Co. 

(30  Ohio  Cir.  It.  798),  120,  126, 

218,  302c. 
Marlborough   Gaslight    Co.   v.   Neal 

(166  Mass.   217;    44   N.   E.   139), 

527,   568a. 
Marlborough    Gaslight    Co.   v.    Neal 

(176   Mass.   217;   44   N.   E.   139), 

468a. 
Marmet  Co.  v.  Archibald  (37  W.  Va. 

778;    17   S.   E.  299),   121. 
Marquis  of  Bute   v.   Thompson    (13 

M.  and  W.   487;    14   L.   J.   Exch. 

95),  90. 
Marriage,     In     re     [1896]      (2    Ch. 

'663),   608. 
Marsh    v.     Butterworth     (4     Mich, 

575),  289. 
Marsh    v.    Chickering     (101    N.    Y. 

396;   5  N.   E.  56),   792a. 
Marsh   v.    Holley     (42    Conn.   453), 

331. 
Marshall  v.  Forest  Oil  Co.   ( 198  Pa. 

St.   83;    47   Atl.    927),   232,   254b, 

875. 
Marshall  v.  J.  W.  &  W.  S.  Atkins 

(127    S.    W.     (Tex.    Civ.    App.) 

1148),   428b,  468. 
Marshall     v.     Mellon      (26     Pittsb. 

L.   J.    (N.    S.)    290;    17    Pa.    Co. 

Ct.    Rep.    366;    affirmed,    179   Pa. 

St.   371;    36  Atl.  201),    106,   174. 
Marshall    v.    Mellon     (179    Pa.    St. 

371;  3'6  Atl.  201;  27  Pittsb.  L.  J. 

(N.   S.)    214;    35   L.   R.    A.    816; 

57    Am.    St.    601;     36    L.    R.    A. 

«16),    53,    326a,    326b,    328,    876, 

895,  896,   897,   900,  902,  910. 
Marshall     Window     Glass     Co.     v. 

Cameron     Oil     &     Gas    Co.     (63 

W.  Va.  202;   59  S.  E.  959),  687, 

726. 
Mason  v.  Hill    (3  B.  and  Ad.  304; 

5    B.    and   Ad.    1 ;    2    N.   and   M. 

747;  2  L.  J.  K.  B.  118),  675. 
Meiers  v.  Metropolitan  Gas  Co.   (11 

Daly,   119),  588b. 


Marshall   v.  Wehvood    (38  N.  J.  L. 

339),   702. 
Martel     v.     Jennings-Heywood     Oil 

Syndicate    (114   La.   351;    38    So. 

253),  86,  102,  103. 
Martel     v.     Jennings-Heywood     Oil 

Syndicate    (114   La.    903;    38   So. 

253),  93,  246,   860,   879. 
Martin  v.  Jones    (62   Ohio  St.  519; 

57  N.  E.  238),  90. 
Martin    v.    Porter     (5    M.    and    W. 

352;   2   H.   and  H.  70),  50. 
Martineau  v.  Steele   (14  Wis.  272), 

274d. 
Mather    v.    Frazer    (2    Kay   and   J. 

536;    25  L.  J.  Ch.   361),   647. 
Marvin   v.    Brewster,    etc.,    Co.    (55 

N.  Y.  538),  89,  354. 
Maryland  Fire  Ins.  Co.  v.  Whiteford 

(31   Md.  219),  814. 
Maryland  Steel  Co.  v.  ISIoomey   (88 

Md.  482;   42  Atl. -60;  42  L.  R.  A. 

842),  782. 
Mascott   V.    Granite,    etc.,    Ins.   Co. 

(68   Vt.   253;    35  Atl.  75;  '69  Vt, 

116;    37  Atl.  255),  810,  811,  820. 
Mason  v.  Ohio,  etc.,  Co.   ( 52  W.  Va. 

183;  41  S.  E.  418),  425,  426,  428d. 
Massachusetts     National     Bank     v. 

Shinn    (18  N.  Y.  App.  Div.  276; 

46  N.  Y.  Supp.  329),  048. 
Massot  V.  Moses    (3  S.  C.   168),  89, 

90,   127. 
Mathes  v.   Shaw  Oil  Co.    (80  Kan. 

181;    101  P.  998),  294a. 
Mathews    v.    Peoples,   etc..   Gas    Co. 

(179    Pa.   St.    165;    39   W.   N.   C. 

544;    27    Pittsb.    L.    J.     (N.    S.) 

421;     36    Atl.    216),    171,    228a, 

228b,  240d,  304,  308,  858. 
Matson  v.  Farm  Building  Fire  Ins. 

Co.    (73  N.  Y.  310;   29  Am.  Rep. 

149;   reversing  9  Hun,  415),  808. 
Matthiesson,    etc.,    Co.    v.    LaSalle 

(117    111.    411;    2    N.    E.    406;    8 

N.  E.   81),  356c. 


XCVl 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Maxwell  v.  Brierly  (10  Copps  L.  D. 

50),  32,  58. 
Maxwell    v,     Coffey^'ille    Mining    & 

Gas   Co.    (68   Kan.    821;    75   Pac. 

1047),  691,  724. 
Maxwell  v.  Todd    (112  N.   C.   677; 

16  S.  E.  926),  74,  183,  233,  235, 

244,  258. 
May  V.  Hazlewood  Oil  Co.   (152  Pa. 

St.    518;    25    Atl.   564),    72,    191, 

217,  256,   895,  909. 
May    V.    Thompson     (20     Oh.    Div. 

705;   51   L.  J.  Ch.  917;   47  L.  T. 

295),  344. 
Mayhew   v.   West   Virginia   Oil   Co. 

(24   Fed.   205,   215),   269. 
Maj-well  V.  Surtees    (3   Sm.  and  G. 

101),    347. 
Mays  V.  Cincinnati  (1  Ohio  St.  268), 

564. 
Mays  V.  Dwight    (82   Pa.   St.  462), 

166,  174. 
Meadville   Fuel  Gas  Company's  Ap- 
peal   (4  Atl.    (Pa.)    733;    14  Am. 

and    Eng.   Corp.    Cas.    123),    429, 

486. 
Meagher    v.    Reed     (14    Colo.    335; 

24   Pac.   681;    9    L.   R.    A.    455), 

365. 
Means   v.    Southern   California    Ry. 

Co.   (144  Cal.  473;  77  Pac.  1001), 

410. 
Mears    v.    Humboldt    Ins.    Co.     (92 

Pa.    St.    15;    37    Am.    Rep.   647), 

800,  814,  818,  822. 
Mechanics,    etc.,    Ins.   Co.   v.    Floyd 

(20  Ky.  L.  Rep.   1538;   49  S.  W. 

543),  816. 
Medex  v.  Gaslight  &  Coke  Co.    (15 

Gas.   J.   75),   723,   765. 
Meedsill  Mining  Co.  v.  Watrous   (61 

Fed.    163;    9  C.  C.  A.  445),  220b. 
Meek   v.   Cooney    (26   Ohio  Cir.  Ct. 

553),    1.7,   302d. 
Meeker  v.  Browning    (9   Ohio  C,  D. 

108;     17    Oliio    C.    C.    548),    153, 

155,  292,  296,  302c,  312. 


Meistrell    v.    Reach     (56    Mo.    App. 

243),  376b. 
Mellon    V.    Alleghany    Co.     (3    Pa. 

Dist.  Ct.  Rep.  422),  838. 
Melms   V.   Pabst   Brewing  Co.    (104 

Wis.  7;   79  X.  W.  738),  326d. 
Memphis    v.    Memphis    Gayoso     (9 

Heisk.  531),  568a. 
]\Iemphis  v.  Memphis  Water  Co.    (4 

Heisk.    495),    482,    483. 
Memphis  Consolidated  Gas,  etc.,  Co. 

V.  Creighton  (183  Fed.  552),  711, 

714,  749. 
Memphis   Gaslight   Co.   v.    State    (6 

Coldw.    310;    98   Am.    Dec.    452), 

649,  833. 
Memphis  Gayoso  Gas  Co.  v.  William- 
son  (9  Heisk.  314),  490b,  490d. 
Menneilley  v.  Employers,  etc.,  Corp. 

(148  N.  Y.  596;   43  N.  E.  54;  31 

L.  R.  A.  686),  760,  830. 
Merchants,    etc.,   Ins.    Co.  v.   Wash- 
ington,  etc.,    Ins.   Co.    ( 1   Handy, 

408),  808. 
Mercur  v.  State  Lime,  etc.,  Co.  (171 

Pa.  St.  12;  32  Atl.  1126),  334b. 
Meridian  National   Bank  v.  MeCon- 

ica    (8   Ohio  C.   Ct.   442;    4   Ohio 

Cir.  Dec.   106),   78,  364c,  384a. 
Merrifield    v.    Lombard     ( 13    Allen, 

16),  653. 
Merrill   v.   Los    Angeles  Gas   &  El. 

Co.   (158  Cal.  499;  111  Pac.  534), 

687,    692,    693. 
Merrill   v.    Frame    (4   Taunt.   329), 

308. 
Merrimae    River    Savings    Bank    v. 

Lowell    (152  Mass.  556;   26  N.  E. 

97;   10  L.  R.  A.  122),  591,  607. 
Merritt  v.  Judd    (14  Cal.   60),  640. 
Mersay    Docks,    etc.,    v.    Liverpool, 

etc..    Gas    Co.    (26    Gas    J.    327), 

734,  763. 

Messimer's  Appeal  (92  Pa.  St.  168), 
172. 


TABLE   OF    CASES. 


XCVIJ. 


(References  are  to  pages.) 


Metropolitan,    etc.,    Assn.    v.    Froi- 

land    (IGl   111.  30;   43  N.  E.  7&6; 

affirming  59    111.   App.   522),  831. 
Metropolitan  Gaslight  Co.  v.  Mayor 

(4  N.  Y.  Weekly  Dig.  82),  478a. 
Metropolitan  Asylum  District  Man- 
agers V.   Hill    (6  App.   Cas.    193; 

50  L.  J.  Q.  B.  353 ;  44  L.  T.  653 ; 

29    W.    R.    ()17;    45    J.    P.    664), 

672. 
Metropolitan  Gas  Co.  v.  Hyde  Park 

(27   111.   App    .361;    affirmed,    130 

111.  42;    22  N.   E.  616),  522. 
Mettler  v.  Miller    (129  111.  .630;   22 

N.  E.  529),  318b. 
Metzger   v.    Beaver    Falls    (178    Pa. 

St.  1;  39  W.  N.  C.  108;  27  Pitts. 

L.  J.   (N.  S.)    102;  35  Atl.  1134), 

485. 
Metzger   v.    Schultz    (16   Ind.    App 

454;    43    N.    E.    886;    45    N.    E. 

619),  717,  719,  741. 
Mexia  L.  &  P.  Co.  v.  Johnson   ( 120 

S.    W.     (Tex.    Civ.    App.)     534), 

658,  673. 
Michigan     Telephone     "Co.     v.     St. 

Joseph   (121  Mich.  502;  80  K  W. 

383;  47  L.  R.  A.  87;   80  Am.  St. 

•520),  425. 
Mickle  V.  Douglas    (75   La.   78;    39 

N.  W.    198),  262d. 
Middle,  etc.,  Co.  v.  Oakbank  Oil  Co. 

(18    Ct.    Sess.    Cas.,    4th    Series, 

788),  548. 
Midland  R.  W.  Co.  v.   Fisher    (125 

Ind.   19;    24  N.   E.   756),   122. 
Midland    Oil    Co.    v.    Turner     (179 

Fed.  74;    102  C.  C.  A.  368),  127, 

145,  317,  322. 
Miles    V.    Delaware,    etc.,    Co.     ( 140 

Pa.  St.  623;   21   Atl.  427),  839. 
Milford  V.  Milford  Water   Co.    (124 

Pa.  610;    17  Atl.  185),  478d. 
Millan  v.  Bartlett    (69  W.  Va.  — ; 

71  S.  E.  13),  87,  228. 


Millandon  v.  New  Orleans  Ins.  Co. 

(4    La.    Ann.    15;    3    Benn.    Fire 

Ins.   Cas.   4),   804. 
Miller  v.  Balfour    (138  Pa.  St.  183; 

22  Atl.  86),   72,  231. 
Miller  v.  Blow   (68  111.  304),  316. 
Miller    v.   Butterfield    (79   Cal.   62; 

21  Pac.  543),  365. 
Miller  v.  Chrisman    (140  Cal.   440; 

73  Cal.   1083;    74  Pac.  444),  358. 
Miller  v.  Lapham    (44  Ct.,  p.  434), 

353. 
Miller  v.  Logan   (31  Pittsb.  Leg.  J. 

(N.   S.)    217),   228a,   232,   304. 
Miller  v.  Michel    (13Ind.  App.  190; 

41  X.  E.  467),  308. 
Miller  v.  Vandergrift   (30  Ohio  Cir. 

Ct.  730),  88,  105,  191,  236,  240a, 

243,  295. 
Mitler  v.  Wilkesbarre  Gas  Co.   (206 

Pa.    St.   254;    65    Atl.    974),    573, 

589,  591. 
Millett    V.    Davey     (31    Beav.    470; 

32   L.    J.   Ch.    122;    7    L.   T.   551; 

11    W.    R.    176;    9   Jur.    (N.    S.) 

92),  387,   390,  391. 
Millington    v.    Griffiths     (30    L.    T. 

65;   23  Gas  J.  215),  651,  652. 
Milnes  v.  Hudersfield   (11  App.  Cas. 

511;   56  L.  J.  Q.  B.   1;   55  L.   T. 

617;    34    W.    R.    767;    50    J.    P. 

676 ;  affirming  L.  R.  12  Q.  B.  Div. 

443,     which     affirmed     L.     R.     10 

Q.   B.  Div.   124),  616. 
Mills    V.    Chicago    ( 1£7    Fed.    731), 

426,  427,  428,  435. 
Mills   V.    Hartz    (77    Kan.    218;    94 

Pac.    142),    74,     136,    182,    202b, 

861,  874. 
Millvale  Borough,   In     re    (162  Pa. 

St.  374;  29  Atl.  641,  644),  485. 
Millville   Imp.   Co.  v.   Pitman,   etc., 

Gas    Co.    (76    N.   J.    L.    826;    71 

Atl.   1134),  495,  499,  531. 
Millville    Gaslight    Co.    v.    Sweeten 

(75   N.  J.   L.   23;   68   Atl.   1067), 

548. 


zeviii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Milwaukee  Gaslight  Co.  v.  Schooner 
Gamecock  (23  Wis.  144),  550, 
697. 

Minneapolis  &  St.  L.  R.  Co.  v.  Gard- 
ner (177  U.  S.  332;  20  S.  Ct 
'656;   41  L.  Ed.  793),  444. 

Minnetonka  Oil  Co.  v.  Cleveland, 
etc.,  Co.  (27  Okl.  180;  111  Pac. 
326),  466,   468a,   468b. 

MinshuU  v.  Lloyd  (2  M,  and  W. 
459),   646. 

Minturn  v.  LaRue  (23  How.  435), 
498b. 

flVUnzesheimer  v.  Continental  InS'. 
'Co.  (5  Jones  and  S.  (N.  Y.)  332), 
825. 

Miser  v.  O'Shea  (37  Ore.  231;  62 
Pac.  491),  94. 

Mississinewa  Mining  Co.  v.  Patton 
(129  Ind.  472;  28  N.  E.  Rep. 
1113;  28  Am.  St.  Rep.  203),  55, 
688,  700,  723. 

Missouri,  etc.,  'Co.  v.  Murphy  (170 
U.  S.  78;  affirming  130  Mo.  10; 
31  S.  W.  594),  456,  515. 

Mitchell  V.  Burwell  (110  Iowa,  10; 
81  N.  W.  193),  377,  382. 

Mitchell  V.  Negaunee  (113  Mich. 
359;  71  N.  W.  646;  38  L.  R.  A. 
157),  560. 

Mitchell  V.  Potomac  Ins.  Co.  (183 
U.  S.  42;  22  Sup.  Ct.  22;  af- 
firming 16  U.  S.  App.  241),  806. 

Mobile  &  Ohio  R.  R.  Co.  v.  Davis 
(130  111.  146;  22  N.  E.  850), 
512. 

Moeekel  v.  C.  A.  Cross  &  Co.  (190 
Mass.  280;   76  N.  E.  447),  780. 

Monaghan  v.  Mount  (36  Ind.  App. 
188;  74  N.  E.  579),  115,  153,  154, 
155,   195,  244,   302b,  864,  869. 

Monarch  Oil,  etc.,  Co.  v.  Richard- 
son (124  Ky.  602;  09  S.  W.  668; 
30  Ky.  L.  824),  190,  235,  237, 
239,  240,  240d,  889,  890. 


Monfort    v.    Lanyon    Zinc    Co.     (67 

Kan.   128;    72   Pa.   784),   111. 
Monfort    v.    Lanyon    Zinc    Co.     (72 

Pac.    (Kan.)    784;   67    Kan.   310; 

72  Pac.  783),  74,  79,  97,  112,  136, 

192a,    193,    220,    238,    239,    240a, 

251. 
Monongahela  Nat.   Gras   Co.  v.   Ell- 
wood   Nat.    Gas    &    Oil    Co.     (43 

Pa.   Super.  Ct.  619),   602. 
Monroe   v.    Armstrong    (96    Pa.    St. 

307),    182,    208a,    242. 
Monroe   v.    Perkins    (9    Pick.    298), 

312. 
Montague   v.   Dent    (10    Rich.    135; 

67  Am.  Dec.  572),  633. 
Montfort    v.    Lanyon    Zinc   Co.    (67 

Kan.   310;    72  Pac.   78),  909. 
Montgomery  v.  Capital  City  Water 

Co.     (92    Ala.    361;     9    So.    Rep. 

339),  533,  534. 
Montgomery   v.    Fireman's   Ins.    Co. 

(16  B.  Mon.  427),  805. 
Montgomery  Gas  Co.  v.  Montgomery 

(87     Ala.     245;     6     So.     113;     4 

L.  R.  A.  616),  483,  500,  503. 
Montgomery    L.    &    W.    P.    Co.    v. 

Watts     (165    Ala.    370;     51     So. 

726),   436,  625. 
Montjoy  v.   Pillow    (64  Minn.   705; 

2  So.   108),  490b. 
Montooth    V.    Gamble    (123    Pa.   St. 

■240;    16   Atl.   Rep.  594),   89,  641. 
Montpelier,  etc.,   Co.   v.   Stephenson 

(22  Ind.  App.  175;  53  N.  E.  444), 

379. 
Montreal     v.      Standard     Light     & 

Power    Co.     [1897]      (App.     Cas. 

527;  66  L.  J.  P.  C.  113;  77  L.  T. 

115),  518. 
Montreal    Gas    Co.   v.    Cadieux    (68 

L.  J.  P.  C.  126;   [1889]  App.  Cas. 

589;   81  L.  T.   (N.  S.)   274),  608. 
Montreal    Gas    Co.    v.    Cadieux    ( 1 1 

Can.  Q.  B.  93),  608. 


TABLE   OF    CASES. 


xeix 


(References  are  to  pages.) 


Moody   V.    Alexander    { 145    Pa.    St. 

571;    23   Atl.    161),   35Ga. 
Moon  V.  Pittsburgh  Plate  Glass  Co. 

(24  Ind.  App.  34;   56  N.  E.  108), 

194,  314. 
Moore's   Appeal    (4    Pa.    Dist.    Rep. 

703),   840. 

Moore  v.  Griffin    (72  Kan.    164;    S3 

Pac.    395;    4    L.    R.    A.     (N.    S.) 

477),  38,  354,   886. 
Moore  v.  Jennings   (47  W.  Va.  181; 

34  S.  E.  Rep.  793),  54,   153,  876, 

877,  915. 
Moore  v.   Lanier    (52   Fla.    353;    42 

So.  462),  730,  730b,  756. 
Moore    v.    Miller     (8    Pa.    St.    272, 

283),  65,   79. 
Moore  v.   Ohio  Valley  Gas   Co.    (63 

W.  Va.   455;    60  S.  E.  401),   120, 

291. 
Moore    v.    Protection    Ins.    Co.     (29 

Me.  97;  48  Am.  Dec.  514),  813. 
Moore  v.  Rollins   (45  Me.  493),  325. 
Moore   v.    Sawyer    (167    Fed.    826), 

53,    72,    83,    90,    102,    220b,    266, 

274e,   279,  322,  898. 
Moore   v.    Small    (19   Pa.    St.   461), 

344. 

Moore   v.    West    Va.    H.    &    L.    Co. 

(65   W.  Va.   552;    64   S.   E.   721), 

691,  698. 
Moreland    v.    Frick    Coke    Co.    (170 

Pa.    St.    33;     32    Atl.    634),    350. 
Morey  v.  Metropolitan  Gasliglit  Co. 

(38  N.   Y.   Super.   Ct.    185),   578, 

579,   607. 
Morcy  v.  Metropolitan  Gas   Co.    (6 

J.  and  S.   185),  590,  607,  612. 
Morgan    v.    Powell     (9    M.    and    W. 

672),  51. 
Morgan    v.    United    Gag    Imp.     Co. 

(214  Pa.    109;    63  Atl.  417),   710, 

759. 

Morgan  v.  Yard  (13  Pittsb.  L.  J. 
(N.  S.)  178;  12  W.  N.  C.  449), 
272. 


Morganstern  v.  Thrift  (66  Cal.  577; 

6   Pac.   689),  371. 
Moritz   V.   Lovelle    (77    Cal.    10;    18 

Pac.  803),  113. 
Morples    v.    Standard    Oil    Co.     (71 

N.  J.  L.  352;   59  Atl.  32),  779. 
Morris  v.  Guffey   (188  Pa.  St.  534; 

41  Atl.  731),   122. 
Morris  v.   Municipal   Gas   Co.    (121 

La.    1016;    46    So.    1001),   515. 
Morris  v.  Southworth   (154  III.  118; 

118;    39   N.    E.    1099),    702. 
Morrison  v.  Lee  (102  N.  W.  (N.  D.) 

223),  779. 
Morrison    v.    Pittsburgh,    C,    C.    & 

St.  L.  Ry.  Co.   (26  Pa.  Super.  Ct. 

338),   412. 
Morrison    v.    Superior   W.   L.    &    P, 

Co.    (134    Wis.    167;     114   N.    W. 

434),   711,   712. 
Morristown  v.  East  Tennessee,  etc., 

Co.   (115  Fed.  304),  425,  502,  517, 

531. 
Morrow,    Ex    parte    ( 1    Lowell    Dec. 

386;    2  N.  B.  R.    (2d   ed.),   605), 

638. 
Morrow    v.    Sawyer     (82    Ga.    226; 

8  S.  E.  51),  272. 
Morss   V.   Gleason    (64   N.  Y.   204), 

364b. 
Morton  v.  Nebraska  (21  Wall.  600), 

356. 
Mose    V.    Hastings,    etc.,    Co.    (4    F. 

and  F.  324;    13  Gas  J.  231),  708. 
Mosley    v.    Vermont,    etc.,    Ins.   Co. 

(55   Vt.   142),  56. 
Mostyn   v.   Lancaster    (23   Ch.   Div. 

583;    51   L.   J.   Ch.  696;    46  L.  T. 

648;    48  L.   T.   715;    31   W.  R.   3, 

686),  392a,  392c. 
Moule    V.    Garrett    (L.    R.    5    Exch. 

132;   39  L.  J.  Exch.  69;   22  L.  T. 

343;    18    W.    R.   697),    274,    274d, 

284. 
Mound    City    Brick    &    Gas    Co.    v. 

Goodspeed    Gas    &    Oil    Co.     (83 

Kan.    136;    109   Pac.    1002),   839, 

840a. 


TABLE   OF    CASES, 


(References  are  to  pages.) 


Mountjoy's  Case  (Godb.  18;   1  Amb. 

307;    4    Loon.    147),    127. 
Mowers  v.  Municipal   Gas  Co.    |  126 

N.   Y.   Supp.    1033),    711,  714a. 
Meyers  v.   Tiley    (32   Pa.   St.   267), 

241. 
Mueller    v.    Egg    Harbor    City     ( 55 

N.  J.  L.  245;   26  Atl.  89),  513. 
Muhlenberg    v.    Ilenning     (116    Pa. 

St.   138;   9  Atl.   144),  72,  203. 
Municipal   Chamber  of  Hamburg  v. 

■Gas    Company     (5    Gas    J.    710), 

550. 
Munn   V.    Illinois    (94   U.    S.    113), 

618. 
Munn  V.  Stone    (4  Cusli.  146),  354. 
Munroe  v.  Armstrong  (96  Pa.  307), 

228,  852,  858. 
Munroe   v.   Armstrong    ( 96   Pa.    St. 

317),  211,  212,  225,  228,  875. 
Murdock  v.  Chenango,  etc.,  Ins.  Co. 

(2  X.  Y.  210),  801. 
Murdock -West    Co.    v.    Logan     (69 

Ohio  St.  514;  .69  N.  E.  984),  104, 

192a,    192c,    197,    219,    239,    254c, 

853,  872. 
Murphy    v.    Hardee     (12    Ohio    Cir. 

■Ct.  837),   209. 
•Murphy    v,    Stell     (43    Tex.     123), 

344. 
■Murray  v.   Allard     (100  Tenn.  100; 

43   S.  W.   Eep.   353;    39   L.   R.   A. 

249;    66    Am.    St.    Rep.    740;     43 

S.  W.  Rep.  355),  32,   33,   38,   53, 

54,  350a,  354,  355,  876,  886,  911. 
Murray  v.  Barnhart   (117  La.  1023; 

42  So.  489),  74,  82,  96,  182,  213, 

260,  305. 
Murray    v.    Gibson     (21     HI.    App. 

488),  553. 
Murray  v.  Graham    (117  La.   1023; 

42  So.  489),  861,  874. 
Murray  v.  Harway   (56  N.  Y.  337), 

284c. 
Murray    v.    Haverty    (70    111.    318), 

331,  332,  333. 


Murray   v.   Heinze    ( l7    Mont.   353; 

42  Pac.  1057;  43  Pac.  713),  240b. 
Murtland  v.  Callihan   (2  Pa.  Super. 

Ct.  Rep.  340;   38  W.  N.  C.  512), 

336,   340,   375. 
Musgrove   v.   Bonser    (5    Ore.   313), 

20,   125. 
Musick    V.    Barney     (49    Mo.    458), 

125. 
Mutual   Electric   Light   Co.  v.   Ash- 
worth    (118   Cal.   1;   50  Pac.   10), 

534. 
]\Iyers  v.  Hudson,  etc.  Co.    (44  Atl. 

Rep.    (N.    J.)     713;    reversing   37 

Atl.   618),   525. 


N 

Napier    v.    Darlington    (70    Pa.    St. 

64),    109. 
Narin  v.  Kentucky  Heating  Co.   (86 

S.  W.   (Ky.)    670;  27  Ky.  L.  Rep. 

551),   612,   613. 
Nash    V.    Berkmeir     (83    Ind.    536), 

318c. 
Nassau,    etc.,    Co.   v.    Brooklyn    (25 

Hun,   567),   833. 
(Nation's    Case     (L.    R.    3    Eq.    77; 

36   L.   J.   Cli.    112;    15   L.   T.  308; 

15   W.   R.    143),   373. 
National    Bank   v.    North    (160    Pa. 

St.    303;    28    Atl.    394),    036. 
National     Foundry    Co.     v.     Oconto 

Water  Co.   (52  Fed.  43),  382,  513, 

522. 
National   Gas   Co.  v.   Pittsburgh    ( 1 

Pa.   Co.   Ct.   Rep.  311),   527,  535. 
National,  etc.,  Co.  v.  Teel    (95  Tex. 

586;    67    S.    W.    545;    68    S.    W. 

797),   266. 
National     Oil     Co.    v.     Rankin     (68 

Kan.   079;    75   Pac.   1013),   779. 
National  Meter  Co.  v.  Poughkeepsie 

(75    Fed.    405),    020. 


TABLE   OF    CASES. 


CI 


(Reforences  are  to  pages.) 


National    Oil    &    Pipe    Lino    Co.    v. 

Teel   (95  Te.K.  586;  68  S.  W.  979; 

affirming  67  S.  W.  545),  76,   112, 

124,   254d,   267,   879. 
National     Transit     Co.     v.     Weston 

(121   Pa.  485;    15  Atl.  5(5!)),  31G. 
Natural  Gas  Co.  v.  Harris   (79  Kan. 

167;    100   Pac.    272),    72. 
Natural     Gas    Co.    v.    Philadelphia 

Co.     (158    Pa,    St.    317;    27    Atl. 

951),   101,   145,  302c. 
National  W.  W.  Co.  v.  Kansas  City 

(28   Fed.  921),  542. 
National  W.  W.  Co.  v.  Kansas  City 

(20  Mo.   App.   237),   542. 
Neal    V.    Atlantic    Refining    Co.     (4 

Pa.    Dist.    Eep.    49),    781. 
Neale  v.  Neale    (9  Wall.  1),  344, 
Nebraska  City  v.  Nebraska,  etc.,  Co. 

(9  Neb.  339;  2  N.  W.  870),  458, 

468,  471,  614,  837. 
Neel  V.  Neel   (19  Pa.  St.  323),  325, 

326,   328. 
Neeley    v.     Henderson     (55    S.    W. 

(Ky.)    554),  835. 
Negley  v.  Morgan   (46  Pa.  St.  281), 

274a. 
Nego  V.   Barber,    etc.,   Co.    (17   Mo. 

App.  294),  66. 
Neill    V.    Lacy     (110    Pa.    St.    294; 

1   Atl.   325),   840. 
Neill    V.    Shamburg     (158    Pa.    St. 

263;  27  Atl.  992),  339,  366,  394c, 

905. 
Neiman  v.  Channellane  Oil  Mfg.  Co. 

(112  Minn.   11;    127   N.  W.  394), 

424,   849. 
Nelson  v.   Bridges    (2   Beav.  239;    3 

Jur.   1098),  347. 
Nelson  v:  Eachel   (158  Pa.  St.  372; 

33  W.  N.  C.   281;    27   Atl.    1103), 

238,   259. 
Nelson   v.    Goldstein    (152    Pa.    St. 

493 ;  25  Atl.  493 ) ,  — . 
Nelson    v.   LaPorte    (33    Ind.    258), 

478. 


Nelson    v.    O'Neal     (1   "Mont.    284), 

'654. 
Nene    Valley    v.    Dunkley     (4    Ch. 

Div.    1),  343. 
Neosho  City  Water    Co.   v.   Neosho 

(136    Mo.    498;     38     S.     W.    89), 
460,  478a,  508b,  568a. 
Nerentz   v.   Kerr,   etc..   Oil    Co.    (84 

Pac.    (Cal.)    45,  47),  376. 
.Nesbit  V.  Godfrey  (155  Pa.  St.  251; 

25   Atl.   621),    314. 
Nevada  Sierra  Oil  Co.  v.  Miller   (97 

Fed.  681),  357,  360. 
Nevada  Sierra  Oil  Co.  v.  Home  Oil 

Co.    (98  Fed.  673),  351,  357. 
New    Albany    W.    W.    v.    Louisville 

(122   Fed.  776),  468a. 
New    American    Oil    &    IMining    Co. 

V.  Trover   (166  Ind.  402;  77  N.  E. 

Rep.    739;     7    N.    E.    Rep.    253), 

35,  53,  72,  74,  118,  130,  182,  190, 

231,    235,    239,    240,    240a,    240c, 

257,    298,    304,    852,    890. 
New  American  Oil  &  M.  Co.  v.  Wolff 

(166    Ind.    402;     76    N.    E.    255), 

118,   130,  136,   182,   183,  235,  240. 
New    American,    etc.,    Co.    v.    Wolff 

(166  Ind.   704;    76  N.  E.  255;    74 

N.   E.  41),   74. 
Newark   v.   Newark   W.   W.    Co.    (4 

Ohio  N.  P.  341;  6  Ohio  Dec.  518), 

541. 
Newark  Coal  Co.  v.  Upson  (40  Ohio 

St.  17),  89. 
Newark  Gas  and  Fuel  Co.  v.  Newark 

(8   Ohio  S.   and  C.   P.   Dec.  418; 

7    Ohio    N.    P.    76),    294d,    428a, 

428b,  524. 
Newark,  etc..  Board  v.  Passaic   (45 

N.    J.    Eq.    393;     18    Atl.     106), 

654. 
Newberryport    Water    Co.    v.    New- 

berryport     (168     Mass.     541;     47 

N.   E.   533),  400d. 


cu 


TABLE    OF    CASES. 


(Roferencos  are  to  pages.) 


New  Castle  Water  Co.  v.  West  New 
Castle  Water  Co.  (6  Pa.  Dist. 
10;  18  Pa.  Co.  Ct.  Rep.  498), 
487. 

New  Dominion  Oil  &  Oas  Ob.  v. 
Feeley  (107  S.  W.  (Ky.)  1185; 
32   Ky.    L.    Rep.    1181),    178. 

{New  Dominion  Oil  &  Gas  Co.  v. 
Gaffney  Oil  Co.  (121  S.  W.  (Ky.) 
699;   34  Ky.  L.  Rep.  — ),  858. 

New  Domain  Oil  &  Gas  Co.  v.  Gaff- 
ney Oil  Co.  (134  Ky.  792;  121 
S.  W.  699;  34  Ky.  L.  — ),  228a, 
228d. 

New  England  &  Coalinger  Co.  v. 
Congdon  (152  Cal.  211;  92  Pac. 
180),  359. 

New  England,  etc.,  Ins.  Co.  v.  Wet- 
more    (32  111.  221),  801. 

New  Gaslight  Co.  (7  Pa.  Dist. 
Rep.  151;  1  Dauph.  Co.  Rep.  22), 
487,  530. 

New  Memphis  Gas  Co.  v.  Memphis 
(72  Fed.  952),  42Sd,  430,  432. 

Newmoyer  v.  Andreas  ( 57  Pa.  St. 
446),   92. 

New  Orleans  v.  Clark  (95  U.  S. 
644),  568a. 

New  Orleans  v.  Gaslight  Co.  (5 
La.  Ann.  439),  674. 

New  Orleans  v.  Great  Southern, 
etc.,  Co.  (40  La.  Ann.  41;  3  So. 
533;   8  Am.   St.  502),  425. 

New  Orleans  W.  W.  Co.  v.  Ernst 
(32    Fed.   5),    493,   496,   500. 

New  Orleans  Gaslight  Co.  v.  Drain- 
age Commission  (111  La.  838; 
35  So.  929;  affirmed,  197  U.  S. 
453;  25  Sup.  Ct.  Rep.  471;  49 
L.   Ed.   831),   425,  520. 

New  Orleans  Gaslight  Co.  v.  Drain- 
age Commission  (197  U.  S.  453; 
25  Sup.  Ct.  471;  49  L.  Ed.  831; 
affirming  111  La.  838;  35  So. 
929),  400d,  493,  542,  543,   546. 


New   Orleans   Gaslight  Co.  v.  Hart 

(40  La.  Ann.  474;   4   So.   215;    8 

Am.    St.   Rep.    844;    20   Am.    and 

Eng.   Corp.   Cas.   258),  428d,   456, 

478b,    549. 
New  Orleans,  etc.,  Co.  v.  Louisiana, 

etc.,  Co.   (11  Fed.  277),  536a. 
New   Orleans   Gas   Co.  v.   Louisiana 

Light  Co.  (115  U.  S.  650;  10  Am. 

and  Eng.  Corp.  Cas.  689;   6  Sup. 

Ct.  Rep.  252),  424,  425,  427,  428d, 

495,  578. 
New   Orleans  Gaslight   Co.  v.   New 

Orleans   (42  La.  Ann.   118;   7   So. 

559),  458d, 
New   Orleans   Gaslight,   etc.,    Co.   v. 

Paulding    (12    Rob.     (La.)     378), 

578,  580,   607,  610. 
New  Orleans  Water  Works  v.  Rivers 

(115  U.  S.  674;   6  Sup.  Ct.  273), 

493,  495,  500. 
Newport  v.  Commonwealth    (21  Ky. 

42;   50  S.  W.  845;  51  S.  W.  343; 

45  L.   R.  A.  518),  835. 
Newport  v.  Newport  Light  Co.    (11 

Ky.  L.  Rep.  840;    12  S.  W.  1040), 

458a,  528. 
Newport  v.  Newport  Light  Co.    (84 

Ky.   166),   483,  490c,  574. 
Newport  Light  Co.  v.  City  of  New- 
port   (14    Ky.    L.    Rep.    464;    20 

S.  W.   434),   835. 
New  Rochelle   Water   Co.    (46   Hun, 

525),  400. 
Newton  v.  Kemper  (66  W.  Va.  130; 

68  X.  E.  102),  222,  262,  887,  915. 
New    York    v.    Squire     (145    U.    S. 

175),   456. 
New  York  City  v.  N.  Y.  Mut.  Gas- 
light    Co.      (120     N.     Y.     Supp. 

(N.  Y.)   776),  425,  517,  518b. 
New  York   Life   Ins.  Co.  v.   Allison 

(107  Fed.  179;   46  C.  C.  A.  229), 

631,  636. 
New  York,  etc.,  Co.  v.  Langdon   (6 

Wend.    623),    812,   816. 


TABLE   OF    CASES. 


cm 


(References  are  to  pages.) 


New  York  Gaslight  Co.  v.  Mechanics 

Fire  Ins.  Co.    (2  Hail,   108),   630. 
New  York,  etc.,  R.  R.  Co.  v.  :\Ietro- 

politan   Gaslight    Co.    (G3    N.    Y. 

326;   5  Hun,  201),  400b,   578. 
New  York   Mail,   etc.,    Co.  v.    Shea 

(30    N.    Y.    App.    Div.    266;    51 

N.    Y.    Supp.    563;    reversing    49 

N.  Y.  Supp.  951),  518a. 
New   York   ilutual   Gaslight  Co.  v. 

New    York    City     (49    How.    Pr. 

227),  476. 
Niagara    Fire   Ins.   Co.    v.    DeGraff 

(12    Mich.    124),    816. 
Niagara    Fire    Tns.    Co.   v.    Fidelity, 

etc.     (125    Pa.    St.    516;    16    Atl. 

791),  828. 
Niagara  Oil  Co.  v.  McBee    (45  Ind. 

App.  676;   91  N.  E.  250),  376b. 
Nicholas   v.    Burch    (53    Hun,    137; 

6  N.  Y.  Supp.  601),  747,  782b. 
Nieholasville  Water  Co.  v.  Nicholas- 

ville     (18     Ky.     L.     Rep.     (Ky.) 

592;    36    S.    W.    549;    38    S.    W. 

430),  471. 
Niece   v.    Percy    (29    Ohio    Cir.    Ct. 

Rep.  219),  646. 
Nigro    V.    Hatch     ( 1 1    Pac.     ( Ariz. ) 

177),   640. 
Niles  W.  W.  Co.  v.  Niles  (59  Mich. 

311;   26  N.  W.  525),  476. 
Nilson   V.    Goldstein    (152    Pa.    St. 

493;    25   Atl.   493),    113. 
Nisbet  V.  Mitchell  Innes  (7  R.  575), 

633. 
Nisbet  V.  Nash   (52  Cal.  540),  364c, 

368. 
Noble  V.  Sylvester    (42  Vt.  146),  43. 
Noblesville  v.  Noblesville   Gas,  etc., 

Co.     (157     Ind.     162:     60    N.    E. 

1032),  426,  427,  428,  428a,  42i8b, 

428c,    433,    578,    598,    600. 
Noke's  Case  (4  Rep.  80  b.  Cro.  Eliz. 

674),  308. 


Nolan  V.   Lovelock    (1   Mont.   224), 

364a,   365,    368,   370. 
Xorcross  v.  James   (140  Mass.  188; 

2  N.  E.   946),   — . 
Norfolk,  etc.,  N.  Co.  v.  Norfolk   ( 105 

Va.   139;   52  S.  E.  851),  840b. 
Norfolk   &  W.   R.   Co.   v.   Pendleton 

(156   U.   S.   667;    15   S.  -Ct.   413; 

39  L.  Ed.  574),  444. 
Normanton    Gas    Co.    v.    Pope     (52 

L.   J.   Q.   B.   629;    32   W.  R.    134; 

49  L.  T.  798),  548. 
North    V.    Percival    [1898]     (2    Ch. 

128;   67  L.  J.  Ch.  321;    78   L.  T. 

615;   46  W.  R.  552),  345. 
North  Springs  Water  Co.  v.  Tacoma 

(21  Wash.  517;   58  Pac.  773;    47 

L.  R.  A.  214),  498,  566. 
Northern,  etc.,  Co.  v.  Crawford   (24 

Tex.    Civ.    App.    574;    59    S.    W. 

91-6),   811,   819. 
Northern     Colorado,     etc.,     Co.     v. 

Richards    (22   Colo.   450;   45  Pac. 

423),  587,  595,  602. 
Northern  Liberties  v.  Northern  Lib- 
erties Gas  Co.    (12   Pa.  St.   318), 

425,  429,  533,  545. 
Northern  Pacific  Ry.  v.  Walker   (47 

Fed.  681),  360. 
Northern   LTnion    Gas  Co.   v.  Mayer 

(171   Fed.  602),  446a. 
Northwestern     Ohio,     etc.,     Co.     v. 

Browning    (15   Ohio    Cir.    Ct.    84; 

8   Ohio   Cir.   Dec.   188),    191,   246, 

258,  262b. 
Northwestern,  etc.,  Co.  v.  Davis    (9 

Ohio  C.  Ct.  Rep.  551;   38  Weekly 

L.  Bull.  200;  40  Weekly  L.  Bull. 

251;   6  Ohio  Cir.  Dec.  529),  96. 
Northwestern,  etc.,  Ins.   Co.  v.  Ger- 

mania    Fire    Ins.    Co.     (40    Wis. 

446),   706,   827. 

Northwestern  Ohio,  etc.,  Co.  v.  City 
of  Tiffin  (59  Ohio  St.  420;  54 
N.  E.  77;  41  Weekly  L.  Bull.  48), 
103,   124,   192a,  853. 


CIV 


TABLE   OF    CASES. 


(References  are  to  pages.) 


iNorthwestern     Ohio,     etc.,     Co.     v. 

Ullery     (08     Ohio     St.     259;     67 

N.    E.    494),    123,   273,   301,    886, 

912. 
Northwestern  Ohio  Nat.  Gas  Co.  v. 

Whitacre   (30  Ohio  Cir.  Ct.  737), 

106,  187,  219,  220a. 
Norton  v.   Cooper    (5   DeG.  M.   and 

G.    728;    25    L.    J.    Ch.    121;     23 

L.  T.   (0.  S.)    125;  2  W.  E.  362), 

388,  390,  392. 
Norton  v.  Snyder   (2  Hun,  82),  354. 
Norwalk   Gaslight    Co.    v.    Norwalk 

(63  Conn.  495;  28  Atl.  32),  546. 
Norwftyss     v.     Thuringia    Ins.     Co. 

(204    111     .334;     68    N.    E.    551; 

affirming  104  111.  App.  390),  797, 

801,  802,  808. 
Norwich   Fire  Ins.   Co.  v.   Standard 

Oil  Co.   (59  Fed.  984;   8  C.  C.  A. 

433;   19  U.  S.  App.  460),  828. 
Norwich    Gaslight    Co.    v.    Norwich 

City  Gas  Co.   (25  Conn.   19),  458, 

490,  537. 
Norwich  Gas  &   El.  Co.  v.  Norwich 

(76    Conn.    565;     57     Atl.    746), 

49Sb,  504. 
Nye    V.     Moody     (70    Tex.     434;     8 

S.   W.   606),   214b,  870. 


0 

Oak  Harbor  Gas  Co.  v.  Murphy    (7 

Ohio  Dec.  700),   195. 
Ober  V.  Schenck    (23  Utah,  614;  65 

Pac.    1073),   271. 
Ooonto  Water  Co.  v.  National  Foun- 
dry (59  Fed.  19;  7  C.  C.  A.  603), 

382,  383. 
Oconto    City   Water    Supply   Co.   v. 

Oconto    (105   Wis.   76;    80  N.  W. 

1113).    508b. 
O'Donavan  v.  Philadelphia  Co.   (223 

Pa.   234;    72   Atl.  527),   768. 
O'Donnell  v.  Luskin    (12  Mont.  Co. 

L.    (Pa.)    109),  80. 


OfTcrman  v.  Starr    (2  Pa.  St.  394), 

78. 
Ogden  V.  Hatry    (145  Pa.  St.  640; 

23  Atl.  334),  228a,  238,  306,  307, 

858,  859. 
Ogden  V.  Jennings    (62  N.  Y.  526), 

112. 
Oglesbys   v.   Hughes    (96   Va.    115; 

30  S.   E.  439),   119. 
O'Hara     v.     Laclede     Gaslight     Co. 

(131    Mo.    App.    428;    110    S.   \\\ 

642),  551,  788. 
O'Hara    v.    Nelson     (71    N.    J.    Eq. 

161;   63  Atl.  836),  662,  675. 
Ohio  Gas  Fuel  Co.  v.  Andrews    (50 

Ohio  St.  695;   35  N.  E.  1059;   29 

L.    R.   A.   337),   556. 
Ohio  Iron   Co.  v.   Auburn   Iron   Co. 

(64   Minn.   404;    67   N.   W.   221), 

247. 
Ohio  Gas  Fuel  Co.  v.   Andrews    (50 

Ohio  St.  695;   35   N.   E.   1059;   29 

L.  R.  A.  337),   695. 
Ohio    Oil    Co.    V.    Daughertee     (240 

111.    361;     88    N.    E.    818),    326a, 

326b. 
Ohio  Oil  Co.  V.  Delaware   (165  Ind. 

243;    73   N.  E.   906),    192b,  202a, 

203,  206,  239,  242,  256,  298,  874. 
Ohio  Oil  Co.  V.  Delaware   (165  Ind. 

248;   73  N.  E.  908),  225. 
Ohio,     etc.,     Co.     v.     Fishburn     (61 

Ohio    St.    608;     56    N.    E.    457), 

776. 
Ohio  Oil  Co.  V.  Geiest  (30  Ind.  App. 

84;  65  N.  E.  534),  263,  294c. 
Ohio    Oil    Co.    V.    Harris     (1    Ohio 

N.  P.  132;   1  Ohio  Dec.  157),  157, 

184,  253. 

Ohio  Oil  Co.  V.  Hurlbut  (7  Ohio 
Dec.  321;  14  Ohio  C.  C.  144; 
reversing  6   Ohio  Dec.   305),   183, 

185.  228,   235,  237. 

Ohio  Oil  Co.  V.  Indiana  (177  U.  S. 
190;  20  Sup.  Ct.  576),  33,  35, 
40,   43,  46,   57,  418d,   419. 


TABLE   OF    CASES. 


cv 


(References  are  to  pages.) 


Ohio  Oil  Co.  V.  Kelley    (9  Ohio  C. 

Ct.    511;    6    Ohio    Cir.    Dec.    470; 

40  L.  Bull.  338;  3  Ohio  Dec.  186), 

67,   156,   160. 
Ohio  Oil  Co.  V.  Lane    (59  Ohio  St. 

307;  52  N.  E.  791;   40  Weekly  L. 

Bull.    404;    41    Weekly    L.    Bull. 

121),  290,  314,  315,  857. 
Ohio    Oil    Co.    V.    Toledo,    etc.,    Co. 

(4  Ohio  C.  Ct.  210;    2   Ohio  Cir. 

Dec.  505),  78. 
Ohio    Oil   Co.   V.   Westfall    (43   Ind. 

App.    661;    88    N.    E.    354),    883, 

884. 
Ohio  Valley   Gas   Co.    (6  Pa.   Dist. 

200;    27   Pittsb.   Leg.   J.    (N.   S.) 

321),    394,   400,   400b,   403. 
Oil  City  Fuel  Supply  Co.  v.  Boundy 

(122  Pa.  449;    15  Atl.  865),  750. 
Oil    City   Gas   Co.   v.   Robinson    (99 

Pa.   1;    13  Rep.  253),   747,  749. 
Oil   Co.    V.    Crawford    (55    Ohio   St. 

161;   44  K  E.  1093;   34  L.  R.  A. 

62),  86. 
Oil   City  Gas   Co.   v.   Robinson    (99 

Pa.  St.  1;   13  Rep.  253),  718,  731. 
Oil  Creek,  etc.,  R.  R.  Co.  v.  Keigh- 

ron    (74  Pa.  St.  316),  407. 
Oil   Creek,   etc.,   v.   Stanton   Oil   Co. 

(23    Pa.    Co.    Ct.    153;    30   Pittsb. 

L.  J.    (N.  S.)    286),  271. 
O'Keefe  v.  Kennedy    (3  Cush.  325), 

284c. 
Old  Town  V.  Dooley    (81   111.  255), 

35Gc. 
Olive    Land,    etc.,    Co.    v.    Olmstead 

(103    Fed.   568),    357. 
Oliver   v.   Goetz    (125   Mo.   370;    28 

S.   W.   441),   262c. 
Oliver  Stove  Works  v.  Ft.  Pitts  Gas 

Co.    (210  Pa.   141;    59   Atl.   819), 

746,   750. 
Olmstead   v.    Morris    Aqueduct    (47 

N.  J.  L.  311),  576. 
Omaha,  etc.,  Co.  v.  Burns    (49  Neb. 

229;   68  N.  W.  492),  3/9. 


Omaha,  etc.,   Co.  v.  Cable,  etc.,  Co. 

(30  Fed.  324),  490d,  528. 
Omaha  Ry.  Co.  v.  Granite  Ins.  Co. 

(63    Neb.   514;    73    N.    W.    950), 

828. 
Omaha  Gas  Co.  v.  Omaha    (71  Neb. 

115;   98  N.  W.  437),  790. 
Omaha,  etc.,  Co.  v.  Tabor    (13  Colo. 

41;  21  Pac.  925;  5  L.  R.  A.  236), 

44,  45,  91,  94,  327,  332,  338. 
Omberg  v.  United  States,  etc.,  Asso. 

(Ill    Ky.    303;    40    S.    W.    909), 

831. 
Omslear    v.    Pliiladelphia    Co.     (31 

Fed.   354),   550. 
Omslaer    v.    Philadelphia    Co.     (31 

Fed.  354;   18  Pittsb.  L.  J.  (N.  S.) 

4),  697. 
O'Neil  V.  Sun  Co.   (123  S.  W.   (Tex. 

Civ.  App.)    172),  52,  72,  85,  160, 

214a,  252,  335. 
O'Neil   v.   Buffalo   Fire   Ins.   O.    (3 

N.  Y.   122),   814,   822. 
O'Neill    V.    Resinger     (77    Kan.    63; 

93  Pac.   640),   110,  889. 
Ontario    Natural    Gas    Co.    v.    Gos- 

field    (18  Ont.  App.  626;   38  Am. 

and  Eng.  Corp.  Cas.  253 ) ,  32,  38, 

356c. 
Ontario  Natural   Gas   Co.   v.   Smart 

(19  Ont.  Rep.  595),  32. 
Opinion  of  the  Justices    ( 150  Mass. 

592;    24   N.  E.    1084;    8  L.   R.   A. 

487),   589. 
Oram's  Estate   (5  Kulp.   (Pa.)   423), 

316. 
Orient    Ins.    Co.    v.    Leonard     (120 

Fed.   808),   806. 
Orth  V.  West  and  East  Oil  Co.   (159 

Pa.  St.  388;   28  Atl.  180),  379. 
Osborne  v.  San  Diego,  etc.,  Co.   (178 

U.  S.  22;  20  Sup.  Ct.  860;  aflirm- 

ing  76  Fed.  319),  430,  432. 
Osgood  V.  Abbott   (58  Me.  73),  244. 
Oskaloosa  Water  Co.  v.   Board    (84 

Iowa,    407;    51    N.    W.    18),    834, 

834a. 


CVl 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Otersbach  v.  Philadelphia    (161   Pa. 

St.   Ill;    28  Atl.   991),  710,   714, 

722,  737. 
Ott  V.  Sprague   (27  Kan.  620),  319. 
Ottawa  Gaslight  Co.  v.  Graham   (28 

111.  73),  651,  664,  672. 
Ottawa  Gaslight  &  Coke  Co.  v.  Gra- 
ham  (35  111.  346),  653,  674,  759. 
Ottawa    Gaslight    Co.   v.   Thompson 

(39  111.  598),   653,   664. 
Ottersbach  v.  Philadelphia   (161  Pa. 

Ill;    28  Atl.   991),   746,   750. 
Otto  Township  v.  Wolf  ( 106  Pa.  St. 

608),  789. 
Ould  V.  Richmond    (23   Gratt.  464; 

14   Am.  Eep.   139),  564. 
Overall    v.    Madisonville     ( 125    Ky. 

■684;    102   S.   W.   278;    31    Ky.  L. 

Rep.  278),  563. 
Owensboro    Gaslight    Co.    v.    Hilde- 

brand    (19    Ky.   L.    Rep.   983;    42 

S.  W.  351),  578,  580,  580a,  602a. 
Owensboro     Water     Works     Co.     v. 

Owensboro   (74  S.  W.   (Ky.)    685; 

24  Ky.  L.  Rep.  2530;    25  Ky.  L. 

Rep.   434),   834b. 
Owings  V.  Emery   (6  Gill.  260),  323. 
Oxenden   v.   Compton    (2   Ves.    69), 

318. 


Packer  v.  Noble   (103  Pa.  St.  188), 

254d. 
Packham   v.   German   Fire   Ins.   Co. 

(91    Md.    515;    46    Atl.    1066;    50 

L.   R.   A.   828),   828. 
Paff  V.  Standard  Gaslight  Co.    (118 

N.  Y.  App.  Div.   904;    103   N.  Y. 

Supp.  438),  612. 
Page  V.  Culver    (55  Mo.  App.  606), 

272. 
Paine  v.  Calor  0.  and  G.  Co.    (103 

S.  W.   (Ky.)   309;  31  Ky.  L.  Rep. 

754),    551,   553. 
Paine  v.  Griffiths    (86  Fed.  452;   58 

U.  S.  App.  38;   30  C.  C.  A.  182), 

73,  212. 


Palestine  Water,  etc.,   Co.  v.  Pales- 
tine   (91  Tex.  540;  44  S.  W.  814; 

affirming  41  S.  W.  659),  520,  522, 

532,  539,  540. 
Palmer     v.     Edwards     (Doug.     187, 

note),   284b. 
Palmer  v.  Larchmont,  etc.,  Co.   ( 158 

N.  Y.  231;    52   N,  E.    1092),  549, 

550. 
Palmer  v.  Truby    (136  Pa.  St.  556; 

20   Atl.    Rep.    516;    26   W.   N.    C. 

514),    54,    167,    171,   243,   262c. 
Palmer    v.    Uncas    Mining    Co.     (70 

Cal.  614;   11  Pac.  666),  376d. 
Palmer   Oil   and   Gas   Co.  v.  Parish 

(61  Kan.  311;  59  Pac.  640),  319. 
Paola    Gas    Co.    v.    Paola    Gas    Co. 

(56  Kan.  614;'  44  Pac.  621),  591. 
Parfitt  v.  Furguson   (159  N.  Y.  Ill; 

53  N.  E.  707;   affirming  38  N.  Y. 

Supp.    466;    3    N.    Y.    App.    Div. 

176),  466,  510,  542. 
Parfitt  v.  Furguson    (3   N".  Y.  App. 

Div.    176;    38    N.   Y.    Supp.    466; 

affirmed,  159  N.  Y.  Ill;  53  N.  E. 

707),  492. 
Paris    V.    Norway    Water    Co.     (85 

Me.  330;   27  Atl.  143),  834,  834a. 
GParish  Fork  Oil  Co.  v.  Rridgewater 

Gas  Co.    (51  W.  Va.  583;  42  S.  E. 

655),  91,  118,  138,  159,  181,  202b, 

215,  217,  228,  241,  242,  246,  251, 

253,  254b,  258,  260,  289,  852,  863, 

874,   881,   913. 
Park     Commissioners     v.     Common 

Council  (28  Mich.  228,  239),  490c, 

565. 
Parker   Land   &   Oil   Co.  v.   Reddiek 

(18  Ind.  App.  616;  47  N.  E.  848), 

376a,  376c,  629,  645. 
Parkersburg    Gas    Co.    v.    Parkers- 
burg    (30    W.   Va.    435;    4    S.    E. 

650),   483,   490b,   490c,   528. 
Parkin  v.  Wirksworth   Gas  Co.    (26 

Gas   J.    946),    720,   749. 
Parlin,    etc.,    Co.    v.    Finfrouck    (65 

111.   App.    174),    760. 


TABLE   OF    CASES. 


evil 


(References  are  to  pages.) 


Parry  v,  Croydon  Gas  Co.  ( 15  C.  B. 

(N.  S.)  508;  11  C.  B.  (N.  S.) 

578;  10  Jur.  (N.  S)  172;  9 

L.  T.  (N.  S.)  694;  12  W.  R.  212), 

652,   672,  676b. 
Parry  v.  Smith   (L.  R.  4  C.  P.  325; 

33    Gas    J.    899),    682,    729,    747, 

756. 
Parsell  v.  Stryker   (41   N.  Y.  480), 

353. 
Parsons    v.    District     of     Columbia 

(170  U.  S.   45;    is   Sup.  Ct.  Rep. 

521),   477. 
Parsons  &  Sweeney  Oil  Co.  v.  McCor- 

mick    (68   W.   Va.   604;    70   S.   E. 

471),  214b. 
Parsons   Nat.   Gas   Co.   v.   Rockhold 

(79    Kan.    661;     100    Pac.    639), 

834b. 
Paterson  Gaslight  Co.  v.  Brady   (27 

K  J.  L.  245;   72  Am.  Dec.  360), 

576. 
Paterson,   etc.,    Co.   v.    State   Board 

(70  N.  J.  L.   825;    59    Atl.   1118; 

affirming  69  N.  J.  L.  116;  54  Atl. 

246),  841. 
Paterson,   etc.,    Co.   v.   State    Board 

69    N.    J.    L.    110;    54    Atl.    246), 

834b. 
Patrick  v.  Spring  (70  S.  E.  (N.  C.) 

395),   751. 
Patterson    v.   Gaslight    &    Coke   Co. 

[1896]    (2   Ch.  476;    65   L.  J.  Ch. 

(N.  S.)    709;   74  L.  T.  Rep.  640), 

608. 
Patterson  v.  Hausbeck  (8  Pa.  Super. 

Ct.  Rep.  30),   262d. 
Patterson    v.    Kentucky     (97    U.    S. 

501),   420. 
Patterson    v.    Kentucky     (11    Bush, 

311;   21  Amer.  Rep.  220),  420. 
Patterson    v.    Peoples   Xat.   Gas   Co. 

(172    Pa.     St.    5.54;     20    Pittsb. 

L.  J.    (X.   S.)    260;    37   W.  N.  C. 

422;    33  Atl.   575),   400d,   401. 


Rattle  V.  Hornibrook  [1897]    (1  Ch. 

25;    66    L.   J.    Ch.    144;    75    L.   T. 

475;   45  W.   R.   123),  345. 
Patton  V.  Axley  (5  Jones  L.  (N.  C.) 

440),  75,  79. 
Pattrick    v.    Weston     (22    Colo.   45; 

43  Pac.  446),  304d,  372. 
Paul  V.   Cragnns    (25   Xev.   293;    59 

Pac.  857 ;  60  Pac.  983 ;  47  L.  R.  A. 

540),  90. 
Paul     V.    Travelers     Ins.     Co.     (112 

N.  Y.  472;   20  N.  E.  347;   affirm- 
ing 45   Hun,   313),  829,   831. 
Paxton   Oil   Co.   v.   Myers    (30    Ind. 

App.  695;    80  X.  E.  851),  858. 
Payne   v.  Neurol    (155   Cal.   46;    99 

Pac.   476),   a,   218. 
Payne   &   Butler  v.   Providence  Gas 

Co.    (31   R.  I.  2D5;    77   Atl.    145), 

654,  657. 
Pearce  v.  Bridgewater  Gas  Co.    (28 

Pittsb.  Leg.  J.  (N.  S.)   171),  294d. 
Pearce  v.  Gardner   [1897]    (1   Q.  B. 

688;   66  L.  J.  Q.  B.  457;   76  L.  T. 

441;    45  W.  R.  518),  343. 
Pearcy    v.    Henley     (82    Ind.    129), 

318c. 

Pearson    v.    Phoenix    Gas    Co.     (12 

Gas  J.  69),   579,   607. 
Peatman    v.     Centerville,    etc.,    Co. 

(105    Iowa,    1;    74    X.    \V.    689), 

380. 

Peck  V.  Trinsmaran  Co.   (2  Ch.  Div. 

115;    24   W.   R.   361),   387,  392. 
Peerrin    v.   Lepper    (34    ^Jlicli.   497; 

4  X.  W.  211),  272. 
Peers  v.   Consolidated  Coal  Co.    (59 

111.  Apj).  595),  294d. 
Pelton     V.     Minah,     etc.,     Co.      (11 

Mont.   281;    28   Pac.   310),   377. 
Pcndergast  v.  Turton    (13  L.  J.  Cli. 

208;    5    Jur.    1102;    8    Jur.    205), 

343. 
Pendergast    v.    Yandes     (124    Ind. 

159;    24   X.   E.   724).   377. 


cvni 


TABLE   OP    CASES. 


(References  are  to  imges.) 


Pendoria  Oil,  etc.,  Co.  v.  Robinson 
(71  Ohio  St.  302;  73  N.  E.  222), 
237. 
■Pennington  v.  Brensop  Coal  Co.  ( 5 
Ch.  769;  46  L.  J.  Ch.  773;  37 
L.  T.  149;  25  W.  R.  874),  653, 
675. 
Pennman  v.  Winner    (54  Md.   127), 

201. 
Penn.    Gas    Coal    Co.    v.    Versailles 
Fxiel    Gas    Co.    (131    Pa.    St.    522; 
19  Atl.  933),  405. 
Penn.    Iron    Co.    v.    Lancaster     (17 
Lane.    Law   Rev.    161),    604,    609, 
610,  612. 
Penn     Mutual     Life     Ins.     Co.     v. 
Thackara     (10    W.    N.    C.     (Pa.) 
104;    11    W.    N.    C.    391;     13    Re- 
porter,  731),  632. 
Pennsylvania  Ins.  Co.  v.  Faires   ( 13 
Tex.  Civ.  App.  Ill ;   35  S.  W.  55) , 
797,  801. 
Pennsylvania     Globe     Gas     Co.     v. 
Scranton    (97   Pa.   St.   538),   466, 
531. 
Pennsylvania  Coal  Co.  v.  Sanderson 
(113    Pa.    St.    126;    6    Atl.    453; 
overruling  86  Pa.  St.  401;  94  Pa. 
St.  302),  657. 
Pennsylvania  Co.  v.  Langendorf   (48 
Ohio   St.   316;    28   N.   E.    172;    13 
L.  R.  A.   190),  782. 
Pennsylvania   Salt   Co.   v.  Neel    (54 

Pa.  St.  9),  89,  323. 

Pennsylvania    Gas    Co.    v.    Warren, 

etc.,    Co.    (3   Pa.   Dist.   Rep.   67), 

615,  616,  620. 

Pennville,   etc.,   Co.  v.   Thomas    (21 

Ind.  App.  1;   51  N.  E.  351),  367. 

Penny    v.   Rosendale,    etc.,    Co.    ( 14 

Gas  J.  927),  609. 
Pensaccla    Gas    Co.    v.    Pebley     (25 

Fla.    381;    5   So.   593),   651. 
Pensacola  Gas  Co.  v.  Pensacola   (33 
Fla.  322;    14  So.  826),  478d,  524. 


Penton  v.  Robart   (2  East,  88),  646. 
People  V.  Assessors    (76  N.  Y.  202; 

16  Hun,   196),  834b. 
People  V.  Assessors   (9  N.  Y.  Trans. 

App.    116),   833. 
People    V.    Bell     (237    111.    332;     86 

N.  E.  593),  839. 
People    V.     Bowen     (30    Barb.     24; 
affirmed,  21  N.  Y.  517),  498b,  535, 
540. 
People   V.    Boyce    (43   Ohio   St.   46; 

1  N.  E.  17),  524. 
People    V.    Brooklyn    Assessors     (19 
N.   Y.   App.    Div.    599;    46   N.   Y. 
Supp.   388),  838. 
People   V.   Budd    (117    X.   Y.    1;    22 
N.   E.    682;    5    L.    R.   A.   559;    15 
Am.   St.  460),  618. 
People    V.    Chicago    Gas    Trust    Co. 
(130   111.    268;    22   N.    E.    798;    8 
L.    R.   A.   497;    29    Am.   and   Eng. 
Corp.   Cas.   257),   426,   427,   446d, 
532,   577. 
People  V.  Consolidated  Gas  Co.  (115 

N.  Y.  S.  393),  520. 
People  V.  Cromwell    (89  N.  Y.  App. 
Div.    291;    85    N.    Y.    Supp.    Rep. 
878),   527,    551,    553. 
People  V.   Deehan    (153  N.  Y.  528; 
47  N.  E.  787;  reversing  11  N.  Y. 
App.    Div.    175;    42    N.   Y.    Supp. 
1071),    455,    470,    521,    52.4,    526, 
927,  538. 
People  V.  Gilroy    (67  Hun,   32.3;    22 

N.   Y.   Supp.   271),   518a. 
People  V.  Gleason    (121   N.   Y.   631; 

25   N.   E.  4),  464. 
People  V.   Gold   Run,   etc.,   Co.    (66 

Cal.  13-8;  4  Pac.  115/2),  654. 
People  V.  Kent   (12  Nat.  Corp.  Rep. 

(111.)    193),  428,  538. 
People  V.  Kingman   ( 24  X.  Y'.  559 ) , 

512. 
People  V.  Lake  Erie,  etc.,  R.  R.  Co. 
(167    111.    283;    47    N.    E.    518), 
477. 


TABLE   OF    CASES. 


CIX 


(References  are  to  pages.) 


People  V.  Littleton   (185  N.  Y,  605; 

78    N.    E.     1109;     affirming    110 

N.   Y.   App.   Div.    728;    96   N.   Y. 

Supp.  444),  516. 
People  V.  Littleton   (110  N.  Y.  App. 

Div.  728;    96   X.   Y.   Supp.   444), 

466. 
People  V.   Los   Angeles   Independent 

Gas   Co.    (150   Cal.   557;    89   Pac. 

108),  530. 
People   V.    Manhattan    Gaslight   Co. 
(45   Barb.   136;    30   How.  Pr.   87; 

1  Abb.  Pr.  (N.  S.)  404),  578,  586, 

587,   607,   611. 
People    V.    Martin    (48    Hun,    193), 

834,  834a. 
People  V.  Mutual  Gaslight  Co.    (38 

Mich.   154),  520,  540. 
People    V.    N.    York,    etc.,    Co.     (56 

N.   Y.   Supp.  364),   578,   588. 
People   V.    N.   Y.    Gaslight    Co.    (64 

Barb.  55;  6  Lans.  467),  664,  672, 

676b. 
People  V.  O'Brien   (111  K  Y.  1;   18 

N.  E.  692),  521,  -536. 
People   V.    Pacheco    (27    CaL    175), 

458d. 
People  V.  Peoples   Gaslight  &   Coke 

Co.    (205  III.  482;   68  N.  E.  950), 

494. 
People  V.   Priest    (126   N.  Y.  Supp. 

472),  516,  834a. 
People    V.    Public    Service    Commis- 
sion   (137   N.   Y.   App.  Div.   810; 

122  X.  \".  Supp.  Rep.  641),  446c. 
People  V.  Rice    (138  X.  Y^  151;   33 

N.  E.  846),   842. 
People  V.  Ridgely,  21   111.  65),  519. 
People   V.    San    Francisco    (11    Cal. 

42),  478. 
People   V.    San    Francisco    (54    Cal. 

248),  550. 
People    V.    Steele     (56    X.    Y.    664; 

1   Sheldon,  345),  834b. 
People    V.    Stevens    (62    CaL    209), 

427. 


People  V.  Transit  Development  Co. 

(131    X.   Y.   App.   Div.    174;    115 

X.    Y.    Supp.   297),   663. 
People  V.  Van  Renssalaer    ( 8  Barb. 

189),  289. 
People    V.    Wells     (42    X.   Y.    Misc. 

Rep.   606;    87   X\  Y.  Supp.   595), 

833. 
People  V.  Wilcox    (112  X.  Y.  Supp. 

(X.   Y.)    341),   622. 
People  V.  Wilker    (4  Park  Cr.  Rep. 

19),   844. 
People  V.  Williams    (35  Cal.  671), 

43. 

Peoples  EL,  etc.,  Co.  v.  Capital  Gas, 

etc.,   Co.    (116   Ky.   76;    75   S.   W. 

280;  25  Ky.  L.  327),  465,  495. 
Peoples  Gas  Co.  v.  Tyner    (131  Ind. 

277;  31  X.  E.  Rep.  59;  16  L.  R.  A. 

443),  32,  33,  34,   40,   47,  50,  144, 

167,   776. 
Peoples    Gaslight    Co.    v.    Amphlett 

(93  111.  App.  194),  702,  724,  745, 

746,  750,  754. 
Peoples    Gaslight    &    Coke    Co.    v. 

Chicago      (145     IlL     App.     307), 

676a. 

Peoples  Gaslight  and  Coke  Co.  v. 
Chicago  (114  Fed.  384;  affirmed, 
194  U.  S.  1;  24  Sup.  Ct.  520; 
48  L.  Ed.  851),  430,  451,  456. 

Peoples  Gaslight  &  Coke  Co.  v. 
Chicago  ( 194  U.  S.  1 ;  24  Sup.  Ct. 
Rep.  520;  48  L.  Ed.  851;  affirm- 
ing 114  Fed.  384),  444,  455. 

Peoples  Xatural  Gas  Co.  v.  Fidelity, 
etc.,  Co.  (150  Pa.  St.  8;  24  Atl. 
339),   828. 

Peoples  Gaslight  and  Coke  Co.  v. 
Hale  (94  111.  App.  406),  430,  431, 
434,  44fid,  448,  455,  522,  536a, 
538,   578,  580,  598,   601. 

Peoples  Gaslight  &  Coke  Co.  v. 
Porter  (102  111.  App.  461),  681, 
686,  687,  704. 


ex 


TABLE   OF    CASES. 


(References  are  to  cages.) 


Peoples   Natural   Gas  Co.  v.   Pitts- 
burgh   (1   Penn.  C.  C.  Rep.  311), 

486. 
Peoria,  etc.,  Ins.  Co.  v.  Downs   (90 

Ky.  236;    13   S.  W.  882;    12   Ky. 

L.  Rep.  115),  824. 
Peoria,    etc.,    Ins.    Co.   v.   Hall    ( 12 

Mich.  202),  823. 
Peoria  Gas  &  El.  Co.  v.  Peoria   (200 

U.   S.   48;    26   Super.  Ct.   214;    50 

L.  Ed.  565),  430,  444. 
Pereria  v.   Wallace    (129   Cal.   397; 

62  Pac.  61),  465. 
Perley  v.   Chandler    (6   Mass.   453), 

356c. 
Perry    v.    Acme    Oil    Co.     (44    Ind. 

App.  207;  88  N.  E.  859;  reversing 

80   N.   E.    174),   214b,   228a,   232, 

238,  262c,  263,  304,  642,  643,  892. 
Peter  v.  Barnes  (16  Ind.  219),  135. 
Peterson  v.  Hall    (57   W.  Va.  535; 

50  S.  E.  603),  302,  317,  356b,  886, 

913. 
Peterson   v.    Standard    Oil    Co.     (55 

Ore.  511;   106  Pac.  337),  779,  780, 

792a,  792b. 
Petroleum  Co.  v.  Coal,  etc.,  Co.   (89 

Tenn.  381;    18  S.  .W  65),  72,  108, 

161,  163. 
Pettibone    v.    Smith     (150    Pa.    St. 

118;    24    Atl.    693),    MO. 
Pettis   V.    Johnson     (56    Ind.    139), 

514. 
Peyton  v.  Texas  &  Pacific  Ry.    (41 

La.  Ann.  861;   6  So.  690),  782. 
Pfeiffer  "v.    Brown     (165    Pa.    267; 

30    Atl.    844;    44   Am.    St.    660), 

658,  884. 
Pheasant    v.    Hanna     (63    W.    Va. 

■613;  60  S.  E.  618),  222,  260,  262, 

887,  900,  913. 
Phelan     v.     Boone     Gas     Co.      (147 

Iowa,  626;    125  N.  W.  208),  426, 

580,   595,   602b. 
Phillips  V.  Vandergrift   (146  Pa.  St. 

357;  23  Atl.  347),  228a,  238,  307, 

858,  859. 


Phenix  Gaslight,  etc.,  Co.  v.  Shillits 

(19  Gas  J.  848),  844. 
Phenix    Ins.     Co.    v.    Adams     ( 127 

S.    W.     (Ky.)     1008;    34    Ky.    L. 

Rep.  — ),    804. 
Phoenix,    etc.,    Co.    v.    Dethick     (14 

Gas  J.  536),  755. 
Phenix    Ins.    Co.    v.    Erie,    etc.,    Co. 

(117  U.  S.  312;  6  Super.  Ct.  750, 

1176),    828. 
Phenix    Ins.    Co.    v.    Flemming    (65 

Ai-k.     54;     44     S.     W.     464;     39 

L.  R.  A.   789),  795,  811,  819. 
Phenix   Ins.   Co.   v.   Greer    (61   Ark. 

509;   33  S.  W.  840),  805. 
Phenix    Ins.    Co.    v.    Lawrence     (4 

Mete.   (Ky.)   9;  81  Am.  Dec.  521), 

827. 
Phoenix,    etc.,    Co.    v.    Munger     (49 

S.    W.     (Tex.    Civ.    App.)     271), 

801. 
Phenix   Ins.    Co.    v.    Shearman    (17 

Tex.    Civ.    App     456;    43    S.    W. 

930,    1063),   797,   800. 
Phenix  Ins.  Co.  v.  Taylor    (5  Minn. 

492),   813. 
Philadelphia   v.    Collector    (5   Wall. 

720),  837. 
Philadelphia    v.    Flanigen     (47    Pa. 

St.  21),  476. 
Philadelphia    v.    Fox     (64    Pa.    St. 

169),   458. 
Philadelphia   v.    Hays    (93    Pa.    St. 

72),  478c. 
Philadelphia  v.   Park    (138   Pa.    St, 

346;  22  Atl.  86),  598,  601,  603. 
Philadelphia    Co.    v.    Central    Trac- 
tion   Co.     (165    Pa.    St.    456;     30 

Atl.  934),  756. 
Philadelphia    Co.    v.    Freeport    ( 167 

Pa.   St.   279;    31    Atl.    571),    513, 

515. 
Philadelphia    Co.    v.    Renner     (222 

Pa.  512;   71  Atl.  1056),  302. 
Philadelphia  Gas  Co.  v.  Park  Bros. 

(138    Pa.    St.   346;    22   Atl.    86), 

530. 


TABLE   OF    CASES. 


CXI 


(Roferonces  are  to  pages.) 


Philadelphia  Gas  Works    ( 1   Dauph. 

Co.   Rep.   55).   48(1.   487,   530. 
Philbrick  v.  Ewing   (97  Mass.   133), 

648. 
Phillips   V.   Brill    (17   Wyo.   2G ;    95 

P.  85G),    172,  359. 
Phillips  V.  Coast   (130  Pa.  St.  572; 

IS   Atl.  998),    173. 
Phillips  V.   Hamilton    (17   Wyo.  26; 

95  Pac.  846),   130,   198,  258. 
Pickering  v.  Lomax   (145  U.  S.  316; 

12  Sup.  Ct.  860;   36  L.  Ed.  716), 

322. 
Pickett  V.  Pacific,  etc.,  Ins.  Co.  ( 144 

Pa.    St.    79;    22    Atl.    871),    830, 

831. 
Pierce   v.    George    (108    Mass.   JS), 

631. 
Pifer   V.    Brown    (43   W.   Va.    412; 

27    S.   E.    399;    49   L.    R.  A.    497, 

and  note   in  last  volume),  93. 
Pilcher    v.    Atchison,    etc.,    Ry.    Co. 

(38  Kan.  516;   16  Pac.  945),  319. 
Pine  Bluff,  etc.,  Co.  v.  Derrenisseaux 

(56    Ark.    132;     19    S.    W.    428), 

788. 
Pine  Bluff,  etc.,  Co.  v.  McCain    (62 

Ark.   118;    34   S.   W.  549),  693. 
Pine    Bluff,    etc.,    v.    Schneider    (62 

Ark.     109;     34     S.     W.     547;     33 

L.  R.  A.  366),  686,  707,  711,  712, 

714,  730b,  745,  746,  747,  750,  7  52. 
Pingree    v.    Mutual    Gas    Co.     ( 107 

Mich.   156;   65  K  W.  6),  604. 
Pingrey  v.   Watkins    (15   Vt.   479), 

284b. 
Piru  Oil  Co.   (16  L.  D.  117),  32,  58. 
Pittinger  v.  Ramage    (40  Ind.  App. 

486;  82  K  E.  478),  154,  155,  235, 

266,    274a,    302b. 
Pittsburgh,  Appeal  of    (115  Pa.  St. 

4;  7  Atl.  778),  429,  514,  525,  532, 

533. 
Pittsburgh's    Appeal     (123    Pa.    St. 

374;    16  Atl.  621),  838. 
Pittsburgh,  etc.,  Co.,  In  re    (16  Pa 

Co.   Ct,   Rep.  433),   484,   486. 


Pittsburgh  v.  Consolidated  Gas  Co. 
(34  Ta.  Super.  Ct.  234),  836,  838. 

Pittsburgh,  etc.,  Brick  Co.  v.  Bailey 
(76  Kan.  42;  90  Pac.  803),  80, 
96,  97,  98,  101,  108,  110,  111, 
889,  90(2. 

Pittsburgh-Columbia  Oil  &  Gas  Co. 
V.  Broyles  (46  Ind.  App.  3;  91 
N.   E.   754),   290,   293,   316. 

Pittsburgh,  etc.,  Co.  v.  Greenle  ( 164 
Pa.  St.  549;  30  Atl.  489),  269, 
314. 

Pittsburgh,  etc.,  Co.  v.  Lake  Su- 
perior Iron  Co.  (118  Mich.  109; 
70  N,  W.  395),  356d. 

Pittsburgh  Carbon  Co.  v.  Philadel- 
phia Co.  (130  Pa.  St.  438;  18 
Atl.  732),  468a,  505,  573. 

Pittsburgh  Gas  Co.  v.  Pittsburgh 
(101   U.  S.  219),   478c. 

Plouk  V.  Jessop  (178  Pa.  St.  71; 
27  Pittsb.  L.  J.  (N.  S.)  169;  39 
W.  N.  C.   156;   35  Atl.  851),  74-6. 

Plant  V.  Humphreys  (66  W.  Va. 
88;   66  S.  E.  94),  350d,  886. 

Planter,  etc.,  Ins.  Co.  v.  Rowland 
(66  Md.  236;  7  Atl.  257),  810. 

Pleasant  v.  Hanna  (63  W.  Va.  613; 
60  S.  E.  618),  74. 

Plummer  v.  Hillside  Coal  and  Iron 
Co.  ( 160  Pa.  St.  483;  34  W.  N.  C. 
366;  28  Atl.  853),  65,  89,  189, 
251,  350. 

Pocatello  Water  Co.  v.  Stanxlley 
(61  Pac.  (Idaho)  518),  446d, 
542,  595,  616. 

Pocock  V.  Bighton  (31  Gas  J.  429), 
716,  717,  722. 

Poc  V.  Ulrey  (233  HI  56;  84  X.  E. 
Rep.  40),  32,  44,  52,  7<5,  79,  81, 
82,  90,  -91,  109,  130,  214,  218, 
2201). -232,  234,  242,  319,  876,  895, 
897,   902. 

Pollard  V.  Sayro  (45  Colo.  195;  98 
Pac.  816),  99. 


cm 


TABLE   OF    CASES. 


(References  are  to  pages.) 


PoUitts    V.    Consolidated    Gas    Co. 

(ll-S    N.    Y.    App.    Div.    92;     102 

N.  Y.   Supp.   1116),  602a. 
Pool    V.    Milwaukee,    etc.,    Ins.    Co. 

(91  Wis.  530;  65  N.  W.  54),  809. 
Poole  V.  Middleton    (29   Beav.  649; 

9  Jur.  (N.  S.)    1262;  4  L.  T.  631), 

373. 
Pooley    V.     Whitmore     ( 10     Heisk. 

629;    27  Am.   Rep.   733),   369. 
Pope  Bros.  v.   Bridgewater  Gas  Co. 

(52   W.  Va.    252;    43    S.   E-.   87), 

671,  884. 
Porquay    Gas    Co.    v.    Carter     (32 

Gas  J.   490),   588. 
Port   V.    Jackson    (17    Johns.    239), 

'274d. 
Porter  v.  Mack  Mfg.  Co.  (65  W.  Va. 

636;    64   S.   E.  853),  885,  911. 
Porter  v.  Noyes    (47  Mich.   55;    10 

N.  W.  77),  206. 
Portland  Natural   Gas   Co.  v.  State 

(135   Ind.    54;    34   N.   E.   818;    21 

L.  R.  A.  639),  577,  579,  580,  582, 

595,  5C7,  686. 
Porter    v.    Preferred,    etc.,    Ins.    Co. 

(186  N.  Y.  599;    79   N.   E.   1114; 

affirming    100    N.    Y.    App.    Div. 

103;   95  N.  Y.  Supp.  682),  831. 
Post    V.    Kearney     (2    N.    Y.    394), 

284b. 
Postal   Telegraph   and   Cable  Co.  v. 

Eaton    (170    111.    513;    49    N.    E. 

365),  561. 
Potsdam'  Electric    L.    &    P.    Co.    v. 

Potsdam     (49    N.    Y.    Misc.    Rep. 

18;    97    N.    Y.    Supp.    Rep.    190), 

560,   568. 
Potter  V.  Cromwell   (40  N.  Y.  287), 

629. 
Potter  V.  Gilbert  (177  Pa.  St.  159; 

35   Atl.   597;    36   L.   R.    A.   580), 

640. 
Potter  V.  Moses   (1  R.  T.  430),  370. 
Potter  V.  Natural  Gas  Co.   (183  Pa. 
St.  575;   39  Atl.  7),  789. 


Potterie  v.   Potterie  Gas   Co.    (159 
Pa.    St.    10;    25    Atl.    1107),    146, 

245. 
Potterie    Gas    Co.   v.    Potterie    (179 

Pa.    St.    68;     36    Atl.    232),    146, 

254b,  293. 
Pottstown  Gas  Co.  v.  Murphy    (39 

Pa.    St.  257),   651,   664,   667,   U72. 
Pottsville     V.     Pottsville     Gas     Co. 

(.33  Pa.  Super.  Ct.  480),  545. 
Poughkeepsie    Gas    Co.    v.    Citizens 

Gas  Co.   (20  Hun,  214),  616,  637. 
Powell    V.    Aikin     (4    Kay.    and    J. 

343),   51. 
Powell  V.  Elliott  (L.  R.  10  Ch.  App. 

424;     33    L.    T.    110;     23    W.    R. 

777),  348. 
Powell  V.  Lantzy   (173  Pa.  543;   34 

Atl.  450),  89,   840. 
Powell    V.    Plank     (141     Mo.    App, 

40i6;    125    S.   W.   836),   642,    644, 

646. 
Powell  V.  Thomas   (6  Ha.  300),  344. 
Powell-Duffryn     Coal     Co.     v.     Taff 

Vale  Rail  Co.    (L.  R.  9  Ch.  App. 

331;    43   L.   J.   Ch.  575;    30   L.  T 

208),  347. 
Power    V.    Athens    (99    N.    Y.    592; 

2   N.   E.   609),  498a. 
Power  V.  Bridgeport    (238  111.  397; 

87  N.  E.  381),  74,   130,  136,  137, 

143,  150,  163,  261,  262d,  312,  864, 

913. 
Powers  V.  Boston  Gaslight  Co.    (158 

Mass.   257;    33   N.    E.    523),   711, 

719,   757. 
Prairie  Oil  &  Gas  Co.  v.   Ehrhardt 

(244    111.    634;    91    N.    E.    680), 

394. 
Prentice  v.  Janssen  (79  N.  Y.  478), 

340a. 
Presidio   Mining   Co.    v.   Bullis    (68 

Tex.  581;   4  S.  W.  860),  101,  112, 

319. 


TABLE   OF    CASES. 


cxm 


(References  are  to  pages.) 


Preston  v.  Fullwood   ( ,  — ), 

543. 
Preston  v.  Hayton  &  Roby  Gas  Co. 

(25   Gas   J.   889),   605,   620,    623. 
Preston  v.  White    (57   W.  Va.  278; 

50   S.   E.   236),   33,   38,   54,   3561), 

368,  876,  906. 
Price  V.   Griffith    (DeG.  M.  and   G. 

80;  21  L.  J.  Ch.  78;   15  Jur.  1093; 

18  L.  T.   (0.  S.)    1-90),  347. 
Price  V.  Malott    (85  Ind.  266),  630. 
Price   V.    South,    etc.,    Gas    Co.    (65 

L.    J.    Q.   B.    126;    12   L.   T.    31), 

718. 
Prichard    v.     Consolidated     (2     Pa. 

Super.  Ct.  179;   39  W.  N.  C.  28), 

707,   766a. 
Priddy  v.  Griffith    (150  111.  560;   37 

N.  E.  999;   41  Am.  St.  397),  325, 

326,  326a. 
Prigg  V.  Preston   (28  Pa.  Super.  Ct. 

272),   117. 
Princess,  The    (185   Fed.   218),  375. 
Providence   Gas    Co.   v.   Thurber    ( 2 

R.  I.   15;   55  Am.  Dec.  621),  520, 

550,   834. 
Pryor,  In  re   (55  Kan.  724;  41  Pac. 

958;    29    L.    R.    A.    398;    49    Am. 

St.    280;     12    Am.    R.    and    Corp. 

Rep.  364),  426,  428b,  468a. 
Public    Service    Corp.    v.    American 

Lighting  Co.    (-67   N.  J.  Ch.    122; 

57  Atl.  482),  436,  443,  458,  458a, 

468,    478b,    578,    580b,    584,    587, 

624. 
Public  Service  Corp.  v.  DeGrote  ( 70 

N.  J.  Eq.  454;   62  Atl.  65),  518b, 

525,  531,  556. 
Pudsey    Coal    Gas    Co.    v.    Radford 

(L.  R.  15  Eq.  167;  21  W.  R.  286; 

4-2  L.  J.  Ch.  293;   22  Gas  J.  54), 

577. 
Pulaski  Gasliglit  Co.  v.   McClintock 

(97    Ark.   576;    134    S.   W.    1189, 

1199),  681,  686,  689,  711. 
Pulaski     Gaslight     Co.     v.     Rcinniel 

(133  S.  W.    (Ark.)    1117),  834. 


Pullman  v.  Mayor  (49  Rarb.  57), 
476. 

Pullman  Palace  Car  O.  v.  Laack 
(143  111.  242;  32  N.  E.  285;  18 
L.  R.  A.  215;  affirming  41  111. 
App.  34),  694,  721,  736,  775. 

Puritan  Oil  Co.  v.  Myers  (39  Ind. 
App.  695;  80  N.  E.  851),  136, 
860,  881,  894. 

Putnam  v.  Commonwealth  Ins.  Co. 
(4   Fed.   753),   798. 

Putnam  v.  Insurance  Co.  ( 18 
Blatchf.  368;   4  Fed.  753),  814. 

Pyle  V.  Henderson  (65  W.  Va.  39; 
63  S.  E.  762),  94,  96,  101,  124, 
173,  237,  238,  239,  240,  240a, 
254b,  257,  262,  266,  302d,  308, 
337,  853,  860,  878,  880,  890,  895, 
896,  898,  901,  902,  907,  913,  915. 

Q 

Quarryville  Water  Co.  v.  Fritz    ( 14 

Lane.    L.    Rev.    186),    403. 
Queen    v.    Firth     (L.    R.    1    CroAvn 

Cas.  Res.   172),   844. 
Queen     City,     etc.,     Co.     v.     Gibson 

House    Co.    (4    Ohio   N.    P.    119; 

6  Ohio  Dee.   148),  614. 
Queens  Ins.  Co.  v.  Harris    (2  W.  N. 

C.    (Pa.)    220),   824. 
Queen   Ins.   Co.  v.   Sinclair    ( 1   Ohio 

Cir.    Ct.   Rep.    496),    796. 
Quimby  v.  Consumers  Gas  Trust  Co. 

(140    Fed.    362),    501,    528,    529, 

568b,  843,   850. 
Quincy    v.    Bull     (106    111.    337;     4 

Am.    and    Eng.    Corp.    Cas.    554), 

549. 
Quinn    v.    Quinn     (81    Cal.    14;    22 

Pac.    264),   364. 

R 

Railroad    Company   v.    Railroad   Co. 

(32    I!nrb.    358,   364),   521. 
Railroad  Co.  v.  Sanderson    (109  Pa. 

St.  583),   384d. 


CXIV 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Eainey  v.  Frick  Coke  Co.    (73  Fed. 

389),  333. 
Ralston    v.    Wichita    Natural    Gas 
Co.    (105    P.    430;    81    Kan.    86), 
79,  92,  320,  403. 
Kamage    v.    Wilson    (37    Ind.    App. 
532;     77    N.    E.    368),     154,    155, 
157,    158,   287,    309. 
Eamage    v.    Wilson    (45    Ind.    App. 
599;   88  X.  E.  B.ep.  862),  53,  72, 
140,   214,   287. 
Ramsey  v.  White    (21  Pittsb.  L.  J. 

(N.    S.)    425),    230. 
Randall  v.  Meredith    (76  Tex.  669; 

13   S.  W.  576),   364a,  369. 
Randolph    v.    Frick    (57    Mo.    App. 

400),    190. 
Rankin's    Appeal     (1    Mong.     (Pa.) 
308;   2  L.  R.  A.   429),   326c,  328. 
Rapson    v.    Cubitt     (9     Mess,     and 

Wels.  710;  C.  and  M.  64),  755. 
Rara    Avis    Gold    &    Silver    Mining 
Co.  V.  Bouscher    (9  Colo.  385;   12 
Pac.  433),   376d. 
Rau    V.    W^inchester    Fire    Ins.    Co. 
(36    N.    Y.    App.    Div.    179;     55 
N.  Y.  Supp.   459),  815. 
Rauck  V.  Cedar  Rapids    (116  Iowa, 

11;    89  X.  W.  88),   730a,  730b. 
Ravisberry  v.  Kellar    (9  Pa.  Co.  Ct. 

Rep.  299),  513,  515. 
Rawlings   v.   Armel    (70   Kan.   778; 
79  Pac.  683),  72,  82,  202a,  202b, 
203,  205,  210,  211,  238,  259,  304, 
312,  852,  881. 
Rawlins  v.  New  Memphis,  etc.,  Co. 
(105  Tenn.   268;    60  S.  W.   206), 
380,  382. 
Ray  V.  Western,  etc..  Gas  Co.    ( 138 
Pa.    St.    576;    20    Atl.    1065;     12 
L.  R.  A.  290),  148,  211,  212,  228a, 
228c,  230,  231,  238,  244,  263,  267, 
306,   858. 
Raymond     v.     Johnson     (17     Wash. 

232;    40    Pac.    492),   95. 
Raynolds  v.  Hanna    (55   Fed.   783), 
87. 


Read    v.    Beck     (66    Iowa,    21;     23 

N.  W.   159),  203. 
Reading   v.   Consumers   Gas   Co.    (2 

Del.  Co.  Rep.   (Pa.)  437),  532. 
Reagan   v.    Farmers  Loan,   etc.,   Co. 

(154  U.  S.  524),  433,  436. 
Ream  v.  Goslee   (21   Ind.  App.  241; 

52   N.   E.   93),    171. 
Reaper  City  Ins.   Co.  v.   Jones    (62 

111.  458),   823. 
Red  C.  Oil  Mfg.  Co.  v.  Board    (172 

Fed.  695),  421. 
Redlands    Water    Co.    v.    Redlands 
(120  Cal.  312;  53  Pac.  843),  434. 
Red   Star  S.   S.   Co.  v.   Jersey   City 

(45  N.  J.  L.  246),  619. 
Reed  v.  Reed    (16   N.   J.   Eq.  248), 

325. 
Reed  v.  Syracuse  (83  Neb.  713;   120 

N.  W.    180),   783. 
Reeve   v.    Whitmore    (33    L.   J.   Ch. 

63),   646. 
Reeves    v.    Corning     (51    Fed.    74), 

220b. 
Regbie    v.    Fenwick     (L.    R.    8    Ch. 

App.    1075,  note),    647. 
Regina  v.    Birmingham   Gas   Co.    ( 1 

B.    and    0.    506),    649. 
Regina   v.    Bighton   Gas    Co.    (5    B. 

and   C.    466),   649. 
Regina    v.    Colne    Valley    Gas    Co. 
(29   Gas  J.   498,   7S1;    30   Gas   J. 
218),   543. 
Regina  v.  Inhabitants  of  Lee  (L.  R. 
1  Q.  B.  241;   35  L.  J.  M.  C    105; 
12    Jur.     (N.    S.)     225;     13    L.    T. 
(N.    S.)     704;     14    W.    R.    311), 
632. 
Regina  v.   Jenkins    (5  Gas  J.  214), 

844. 
Regina  v.  Lee    (L.  R.   1   Q.  B.  241; 
35     L.    J.     M.     C.     105;     12    Jur. 
(N.    S.)    225;    13    L.    T.    (X.    S.) 
704;   14  W.  R.  311),  633,  834. 


TABLE   OF    CASES. 


CXV 


(Refererces  are  to  pages.) 


Regina  v.  Langton  Gas  Co.  (2  E. 
and  E,  651;  29  L.  J.  M.  C.  118; 
6  Jur.  (N.  S.)  601;  2  L.  T. 
(N.  S.)  14;  8  W.  R.  293;  8  Cox, 
317),  543,  544. 
Regina  v.  Mile  End  Old  Town  ( 10 
Q.  B.  208;  3  New  Sess.  Cas.  13; 
16  L.  J.  M.  C.  184;  11  Jur.  985), 
834. 
Regina  v.  JNIitcliell   (22  Gas  J.  137), 

844. 
Regina  v.   Rochdale  W.  W.   Co.    (1 

M.  and  S.  634),  649. 
Regina  v.  SheflSeld  Consolidated  Gas- 
light Co.  (32  L.  J.  M.  C.  169; 
4  B.  and  S.  135;  9  Jur.  (N.  S.) 
623;  8  L.  T.  (X.  S.)  692;  11 
W.  R.  1064),  834. 
Regina   v.    Sheffield   Gas   Consumers 

Co.    (18  Jur.   146,  note),  543. 
Regina    v.    West    Middlesex    Water 
Works  Co.    (1   E.  and  E.  716;   28 
L.  J.  M.  C.   135;   5  Jur.    (N.  S.) 
1159),   649,  834. 
Regina  v.  White   (20  E.  L.  and  Eq. 
585;    17  .Jur.  536;   3  Car.  and  K. 
363;    6   Cox   Cr.    Cas.   213;    Dears 
€.  C.  203;  22  L.  J.   (N.  S.)    123), 
844. 
Reid  V.  Parsons   ( 2  Chit.  247  ) ,  226. 
Reiss  V.  Steam  Co.    (128  N.  Y.  103; 

28   N.  E.   24),  702,  703. 
Rend   v.   Venture  Oil   Co.    (48   Fed. 

248),   405. 
Renshaw  v.  Missouri,   etc.,   Ins.   Co. 
(103  Mo.  595;    15  S.  W.  945;   23 
Am.   Rep.    904),   812,    816. 
Eenshaw  v.   Missouri,  etc.,  Ins.   Co. 

(33  Mo.    App.   394),   803. 
Rex   V.  Cross    (3   Camp,   224),   514. 
Rex    V.    Crude    Oil    Co.     (147    Cal. 

659;    82   Pac.    317),   876. 
Rex  V.  Medley    (6   C.  and   P.   292), 

652,   654,   058,   667,   676b. 
Reynolds    v.    Ashby     (72    L.    J.    Cli. 
51;   [1903]   1  K.  B.  87),  638,  642. 


Reynolds   v.    Cook    (83   Va.    817;    3 

S.  E.  710),   128. 
Reynolds  v.  Hanna    (55   Fed.    783), 

326c,    326d. 
Rhea  v.  Tathem    (1  Jones  Eq.  290), 

340c. 
Rhea  v.  Vannoy   (1  Jones  Eq.  282), 

340c. 
Rhodes  v.   Mount  City  Gas,   Coal  & 
Oil   Co.    (80   Kan.   762;    104   Pac. 
851),   220a,   299,   909. 
Rhoades    v.    Patrick     (27     Pa.     St. 

323),  43. 
Rhodes    v.    Thomos     (2    Ind.    638), 

217. 
Ricard     v.     Sanderson      (41     X.     Y. 

179),  122. 
Rice    V.    Ege    (42    Fed.    Rep.    661), 

50,    122,    165. 
Richards  v.  Citizens,  etc.,   Co.    ( 124 
N.   Y.   App.   Div   401;    104   N.   Y. 
Supp.  Rep.  927),  516,  526,  551. 
Richards  v.  Dover    (39  Atl.    (X.   J. 

L.)    705),   842. 
Richards  v.  Killam   (10  Mass.  239), 

316. 
Richards  v.  Protection  Ins.  Co.    (30 

Mo.  273),   807. 
Richardson    v.    Ins.    Co.     (46     Fed. 

843),  831. 
Richardson  Gas  &  Oil  Co.  v.  Altoona 
(79  Kan.  466;    100  Pac.  50),  494. 
Richlands   Oil   Co.   v.   Morriss    (108 
Va.   288;    61    S.   E.   762),    53,    72, 
84. 
Richman    v.    Consolidated    Gas    Co. 
(186    X.    Y.    209;    78    X.    E.   871; 
affirming     114    X.    Y.    App.    Div. 
216;     10   X.   Y.    Supp.    Rep.   81), 
446. 
Richnaan    v.    Consolidated    Gas    Co. 
(114    X\    Y.    App.    Div.    216;    100 
X.    Y.    Supp.    81;     affirmed,     186 
X.   Y.   209;    78   X.    E.   871),   430, 
436d. 


exvi 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Richmond    v.    Gay     (103    Va.    320; 

49  S.  E.  482),  691,  722,  723,  744, 
769. 

Richmond  v.  Richmond  Natural  Oas 
Co.  (168  Ind.  82;  79  X.  E.  1031), 
426,   427,   428,   428a. 

Richmond  County  Gaslight  Co.  v. 
Middletown  (59  N.  Y.  228;  1 
Hun,  433),  425,  427,  458,  47S, 
490c. 

Richmond  Gas  Co.,  In  re  [1893] 
(1  Q.  B.  56;  62  L.  .J.  Q.  B.  172; 
67  L.  T.  554;  41  W.  R.  41;  56 
J.   P.  — ),  468c,  591. 

Richmond  Gas  Co.  v.  Baker  ( 146 
Ind.  600;  45  N.  E.  1049;  3;i 
L.  R.  A.  683),  714,  71 4b,  721, 
736,  737,   744. 

Riclimond  Mfg.  Co.  v,  Atlantic 
DeLarin  Co.    (10  R.  I.  106),  653. 

Richmond  Nat.  Gas  Co.  v.  Claw- 
son  (155  Ind.  659;  58  N.  E.  1049; 
51   L.   R.  A.    744),  599,   603,   604. 

Riclimond  Xat.  Gas  Co.  v.  Daven- 
port (37  Ind.  App.  25;  76  N.  E. 
525),  53,  72,  326,  326a,  326b,  882. 

Richmond,  etc..  Gas  Co.  v.  Enter- 
prise Gas  Co.  (31  Ind.  App.  222; 
•66  N.  E.  782),  43,  46,  47,  48, 
142,   145,   41Sb. 

Richmond,  etc.,  Gaslight  Co.  v. 
Middletown  (59  X.  Y.  228;  1 
T.  and  C.   143),   586. 

Ricketts  .v.  Bell  ( 1  DeG.  and  Sm. 
335;  10  L.  T.  105;  11  Jur.  918), 
347,  348. 

Ricketts   v.    Bennett    (4   C.   B.   686; 

17    L.    J.   C.    P.    (X.    S.)     17;    11 

Jur.    1062),   369. 

Rice,     etc.,     Co.    v.    Musgrove     ( 14 

Colo.  79;    23  Pac.  458),  375,  381. 

Riddle  v.  Mellon  (147  Pa.  St.  30; 
23  Atl.  241),  191,  202a,  237,  ^'91. 

Ridoout  V.  Knox  (148  Mass.  368; 
19  X.   E.   Hep.    390),   50. 


Ridgeway    Light,    etc.,    Co.    v.    Elk 

Co.     (191    Pa.    St.    465;    43    Atl. 

323),   838,   839. 
Rierker   v.   Lancaster    ( 14   Lane.   L. 

Rev.   393),   486,   580a,  582. 
Rieker   v.   Lancaster    (7   Pa.   Super. 

Ct.    159;    42  W.  N.  C.   164),   601. 
Riggan    v.    Green    (80   X.    C.    236), 

31Sa. 
Ringle  v.   Quigg    (74  Kan.  581;    87 

Pac.  724),  86,  100,  130,  136,   139, 

186,   287,   294,   889,   896. 
Risch   V.    Burch    (175    Ind.    — ;    95 

X.   E.   123),  87,   108,  228. 
Ritchie    v.    McAllister     (14    Pa.    Co. 

Ct.    Rep.    267),    641,    644. 
Rivara  v.  Queens  Ins.  Co.   ( 62  Miss. 

720),   823. 
Riverton,     etc.,     Co.     v.     Haig     (58 

X.  J.   L.   295;    33  Atl.  215),   834, 

S34a. 
Robb  v.  Carnegie   (145  Pa.  St.  324; 

22  Atl.    649;    14    L.    R.    A.    329), 
663,    664. 

Robbins    v.    Guffey     (48    Leg.    Int. 

462),   405. 
Robbins    v.   Hartford   City   Gaslight 

Co.    (82  Conn.  394;    74  Atl.   113), 

730a. 
Roberts    v.    Bettman     (45    W.    Va. 

143;    30  S.  E.  95),  213,  230,  256, 

301,  307,   858,   862,  895,   897. 
Roberts  v.  Davey    (4  Barn,  and  Ad. 

664;   1  Xev.  and  M.  443),  228. 
Rooeiw   V.    Kberhart    (1    Kay,    148; 

23  L.  J.  Ch.  201;    22   L.  T.   253; 
2   W.  R.   125),  370. 

Roberts    v.    Fort    Wayne    Gas    Co. 

( ,  — ),  894. 

Roberts    v.    Jepson     (4    L.    D.    60), 

32,  58. 
Roberts  v.   :McFa(ldin    (32   Tex.   Civ. 

App.  47;    74  S.  W.   105),  76,  862, 

879,    896. 
Rolx-rt    V.   Sadler    (104   X.    Y.    229; 

10  X.  E.  428),  356c. 


TABLE   OF    CASES. 


cxvn 


(Ueforeiices  are  to  pages.) 


Robertson   v.   Jones    (71    111.    405), 

51. 
Robinson,  In  re   (28  Tox.  App.  511; 

13    S.    W.    786),    420. 
Robinson  v.  Coal  Co.    (50  Cal.  4G0), 

654. 
Robinson  v.  Hiirman    (1  Exch.  850; 

18    L.   J.    Exch.    202),    340. 
Robinson  v.   Imperial,  etc.,  Co.    ( 15 

Gas  J.    883),   78!). 
Robyn    v.    Pickard     (37    Tnd.    App. 

IGl;    76  N.   E.   642),   209,   277. 
Roche    V.    Milwaukee    Gaslight    Co. 

(5   Wis.   55),   478b. 
Rockebrandt    v.     Madison     (0     Tnd. 

App.  27;    36   N.   E.   444),  501. 
Rockford  Gaslight  Co.  v.  Ernst   (68 

111.  App.  300),  688,  704,  707,  710, 

711,   717,   730a. 
Rockland  Water  Co.  v.  Camden,  etc.. 

Water  Co.    (80  Me.  544;    15  Atl. 

785),   490d. 
Rockland    W.    W.    Co.    v.    Rocklaiul 

(83  Me.  207;   22  Atl.  160),  542. 
Rockwell    V.    Morgan     (2    Beas.    Ch. 

(N.  J.)   384),  330. 
Roehl  V.  Haumesser    (114  Ind.  311; 

15  N.  E.  345),  114. 
Rogers,   In   re    (4   Land.   Dec.   284), 

58. 
Rogers  v.  Cox   (96  Ind.  157),  030. 
Rogers    v.    Crow     (40    Mo.    91;     91 

Am.   Dec.   299),   632. 
Rogers  v.  Eagle  Fire  Co.    (9  Wend. 

611.  018),   122. 
Rogers   Park   Water   Co.   v.    Fergus 

(178    111.    571;     53    N.    E.    303), 

444,    448,   455. 
Rogers    Park   Water    Co.    v.    Fergus 

(180   U.   S.    024;    21    S.    Ct.   Rep. 

490;    affirming    178    111.    571;    53 

N.  E.  563),  451,  456. 
Rogers    v.    Humphreys     ( 4    Ad.    and 

El.   299),    384b. 
Rogers    v.   Prattville   Mfg.   Co.    (81 

Ala.  483;    1    So.  643),  036. 
Rollins  V.  Riley    (44  N.  II.  9),  244. 


Rorer    Iron    Co.    v.    Trout    (83    Va. 

397;    2   S.    E.  713),    74,   182,    183, 

211. 
Rose    V.     Columbus,    etc.,    Ins.    Co. 

(17    Mo.   301),    805. 
Rose  V.   Lanyon  Zinc   Co.    (68   Kan. 

126;   76  Pac.  625),  225,  232,  900. 
Rose  V.   Stephens,   etc..   Transporta- 
tion Co.   (11  Fed.  438;  20  Blatchf. 

411),    702,    703. 
Rosenheimer    v.    Standard    Gasliglit 

Co.    (30    N.    Y.    App.    Div.    1;    55 

N.   Y.    Supp.   122),   664,   672. 
Rosenquist    v.    Canary     ( 15    X.    Y. 

Misc.    148;    36   X.   Y.   Supp.    979; 

72  X^.  Y.  St.  Rep.  422),  254c. 
Roseville   Alta   Mining   Co.   v.    Iowa 

Gulch  Mining   Co.    (15   Colo.   29; 

24   Pac.   920),   642,   644. 
Ross  V.  Campbell   (9  Colo.  App.  38; 

47    Pac.    465),    638. 
Ross    V.    Schneider     (30    In<l.    423), 

135. 
Ross    V.    Sheldon    (34   Ky.    T..   Rep. 

(Ky.)    — ;    119    S.    W.   225).    254. 
Rossiter    v.     Miller      (3     App.     Cas. 

1124;    48   L.   J.   Ch.    10;    39   L.   T. 

173;  26  W.  R.  865),  343,  345. 
Routledge  v.   Grant    (4   Ring.   000), 

345. 
Rowp  V.  Wood    (1   J.  and  W.  555), 

386,   387,   389,   392. 
Rowell    V.    Bodfish     (10    Atl.     (Me.) 

448),    S7. 
Rowland   v.    Cox    (121    T\y.    341:    89 

S.    W.  215;    2S    Ky.    L.    Hep.   307), 

220c. 
Rudde   V.    Mellon    (147    ?;>.    30;    23 

Atl.   241),   853. 
Ruffatti   V.   Socicte,   etc.    (10   Utah, 

386;    37   Pac.    591),   91. 
Ruggles    V.    Spindle,    etc..    Gas    Co. 

(72  Kan.  062;  83  Pac.  399),  220c. 
Runyan   v.   Punxsut  iwney,  etc.,   Co. 

(102    S.   W.    (Ky.)    854;    31    Ky. 

L.  Rep.  588),   176. 


CXVlll 


TABLE   OP    CASES. 


(Rpferences  are  to  pages.) 


Rupel    V.    Ohio    Oil    Co.     (175    Ind. 

— ;   95  N.  E.  225),  34,  326.  320(1. 
Rushville  v.  Rushville  Natural  Ga? 

Co.     (132    Ind.    575;     28    N.    E. 

853;   38  Am.  and  Eng.  Corp.  Cas. 

270;    15  L.  R.  A.  321),  420,  429, 

490b. 
Rushville  v.  Rushville  Natural   Gas 

Co.   (164  Ind.  162;   73  N.  E.  87), 

425,  426,   427. 
Rushville  Gas  Co.  v.  Rushville   ( 121 

Ind.  206;   23  N.  E.   72),  561. 
Russoll   V.   Manufacturers,  etc.,   Ins. 

Co.     (50    Minn.    409;     52    N.    W. 

906),   795,   820. 
Russell    V.    Stratton     (201    Pa.    St. 

277;     50    Atl.    975),    208a. 
Russem    v.    Wauser     ( 53    Md.    92 ) , 

384b. 
Rutland  v.  Gill   ( 1  Sid.  152 ;   1  Lev. 

107),    325. 
Ryall   V.    Rolle    (1    Atk.    175),   638, 

648. 
Ryckman    v.    Gillis     (G    Lans.    79), 

353. 
Rylands  v.  Fletcher   (L.  R.  3  H.  L. 

330),  685. 
Rymer  v.   South   Penn.   Oil  Co.    (.54 

W.  Va.  530;   46   S.   E.  459),   123, 

300,   887,   912. 
Rynd    v.    Rynd    Farm    Oil    Co.     (63 

Pa.  St.  397),  93,  94,  259. 


S 

Rackett    v.    Nevs-    Albany     (88    Tnd. 

473;   45  Am.  Rep.  467),  458d. 
Saginaw    Gaslight    Co.    v.    Saginaw 

(28   Fed.   529;    16  Am.  and   Eng. 

Corp.   Cas.   562),   490b,   490c,  507, 

528. 
Sahl   v.    Illinois    Oil   Co.     (45    Ind. 

App.  211;   90  N.  E.  632),  299. 
Sale  V.  Lambert    (L.   R.    18   Eq.    1; 

43  L.  J.  Ch.  470;  22  W.  R.  478), 

343. 


Saltsburg     Gas     Co.     v.     Saltsburg 

(138   Pa.    St.   250;    27    W.   N.   C. 

120;    20    Atl.    844;     10    L.    R.    A. 

193),  474,  478a,  609. 
Sampson  v.   Grogan    (21   R.    1.    174; 

42    Atl.    712;    44    L.    R.    A.    711), 

326b. 
Samuel  v.  Cardiff  Gas  Co.    (18  Gas 

J.    192),    602a. 
San   Antonio   Gas   Co.    v.    Singleton 

(24  Tex.  Civ.  App.  341;   59  S.  W. 

920),  788. 
Sanders  v.  Rowe  (48  S.  W.  (Ky.) 

1083;  20  Ky.  L.  1082),  171. 
Sanders  v.  Sharp  (153  Pa.  St.  555; 

31  W.  N.  C.  374;  25  Atl.  524), 

216,   228b,   269,   284a. 
Sanderson  v.  Scranton    ( 105  Pa.  St. 

469),   65,  89,  839. 
San  Diego  Land,  etc.,  Co.  v.  Jasper 

(189  U.  S.  439;   23  Sup.  Ct.  571; 

47   L.   Ed.  892),   436a. 
San  Diego,  etc.,  Co.  v.  Jasper    (110 

Fed.   702),  430. 
San  Diego,  etc.,  Co.  v.  Jasper    (111 

Fed.  702),  431. 
San    Diego    Land    Co.    v.    National 

City  (174  U.  S.  739;  affirming  74 

Fed.  79 ) ,  432,  433,  435,  436,  436a. 
San   Diego,    etc.,    Co.    v.   San   Diego 

(118   Cal.    556;    50   Pac.    623;    38 

L.   R.  A.   460;    62   Am.   St.   261), 

431,   432,   433,   435. 
Sands  v.   Hughes    (53    N.   Y.   287), 

284b. 
Sandy    Lake    v.    Sandy    Lake,    etc., 

Gas  Co.   (16  Pa.  Super.  Ct.  234), 

468a,  471,  474,  502,  520,  523,  528, 

531. 
San  Francisco  v.  Oakland  Water  Co. 
(148  Cal.  .331;   83  Pac.  61),  522. 
San    Francisco    Gas    Co.    v.    Brick- 

wedel    (62   Cal.   641),    476. 
San    Francisco    Gas    &    El.    Co.    v. 

San    Francisco     (164    Fed.    884), 

446a. 


tabijE  of  cases. 


CXIX 


(References  are  to  pages.) 


San    Francisco    Gas    &    El.    Co.    v. 

San    Francisco     (189    Fed.    943), 

446c. 
San     Francisco     Gas     Co.     v.     San 

Francisco   (9  Cal.  453),  458,  469. 
San     Francisco     Gas     Co.     v.     San 

Francisco    (6  Cal.   190),  465. 
San  Joaquin,  etc.,  Co.  v.  Stanislaus 

County    (113   Fed.   930),   430. 
San  Jo.se  v.  January   (57  Cal.  614), 

834a,  838. 
San  Luis  Water  Co.  v.  Estrada  (117 

Cal.    168;    48    Pac.    1075),    468a, 

527. 
Santa  Ana  Water  Co.  v.  San  Buena- 
ventura  (56  Fed.   339),  427. 
Santa    Clara,    etc.,    Assn.   v.    Quick- 
silver   (17   Fed.   657),   364c. 
Sapulpa   V.   Sapulpa   Oil   &  Gas  Co. 

(97  Pac.  Okl.   1007),  524. 
Saratoga  v.  Saratoga  Gas,  etc.,  Co. 

(191   N.    Y.    123;    83    N.   E.   693; 

reversing    122    N.    Y.    App.    Div. 

203;    107  N.  Y.  Supp.   Rep.  341), 

436,  436c,  436d,  437,  439,  4-13,  445, 

446b,    446c. 
Sargent  v.  Robertson   (17  Tnd.  App. 

411;    46  X.  E.  925),    121,  312. 
Satterfield  v.   Rowan    (83   Ga.    187; 

9  S.  E.  677),  654. 
Sattler    v.    Apperman     (30    Pittsb. 

Leg.  J.   (N.  S.)    205),  640,  644. 
Sauver  v.  English  Gas  Co.    (4  Gas 

J.   136),   749. 
Sayers    v.    Hoskinson     (110    Pa.    St. 

473;    1   Atl.  308),   325,  328. 
Sayers  V.  Kent  (50  Atl.   (Pa.)   296), 

909. 
Scannell    v.    American    Soda    Foun- 
tain Co.    (161  Mo.  600;   Gl  S.  W. 

889),   190. 
Schaum   v.    Equitable    Gaslight    Co. 
(15     N.     Y.     App.     Div.     74;     44 

N.  Y.  Supp.  284),  699. 


Schaupp  V.  Hukill   (34  W.  Va.  375; 

12    S.    E.    501),    228b,    238,    246, 

859. 
Schenck   v.    Olyphant    (181    Pa.    St. 

191;    37   Atl.   258),    560. 
Schertzer  v.  Myers    (82   Kan.   275; 

108  Pac.   105),   262c. 

Schmeer  v.  Gaslight  Co.   (1-^7  X.  Y. 

529;    42  N.  E.   202;    30  L.   R.   A. 

653;    reversing   65   Hun,   378;    26 

N.  Y.  Supp.  1128;  20  N.  Y.  Supp. 

168),  578,  585,  587,  624,  733,  742, 

746,   750,  766. 
Schmerhon  v.  Metropolitan  Gaslight 

Co.    (5  Daly,   144),  693,  717,   734, 

747. 
Schmidt  v.  Gilten    (41   N.   Y.   App. 

Div.    302;    58    X.    Y.    Supp.    458), 

791. 
Schooley   v.    Butler    Mining   Co.    (9 

Kulp.    (Pa.)    291),    132. 
Schumucker     v.     Sibert     (18     Kan. 

104),   122. 
Schuylkill    Co.   v.   Citizens   Gas   Co. 

(148   Pa.   St.   162;    23  Atl.   1055), 

838,   839. 
Schwede   v.   Heinrich,   etc.,    Co.    (20 

Wash.  21,  69  Pac.  362),  455,  514, 

516,  517. 
Sclnveizer    v.    Mansfield     (14    Colo. 

App.  236;    59   Pac.  843),   377. 
Scot    v.    Davenport     (34    la.    208), 

475. 
Scott    V.    Fritz     (51    Pa.    St.    418), 

384b. 
Scott  V.  Lafayette  Gas  Co.    (42  Ind. 

App.    614;    86    X.    E.    495).    119, 

120,  218,  256,  287,  304,   3(7,  317, 

858. 
Scott  V.  Manchester    (2   IL   and   X. 

204;    26    L.    J.    Exch.     132,    406; 

3    Jur.     (X.    S.)     590;    5    W.    R. 

508),  722,  788. 


cxx 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Scott    V.    Mayor    (37    Eng.    L.    and 

Eq.    495;    2    H.    and   N.    204;    26 

L.    J.    Exch.     132,    406;     3     Jur. 

(X.  S.)    590;   5  W.  R.  598),  722. 
Scott  V.  Standard  Oil  Co.   (106  Ala. 

475;   19  So.  71;  31  L.  R.  A.  374), 

846. 
Scottish,    etc.,    Co.    v.    Toronto     (24 

Ont.  App.  208),  539. 
Scranton    v.   Gilbert    ( 10   W.   N.    C. 

(Pa.)    28),    839. 
Scranton  v.   Scranton,  etc.,   Co.    ( 33 

Pa.  Super.  Ct.  Rep.  431),  834b. 
Scranton  Electric  Light  &  Heat  Co. 

V.  Scranton,  etc.,  Co.   (3  Pa.  Dist. 

■Co.  Ct.  Rep.  628),  501. 
Scripture    v.    Lowell,    etc.,    Ins.    Co. 

(10   Cush.   356),   803. 
Sculcoates  Union  v.   Hull   Dock  Co. 

[1885]    (App.  Cas.   137;   64  L.  J. 

M.  C.  49;   71  L.  T.  642;  43  W.  R. 

623;    59    J.    P.    612;    11    R.    74), 

834a. 
Seager   v.   McCabe    (92    Mich.    186; 

52  N.  W.  299;    16  L.  R.  A.  247), 

325,    326d. 
Searle    v.    Abraham     ( 73    la.    507 ; 

35   N.   W.   612),   464. 
Seattle  Lighting  Co.  v.   Seattle    (54 

Wash.  9;   102  Pac.  767),  471. 
Seavey   v.   Drake     (62    N.    H.    393), 

344. 
Second    National     Bank    v.     0.     E. 

Merritt    Co.     (69    Wis.    501;     34 

N.   W.   514),  639. 
Seeger   v.   Pcttit    (77   Pa.   St.  437), 

638. 
Seep  V.   Spade    (179    Fed.   77),    127, 

145,   317,    322. 
Seiders    v.    Lewis,    etc.,   Co.     (7    Pa. 

Dist.   Rep.   278;    21    Pac.    Co.   Ct. 

Rep.  80),  376c,  645. 
Selby  V.  Crystal,  etc.,  Co.  (4  DeG. 
F.  and  J.  246;  31  L.  J.  Ch.  595; 
8  Jur.  (N.  S.)  830;  6  L.  T. 
(X.  S.)  790;  10  W.  R.  636), 
537. 


Selby  V.   Crystal,  etc..   Gas  Co.    (30 

Beav.     606;     11     Gas    J.     398;     6 

L.  T.   R.  790),  400c. 

Selignian  v.  Victor  Talking  ^Fachine 

Co.    (71    N.    J.    Eq.    697;    03    Atl. 

1093),  676. 
Seltzer  v.   Ameshury,  etc.,   Co.    (188 

Mass.  242;  74  N.  E.  339),  545. 
Seton  V.  Slade  (7  Ves.  274),  343. 
Settambre  v.  Putnan    (30  Cal.  490), 

364c,    364d. 
Settenibree  v.  Putnam  (42  Cal.  490), 

372,   904. 
Seward    v.    Liberty    (142    Ind.    551; 

42   X.  E.  39),  458,  473,  475. 
Sewell     V.     Angerstein     (18     L.     T. 

(X.  S.)    300),   634. 
Sewickley   v.    Ohio   Valley    Gas    Co. 

(6  Pa.  Co.  Ct.  Rep.  66;   reversed, 

1    Monaghan,    97),    523. 
Sewickley    School    District    v.    Ohio 

Valley  Gas  Co.    (154  Pa.  St.  539; 

25   Atl.   868),   428a,   612. 
Seymour    Water     Co.     v.     Seymour 

(163    Ind.    120;    70    N.    E.    514), 

578,   586. 
Shannon     v.     Mastin      (108     S.     W. 

(Mo.  App.)    1116),   267. 
Shannon     v.    Mastin     (114     S.     W. 

(Mo.   App.)    1127),   284d. 
Shardlow  v.   Cotterell    (20  Ch.  Div. 

90;    51    L.    J.    Ch.   353;    45    L.   T. 

572;    30   W.   R.   143),   342. 
Sharp  V.  Behr    (117  Fed.  864),  130, 

148,    150. 
Sharp    Y.    South    Omaha     (53    Xeb. 

700;  74  X.  W.  76),  513,  522,  535. 
Shattuck  V.  Lovejoy    (8  Gray,  204), 

284c. 
Shaw  V.    Jones    (6   Ohio   Dee.    453; 

4   Ohio   X.   P.    372),   571. 
Shaw  V.  Lenke    (1   Daly,  487),  632. 
Shaw  V.  McGregory  (105  Mass.  96), 

369. 
Shaw    V.    Partridge    (17    Vt.    626), 

216,  284a. 


TABLE   OF    CASES. 


CXXl 


(References  are  to  pages.) 


Shaw  V.  Wallace   (25  N".  J.  L.  453), 

79,  323. 
Sheafe   v.    People    (87    111.    189;    29 

Am.    Rep.    49),   512. 
Sheaffer   v.   Shaeffer    (37    Ta.   525), 

226. 
Sheehy   v.   ^Muskeny    (1    H.   L.  Cas. 

576;  7  CI.  and  F.  1;  Macl.  and  R. 

493;    Lei.    and    Gt.   Plunk,    568), 

388,   392b. 
Sheets    v.    Allen    (89    Pa.    St.    47), 

79. 
Sheffield  v.   Sheffield   Electric   Light 

Co.   [1898]    (I   Ch.  2(13:   77  L.  T. 

616;    67  L.   J.  Ch.    (N.   S.)    113), 

568,  568a. 
Sheffield  United  Gas  Co.  v.  Sheffield 

Consumers    Co.    ( 2    Gas    J.    SCO ) , 

490d. 
Sheffield  United  Gas  Co.  v.  Sheffield 

(4  B.  and  S.  135),  649. 
Sheffield    W.    W.    Co.    v.    Bingham 

(L.  R.  25  Ch.  Div.  443;    48  L.  T. 

604;   52  L.  J.  Ch.  624;   36  Gas  J. 

769),   618,   619. 
Sheffield   W.   W-.    Co.   v.    Brooks    (8 

Q.   B.   Div.   632;    51    L.   J.   M.   C. 

97;   30  W.  R.  889;  46  J.  P.  548), 

588b,   602. 
Sheffield     W.     W.     Co.     v.     Carter 

(L.    R.    8    Q.    B.    Div.    632;    51 

L.   J.   M.   C.    97;    30   W.    R.    889; 

46   J.   P.   548),   618,   619. 
Sheffield    W.    W.   Co.    v.    Wilkinson 

(4  C.   P.    Div.   410),   588b,   607. 
Shelbvvalle     Water    Co.     v.     People 

(140   111.   545;    30   N.   E.  678;    16 

L.  R.  A.  505),  833. 
Shellar  v.  Shivers   (171  Pa.  St.  509; 

33  Atl.  95),   192a,   195,  262c,  629, 

643,  855. 
Shelley    v.    West    Chester    Lighting 

Co.     (119    N.    Y.    App.    Div.    61; 

103  N.  Y.  Supp.  951),  588a,  609. 


Shelley    v.    West    Chester    Lighting 

Co.  (112  N.  Y.  Supp.  (N.  Y.  App. 

Div.)    1146;    reversing   55    N.    Y. 

:Misc.   Rep.    105;    105   X.  Y.  Supp. 

133),  579. 
Shelley    v.    West    Chester    Lighting 

■Co.    (128    N.    Y.    App.    Div.    890; 

112  N.  Y.   Supp.    1146;   reversing 

55   N.    Y.   Misc.    105;    105   N.   Y. 

Supp.    133),   579,   5881>. 
Shelley    v.    West    Chester    Lighting 

Co.     (139    N.    Y.    App.    Div.    690; 

124  N.  Y.   Supp.  484),  588b. 
Shenandoah   Land,  etc.,   Co.  v.   Hise 

(92   W.   Va.   238;    28   S.    E.   Rep. 

303),  65,   192. 
Shendell    v.    Rogan     (94    Tex.    585; 

63  S.  W.   1001),  360. 
Shenk  v.  Stahl    (35  Ind.   App.  493; 

74  X.  E.  538),  70,  129,  198,  202a, 

901. 
Shepherd  v.  McCalmont  Oil  Co.   (38 

Hun,   37),   44,   66,  234. 
Shepherd  v.  Milwaukee  Gaslight  Co. 

(6  Wis.  539;    70  Am.  Dec.  479), 

578,  582,  586,  593,  594,  595,  596, 

597,   598,   602a,    621. 
Shepard  v.  Milwaukee  Gas  Co.    (11 

Wis.    234),    578,    594,    595,    597, 

598. 
Shepard  v.  Milwaukee  Gaslight   Co. 

(15  Wis.  318;    82  Am.  Doc.  679), 

580,  589,  590. 
Sherman  v.  Fall  River,  etc.,  Co.   (5 

Allen,  212),  651,  674,  682,  696. 
Sherman  v.   Fall   River   Iron  Works 

(2  Allen,  524;   79  Am.  Dec.  799), 

672,  673,   737,  754. 
Sherman   Gas   &   El.   Co.    v.   Belden 

(123  S.  W.   (Tex.)    119;  reversing 

115   S.  W.  897),  667,  676. 
Shertzer   v.    Myers    (82    Kan.    275; 

108  Pac.  105,  275),   151,  291. 
Shettler    v.     Hartman     ( 1     Pennyp. 

(Pa.)    Leg.  J.    (X.  S.)   217),  28a. 


CXXll 


TABLE   OP    CASES. 


(References  are  to  pages.) 


Shewalter  v.  Hamilton  Oil   Co.    (28 

Irid.    App.    312;    62    N.    E.    708), 

169,  290,  294a. 
Sheward  v.  Citizens  Water  Co.    (90 

Cal.   635;    27    Pac.   439),   604. 
Shiras  v.   Ewing    (48   Kan.    170;   29 

Pac.    320),    593,   595,    007. 
Shireff    v.    Wilks     (1     East,    848), 

372. 
Shirey  v.   Consumers  Gas   Co.    (215 

Pa.   399;    64  Atl.   541),    686,   687, 

768. 
Shoemaker's    Appeal     (106    Pa.    St. 

392),  326,  326c,  328. 
Shoenberger    v.   -Equitable    Gas    Co. 

(22    Pittsb.    L.    J.    (X.   S.)    347), 

591. 
Shoenberger  v.  Lyon    (7   W.  and  S. 

184),   354. 
Shogland  v.   St.   Paul   Gaslight  Co. 

(93  N.  W.    (Minn.)    668),  759. 
Sholts    Iron    Co.    v.    Inglis     (L.    R. 

7  App.  Cas.  518),   662. 
Short  V.   Miller    (120   Pa.    St.   470; 

14  Atl.  374),  376a,  383. 
Shrader    v.    T.    W.    Phillips    Gas    & 

Oil    Co.    (44   Pa.    Super.    Ct.    55), 

309. 
Shuter    v.    Philadelphia     (3    Phila. 

228;    15  Leg.  Int.  333),  651,   722. 
Sicardi    v.    Keystone    Oil    Co.    ( 149 

Pa.    St.    139;    24    Atl.    161,    163), 

380,   383. 
Sickles    V.    Manhattan    Gaslight    Co. 
(64    How.    Pr.    33;    61)    How.    Pr. 

304,  314),  609,  612,   622,   623. 
Siebrecht  v.  East  River  Gas  Co.  (21 

N.  Y.   App.    Div.    110;    47   N.    Y. 

Supp.    262),    699.    707,    708,    712, 

715,   716,   717,   723,  730a,   762. 
Silkman  v.  Yonkers  Water  Commis- 
sioners   (152  N.  Y.  327;   46  N.  E. 

612;    37  L.  R.  A.  827),  601. 
Seller   v.   Globe    Window   Glass    Co. 
(21  Ohio  C.  C.  284:   10  Ohio  Cir. 
Dec.   784),   232d,   202c,  642. 


Sillingford  v.  Good   (95  Pa.  St.  25), 

315. 
Silsby    V.    Trotler     (29    N.    J.     Eq. 

228),  127. 
Silva    V.    Newport     (119    Ky.    587; 

84    S.    W.    741;    27    Ky.    L.    Rep. 

212),    400. 
Silva    V.    Rankin     (80    Ga.    79;     4 

S.    E.    750),   95. 
Silver    v.    Bush     (213    Pa.    195;    62 

AtL  832),  885. 
Simon    v.    Northwestern    Ohio,    etc., 

Co.   (12  Ohio  Cir.  Ct.  170;  5  Ohio 

C.  D.  456),   136,  208. 
Simons   v.   Van   Ingen    (86   Pa.   St. 

330),   206,  209. 
Simmons    v.     Buckej'e    Supply    Co. 

(21    Ohio    Cir.   Ct.   455;    11    Ohio 

C.   D.   090),   301,   318d. 
Simmons    v.    Vulcan    Oil,    etc.,    Co. 

(01   Pa.    St.    202),   340c,   341. 
Simpson  v.  Pittsburgh,  etc.,  Co.   (28 

Ind.  App.  343;  02  N.  E.  753),  65, 

98,   114,  310a,  855. 
Sims  V.  Brittain    (4  B.  and  A.  375; 

2  N.   and  M.  594),  369. 
Sims  V.  Mutual,  etc.,  Ins.  Co.    ( 101 

Wis.  586;   77  N.  W.  908),  828. 
Sipple  V.  Laclede  Gaslight  Co.   ( 125 

Mo.  81;   102  S.  W.  60S),  681,  687, 

702,   712,   714a,   714b,   760. 
Sisson  V.  Hibbard    (75  X.  Y.   542), 

031. 
Skaneateles    W.    W.    Co.    v.    Skane- 

ateles    (161   N.  Y.   154;   55  N.   E. 

562;     affirming    33    N.    Y.    App. 

Div.  642;    54  N.  Y.  Supp.   1115), 

491,   498a,   502. 
Skillman  v.  Lackman   (23  Cal.  199), 

304a,   369. 
Skogland   v.    St.   Paul    Gaslight   Co. 

(93  N.  W.    (Minn.)    668),  724. 
Skym  V.  Weske,   etc.,   Co.    (47   Pac. 

(Cal.)    110),   376. 
Slater   v.   Haas    (15    Colo.    574;    25 

Pac.    1089),   300. 


TABLE   OF    CASES. 


CXXlll 


(References  are  to  pages.) 


Slee    V.    Manhattan    Co.     ( 1    Paige 

Ch.    48),    384a. 
Sloan  V.   Furnace  Co.    (29   Ohio  St. 

5G8),   354. 
Small    V.    Atwood     (6    CI.    and    F. 

232;    2  L.  J.  Exch.  1;    1   Youngc, 

407),  348, 
Smallhouse    v.    Kentucky,    etc.,    Co. 

(2  Mont.   443),   377. 
Smiley    v.    Citizens,    etc.,    Ins.    Co. 

(14   W.   Va.    33),   805. 
Smiley    v.    McLauthlin    (138    Mass. 

3(53),  316. 
Smiley   v.    Western,    etc.,    Co.     (138 

Pa.   St.    576;    27    W.   X.    C.   230; 

21    Atl.    1),  202a,  307. 
Smiley    v.    \Yestern,    etc.,    Gas    Co. 

(27  W.  N.  C.  238),  228a. 
Smit   V.    South    Penn.    Oil    Co.     (59 

W.  Va.  204;    53   S.   E.   152),   120. 
Smith's    Appeal     (09    Pa.    St.   474), 

110. 
Smith,    In   re    (L.    R.    10   Ch.    App. 

79;    23    W.   R.   297),   318. 
Smith,    In    re     (143    Cal.    368;     77 

Pac.   180),   676. 
Smith  V.  Avon-on-the-Sea   (68  N.  J. 

L.  243;  52  Atl.  226),  484,  495. 
Smith  V.  Boston  Gaslight  Co.    (129 

Mass.   318),   687,   698,    703,   714a, 

715,   723,    731,    752,    759. 
Smith    V.    lirinker     (17    Mo.    148), 

278. 
Smith  V.  Capital  Gas  Co.   (132  Cal. 

209;  24  Pac.  258),  579,  587,  607, 

627. 
Smith     V.     Citizens,     etc.,     Co.      (5 

W.  N.   C.  97),   846. 
Smith  V.   Commonwealth    ( 14  Bush, 

31;    29    Am.   Rep.   402),   633. 
Smith   V.   Cooley    (65   Cal.   46),   54, 

334,   364c,  365. 
Smith  V.   Furbish    (68   X.   H.    123; 

44   Atl.    398;    47   L.  R.   A.   226), 

214b,  870. 


Smith    V.    German    Ins.    Co.     (107 

Mich.    270;     65    X.    W.    236;    30 

L.  R.   A.   368),   811,   821. 
Smith    V.    Goldsboro     (121     X.     C. 

350;    28   8.   E.   479),  549. 
Smith    V.    Harrison     (42     Ohio     St. 

180),   274b. 
Smith    V.    Hickman    ( 14    Pa.    Super. 

Ct.  46),   198. 
Smith  V.   Holloway    (124   Ind.   329; 

'^4-  X.  E.  886),  356c. 
Smith  V.  Jeyes    (4  Beav.  503),  363, 

364. 
Smith   V.   Jones    (21    Utah,   270;    GO 

Pac.   1104),   93. 
Smith   V.    Lincoln    (170    Mass.    488; 

49    X.   E.   640),    514. 
Smith  V.  Linden  Oil   Co.    (71   S.  E. 

(W.  Va.)    167),  913. 
Smith  V.  London  Gas  Co.   (7  Grant. 

(U.  C.)    112),  612. 
Smith  V.  Metropolitan  Gaslight  Co. 

(12   IIow.  Pr.   187),  517. 
Smith  V.   Miller    (49   X.  J.   L.   521; 

13  Atl.  39),  228. 
Smith  V.  Munhall    (139  Pa.  St.  253; 

21  Atl.  735),  213,  276,  302c. 
Smith  V.  Pittsburgh,  C,  C.  &  St.  L. 

R.  Cy.  Co.    (210  Pa.  345,  349;   59 

Atl.   1077,   1119),   413. 
Smith  V.  Xashville    (88  Tenn.   464; 

12    S.    W.    131),    562. 
Smith    V.    Root     (66    W.    Va.    633; 

66   S.  E.   Rep.    1005),  52,   72,   74, 

85,  127,  145,  202a,  202b,  210,  234, 

237,  240,  240a,  258,  347,  860,  803, 

873,  875,  881,  913,  914. 
Smith   V.   South  Penn.   Oil   Co.    (59 

W.  Va.  204;   53  S.  E.   152),  201, 

229,  256,  287,  298,  310c,  861,  889. 
Smith    V.    Pawtucket    Gas    Co.    (24 

R.    1.    292;    52    Atl.    1078),    708, 

730. 
Smith  V.  Scranton  Gas  &  Water  Co. 

(5  Lack.  Leg.   X.  235),  607,  611. 


CXXIV 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Smith  V.   Westerly    (19   R.    I.   437; 

35   Atl.    526),   490b,   491,    499. 
Smity  V.   South   Penn.  Oil   Co.    (42 

W.  Va.   614;   53   S.  E.   152),   166, 

287. 
Smyth  V.  Ames    (169  U.  S.  466;   18 

Sup.    Ct.    418;     42    L.    Ed.    819), 

436. 
Smyth  V.   Sturges    (108  N.   Y.  495; 

15   X.  E.   544;    affirming  30   Hun, 

89),    635,    636. 
Snell's  Case   (L.  R.  5  Ch.  App.  22), 

373. 
Snoddy  v.  Bolen    (122   Mo.  479;    24 

S.    W.    142;    25    S.    W.    932),    95, 

354,    356d. 
Snodgrass   v.    South    Penn.    Oil    Co. 

(47   W.  Va.   509;    35   S.   E.  820), 

108,  140,  229,  231,  302d,  305,  861, 

889. 
Snow    V.    Nelson     (113    Fed.    353), 

108. 
Snyder    v.    Burnham    (77    Mo.    52), 

364. 
Snyder   v.   Dwelling  House   Ins.    Co. 

(59   N.  J.  L.  544;    37   Atl.   1022; 

reversing  34   Atl.  931),  801,  811. 
Snyder  v.  Philadelphia    (54  W.  Va. 

149;    46    S.   E.  366;    102  Am.   St. 

941;    63  L.  R,   A.  896),  789,  884. 
Socala  V.  Chees,  Carley  Co.   (39  La. 

Ann.   344;    1    So.   824),   779. 
Sofiled   V.    Sommers    (9    Beav.    526; 

Fed.   Gas.   No.    13,    157),    415. 
Somerset    v.    Smith     (20    Ky.    Law 

Rep.  1488;   49  S.  W.  456),  461. 
Soule    V.     San    Francisco     ( 54     Cal. 

241),  550. 
South  V.   Rome    (19   Ga.   89),   356o. 
South    African    Territories    v.    Wal- 

lington    [1898]     (A.    C.    309;    67 

L.   J.    Q.   B.   470;    78    L.    T.   426; 

46   W.   R.   545),   344. 
South  Bend  v.  Reynolds    (155  Ind. 

74;   57  X.  E.  706),  458d. 


South    Heton    Coal    Co.    v.    Haswell 

Coal    Co.    [1898]     (1    Ch.   405;    67 

L.  J.  Ch.  238;    78  L.  T.  306;    46 

W.  R.   355),  345. 
Southern    Hluminating    Co.,    In    re 

(5  Pa.  Dist.  Rep.  781),  468a,  487, 

527. 
Southern    Oil    Co.    v.    Wilson     (22 

Tex.    Civ.    App.    534;    56    S.    W. 

429),  214,  260. 
South   Penn.   Oil   Co.   v.   Calf   Creek 

Oil    &    Gas    Co.     (140     F.    507), 

115. 
South   Penn.   Oil    Co.  v.   Edgell    (48 

W.  Va.   348;    37    S.   E.  596),  262, 

262a,  263,  893,  895,  896,  902,  913. 
South  Penn.  Oil  Co.  v.  Mclntire  (44 

W.  Va.  296;   28  S.  E.  Rep,  922), 

33,    38,    53,    77,    318a,    330,    876, 

877,  896. 
South.  Penn.  Oil  Co.  v.  Miller   (175 

Fed.   729;   99  C.   C.  A.  305),  915. 
South   Penn.    Oil    Co.  v.   Stone    (57 

S.    W.     (Tenn.    Ch.    App.)     374), 

102,  235. 
South   Penn.    Oil    Co.   v.    Stone    (57 

S.   E.    (W.  Va.)    374),    124. 
South    Side    Gas    Co.    v.    Southern, 

etc.,    Co.     (18    Pa.    Co.    Ct.    Rep. 

529),   487,  528. 
Southwark,  etc.,  Co.  v.  Wandsworth 

[189^8]    (2   Ch.   603;    67   L.  J.  Ch. 

057;  79  L.  T.  132;  47  W.  R.  107; 

62   J.   P.   756),   542. 
Southwestern,     etc.,    Co.    v.    Joplin 
(113    Fed,    817),    425,    462,    469, 

498b,   499,    538. 
Southwestern  Oil  Co.  v.  Texas   (217 

U.   S.    114;    30   Sup.    Ct.    496;    54 

L.  Ed.  — ;  affirming  100  Tex.  647; 

103   S.   W.   489),   840b. 
Sparks   v.   Pittsburgh   Co.    (159   Pa. 

St.    295;    28   Atl.    152),    175. 
Spaulding  v.   Hallenbeck    (35  N.  Y. 

204),  122. 
Spenser    v,    Austin     (38    Vt.    258), 

289. 


TABLE   OF    CASES. 


CXXV 


(References  are  to  pages.) 


Sperry   v.    Insurance    Co.     (22    Fed. 

516),  796. 
Sperry  v.  Springfield,  etc.,  Ins.  Co. 
(20  Fed.  234;   15  Ins.  L.  Jr.  270), 

800,    811. 
Spiegler   v.    Chicago    (21G    111.    114; 

74  N.  E.  718),  423. 
Spilman  v.  Parkersburg   (35  W.  Va. 

605;   14  S.  E.  279),  45Sd,  568. 
Spratt   V.    South    Metropolitan    Gas 

Co.    (7   Gas   J.   663),   577. 
Spring   Brook,    etc.,    Co.    v.    Schadt 

Co.    (3  Lack.  L.  News,   170),  83S. 
Spring  Creek,  etc..  District  v.  Elgin, 

etc.,  Co.    (249   111.   260;    94  N.  E. 

529),   834. 
Spring  Valley  Water  Works  Co.  v. 

Barber    (99  Cal.  36;  33  Pac.  735; 

21  L.  R.  A.  416),  838. 
Spring    Valley    W.    W.    v.    Bartlett 

(16    Fed.   615),   455. 
Spring    Valley    W.    W.    v.    Bartlett 

(63  Cal.  245),  434. 
Spring  Valley  W.  W.  v.  Bryant   (52 

Cal.  132),  434. 
Spring  Valley  W.  W.  v.  San   Fran- 
cisco   (61    Cal.   3),   455. 
Spring  Valley  W.  W.  v.   San  Fran- 
cisco   (82   Cal.  280;   22   Pac.   910, 

1046;    6    L.    R.    A.    756;     16    Am. 

St.   116),  430,  433,  434,  618,  627. 
Spring   Valley    W.   W.    Co.    v.    San 

Francisco     (110     U.     S.     353;     4 

Sup.  Ct.  48),  618. 
Spring   Valley    W.   W.   v.    Schottler 

(110  U.   S.   347;    4   Sup.  Ct.  48), 

452,  455. 
Springer   v.    Citizens    Xat.   Gas    Co. 

(145   Pa.  430;    22  Atl.  986),   132, 

162,   228a,    228d,    255,    203,    310a, 

858. 
Springfield  v.  Edwards  (84  111.  626), 

459. 
Springfield    Foundry,     etc.,     Co.     v. 

Cole    (130  :\Io.   1;    31    S.  W.  922; 

reversing    57    Mo.    App,    11),    66, 

80,   377,   640. 


Springfield   Water  Co.  v.  Suburban 

Gas    Co.     (8    Del.    Co.    Rep.    130; 

14  York   Leg.   Rec.   135),   532. 
Springfield,   etc.,    Ins.    Co.   v.    \\'ade 

(95    Te.\.    598;     68    S.    W.    977), 

808. 
St.  Anthony   Falls  Water  Power  Co. 

V   Board   (168  U.  S.  349;   18  Sup, 

Ct.   157),  492. 
St.   Helens   Smelting  Co.  v.   Tipping 

(11    H.    L.    Cas.    642;    35    L.    J. 

Q.    B.   66;    11    Jur.    (N.   S.)    785; 

12  L.  T.    (X.  S.)    776;    13  W.  R. 

1083),  663. 
St.  John  V.  American,  etc.,  Ins.  Co. 

(11    N.    Y.    516;     1     Duer,    371; 

3  Benn.  Fire  Ins.  Cas.  760),  804. 

804. 
St.    John    Gas    Co.    v.    Clarke     (17 

N.  B.  307),  622. 
St.  Joseph  Hydraulic  Co.  v.  Wilson 

(133    Ind.    465;    33    N.    E.    113), 

608,  610. 
St.    Louis    V.    Arnot     (94    Mo.    275; 

7    S.   W.    15),   432. 
St.   Louis    V.    Gaslight    Co.    (5   Mo. 

App.    484),    483. 
St.   Louis  V.  Jackson    (25   Mo.   37), 

490b. 
St.   Louis  V.  St.  Louis  Gaslight  Co. 

( 70  Mo.  69 ;  reversing  5  Mo.  App. 

484),   488,  536a,   568a,  578. 
St.    Louis    V.    Western    U.    Tel.    Co. 

(148   U.   S.   92),   456. 
St.  Louis  Brewing  Assn.  v.  St.  Louis 

(37  S.  W.   (Mo.)   525),  580a,  604. 
St.    Louis    &    S.    F.    R.    Co.    v.    Gill 

(156    U.   S.   656;    15    S.    Ct.   484; 

39  L.  Ed.  569),  444. 
St.  Louis  Gaslight  Co.  v.  St.  Louis 

(11    Mo.    App.    55;    84   Mo.    202), 

625. 
St.  Louis  Gaslight  Co.  v.  St.  Louis 

(86    Mo.    495;    afiirming    11    Mo. 

App.  55),   478a,  478c. 
St.  Louis  Gaslight  Co.  v.  St.  Louis, 

etc.,   Co.    (16   Mo.   App.   52),  496. 


CXXVl 


TABLE    OP    CASES. 


(References  are  to  pages.) 


St.  Louis  Gaslight  Co.  v.  St.  Louis 

(46   Mo.    121),    470,   488. 
St.    Louis   V.   Weber    (44    Mo.   547), 

490b. 
St.  Mcarys  Has  Co.  v.  Elk  Co.    (191 

Pa.  458;    43  Atl.  321),  838. 
St.     Marys     Woolen     Mfg.     Co.     v. 

Bradford   Glycerine  Co.    (14  Ohio 

Cir.   Ct.    Rep.   522),    685. 
St.    Paul    Fire    &    Marine    Ins.    Co. 

V.    Penman     (151     Fed.    901;     81 

•C.  C.  A.   151),   801. 
St.   Paul    Gaslight   Co.   v.    St.   Paul 

(91    Minn.    521;    98   X.   W.   868), 

468. 
St.   Paul   Trust   Co.  v.  :Mintzer    (65 

Minn.     124;     07    X.    W.    657;     32 

L.  R.  A.  756),  326d. 
St.  Tammany  W.  W.  v.  Xew  Orleans 

W.  W^    (120  U.  S.  64;    7  Sup.  Ct. 

405),   495,  496,  498b. 
Stage  V.    Boyer    (183    Pa.    St.    &60; 

38  Atl.   1035),   72,  95,  208a,  256, 

901. 
Stahl   V.   Illinois    Oil    Co.    (45    Ind. 

App.   211;    90  X.  E.  632),  65,  66, 

70,   74,   81,    140,    156,   225,   287. 
Stahl   V.  Van   Vleck    (30   Ohio   Cir. 

Ct.  R.   755),  99,   115. 
Stahl   V.   Van   Vleck    (53    Ohio    St. 

136;   41   N.   E.  35;    33  Weekly  L. 

Bull.  335),  98,  114,  115,  153,  154, 

159,  174,  212,  258,  895,  908. 
Standard  Oil   Co.  v.  Commonwealth 

(119    Ky.    75;     82    S.    W.     1020, 

1187;    affirming    26    Ky.    L.    927, 

985;   82  S.  W.  970),  420,  840b. 
Standard   Oil   Co.  v.   Danville    (199 

111.  50;    64  X.  E.   1110;   affirming 

101   III.   App.   65),   421. 
Standard  Oil  Co.  v.  Fredericksburg 

(105     Va.     82;     52     S.    E.     817), 

840b. 
Standard  Oil  Co.  v.  Lane    (75  Wis. 

630;    44    X.   W.    644;    7    L.  R.  A. 

191),    375. 


Standard    Oil    Co.   v.    Snowden    (55 

Ohio   St.   332;    45   X.   E.   320;    36 

Weekly  L.  Bull.  306;   37  Weekly 

L.  Bull.  3),  376c,  380. 
Standard    Oil    Co.    v.    Tierney     (92 

Ky.     367;     17    S.    W.     1025;     14 

L.    R.    A.    677;     13    Ky.    L.    Rep. 

026),  409. 
Standard    Oil    Co.    v.    Tierney     (95 

Ky.    633;    96   Ky.   89;    27    S.    W. 

983),  409. 
Standard  Oil  Co.  v.  Wakefield    ( 102 

Va.   824;    47    S.    E.   830),    776. 
Stanislaus    County   v.    San   Joaquin 

Co.    (192  U.  S.  201;   24  Sup.  Ct. 

241;   48  L.  Ed.  406),  436. 
Stanley  v.  Western,  etc.,  Co.    (L.  R. 

3  Exch.  71;  37  L.  J.  Exch.  73; 
17  L.  T.  (X.  S.)  513;  16  W.  R. 
369),    806. 

Staples    V.    Dickson     (88    Me.    362; 

34  Atl.   168),  549. 
Starn  v.  Huflman    (02  W.  Va.  422; 

59  S.  E.   179),  852,  878,  913. 
State    V.    Berdetta     (73    Tnd.    185; 

38    Am.    Rep.    117;    20    Amer.   L. 

Reg.  342),  356d,  512,  513,  514. 
State  V.    Berry    (52   X.   J.   L.    308; 

19  Atl.  665),  649. 
State    V.    Board     (105    Minn.    472; 

117   X.   W.   827),  580,   580b,   601, 

602a,  607,  610,  613. 
State  V.  Boylan    (79  Conn.  463;    65 

Atl.  595),   422. 
State  V.  Burt   (64  X.  C.  619),  43. 
State     V.      Cincinnati     Gaslight     & 

Coke  Co.    (18  Ohio  St.  262),  430, 

433,  446d,  490b,  499,  507,  540. 
State  V.  Butte  City  Water  Co.    (18 

Mont.      199;     44     Pac.     966;     32 

L.   R.    A.    697;    56   Am.    St.    574; 

4  Am.  and  Eng.  Corp.  Cas. 
(X.    S.)     238),    578,    580a,    594, 

595. 
State  V.  Cleveland,  etc.,  Co.   (3  Ohio 
Cir.  Ct,  251),  452. 


TABLE   OF    CASES. 


CXXVll 


(References  are  to  pages.) 


State    V.    Columbus,    etc.,    Co.     ( 34 

Ohio   St.   579;    32    Am.   St.   390), 

428d,  452,  540,  618,   625,  626. 
State  V.   Connersville  Kat.   Gas   Co. 

(163    Ind.    563;    71    X.    E.    483), 

579,   612,   616. 
State   V.   Consolidated  Gas   Co.    (85 

Md.  637;  37  Atl.  263),  690b,  698, 

705,  70S,  712,   759. 
State   V.   Consumers   Gas   Trust   Co. 

(157  Ind.  345;   61   N.   E.  674;   55 

L.  R.  A.  245),  578,  582,  584,  586, 

587. 
State    V.    Coosaw    Mining    Co.     (47 

Fed.   225),  95. 
State   V.    Corrigan,   etc.,   St.   R.   Co. 

(85  Mo.  263;    55  Am.  Rep.  361), 

425. 
State    V.    Duluth     (105    Minn.    572; 

117  N.   W.  827),  436. 
State    V.    Excelsior    Coke    and    Gas 

Co.    (69    Kan.   45;    76   Pac.   447), 

425,    516. 
State   V.    Fangbauer    (14    Ohio    Cir. 

Ct.  Rep.   104;    7   Ohio  Dec.   334), 

836. 
State    V.    Frazier     (28     Ind.     196), 

512. 
State  V.  Goswell    (93  N.  W.   (Wis.) 

542),  604,  619,  627. 
State    V.    Great    Falls     (19     Mont. 

518;   49  Pac.  15),  479,  502,  568a. 
State  V.  Hamilton   ( 47  Ohio  St.  52 ; 

23  X.   E.    935;    29   Am.   and  Eng. 

•Corp.   Cas.   208),   498,    559. 
State  V.  Harrison   (46  N.  J.  L.  79), 

461. 
State   V.   Hayes    (78   Mo.   307),   56. 
State  V.  Holton  (126  N.  W.   (Iowa) 

1125),  424. 
State  V.  Indiana,  etc.,  Co.  ( 120  Ind. 

575;     22     N.     E.     Rep.     778;     6 

L.  R.   A.   579;    29   Am.   and   Eng. 

Corp.     Cas.     237;      2     Inter.     St. 

Com.  Rep.  758),  44,  55,  394,  395, 

396,   400a,  418b, 
State  V.   Ironton  Gas   Co.    (37  Ohio 

St.  45),  428c,  433,  460, 


State    V.    Janesville,    etc.,    Co.     (92 

Wis.    496;    66    X.    W.    512),    540, 

541. 
State  V.   Jersey  City    (45   X.   J.   L. 

246;    2  Am.  and   Eng.  Corp.   Cas. 

233),  618. 
State  V.  Joplin  W.  W.  (52  Mo.  App. 

312),  627. 
State  V.  Kansas,  etc.,  Co.   (71   Kan. 

508;    SO  Pac.   962),  551. 
State  V.  Kearney    (49  Xeb.  337;   70 

X.    W.     255;     49    Xeb.    325;     68 

X.  W.  533),   477. 
State  V.  Laclede  Gaslight  Co.    (102 

Mo.    472;    22    Am.    St.    Rep.   789; 

34  Am.  and  Eng.   Corp.   Cas.  49; 

14    S.    W.    974;     15    S.    W.    383), 

425,    428,    429,    468a,    508b,    527, 

536,  538. 
State   V.  Low    (46   W.  Va.   451;    33 

S.  E.  271),  71,   840,  886. 
State  V.  Mathis   (21  Ind.  277),  512. 
State    V.    McCauley     (15    Cal.    429), 

458d. 
State   V.   McGough    (118    Ala.    159; 

24    So.    395),    421. 
State    V.    Milwaukee    Gaslight    Co. 
(29   Wis.   454;    9   Am.   598),   458, 

482,  541. 
State  V.   Moore    (12   Cal.    56),   839. 
State   V.    Moore    (27    Ind.   App.   83; 

60  X.  E.  955),  418d,  845. 
State    V.    Murphy    (170    U.    S.   78; 
18  Sup.   Ct.  Rep.   505),  528,  532, 

534. 
State  V.   Xew   Orleans,  etc.,   Co.    (2 

(Rob.    (La.)    529),   540. 
State  V.  Xew   Orleans,  etc  ,  Co.   ( 32 

So.     (La.)     179),    534,    586,    593, 

596,   616. 
State   V.   Oak   Harbor   Gas    Co,    (18 

Ohio  Cir.  Ct.  751;  4  Ohio  Cir.  Ct. 

Dec.    158;    afhrmed,    53    Oliio    St. 

347;  41  X.  E.  584),  4lSd. 


cxx\aii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


State  V.    Oak   Harbor   Gas   Co.    (53 
Ohio  St.  347;    41   N.  E.   584;   re- 
versing 34  Weekly  L.  Bull.   221; 
18     Ohio     C.     Ct.     Rep.     751;     1 
Toledo    Leg.    News.    474;    4    Ohio 
C.  C.   158),   57. 
State    V.    Ohio    Oil    Company     (150 
Ind.     21;      49     N.     E.     809;      47 
L.    R.    A.    627),    33,    35,    40,    57, 
418d,    419,    678. 
State  V.  Parker   (61  Tex.  265),  356. 
State   V.    Payne    (129   Mo.   468;    31 
S.    W.    797;    33    L.    R.    A.    576), 
528,  536. 
State    V.    Portland    Natural    Gas    & 
Oil  Co.    (153  Ind.  483;    53  N.  E. 
1089;    53   L.   R.   A.   413;    74   Am. 
St.  314),  505. 
State   V.    Qua  vie    (71    Pac.    (Utah) 

1060),   458d. 
State    V.    Redding     (84    Kan.    654; 

114  Pac.   1094),  430. 
State    V.    Rodman     (58    Minn.    393; 

59  N.  W.  1098),  39. 
State   V.    Seattle    Lighting    Co.    (60 
Wash.    81;     110    Pac.    799),    579, 
584,  595,  596,  597. 
State   V.    Sedalia   Gas   Co.    (34   Mo. 

App.   501),   618,  625. 
State   V.    Sedalia    Gaslight    Co.    (34 
Mo.     App.     501;     84     Mo.     202), 
597. 
State    V.    Standard    Oil     Co.     (116 

S.  W.    (Mo.)    902),  — . 
State  V.  Stat^  P>oard    (57   N.   J.  L. 
516;    31    All.   220;    27    L.    R.    A. 
684),  637. 
State  V.   St.  Louis    (145   Mo.   551), 

46  S.  W.  981),  490b,  513,  534. 
State  V.   Toledo    (48   Ohio   St.    112; 
26  N.  E.   1061;    11  L.  R.  A.  729), 
400,  560. 
State   V.    Weatherby    (45    Mo.    17), 

519. 
State  V.  Wellman    (34  Minn.   221), 
844. 


State    V.    Wilkinson     (2    Vt.    480), 

512. 
State  V.  Wilson   (42  Me.  9),  353. 
State  National  Bank  v.  Butler   ( 149 

111.    575;     30    N.    E.    1000),    363, 

364. 
Stearns    v.    Harris    (8    Allen,   597), 

244. 
Steel  V.  Peoples  Oil  &  Gas  Co.   (147 

111.   App.   133),   219,   263,  302b. 
Steelsmith  v.  Aiken    ( 14  Pa.   Super. 

Ct.    226),   57,   418d,    678. 
Steelsmith    v.    Fisher    Oil    Co.     (47 

W.   Va.    391;    35    S.    E.    15),    153, 

915. 
Steelsmith   v.   Gartlan    (45   W.   Va. 

27;    29    S.   E.   978;    44   L.    R.    A. 

107),  71,   108,  112,   118,  119,  130, 

140,  151,  160,  182,  206,  208a,  211, 

212,   233,  287,  2^9,  852,  860,  863, 

874,  875,  878,  881,  895,  913,  914. 
Steger    v.    Arctic    Refrigerator    Co. 

(89    Tcnn.   453;    14    S.    W.    1087; 

11   L.  R.  A.  580),   382. 
Stein    V.    Bienville     (34    Fed.    145; 

affirmed,    141    U.    S.    67;    11    Sup. 

Ct.    892),   468b,   490d. 
Steinau    v.    Cincinnati    Gaslight    & 

Coke    Co.    (48    Ohio    St.    324;    27 

JST,  E.  545;   reversing  2  Ohio  Cir. 

Ct.    Rep.   286),    616. 
Steinback  v.  Lafayette  Ins.  Co.    (54 

N.   Y.   90),  811. 
Steinbach    v.    Relief    Ins.    Co.     (77 

N.    Y.    498;     affirmed,     13     Wall. 

183),  811. 
Steiner  v.  Marks    (172  Pa.  400;   33 

Atl.  695;    38   Atl.  695),   190.   237, 

238,   240a,   257,  872,   890,  899. 
Sterling's  Appeal    (111   Pa.   St.  35; 

2    Atl.    105;     2    Cent.    49),    400b, 

491,   501,   530. 
Sterling's  Appeal    (116  Pa.  St.  35), 

552b. 
Stetson  V.  Kempton   (13  Mass.  272), 
564. 


TABLE   OF    CASES, 


CXXIX 


(References  are  to  pages.) 


Stevens   v.    Guffy    (3   Russ.    171;    6 

L.  J.    (0.   S.)    164),   346. 
Steward    v.     Wolveridgc     (9    Bing. 

CO),   284. 
Stewart    v.    Long    Island    Ry.     Co. 

(102  X.  Y.  601),   274. 
Stewart    v.    Tennant     (o2    W.    Va. 

559;  44  S.  E.  223),  320,  330,  337, 

880,  881,  882. 
Stimmel  v.  Walters    (2  Bush,  282), 

284c. 
Stinson  v.  Hardy    (27  Ore.  584;    41 

Rac.    116),    377. 
Stock    V.    Boston     (149    Mass.    410; 

21  X.   E.  871),  691. 
Stockbridge     Iron     Co.     v.     Hudson 

Iron  Co.    (107  Mass.  290),  127. 
Stockport  W.   W.  Co.  v.   Potter    (7 

H.   and   X.    160;    7   Jur.    (X.   S.) 

880;    31   L.  J.  Exch.  9),  653. 
Stockton    Gas    &    El.    Co.    v.    San 

Joaquin    County     (148    Cal.    313; 

83   Pac.   54),   522,   834b. 
Stockton  V.  Stockton   (40  Ind.  225; 

Wood  L.  and  T.  Sec.  492),  217. 
Stoddard    v.    Emery     (128    Pa.    St. 

436;    24    W.    X.    C.    566;    78    Atl. 

339),    131,    140,    158,   273. 
Stone    V.    Boston,    etc.,     Ry.     (171 

Mass.  536;  51  X.  E.  1 ;  41  L.  R.  A. 

794),    414. 
Stone  V.  Marshall  Oil  Co.    (188   Pa. 

602;     41    Atl.    748,     1119),    228b, 

246,  859. 
Stoner    v.    Pennsylvania,    etc.,     Co. 
(40    Pa.    Super.    Ct.    Rep.    599), 

746,   767. 
Stoughton's     Appeal      (88     Pa.     St. 

198),  32,  38,  44,  53,  77,  318,  318a, 

330,  876,  877. 
Stoughton  V.  Leigh    (1  Taunt.  410; 

2   Inst.  299),  320,   326b,  329. 
Stout  V.   Commercial,   etc.,  Ins.   Co. 
(12    Fed.   554;    11    Biss.   309;    11 

Ins.  L.  Jr.   688),  811. 


Stowell    V.    Standard    Oil    Co.    (139 

Mich.    18;     102    X.    W.    227;     11 

Det.   Leg.   X.   725),  424. 
Stravvbridge     v.     Philadelphia      (13 

Phila.   173;    13  Rep.  216;   36  Leg. 

Int.    276;     2    Penny.    419),    515, 

685,   690b,   698,   722. 
Strawbridge      v.      Philadelphia      (2 

Penn.   419),    690b,    722. 
Stryker  v.   Cassidy    (76   X.   Y.  50), 

377. 
Stuart  V.  Adams    (89   Cal.   367;    26 

Pac.  970),  303,  365,  370,  372. 
StuU    V.    Harris    (51    Ark.   294;    11 

S.  W.    104),   318b. 
Sturges   V.    Bridgman    (11    Ch.    Div. 

852;    48   L.  J.   Ch.   785;    41   L.   T. 

219;   28  W.  R.  200),  663. 
Sturtevant's    Appeal     ( 34    Pa.     St. 

149),  384d. 
Suburban  Electric,  etc.,  Co.  v.  East 

Grange     (41    Atl.     (X.    J.)     865), 

484,   536. 
Suburban,   etc.,  Co.  v.  East  Orange 

(44   Atl.    (X.   J.)    628),   518a. 
Suburban    Rapid     Transit    St.    Ry. 

Co.  V.  Monongahela  Xat.  Gas  Co. 

(230  Pa.  109;   79  Atl.  252),  400c. 
Suffern    v.    Butler     (21    X.    J.    Eq. 

410;  affirming  4  C.  E.  Gr.   (X.  J.) 

202),   65,   78,   88. 
Suit    V.    Hockstetter     Oil    Co.     (63 

W.  Va.  317;   61  S.  E.  307),  214a, 

244,  258,  354,  863,  874,  876,   877, 

no,    886,    911,    913,    914. 
Summers    v.    Bennett     (69    W.    Va. 

— ;   69  S.  E.  690),  337,  352,  908. 
Summer    v.    Bromilow     (34    L.    J. 

Q.   B.    130),   647. 
Summerville  v.  Apollo  Gas  Co.   (207 

Pa.   334;    56  Atl.   876),  853,  856, 

857,    891,   894. 
Sunday  Lake   ^Mining  Co.   v.  Wake- 
field    (72    Wis.    204;     39    X.    W. 

136),   261,   262a. 
Sunnyside    Coal    Co.    v.    Reitz     ( 14 

Ind.    App.    478;     43    X.    E.    Rep. 

46),  51. 


cxxx 


TABLE   OP    CASES, 


(References  are   to  pages.) 


Superior  v.  Norton    (63   Fed.   357), 

476. 
Superior    Oil   &    Gas  Co.    v.    Mehlin 

(25  Okl.  809;    108  Pac.  545),  65, 

118. 
Surcombe  v.    Pinniger    (3    DeG.   M. 

and   G.    571;    22   L.  J.   Ch.   419), 

344. 
Susquehanna  Fertilizer  Co.  v.  Spang- 

ler    (86    Md.    562;    39    Atl.    270), 

664. 
Sutherland  v.  Heathcote   (Ch.  504), 

128. 
Svea,  etc.,  Co.  v.  Packham   (92  Md. 

464;    48    Atl.    359;     52    L.    R.    A. 

95),  828. 
Swearingen   v.    Steers     (49    W.   Va. 
,  312;    38   S.   E.  510),   315. 
Swearingen  v.   Watson    ( 35  W.  Va. 

463;    14  S.  E.  249),  897. 
Swift   V.    Occidental   Mining   &    Pe- 
troleum   Co.     (141    Cal.     161;    74 

Pac.  700;  reversing  70  Pac.  470), 

119,   137,  243,  287,  360. 
Swint   V.    McCalmont   Oil   Co.    (184 

Pa.    St.    202;    41    W.   N.    C.    491; 

38    Atl.    1021;    28    Pittsb.    L.    J. 

(X.  S.)   319),   174,  272,  274,  300, 

340b,   908. 
Sydney,  The  (27  Fed.  119, 123),  703. 
Sylvester  v.  McCuaig    (28  Up.  Cas. 

C.  P.  443),  366. 
Syracuse  City  Bank  v.  Tallman   (31 

Barb.   201),  384b. 
Syracuse    Water     Co.    v.     Syracuse 
(116   N.   Y.    167;    22    N.    E.    381; 

5  L.  R.  A.  546),  492,  498. 


Tabbart,  In  re   (6  Ves.  428),  318. 
Tacoma    Gas,    etc.,    Co.    v.    Tacoma 

(14    Wash.    288;     44    Pac.    655), 

446d,   451. 
Tacoma  Hotel  Co.  v.  Tacoma  Light 

&   Water   Co.    (3   Wash.   316;    28 

Pac.  516;    14  L.  R.  A.  66.9),  601, 

607,   610. 


Taff-Vale  Co.  v.  Cardiff  L.  &  C.  Co. 

(71   J.  P.   350;    5  L.  G.   R.  993; 

23  T.  L.  R.  528),  550. 
Talbott    V.    Soutliern    Oil    Co.     (60 

W.  Va.  423;   55  S.  E.   1009),  793, 

911. 
Talbott    V.    Southern    Oil    Co.     (64 

W.  Va.  423;  55  S.  E.  1009),  885. 
Taliaferro    v.    Gay     (78    Ky.    496), 

384b. 
Tampa   v.    Tampa    W.    W.    Co.    (34 

So.     Rep.     (Fla.)      631;     45     Fla. 

600),   446d,  450,  452,  524,  528. 
Tannert   v.    Ins.    Co.    (34   La.   Ann. 

249),  805. 
Tarrytown,     etc.,     Gaslight    Co.     v. 

Bird     (65    Hun,    621;     19    N.    Y. 

Supp.   988),  622. 
Tarrytown  v.   Pocontice  W.   W.   Co. 

(1  N.  Y.   Supp.  394),  518b. 
Taylor    v.    Baldwin     (78    Cal.    517; 

21  Pac.  124),  733. 
Taylor    v.     Castle     (42    Cal.    367), 

364c,  368,  372,  904. 
Taylor  v.  Evans   (1  H.  and  N.  101; 

25  L.   J.   Exch.   269),   310d. 
Taylor    v.    Fried    (161    Pa.    St.    53; 

28    Atl.    993),    340,    364c. 
Taylor    v.    Lambertville    (43    K    J. 

Eq.  107;   10  Atl.  809),  458a,  461, 

464,    476. 
Taylor  v.  Mostyn    (23  Ch.  Div.  583; 

53  L.  J.  Ch.  89),  388,  392a,  392c. 
Taylor  v.  Mostyn  (33Ch.  Div.  226), 

387. 
Taylor   v.    Peerless   Refining   Co.    (7 

Ohio    Dec.    368;     14    Ohio    C.    C. 

315),    54,    194. 
Taylor    v.    Watkins     (62    Ind.    511), 

630. 
Teaff    V.    Hewitt     (1    Ohio    St.    511, 

530),   629. 
Tenant    v.     Goldwin     (1     Salk.    21, 

360;   2  Ld.  Raym.   1089),  674. 
Tennessee    Oil,    etc.,    Co.    v.    Brown 
(131  Fed.  696;   65  C.  C.  A.  524), 

74,   108,    181,    182,    183,  214,   860, 

874,  879. 


TABLE  OP  CASES. 


CXXXl 


(References  are  to  imges.) 


Tennessee,    etc.,     Co.     v.     Hamilton 

(100  Ala.  252;    14  So.   107),   654. 
Tennessee  Coal,  etc.,   Co.   v.   McMil- 

lion    (161  Ala.   130;    49  So.  880), 

658. 
Terre    Haute    Gas    Co.    v.    Tcel     (20 

Ind.   131),  672. 
Terstegge  v.  First  German,  etc.,  Co. 

(92  Ind.   82),  217. 
Test  Oil  Co.  V.  LaTourettc   ( 19  Okl. 

214;   91   Pac.   1025),    119,   143. 
Texas  Co.  v.  Fiek   (129  S.  W.   (Tex. 

Civ.   App.)     188),    423,    07Ga. 
Texas  &  N.  0.  R.  Co.  v.  Beller    (51 

Tex.    Civ.   App.    154;    112    S.    W. 

323),   56,   413. 
Thackarah  v.  Haas   (119  U.  S.  499; 

7   Sup.   Ct.  311),   220b. 
Thatcher  v.  Consumers  Gas  &  Fuel 

Co.    (72   N.   J.    Eq.    825;    66    Atl. 

934),  848. 
Theis  V.  Spokane  Falls  Gaslight  Co. 

(49    Wash.    477;    95    Pac.    1074), 

494,  849. 
Theriot    v.     Michel     (28    La.     Ann. 

107),  367. 
Thislethwaite    v.    State     (149    Ind. 

319;    49    X.   E.   156),   601. 
Thom    V.    East   London    W.    W.    Co. 

(66   Gas  J.   189),   58Sb,  602. 
Thomas  v.  Backney   (17  Barb.  654), 

664. 
Thomas  v.  Hukill    (34  W.  Va.  385; 

12    S.    E.    522),    192d,    22Sa,    246, 

853,  913. 
Thomas    v.    Hurst     (73    Fed.    372), 

352. 
Thomas  v.   Kirkbrido    (15   Ohio  Cir. 

■Ct.    204;    8    Oiiio   Dec.    181),   243, 

248,    254a. 
Thomas    v.    :\Tarble,    etc.,    Co.     (5S 

Fed.  485),  147. 
Thomas  v.  Pvailroad  Co.    (101    [J.   S. 

71),  527. 
Thomas  v.    Smith    (42    Pa.   St.   68), 

377. 


Thomas,  etc.,  Co.  v.  Herter   (60  111. 

App.  58),  51. 
Thompson's     Appeal     (101     Pa.     St. 

225),  93. 
Thompson    v.     Cambridge    Gaslight 

Co.     (201     Mass.    77;     87    N.    E. 

486),   717,   721,   768. 
Thompson  v.   Christie    (138   Pa.  St. 

230;    27    W.    N.    C.    87;    20    Atl. 

934;    11   L.   R.   A.   236),    124,  238, 

245,    262,    265,    890. 
Thompson  v.   Cristy    (138   Pa.   220; 

20    Atl.    934),    233. 
Thompson  v.   Christie    (138   Pa.  St. 

230;    27    W.    X.    C.    87;    20    AtL 

834;    1   L.  R.  A.   236),  247. 
Thompson   v.  Christie    (138  Pa.  St. 

230;     20    Atl.    934;     1    L.    R.    A. 

290),  241. 
Thompson  v.  Mattern    (115   Pa.   St. 

501;   9   Atl.   70),  356d. 
Thompson  v.  Nemeyer    (59  Ohio  St. 

486;    52    N.    E.    1024),    572. 
Thompson  v.  Newton    (7  Atl.    (Pa.) 

64),  336,  340. 
Thompson  v.   Noble    (3  Pittsb.  201; 

17  Pittsb.  L.  Jr.  45),  32. 
Thompson     v.     People      (23     Wend. 

537,  579),  519. 
Thompson  Gliss  Co.  v.  Fayette  Fuel 

Co.     (l;7     Pa.    St.    317;     21    Atl. 

93),  610. 
Thomson-Houston     Electric     Co.     v. 

Newton   (42  Fed.  723),  562. 
Thorn    v.    Sutherland     (123    N.    Y. 

236;    25   N.    E.    362;    reversing   4 

N.   Y.    Supp.    694),    639. 
Thorneycroft   v.    Crockett    (10   Sim. 

445;    2   H.   L.   Cas.   239;    12   Jur. 

1081),    386,    387,    389,    391. 
Thunder   v.    Belcher    (3    East,   449), 

384b. 
Tidewater    Pipe    Line    Co.    v.    Berry 

(53   N.   J.   L.   212;    21    Atl.   490), 

834. 
Tiehr   v.    Consolidated    Gas    Co.    ^51 

N.  Y.  — ),  700,   703,  707. 


exxxii 


TABLE  OF  CASES. 


(RefprDiices  are   to   pages.) 


Tift    V.    Horton     (53    N.    Y.    377), 

631. 
Tiloy  V.   Moyers    (43   Pa.   St.   404), 

308. 
Tilly    V.    Slough    Gas    &    Coke    Co. 

(17    Gas   J.   231),    6G7. 
Timlin  v.  Brown    (158  Pa.  St.  606; 

28   Atl.  236),  203. 
Tipping   V.   Robbins    (64    Wis.   546; 

25   X.   W.  713),   91. 
Tipping  V.    Robbins    (71    Wis.    507; 

37   X.   W.  427),  66,   91,  332. 
Tipton     Light,     etc.,     Co.     v.     New- 
comer    (07    N.    E.     (Ind.    App.) 

548),  735,  743. 
Tipton  Green  Colliery  Co.  v.  Tipton 

Moat    Co.    (7    Ch.    Div.    192;    47 

L.    J.    Ch.    152;    26   W.   R.    348), 

387,  389. 
Titley   v.    Craig    (222    Pa.    618;    72 

Atl.   233),   278,   316. 
Titusville   Iron   Works   v.   Keystone 

Oil    Co.    (130    Pa.    211;     18    Atl. 

739),  383. 
Titusville  Xovelty   Iron  Works'  Ap- 
peal   (77   Pa.   St.    103),   642. 
Toledo  V.  Hasler   (54  Ohio  St.  418; 

43  X.  E.  583;  35  Ohio  L.  J.  215), 

835,  838. 
Toledo  V.  N.  W.   Ohio,  etc.,   Co.    (8 

Ohio    S.    and    C.   P.    Dec.   277;    6 

Ohio  N.   P.  531;    5   Ohio   Cir.   Ct. 

Rep.  557),  446d,  452,  528,  599. 
Toledo  V.  Xorthwestern,  etc.,  Co.   (5 

Ohio   Cir.    Ct.    557;    3    Ohio    Dec. 
'    273),  428a,  428b,  428d,  430,   433, 

452,  588,  621. 
Toothman  v.   Courtney    (62   W.  Va. 

167;    58   S.   E.  Rep.  915),  53,  71, 

72,  85,   356b,  886. 
Topeka    v.    Topeka    Water    Co.     (58 

Kan.    349;    49    Pac.    79),    586. 
Topolski  V.  Chicago,   etc..   Co.    (150 

111.    App.    126),    698,    724. 
Torens  v.  Texarkana  Gas  &  El.  Co. 
(88    Ark.    510;    115    S..    W.    389), 

691. 


Tousley    v.    Galena,    etc.,    Co.     (24 

Kan.   328),   356c,   356d. 
Towne  v.    Fisk    (127   Mass.   125;    34 

Am.  Rep.  353),  632,  633. 
Townsend    v.    Brown    (24    X.    J.    L. 

80),  528. 
Townsend   v.   State    (147   Ind.    624; 

47    X.   E.    19;    37   L.   R.   A.   294; 

62  Am.   St.   477),   33,  34,   35,   46, 

419. 
Townsend     Gas,    etc..    Co.    v.    Port 

Townsend   (19  Wash.  407;  53  Pac. 

551),  560. 
Traders  Ins.  Co.  v.  Catlin    (163  111. 

256;    45  X.  E.  255;    59  Ind.  App. 

162),   801,   810. 
Traders   Ins.   Co.   v.  Race    (142   111. 

338;   31  N.  E.  392),  801,  828. 
Transatlantic  Fire  Ins.  Co.  v.  Dor- 

sey    (56   Md.   70),  805. 
Travelers    Ins.    Co.    v.    Ayres     (217 

111.  390;    79  X.  E.   506;   affirming 

119    111.    App.    402),    831. 
Travelers   Ins.    Co.   v.   Dunlap    (160 

111.  642;   43  X.  E.  765;   affirming 

59  111.  App.  515),  830. 
Traverse   City   Gas   Co.   v.   Traverse 

City     (89    N.    W.    Rep.     (Mich.) 

574),  426,  532,  535. 
Treas  v.  Eclipse  Oil  Co.    (47  W.  Va. 

107;   34  S.  E.  933),  96. 
Tredinniek    v.   Red   Cloud,   etc.,    Co. 

(72   Cal.   78;    13   Pac.    152),  381. 
Tredwen  v.   Bourne    (6   M.   and   W. 

461;    9   C.   J.  Exch.    (X.  S.)    290; 

4   Jur.   747),  369. 
Trees  v.  Eclipse  Oil  Co.   (47  W.  Va. 

107;  34  S.  E.  933),  108,  145,  335, 

340a,  852,  860,  862,  878,  879,  907, 

913. 
Trent    v.    Hunt    (9    Exch.    14,    22), 

384. 
Triple  Stnte,  etc..  Gas  Co.  v.  Well- 
man    (114  Ky.  79;    70  S.  W.   49; 

24    Ky.   L.    Rep.    851),    682,   685, 

686,    691,   738. 


TABLE  OF  CASES. 


CXXXlll 


(References  are   to  pages.) 


Troxell    v.    Anderson    Coal    Mining 

■Co.    (213  Pa.  475;   —  Atl.   1083), 

74.     . 
Truby    v.     Palmer     (4     Cent.     Rep. 

(Pa.)    025;   G   At!.   74),   107,   170, 

243. 
Truesdale    v.    Newport     (90    S.    W. 

(Kj'.)    589;   28  Ky.  L.  Rep.  840), 

526,  536. 
Truman  v.  Truman    (79  Iowa,  506; 

44  N.  W.  721),  344. 
Trust   V.    Miami    Oil    Co.    (10    Ohio 

C.    D.    372;    19    Ohio   C.    C.    Rep. 

727),  380. 
Trustees  of   School   v.   Sehroll    (120 

111.  509;    12   N.   E.   243),    112. 
Trustees,    etc.,    v.    Williamson     (26 

Pa.   St.    196),   801. 
Tubb    V.    Liverpool,    etc.,    Ins.    Co. 

(106  Ala.  651;    17  So.  615),  810, 

810. 
Tucker   v.    Missouri-Pacific   Ry.   Co. 

(82  Kan.  222;   108  Pac.  89),  394. 
Tucker  v.  Watts    (25   Ohio  Cir.  Ct. 

Rep.    320),    129,    138,    139,    192a, 

197,  2020,  266. 
Tugman    v.   Chicago    (78    III.   405), 

490b. 
Tullit  V.  Tullit   (Amb.  HO),  318. 
Turnbridge     Wells     Corporation     v. 

Baird   [1896]    (App.  Cas.  434;    65 

L.   J.    Q.   B.    451;    74   L.    T.    385; 

60  J.  P.   788),  518. 
TurnbuH  v.  Home  Fire  Ins.  Co.   (83 

Md.    312;    34    Atl.    875),    820. 
Turner    v.    Revere    Water    Co.     (171 

Mass.   329;    50   N.    E.    634),   0(7. 

608. 
Turner  v.  Seep   (167  Fed.  646),  127, 

145,   151,   317,  322. 
Twin-Lick   Oil   Co.   v.   Marbury    (91 

U.  S.  587),  73,  111,  182,  183,  184. 
Twin  Village  Water  Co.  v.  Dimaris- 

cotta  Gaslight   Co.    (98    :\lo.   325; 

56   Atl.    1112),  484,  495.  551. 
Tyner  v.  Peoples  Gas  Co.    (131    Ind. 

599;  31  N.  E.  61),  50,  167,  884. 


Tyrone  Gas  &.  Water  Co.  v.  Tyrone 
(195  Pa.  St.  &66;  46  Atl.  134), 
484,  498a. 


U 

Uhl    V.    Ohio     River    Ry.     Co.     (47 

W.    Va.    59;    34    S.    E.   934),   403. 
Ulrey    v.    Keith     (237    111.    284;    86 

N.    E.    690),    145,    214,    218,    307, 

349. 
Ulrey   v.    Poe    (134    111.    App.    298; 

allirmed,    233    111.    56;    84    N.    E. 

Rt'p.  46),  53,  72,   109. 
Union  Coal  Co.  v.  LaSalle   (136  111. 

119;    20   N.   E.   500;    12    L.  R.   A. 

326),   356c. 
Union   Ferry  Co.,   In   re    (98   N.  Y. 

139),  509. 
Union     Oil    Company's     Appeal     (3 

Penny.  — ),   302a. 
Union  Oil  Co.,  In  re   (25  Land  Dec. 

351;   23  Land.  Dec.  222),  58,  355. 
Union  Petroleum  Co.  v.  Bliven,  etc., 

Co.     (72    Pa.    St.     173),    77,     129, 

915. 
United    Electric   Light,   etc.,    Co.    v. 

Breneman    (46   X.   Y.   Supp.   916; 

21  N.  Y.  Misc.  41),  615. 
United     Merthyr    Coal    Co.,    In    re 

(L.    R.    15;    Eq.    46;     21    \V.    R. 

117),  51. 
United    Mines    Co.    v.    Hatcher    (79 

Fed.   517;    25   C.   C.   A.   46),   380. 
United   Oil   Co.   v.  Miller    (19   Colo. 

App.   40;    73   Pac.   627),  691,   729, 

730. 
United    Oil     Co.    v.    Roseberry     (69 

Pac.   (Colo.)   588),  708,  710,  714a, 

729. 
United   States   v.    BulTalo,   etc.,    Co. 

(172  U.  S.  339;   19  Sup.  Ct.  Rep. 

200:   affirming  78  Fed.  Rep.   110; 

45   U.   S.   App.   345;   24   C.   C.   A. 

4),   58. 


CXXXIV 


TABLE  OF  CASES. 


(References  are   to   pages.) 


United   States  v.   Comet   Oil   &   Gas 

Co.    (187   Fed.  674),   25G. 
United    States    v.     Consumers    Gas 

Trust    Co.     (142     Fed.     134;     73 

C.  C.  A.  352),  837. 
United  States  v.   Dcrmitt    (8   Wall. 

41),   423. 
United  States  v.  New  Orleans  R.  R. 

(12  Wall.   362),  631. 
United  States  v.  Northwestern  Ohio 

Nat.    Gas    Co.     (141     Fed.    198), 

837. 
United    States,    etc.,    Co.    v.    Metro- 
politan Club    (6   App.   -530),   613. 
United     States     Coal,    etc.,     Co.     v. 

Randolph   County  Court    (38    W. 

Va.  201;    18  S.  E.  566),  840a. 
United  States  Life  Ins.  Co.  v.  Foote 

(22    Ohio   St.    340;    2   Ins.   L.    Jr. 

190),  805. 
United    States   Natural    Gas   Co.   v. 

Hicks    (134    Ky.    12;    119    S.    W. 

166;    34    Ky.    L.    Rep.    — ),   556, 

776. 
United  States,  etc.,  Co.  v.  Newman 

(84    Va.    52;    3    S.    E.    805),   831. 
United     States     Pipe     Line     Co.     v. 

Delaware,  etc.,  Ry.  Co.    (62  N.  J. 

L.  254;   41   Atl.  759;   42  L.  R.  A. 

572),   402. 
United  States  W.  W.  Co.  v.  DuBois 

(176    Pa.    St.    439;    38    W.   N.    C. 

419;   35  Atl.  251),  468c. 
United  Water  Works  Co.  v.  Omaha 

Water   Co.    (21   N.   Y.   Misc.  594; 

49  N.  Y.  Supp.   817),   400b. 
University    of    Vermont    v.    Joslyn 

(21   Vt.  52),  278. 
Upin^ton    v.    Corrigan     (151    N.    Y. 

143;    45  N.   E.   359),  228'd. 


Vail  V.  Freeman    (144   Cal.   356:    77 

Pac.  974),   178. 
Vail    V.    Weaver    (132   Pa.    St.   363; 

19  Atl.   138,),  636. 


Vallee  es  qualite  v.  New  City  Gas 
Co.  (7  Am.  Law  Rev.  351),  709, 
749,    752. 

Valparaiso   v.  Gardner    (97   Ind.   1; 

49  Am.  416),  458d,  475,  509. 
Vanderberg  v.  Kansas  City  Gas  Co. 

(126    Mo.    App.    600;     105    S.    W. 

17),  426,  428a,  430,  579,  580,  585, 

586,   593,  595,   602a,   602b,   611. 
Vandergrift's    Appeal     (83    Pa.    St. 

126),  379. 
Vanderlin    v.    Hovis     (152    Pa.    St. 

11;    25   Atl.   232),   121. 
Vandevoort  v.  Dewey    (42  Hun,  68), 

232. 
Van  Etten   v.   Kelley    (66   Ohio   St. 

605;     64    N.    E.'  560),    229,    298, 

303,   861,   889. 
Van   Hoorhis   v.   Oliver    ( —  , 

— ),  230. 
Van  Meter  v.  Chicago,  etc.,  Co.   (88 

Iowa,   92;    55  N.  W.   106),  206. 
Van  Renssalaer  v.  Hays    ( 19  N.  Y. 

68;    75   Am.   Dec.   278),   272. 
Van  Wicklen  v.  Paulson    ( 14   Barb. 

654),  289. 
Van   Voorhis   v.    Oliver    (22   Pittsb. 

L.  J.    (N.   S.)    114),   100,   229. 
Vaughan   v.   Haldeman    ( 33   Pa.   St. 

522;   75  Am.  Dec.  622),  632,  633. 
Vendocia   Oil,   etc.,   Co.   v.  Robinson 

(71  Ohio  St.  302;   73  N.  E.  222), 

130,  230,  240c,  297,  889,  890,  896, 

899. 
Ventura  Oil  Co.  v.  Fretts    (152  Pa. 

St.    451:    25    Atl.    732),    71,    140, 

160,  188,  207,  289,  318d,  852,  863, 

881. 
Verdolite  Co.  v.  Richards    (7  North 

Co.    (Pa.)    113),  240. 
Vervalen    v.    Older     (4    Halst.    Ch. 

(N.  J.)   98),  385,  386. 
Vestry  of  St.  Mary  v.  County,  etc., 

Co.  [1899]    (1   Ch.   474;   68   L.  J. 

Ch.  238:   80  L.  T.  31;    15  T.  L.  R. 

175),  518. 


TABLE  OF  CASES. 


cxxxv 


(References  are  to  pages.) 


Vickerman   v.    Leeds,    etc.,    Co.    (15 

Gas   J.   654),    718,   723. 
Victoria    Docks   Gas    Co.   v.    Burton 

(16  Gas  J.    103),   620,  623. 
Viele    V.     Germania    Ins.     ( o.     (26 

Iowa,    9;    96   Am.   Dec.    S3),    SIS. 
Vietti   V.  Nesbitt    (22   Xev.  390;    41 

Pae.   151),   364a. 
Vincennes   v.    Citizens    Gaslij^ht    Co. 

(132    Ind.     114;     31    N.    E.    573; 

16  L.  R.  A.  485),  464,  490d,  509. 
Viner   v.   Vaughan    (2    Beav.    466), 

326. 
Virginia   City   Gas   Co.   v.    Virginia 

.City    (3  Nev.   320),  475. 
Virginia    Coal    Co.    v.    Kelley     (93 

Va.  332;   24  S.  E.   1020),  339. 
Visalia  Gas,  etc.,   Co.  v.   Sims    ( 104 

Cal.  326;   37  Pac.  1042),  527. 
Vosbeck     v.     Kellog      (SO     N.     W. 

(Minn.)    957),  755. 


W 

Wabashburn  v.  Western  Ins.  Co.    (2 

Fed.    633;    Fed.  Cas.    Xo.    17216; 

9  Ins.   L.  Jr.  424),   806. 
Waddington    v.    Allegheny    Heating 

Co.    (6  Pa.  Co.  Ct.  Rep.  96),  430, 

446d. 
Wade   V.    South   Penn.   Oil   Co.    (45 

W.  Va.  3S0;    32   S.  E.   169),  245, 

897. 
Wagner  v.  Austin  Gaslight  Co.    (69 

Tex.  ISO;   7  S.  W.  200),  835. 
Wagner  v.  Brew  Cliemical  Co.    ( 147 

Pa.    St.    475;    29    W.    N.    C.    490; 

23  Atl.   722),  736. 
Wagner   v.   H.   W.   Jayne   Chemical 

•Co.  (147  Pa.  St.  475;  29  W.  N.  C. 

490;  23  Atl.  772),  722,  760. 
Wagner  v.  Mallory    (41  N.  Y.  App. 

Div.    126;    58    N.    Y.    Supp.   526; 

affirmed,  169  N.  Y.  501;  62  N.  E. 

584),   208,  273. 


Wagner  v.  Mallory  (169  N.  Y.  501; 

62   N.    E.   Rep.   584;    affirming  58 

N.  Y.   Supp.  526),  44,  51,  80,  89, 

91. 
Wagstaff     V.     Loworre      (23     Barb. 

209),  290. 
Wake   V.   Hall    (7    Q.   B.   Div.    295; 

8  App.   Cas.   195),   640. 
Wakefield  v.  Sunday  Lake,  etc.,  Co. 

(85   Mich.   605;    49   N.   W.    135), 

240a,  245,  254b. 
Waldeck    v.    Springfield,    etc.,    Ins. 

Co.   (56  Wis.  96;   14  N.  W.  1;   12 

Ins.    L.   Jr.    177),    804. 
Waldron    v.    Hughes     (44    W.    Va. 

126;    29    S.   E.  505),   904. 
Walker  v.  Bruce    (44  Colo.   109;    97 

Pac.   250),    363,    364b. 
Walker  v.   Jeffreys    (1    Ha.   341;    11 

L.  J.  Ch.  209;    6   Jur.  336),  343. 
Walker   v.   Chicago,   etc.,  R.   R.   Co. 

(71    Iowa,    658;    33    X.   W.    224), 

702. 
Walker    v.    Moore     (10    B.    and    C. 

410;   8  L.  J.  K.  B.    (0.  S.)    159), 

349. 
Walker   v.    Tupper    (152    P.    St.    1; 

25  Atl.   172),   364c,   905. 
Walker    Roofing    &    Heating    Co.   v. 

Merchant  &  Evers  (173  Fed.  771), 

747. 
Wall    V.    Hinds     (4    Gray,    256;    64 

Am.    D'c.    64),    274b,    635,    637, 

638,   CoU. 

Wnlla  Walla  v.  Walla  Walla  Water 
Co.  (172  U.  S.  1;  19  S.  Ct.  Rep. 
77;  affirming  60  Fed.  957),  425, 
427,  456,  458d,  490b,  490c,  492, 
497,  499,  532,  538,  541,  506,  676a. 

Wallace  v.  Elm  Grove  Coal  Co.  (58 
W.  Va.  449;  52  S.  E.  485),  350d, 
886. 

Wallace  v.  Jofi'erson  Gas  Co.  (147 
Pa.   f-t.  205;   23  Atl.  416),  405. 

Wallace  v.  Standard  Oil  Co.  (66 
Fed.  260),  782a. 


CXXXVl 


TABLE  OF  CASES. 


(References  are   to  pages.) 


Wallace    v.    Travelers   Ins.    Co.    ( 54 

Kan.   442;    38  Pac.  489),   310. 
Wallas  V.   San  Jose    (29   Cal.   180), 

476. 
Waller    v.    Davis     (59    Iowa,     103; 

12  N.  W.  798),  372. 
W'alter  v.   Bowling  Green    (26   Ohio 

Cir.  Ct.  756),  423. 
Walter  v.   Hartwig    (lOG    Ind.    123; 

6  N.  E.  5),  125. 
Walters  v.  Morgan    (3  DeG.  T.  and 

J.  418;   4  L.  T.  758),  348. 
Walters    v.    Northern    Coal    Mining 

■Co.    (25   L.   J.    Ch.    (X.   S.)    633; 

5  DeG.   M.  and  G.   629;    26  L.  T. 

167;  4  W.  R.  140;  2  Jur.   (N.  S.) 

1),  271,   275,   278,  282. 
Walton   V.    Cronly    (14   Wend.    63), 

278,    384. 
Wandsworth,    etc.,    Co.    v.    Wright 

(19   Gas  J.  407;    18  W.   R.   728), 

540. 
Ward   V.   Carp   River   Iron   Co.    (47 

Mich.    65;    10    N.    W.    109),    385, 

386. 
Ward  v.   Folkstone  W.  W.   Co.    (24 

Q.   B.   Div.   334;    59   L.   J.   M.   C. 

65:    62  L.  T.  321;   38  W.  R.  426; 

54   J.    P.    628),    548. 
Ward  V.   Gaslight  &  Coke   Co.    (14 

Gas  J.  915;   15  Gas  J.  45,  75;   16 

Gas  J.  10,  38,  74,  108),  729,  765. 
Ward  V.  Triple  State,  etc.,  Co.    (115 

Ky.   723;    74  S.  W.   709;    25   Ky. 

L.  Rep.   116),  551,  552,  895,  897. 
Ward    V.    Tripple    State,    etc.,    Co. 

(131    Ky.    711;    115    S.    W.    819; 

34  Ky.  L.  — ),  214,  218,  m2,  895, 

897. 
Ward  V.  Walton    (4   Ind.  7')),   217. 
Ward  V.  Ward    (40  W.  Va.  611;  21 

S.    E.    746;     29    L.    R.    A.    449), 

327. 
Warden    v.    Watson     (93    ]\Io.    107; 

6  S.  W.  605),  88,  117,  354. 


AYare   v.   Langmade    (9   Ohio    C.   C. 
85;    6   Ohio   Cir.  Dec.  43;    2   Ohio 
Dec.   116),  113,   145,  153. 
Warn    v.    Davis    Oil    Co.     (61    Fed. 

631),   704,    781. 
Warner   v.    Cochrane    (128    F.    553; 

63  C.  C.  A.  207),  86,  99,   100. 
Warner    Gaslight     Co.    v.    Pennsyl- 
vania Gas  Co.    (161   Pa.   St.   510; 
29   Atl.    101),   530. 
Warren     v.     Ferdinand      (9     Allen, 

357),   316. 
Warren  v.  Sohn    (112  Ind.   213;    13 

N.    E.    863),    381. 
Warren  v.  Wilder   (20  Gas  J.  892), 

735. 
Warren    Gaslight    Co.    v.    Pennsyl- 
vania  Gas   Co.    (13    Pa.    Ct.   Rep. 
310;    affirmed,    161    Pa.    St.    510; 
29   Atl.    101),  529. 
Warren    Gaslight    Co.    v.    Pennsyl- 
vania Gas   Co.    (161   Pa.  St.   510; 
29    Atl.    101),    501. 
Warsaw  W.  W.  Co.  v.  Warsaw    ( 16 
N.   Y.   App.   Div.    502;    44   N.   Y. 
Supp.   876),  498a. 
Washburn     v.     Artisans     Ins.     Co. 
(Fed.    Cas.    No.     17212;     9     Ins. 
L.  Jr.   68),   806. 
Washburn     v.     Fletcher      (42     Wis. 

152),   114. 
Washburn   v.   Miami,    etc.,   Ins.   Co. 
(2    Fed.    633;     2    Flipp,    664;     9 
Ins.  L.   Jr.  68),   805. 
Washington  Gaslight  Co.  v.  District 
of   Columbia    (161   U.   S.  316;    16 
Sup.    Ct.   564;    24   Wash.    L.   Rep. 
470;    affirming  20  D. -C.  39),  5.^8, 
787. 
Washington  Gaslight  Co.  v.  Eekloff 
(7    App.    D.    C.    372),    721,    747, 
751. 
Washington  Gaslight  Co.  v.  Eekloff 
(22   Wash.    L.  Rep.    656;    4    App, 
D.   C.    174),  698,   702,   736. 


TABLE  OF  CASES. 


CXXXVU 


(References  are  to  pages.) 


Washington,  etc.,  Gas  Co.  v.  John- 
son (123  Pa.  St.  576;  16  Atl. 
799;  11  Morr.  Min.  152),  135, 
274,  274c,  275,  279,  284a,  862, 
898. 
Washington  Tp.,  etc.,  Co.  v.  :\IcCor- 
mick  (19  Ind.  App.  663;  49 
N.  E.  1085),  727,  728. 
Water,   L.   &   G.   Co.  v.   Hutchinson 

(144  Fed.  256),  484,  490b,  566. 
Waterman    v.     Banks     (144    U.    S. 

394;    12   Sup.    Ct.    646),   211. 
Waters  v.   Bew    (52  N.  J.  Eq.  787; 

29  Atl.  590),  214b,  870. 
Waters  v.  Merchants,   etc.,  Ins.   Co. 

(11  Pet.  213),  803. 
Waters-Pierce    Oil    Co.    v.    Burrows 
(77  Ark.  74;  96  S.  W.  336),  777. 
Waters-Pierce  Oil  Co.  v.  Davis    (24 
Tex.    Civ.    App.    508;     60    S.    W. 
453),    784. 
Waters-Pierce    Oil    Co.   v.    Dosselms 
(212  U.  S.  159;   29  Sup.  Ct.  270; 
53    L.    Ed.   — ;    affirming    18    Okl. 
107;   89  Pac.  212,  812),'  420. 
Waters-Pierce    Oil    Co.    v.    Dcselms 
(220  U.  S.  270;  29  Sup.  Ct.  270; 
53    L.    Ed.    — ;    affirming    18    Okl. 
107;    89  Pac.  212),   786. 
Waters-Pierce    Oil    Co.    v.    Deselms 
(18  Okl.  107;   89  Pac.  212),  779. 
Waters-Pierce    Oil    Co.   v.    King    ( 6 
Tex.  Civ.  App.  93;  24  S.  W.  700), 
780. 
Waters-Pierce  Oil  Co.  v.  Kinsel    (79 

Ark.  608;   96   S.  W.   342),  777. 
Waters-Pierce    Oil    Co.    v.    ]\IcElroy 
(47  S.  W.   (Tex.  Civ.  Apjx)   272), 
420. 
Waters-Pierco  Oil  Co.  v.  Parker   (96 

S.  W.    (Ark.)    353),  777. 
Waters-Pierce    Oil    Co.   v.    Snel     (47 
Tex.    Civ.    App.    413;    106    S".    W. 
170),    792b. 
Waters-Pierce      Oil      Co.      v.      Van 
Elderen    (137    Fed.   557),   793. 


Watertown  Gaslight  Co.,  In  re  (127 

N.  Y.   App.  Div.  462;    111   N.   Y. 

Supp.   Rep.  486),   446c,   847,  848. 
Watford  Oil  &  Gas  Co.  v.  Shipman 

(233   111.   9;    84   N.   E.   Rep.  53), 

32,    33,    34,    35,    52,    53,    54,    72, 

202b,    203,    218,    332,    334h,    349, 

860,   880,   906,  907,  915. 
Watson    Coal,    etc.,    Co.    v.    Casteel 

(73    Ind.   296),   L74,   274b. 
Watson  V.   Gas  Co.    (5   U.   P.  Q.  B. 

(Can.)    262),   672,  673. 
Watson    V.    Kentucky,    etc.,    11.    Co. 

(137    Ky.    619;    126    S.    W.    196; 

modifying    129    S.    W.    341),    723, 

730b,   775,   781. 
Watson    V.    W.    R.    and    G.    Gravel 

Co.    (50  Mo.  App.  635),  331. 
Watt     V.     Equitable     Gas     Co.      (8 

Super.  Ct.    (Pa.)    018;    29  Pittsb. 

L.  J.    (X.   S.)    221;    43  W.  N.  C. 

215),  275. 
Watts  V.    Gantt    (42   Neb.    869;    61 

N.   W.    104),   400b. 
Watts   V.   Tibbals    (6   Pa.   St.   447), 

43. 
Watauga   Water    Co.   v.   Wolfe    (99 

Tenn.   429;    41    S.  W.    1060),   578, 

598. 
Way  V.  Reed    (6   Allen,   304),   216, 

282,  284a. 
Waymart    Water    Co.    v.    Waymart 

(4  Pa.  Super.  Ct.  211),  4S8. 
Weaver    v.    Burr    (31    W.    Va.    736; 

8  S.  E.  743),  111. 
Webb    V.    Ohio    Gas    Fuel    Co.     (16 

Weekly   Law    Bull.    121;    9    Oliio 

Dec.    Rep.    602),   552b. 
Webster    v.    Ilarwinton     (32    Conn. 

131),   504. 
Weed  V.   Snook    (144    Cal.    430;    77 

Pac.    102.3),  359. 
Weld  V.  Board    (197   Mass.   556;   84 

N.   E.    101),   468b. 
Weld    V.    G-islight    Co.     (1    Starkie, 
150),   7^9. 


CXXXVIU 


TABLE  OF  CASES. 


(References  are   to  pages.) 


Weld  V.   Gas  &   EI.   Light  Commis- 
sioners   (197  Mass.  556;  84  N.  E. 

101),   494. 
Wellington  v.  DowTier  Kerosene  Co. 

(104  Mass.   64),   785,   7«6. 
Wells    V.     Ellis     (=68    -Cal.    243;     9 

Pac.    80),    367. 
Wellston   V.    Morgan     (59    Ohio    St. 

147;    52   N.    E."  127),   461. 
Welsh    V.    Beaver    Falls     (40    Atl. 

(Pa.)    784),   498. 
Welty  V.  Wise    (5   Ohio  N.  P.  50), 

185,  208. 
Winnett    v.    Carnegie    Natural    Gas 

Co.    (37  Pa.  Super.  Ct.  204),  553, 

557. 
Wentz's   Appeal    (106   Pa.   St.  301), 

326c,   326(1. 
Werner    v.     Ashland    Lighting     Co. 
(84    Wis.    652;    54   N.    W.    096), 

714b. 
Weshing  v.  Kroll   (78  Wis.  636;  47 

N.   W.   943),   238,  259. 
West    V.     Bancroft     (32    Vt.    307), 

549. 
West  V.  Kansas  Nat.   Gas    Co.    (31 

Super.    CI.    564:    221    U.    S.    229; 

affirming  Kansas  Natural  Gas  Co. 

V.  Haskell,  172  Fed.  545),  34,  43, 

394,  395,  397,  399. 
West    Chester    Gas    Co.    v.    Chester 

Co.   (30  Pa.  St.  232),  833,  839. 
West  Cumberland  Iron  Co.  v.  Ken- 
yon    (L.  R.   11    Ch.  Div.   782;    48 

L.    J.    Ch.    793;    40    L.    T.    703), 

655. 
West   Hartford   v.    Hartford   Water 

Commissioners   (68  Conn.  323;   36 

Atl.  786),  583. 

Westerly  W.  W.  Co.  v.  Westerly 
(75  Fed.  181;  76  Fed.  467),  490b, 
491. 

Westerly  W.  W.  Co.  v.  Westerly 
(80  Fed.  611;  75  Fed.  181;  76 
Fed.  467),  490b,  491,  492,  498, 
499. 


West    Shore    Mills   Co.   v.    Edwards 

(24  Ore.  475;   33  Pac.  987),  272. 
West,    etc.,    Co.    v.    Philadelphia     (3 

Pa.   Dist.   Rep.   52),   838. 
W-^sterman  v.  Dinsmore   (68  W.  Va. 

594;    71    S.    E.    250),    262b,    331, 

337. 
Western   Paving,    etc.,    Co.    v.    Citi- 
zens, etc.,  Co.    (128  Ind.  525;   26 

N.    E.    188;    28    N.    E.    88),    525, 

545. 
Western    Ponn.    Gas    Co.    v.    George 

(101    Pa.    St.    47;    34    W.    N.    C. 

332;     28    Atl.    1004),     192b,    219, 

254c,   853. 
Western,    etc.,    Co.    v.    Rector     (85 

Ky.  294;    3   S.  Vv.  415;    9  Ky.  L. 

Rep.   3),   823,  824. 
Western    Savings    Fund    Society    v. 

Philadelphia    (31  Pa.  St.   175;   72 

Am.  Dec.   730),  560,  570. 
Western     Texas     Compress     Co.     v. 

Williams     (103     Tex.     Civ.    App. 

39;    124   S.  W.  493),   667,   070. 
Western   Union   Tel.    Co.   v.   Massa- 
chusetts   (125  U.  S.  530),  837. 
Westfield   Gas,   etc.,    Co.   v.  Menden- 

hall     (142    Ind.    538;     41     N.    E. 

1033),    425,    428,    429,    490b. 
Westlake  v.  St.  Louis   (77  Mo.  47), 

602b. 
Westmoreland     Company's      Appeal 

(85   Pa.   St.   344),  325. 
Westmoreland,    etc.,    Co.    v.    Dewitt 

(130    Pa.    St.    235;    18    Atl.    724; 

29  Amer.  L.  Reg.  93;   5  L.  R.  A. 

731),  32.  33,  34,  38,  117,  128,  142, 

144,    222,    228,    254d,    350,    350b, 

855,  876,  886,  890,  891,  892,  893, 

i899,    902,    914. 
Weston  V.  District  of  Columbia   (23 

App.  D.   C.  367),  422. 
Weston    V.    Woodcock      (7    M.    and 

W.    14),    646. 
Weston's   Case    (L.    R.    4    Ch.   App. 

20;    38    L.    J.   Ch.    49;    19    L.    T. 

337;   17  W.  R.  62),  373. 


TABLE  OF  CASES. 


CXXXIX 


(References  are   to   pages.) 


West  Ridge  Coal  Co.  v.  Van  Storch 

(5  Lack.  Leg.  N.  189;  7   Del.  Co. 

467),   235-302a. 
West  Virginia   Transportation  Line 

V.  Oliio  River  Pipe  Line  Co.    (22 

W.    Va.    600;    46    Am.    St.    527), 

394,   911. 
West  Virginia,  etc.,  Co.  v.  Vino!  (14 

W.  Va.  637),  914. 
West    Virginia    Transportation    Co. 

V.   Volcanic   Oil   and  Coal   Co.    (5 

W.    Va.  382),  55,  394,  400. 
Wetmore   v.   Brooklyn   Gaslight   Co. 

(42   X.   Y.    384),    550. 
Wettengel  v.  Gormley    (160  Pa.   St. 

559;    28    All.    Rep.    934;    40    Am. 

St.    Rep.    733),    57,    78,    80,    123, 

273,  887,  912. 
Wettengel     v.     Gormley     (184     Pa. 

354;    39   Atl.   57),    123,   273,    300, 

887,  912. 
Whallen    v.    Citizens    Gaslight    Co. 

(63   N.   y.   317;    30   N.   Y.    Supp. 

1077),   788. 
Wheeler  v.  Earl   (5  Cush.  31),  244. 
Wheeler    v.    Philadelphia     (77     Pa. 

St.   338),  559. 
Wheeler  v.  Traders  Ins.  Co.   ( I  Atl. 

203    (N.  H.)    823),  — . 
Wheeler    v.    Traders    Ins.    Co.     (62 

N,   H.    326,   450),   808. 
Wheeler  v.   West    (71    Cal.    126;    11 

Pac.   871),   91,   94. 
Wheeling   Gas   Co.   v.    Wheeling    ( 8 

W.   Va,   320),   568a. 
Whitcomb  v.  Hoyt  ( 30  Pa.  St.  403 ) , 

202,   213. 

White    V.    Meadville     (177    Pa.    St. 

643;    27  Pitts.  L.  J.    (N.   S.)    97; 

39   W.   N.   C.    102;    35   Atl.   695; 

35  L.  R.  A.  467),  485,   498. 
White   V.    Wager    (25    N.   Y.    328), 

318b. 
White    V.    Western,    etc.,    Co.     (18 

W.  N.  C.   (Pa.)   279;  6  Atl.  113), 

'801,   807. 


Whitehouse    v.    Liverpool,    etc.,    Co. 

(5   C.   B.   798;    5   M.   Gr.   and   S. 

798),  579,  590. 
Whitfield    V.     Bevvit     (2     P.     Wms. 

240),    326a. 
Whitman   v.    Fayette   Fuel   Gas   Co. 

(139  Pa.  St.   492;   20  All.    1002), 
.  294b,    592,    613. 
Whitmarch  v.  Charter  Oak  Fire  Ins. 

Co.    (2   Allen,   581),   817. 
Whitmore     v.     Empson     (23     Beav. 

313;    26    L.   J.   Ch.    364),    647. 
Whittaker    v.    Brown     (46    Pa.    St. 

197),   354. 
Wichman  v.   Ft.  Orange  Oil  Co.    (4 

Ohio   N.   P.   407),   293. 
Wichita  Gas,  etc.,  Co.  v.  Wright    (9 

Kan.    App.    730;    59    Pac.    1085), 

730a. 
Wiemer    v.     Louisville     Water    Co. 

(130    Fed.   251),   578. 
Wilcox     V.     Consolidated     Gas     Co. 

(212    U.    S.     19;     29    Super.    Ct. 

Rep.  192;  53  L.  Ed.  — ;  reversing 

157    Fed.    849),    436,    436a,   436b, 

436c,   438,  440,   441,   443,   445. 
Wild    V.    Holt    (9    M.   and    W.    672; 

1   D.   N.   S.   876;    11   L.   J.   Exch. 

285),  51. 
Wilde,    In    re     (L.    R.    8    Ch.    App. 

1072),  647. 
Wilde    V.    Waters     (16    C.    B.    637; 

24  L.  J.  C.  P.  193;   1  Jur.   (N.  S.) 

1021),   638. 
Wiler  V.  Logan,  etc.,  Co.    (27    Ohio 

Cir,  Ct.   Rep.  257),   531. 
Wilgus    V.    Whitehead    (89    Pa.    St. 

131),    121,    302a. 
Wilkesbarre  v.  Crystal  Spring  Water 

Co.    (7   Kulp.    (Pa.)    31),  836. 
Wilkesbarre   Gas    Co.  v.   Turner    (7 

Kulp.   399),  584,   612,  621. 
Wilkesbarre    Light    Co.    v.    Wilkes- 

ban-e,  etc.,  Co.   (4  Kulp.  47),  491, 

501,    530. 
Wilkins  v.  Abell    (26  Colo.  462;    58 

Pac.   612),   127,  375,   377. 


cxl 


TABLE  OF  CASES. 


(References  are   to  pages.) 


Wilkins    v.    Standard    Oil    Co.     (74 

X.   J.  L.    151;    64  Atl.  985).   779. 

Wilkinsburg    Gas     Co.    v.    Wilkins- 

burg  (25  Pitts.  L.  J.   (N.  S.)   42), 

534. 

Wilkinson    v.    Wilkinson     (59    Wis. 

557;    18  N.  W.  528),  32Gd. 
Willetts  V.   Brown    (42   Hun,   140), 

67. 
Willi  V.  Dryden    (52  Mo.  319),  278. 
Williams'    Appeal    (1    Mong.    (Pa.) 

274),   641. 
Williams  v.   Augusta    (4   Ga.   509), 

420. 
Williams     v.     Bosanquet     ( 1     Brod. 

and  Birg.  238),   278. 
Williams  v.  Bolton  (3  P.  Wms.  268; 

1   Cox.  Ch.  Cas.  72),  327. 
Williams  v.  Brentford  Gas  Co.    (13 

Ont.  W.  Repr.  605),  769. 
Williams  v.   Fowler    (201    Pa.   336; 

50  Atl.   969),  915. 
Williams   v.   Gibson    (84   Ala.    228; 

4  So.   350),   87,   354. 
Williams    v.    Gufiey     (178    Pa.    St. 

342;    ,35  Atl.   875),  302d,  313. 
Williams  v.  Insurance  Co.   (54  N.  Y. 

569;    13   Am.  Rep.  620),  814. 
Williams  v.  Ins.  Co.    (31  Me.  219), 

.814. 
Williams  v.  Kenney  (14  Barb.  62S), 

356c. 
Williams    v.    Laden     (171    Pa.    St. 

369;    33   Pac.  329),   192b. 
Williams    v.    Lake     (2    E.    and    El. 
349;    29    L.    J.    Q.    B.    1;    6    Jur. 
(N.  S.)    45;    1  L.  T.  56;   8  W.  R. 
41),   343. 
Willir.ms    v.     Medlicott      (6     Price, 

496),  388. 
Williams     v.     Morrison      (32    .Fed 

177),  91. 
Williams  v.  Mutual  Gas  Co.  (52 
Mich.  499;  50  Am.  Rep.  266;  18 
N.  W.  236;  4  Am.  and  Eng.  Corp. 
Cas.  66),  577,  580,  586,  588,  593, 
595,   602a. 


Williams   v.    Peoples    Fire   Ins.    Co. 

(57  N.  Y.   274),   801,  809. 
Williams    v.     Short     (155    Pa.    St. 

480;    26    Atl.    662),    352. 

Williams    v.    South    Penn.    Oil    Co. 

(52   W.   Va.    181;    43    S.   E.   214; 

60   L.   R.   A.   795),    117,   332,   911. 

Williams    v.    Toledo    Coal    Co.     (25 

Ore.   426;   36  Pa.    159),  37Cc. 
Williams    v.    Vanderbilt     (145    111. 

238;    34  N.   E.   476),  340b. 
Williamson  v.   Davey    (52  Tex.  Civ. 

App.  353;    114  S.  W.  195),  278. 

Williamson    v.    Jones     (39    W.    Va. 

231;    19    S.    E.   436;    25   L.   R.  A. 

222),    32,    33,    38,   45,    318a,    330, 

332,  334c,  337,  355,  876,  877,  913. 

Williamson    v.    Jones     (43    W.    Va. 

562;     27     S.     E.     Rep.     411;     38 

L.    R.   A.    694;    64   Am.   St.   Rep. 

891),    33,    38,    44,    45,    53,    318a, 

326,    326a,    326b,    327,    328,    330, 

335,  337,  338,  340,  340a,  876,  877, 

878,    880,    882,   913. 

Williamsport    Gas    Co.,    In    re     (17 

Pa.    Co.    Ct.    Rep.    456;    2    Lack. 

L.   News,    112;    5    Pa.    Dist.    Rep. 

251),   484,   486. 

Williird   V.   Killingworth    (8   Conn. 

247),    564. 
Willis    V.     Perry     (92    Iowa,    297; 
60  N.  W.  7l7;   26  L.  R.  A.   124), 
334b. 
Willock    V.    Crescent    Oil    Co.     (184 
Pa.     St.     245;     28     Pittsb.    L.     J. 
(X.  S.)    351;    39  Atl.  77),  845. 
Wills  V.  Manufacturers  X'atural  Gas 
Co.     (130    Pac.    St.    222;    18    Atl. 
721;   5  L.  R.   A.  603),  227,  228a, 
267,   300,    316,   858. 
Wilmer     V.     Lonisville     Water    Co. 

(130    Fed.    251),    580b. 
Wilson,    Ex    pnrte     (2    Mont,    and 
Ayr.    61;    4    Dec.    and    Chit.    143; 
4  L.  J.  Bank.    (N.   S.)    24),   633, 
636. 


TABLE  OF  CASES. 


cxli 


(References  are  to  pages.) 


Wilson    V.    Bogle     (95    Tenn.    290; 

32   S.   VV.   386),   333. 
Wilson    V.    Davis     (1    i\Iont.    183), 

367. 
Wilson   V.    Freeman    (2   W.   and    S. 

116;  37  Am.  Dec.  490),  632. 
Wilson    V.    Goldstein     (152    Pa.    St. 

524;     25     Atl.     493),     213,     228c, 

228d,    908. 
Wilson    V.    Holden     (15    Q.   B.    533; 

19  L.  J.  Q.   B.  73;    14  Jur.   835), 

366. 
Wilson  V.  Philadelphia  Co.   (210  Pa. 

484;   60  Atl.   149),  302d,  304. 
Wilson    V.    Rochester     (180    Pa.    St. 

509;    38   Atl.   136),  486. 
Wilson  V.  Rushville  M.   and  G.  Co. 

(126   N.    Y.   Supp.    830),    46Sc. 
Wilson  V.  Tennant   (65  N.  Y.  Supp. 

852;  affirmed,  61  N.  Y.  App.  Div. 

100;  70  N.  Y.  St.  Rep.  2;  affirmed, 

179   N.  Y.  546;    71    N.   E.   1142), 

588a,   842. 
Wilson  V.  Tennant   (179  N    Y.  546; 

71     N.     E.      1142;      affirmincr     61 

N.   Y.    App.    Div.    100;    70   N.   Y. 

Supp.  2),  529. 
Wilson  V.  Tennant   (70  N.  Y.  Supp. 

2;  €1  N.  Y.  App.  Div.  100;  affirm- 
ing 32  N.   Y.  Misc.  Rep.  273;    65 

N.   Y.   Supp.   852),   588a. 
Wilson  V.   Youst    (43   W.  Va.   826; 

28   S.  E.  781;    39  L.  R.  A.  292), 

32,    33,    38,    87,    326,    326a,    330, 

876,   877,  880,   881,   913. 
Wilson  Drug  Co.  v.  Phenix  Ins.  Co. 

(110   N.   C.   350;    14   S.   E.   790), 

819. 
Winans  v.  Peebles    (32  X.  Y.  423), 

318b. 
Winchester    v.    Capron     (63    N".    H. 

605),    356c. 
W^indfall     Natural     Gas,    etc.,    Co., 

In  re   (42  Ind.  App.  278;  84  N.  E. 

96),    375,    376,    378. 


Windfall     Mfg.     Co.     v.     Patterson 
(148    Ind.    414;    47    N.    E.    2;    62 

Am.   St.   532;    37    L.  R.   A.   381), 

167,    400a.    665,    671,    675,    676a, 

884. 
Windfall,     etc.,     Co.     v.     Tutewiler 
(152    Ind.    364;    53    N.    E.    284), 

400,   402,    649. 
Winfield  v.  Winficld  Water  Co.   (51 

Kan.     70;     32    Pac.    663),    468c, 

478c. 
Winfield    v.    Winfield    Gas    Co.    (37 

Kan.  24;    14  Pac.  499),  458,  473. 
Winston  v.  Spokane   (12  Wash.  524; 

41    Pac.    888),    458d. 
Winton    Coal   Co.   v.   Pancoast   Coal 

Co.     (170    Pa.    St.    437;    33    Atl. 

110),   334c. 
Witcher    v.    Holland    Water    Works 

Co.   (66  Hun,  619;  20  N.  Y.  Supp. 

560;    affirmed,   142  N.  Y.  626;    37 

N.  E.  565),  515,  516,  549. 
Witherspoon   v.   Staley    (138   S.   W. 

(Tex.  Civ.   App.)    1191),  76,  240. 
Witte  V.  Western,  etc.,  Ins.  Co.    ( 1 

Mo.   App.   188),   826. 
Wolf    V.     Cincinnati,     etc.,    Co.     (6 

Ohio  Dec.    159),  401. 
Wolf   V.    Gufl^ey    (161    Pa.   St.   276; 

28   Atl.    1117),   246,   858,   859. 
Wolverhampton  R.  R.  Co.  v.  London, 

etc.,  R.  R.  Co.   (L.  K.  16  Eq.  433; 

43  L.  J.  Ch.  131)    347. 
Wolveridge   v.    Steward    ( 1    C.    and 

M.    644;    2    L.    J.    Exch.    303;    3 

Tyr.   637),    274d. 
Wolstanton  Urban,  In  re    (72  J.  P. 

28;   6   L.    R.  G.   523),  569. 
Wood   v.   Auburn    (87   Me.   287;    32 

Atl.   906),    609. 
Wood    V.     Gaynon     ( 1     Anih.    395 ) , 

646. 
Wood   V.   Holly  Mfg.   Co.    (100  Ala. 

660;    13   So.   948),   382,   383. 
Wood  V.  Leadbitter    (13  M.  and  W. 

838),   94. 


cxlii 


TABLE   OF    CASES. 


(References  are  to  pages.) 


Wood   V.   Morewood    (3    Q.   B.    440, 

note),  51. 
Wood  V.  N.  W.  Ins.   Co.    (46  N.   Y. 

421),  56. 
Wood   V.    Wand    (3    Exch.    748;    18 

L.   J.    Exch.    305;     13    L.    T.    212; 

13   Jur.    742),   675. 
Woodard  v.  Mitchell   (140  Ind.  406; 

39  N.  E.  437),  254. 
Woodburn's    Estate     (138     Pa.     St. 

606;  21  Atl.  16;  21  Am.  St.  932), 

272,    325,   320,   328,    877. 
Woodburn  v.   Auburn    (87  Me.  287; 

32   Atl.   906),   578. 
Wood    County,     etc.,    Co.    v.    West 

Virginia,    etc.,    Co.     (28    W.    Va. 

210;    57  Am.  Rep.  659),  33,   167, 

169. 
Woodland  Oil  'Co.  v.   Crawford    (55 

Ohio  St.   161;    36  Ohio  L.  J.  231; 

44  N.   E.    1093;    34  L.  R.  A.  62), 

90,     111,     228a,     229,     255,     274c, 

■274d,   284a,    310a,   8162. 
Woodman  v.  Metropolitan,  etc.,  Co. 

(149  Mass.  335;   21  N.  E.  482;  4 

L.   R.   A.   213),    755. 
Woodruff  V.   Bowen    (136  Ind.   431; 

34  N.   E.    1113),  412. 

Woods  V.  Greensboro,  etc..  Gas   Co. 

(54  Atl.   (Pa.)   470),  400b. 
Woodside   v.    Ciceroni    (93    Fed.    1; 

35  C.  C.  A.  177),  87,  127,  208a. 
Woodward    v.    Delaware,    etc.,    Co. 

(121    Pa.   St.    344;    15   Atl.    622), 

839. 
Worcester     Gaslight     Co.     v.     Wor- 
cester   (110  Mass.  353),   600. 
Worksop   V.   Worksop   Gas    Co.    (22 

Gas   J.   96),   478b. 
Worrall    v.    Wilson     (101    la.    475; 

70   N.   W.  619),   213. 
Wragg  V.   Commercial  Gas   Co.    (33 

Gas  J.   119,  313),  665,  674. 
Wray  v.   Evans    (80    Pa.    St.    102), 

788. 
Wright   V.   Brosseau    (73   111,    381), 

372. 


Wright    V.    Chicago,    etc.,    Ry.    Co. 

(27  111.  App.  200),  415. 
Wright   V.   Colchester    Gas    Co.    (30 

Gas   J.    336),    585,   602a. 
Wright  V.   McDowell    (88  Tex.   140; 

30  S.  W.   907),   639,  644. 
Wright. V.  Stears   (48  Gas  J.  lOGS), 

543. 
Wright    V.    Warrior    Run    Coal    Co. 

(182    Pa.    St.    514;    41    W.   N.   O. 

179;   9  Kulp.    I;   28  Pittsb.  L.  J. 

(N.  S.)    202;  38  Atl.  491),  296. 
Wyandotte    Electric    Light    Co.    v. 

Wyandotte     (124    Mich.    43;     82 

N.   W.  821),   499. 


X 

Xenia  Real  Estate  Co.  v.  Macy  ( 147 
Ind.  568;  47  N.  E.  147),  294b, 
592,    612,   613. 


Yates  V.  Mullen  (24  Ind.  277),  630. 
Yellow     River,     etc.,    Co.    v.    Wood 

County    (81   Wis.   554;    51   N.  W. 

1004),    834a. 
Yentzer   v.    Farmers,    etc.,    Ins.   Co. 

(200   Pa.   St.   325;    49   Atl.   767), 

809. 
Yoke   V.   Shay    (47   W.  Va.   40;    34 

S.   E.    748),   302,    894,   909. 
York  V.  Jones    (2  N.  H.  454),   316. 
York,  etc.,  R.  R.  Co.  v.  Winans   (17 

How.  30),  527. 
Youghiogheny  R.  Coal  Co.  v.  Pierce 

(153    Pa.    St.    74;    25   Atl.    1026), 

92. 
Young,    Ex   parte    (209   U.    S.    123; 

28   Sup.   Ct.   441;    52  L.   Ed.  — ), 

436. 
Young   v.    Boston    (104    Mass.   95), 

618. 
Young  V.   Bransford    (12  La.   232), 

702. 


TABLE   OF    CASES. 


cxliii 


(References  are  to   pages.) 


Young   V.    Ellis     (91    Va.    297;    21 

S.   E.   480),   80,    90,   262a. 
Young  V.  Equitable  Gas  Co.    (5  Pa. 

Super.    Ct.   232;    28    Pittsb.    L.   J. 

(N.  S.)   75;  41  W.  N.  C.  24),  156, 

292. 

Young  V.  Forest  Oil  Co.  (194  Pa. 
St.  243;  45  Atl.  121;  30  Pittsb. 
L.  J.  (N.  S.)  221),  131,  140,  192, 
192c,  228,  248,  853,  854,  864,  872, 
899,  900. 

Young   V.    McTllhenny    (116    S.    W. 

(Ky.)    728;   34   Ky.   L.   Rep.  — ), 

110,  879. 
Young  V.   Southwark,   etc.,   Co.    (69 

L.    T.     144;     41    W.    R.    622;    57 

J.  P.   806;    5    Rep.  432),  584. 

Young    V.    Vandergrift    (30    Pittsb. 

Leg.    J.    (N.    S.)    39),    157,   228, 

248. 
Youngblood    v.    Sexton     (32    Mich. 

406;   20   Am.  Rep.  654),  564. 


Yoch  V.  Home,  etc.,  Ins.  Co.  (Ill 
Cal.  503;  14  Pac.  189;  34  L.  R.  A. 
857),   795,   815. 


Zahniser,   etc.,    Co.   v.   Pennsylvania 

Torpedo    Co.     (190    Pa.    350;     42 

Atl.    707),    50. 
Zanesville    Gaslight    Co.    v.    Zanes- 

ville    (47   Ohio   St.   35;    23   N.   E. 

60;    23    Weekly    L.    Bull.    70;    29 

Am.    and   Eng.    Corp.    Cas.    190), 

428d,   429,   452. 
Zeller    v.    Book     (28    Ohio    Cir.    Ct. 

119),   260. 
Ziegler  v.   Brenneman    (237  111.   15; 

86  N.  E.  597),  54,  300,  332,  333, 

334b,   880,   906,   907. 
Ziegler  v.  Dailey   (37  Ind.  App.  240; 

76   N.   E.   819),    192b,   254b,   313, 

881,   895. 
Zouche  V.   Dalbaic    (L.  R.    10   Exch. 

177),  289. 


CHAPTER  I. 

HISTORICAL   SKETCH 

§1.  Petroleum  known  to  ancients. 

§2.  Early  discoveries  of  petroleum  in  United  States. 

§3.  Early  account  of  a  Western  New  York  oil  spring. 

$4.  Washington  county,  Ohio,  oil  well. 

§5.  The  first  oil  well  in  United  States. 

§6.  Other  first  oil  wells  in  United  States. 

§7.  In  what  countries  petroleum  found. 

§8.  Natural  gas  known  to  ancients. 

§9.  Early  natural  gas  in  America, 

f  10.  Sources  and  composition  of  petroleum  and  gas. 

§11.  Composition   of   petroleum. 

§12.  Composition  of  natural  gas. 

§13.  Early  attempts  at  distilling  or  refining  petroleum. 

§14.  Early  use  of  petrol«?um  as  a  medicine. 

§15.  Transportation. 

§16.  The  first  oil   lease. 

§17.  Early   use  of  artificial   ilhnninating  gas. 

§1.     Petroleum  hnown  to  ancients. 

Petroleum  wag  not  unknown  to  the  ancients.  Tt  is  related 
chemically  closely  to  asphalt  or  asphaltnm.^  Asphalt  was  used 
in  cementins:  the  stone  walls  of  Nineveh  and  Babylon,  even  in 
laying  the  famous  Tower  of  Babel;  and  is  called  in  the  Old 
Testament  ''slime  of  mortar."  Slime  pits  wer^^  near  the  city  Ts, 
the  present  Hit,  on  the  river  Ts,  a  tributary  of  the  Eu]>hrates — 

1  "  When  the  Jews  were  led  into  found   an  oil,  which  poured  on   the 

Pers'a  they  found  pits  in  which  the  hot   stone   used    in    sacrifices,    burst 

priests  concealed  the  sacred  fire  they  into    high    flames.     These    pits    the 

required     for     their     sacrifices." — 2  Jews  closed  and  applied  to  them  the 

Maccabees.  Chap.  T.     Tlie  contcmpo-  term    vephiar  or   ncphtoj  —  a    place 

raries  of  Nehomiah.  in  after  years.  of      expiation.     Hence      our      word 

in  searching  for  this  concealed  fire,  naphtha. 


2  OIL    AND    GAS. 

sometimes  called  the  Spring  of  Is."  This  spring  attracted  the 
attention  of  Alexander  and  Trajan.  Mention  is  made  in  the 
Old  Testament  of  fountains  and  springs  of  oil,  which  may  be 
taken  without  doubt  to  relate  to  petroleum  springs.  Asphaltum 
is  quite  common  in  the  Dead  Sea  regions,  especially  upon  the 
shores  of  that  mysterious  body  of  water.  The  Egyptians  knew 
the  value  and  use  of  petroleum  and  asphalt;  for  they  soaked 
the  cerements  of  the  dead  in  them,  which  has  been  one  of  the 
factors  in  the  preservation  of  the  mummies  to  the  present  day. 
A  mummy  will  readily  burn,  l>ecause  of  the  fact  that  it  was 
wrapped  in  clothes  soaked  in  petroleum  or  liquid  asphaltum.^ 
Their  term  for  it  was  "  rock  oil  " ;  and  it  is  supposed  that  they 
got  it  near  a  place  on  western  mouth  of  the  Gulf  of  Suez,  called 
at  the  present  day  Djebel-ez-Zeit,  which  is  the  Arabic  name  for 
"  Oil  Mountain.''  Oil  was  discovered  at  that  place  in  Feb- 
ruary, 1886.  The  oil  fountains  of  Hit  were  celebrated  among 
the  iVrabs  and  Persians.  Herodotus,  four  hundred  and  fifty 
years  before  the  Christian  Era,  makes  mention  of  the  then 
famous  Spring  of  Zante,  Zante  being  one  of  the  Ionian  Islands. 
Pliny  and  Dioseorides  speak  of  the  oil  taken  from  the  earth  at 
Agrigentum,  Sicily,  and  of  its  use  in  lamps  as  "Sicilian  Oil." 
From  time  immemorial,  near  Rivanazzano,  in  Sardinia,  small 
rills  of  oil  have  nm  from  the  earth.  The  famous  Caspian 
region,  or  Baku  district,  was  well  known  to  the  ancients,  they 
making  use  of  the  oil  and  gas  of  that  region.  *  It  is  supposed 
that  the  famous  Greek  Fire  was  nothing  more  than  combustibles 
soaked  in  petroleum,  obtained  from  that  country ;  for  it  is  known 
that  Greece  received  petroleum  from  the  port  of  Phanagoria. 
In  limited  quantities  it  was  known  to  the  Chinese,  probably 
many  centuries  before  the  beginning  of  the  present  Era.  Their 
earliest  records  show  a  knowledge  of  it.  It  was  probably  not 
unkno^\m  in  India  at  an  early  day,  and  to  the  Romans  when  they 
invaded  the  present  territory  of  Galicia,  of  Moldavia,  and  of 
Wallachia,  where  it  now  is  obtained  in  great  quantities.^ 

2  Mentioned     by    Herodotus,     450  3  They   used   liquid   asphaltum   in 

B.  C.  as  eight  days'  journey   from       laying  up  stones. 
Babylon.  *  Rrannt  on  Petroleum,  20. 

5  Brannt  on  Petroleum,  2. 


IIISTOKICAI,    SKETCH.  6 

§2.     Early  discoveries  of  petroleum  in  United  States. 

The  Jesuit  Fathers  in  tliis  country  in  early  times  made  men- 
tion of  hnrning  springs;  which  were  nothing  more  than  oil  set 
afire  that  had  accumulated  on  the  surface  of  the  water  of  springs 
■ —  usually  what  may  be  termed  stagnant  springs.  One  of  these 
writers  was  a  Franciscan  missionary,  Joseph  de  la  Roche  d' 
Allion,  who  wrote  a  letter  in  1029  describing  such  a  spring,  and 
which  is  printed  in  Sagard's  Ilistoire  du  Canada  in  1036.''  On 
Oil  Creek,  in  Venango  County,  Pennsylvania,  were  to  be  seen  in 
the  first  half  of  the  present  century  a  number  of  pits,  fifteen  or 
twenty  feet  across,  some  circular,  some  oval,  and  some  square, 
carefully  cribbed  or  walled  up  with  timber  or  logs.  Tn  the  bot- 
tom of  these  pits  were  growing  trees,  centuries  old.  Tlie  oil  had 
preserved  the  timl>er  with  which  they  Avere  walled.  The  theory 
has  been  advanced  that  they  were  constructed  by  that  mysterious 
race  wdiich  preceded  the  American  Indian,  who  inhabited  that 
region  at  the  first  discovery  of  America  by  the  Europeans ;  and 
that  that  race  was  the  same  as  the  one  which  oi-^erated  the  copper 
mines  of  the  Lake  Superior  country.'^  As  early  as  1750  a 
French  officer  located  at  Fort  Duquesne  (the  present  site  of 
Pittsburg),  in  a  letter  to  General  Montcalm,  then  located  at 
Quebec,  described  oil  found  in  a  region  which  was  evidently 
the  region  of  Oil  Creek  as  now  known. ^ 

"  While  descending  the  Allegany,"  said  he,  "  fifteen  leagues 
below  the  mouth  of  the  Connew^ango,  and  three  above  the  Ve- 
nango, w^e  were  invited  by  the  chief  of  the  Senecas  to  attend  a 
religious  ceremony  of  his  tribe.  We  landed,  and  drew  up  our 
canoes  on  a  point  where  a  small  stream  entered  the  river.  The 
tribe  appeared  unusually  solemn.  We  marched  up  the  stream 
about  half  a  league,  where  the  company,  a  large  band  it  ap- 
peared, had  arrived  some  days  before  us.  Gigantic  hills  begirt 
us  on  every  side.  The  scene  was  really  sublime.   The  great  chief 

fl  On  an  old  map  of  1070.  yet  pro-  die    Colonies   of    America."    ete..    by 

served,   is   marked    a    "Fontaine    do  Lewis  Evans,  published  at  Philadel- 

Bitume."    located    near    the    present  phia  in  1755.  the  existence  of  potro- 

village  of  Cuba.  New  York.  lenni   in   the  present   States  of  both 

7  Brannt  on   Petroleum.   4.  Pennsylvania  and  Ohio  is  indicated 

8  On  "A  General  Map  of  the  Mid- 


4:  OIL    AND    GAS. 

then  recited  tlie  conquests  and  heroism  of  their  ancestors.  The 
surface  of  the  stream  was  covered  with  a  thick  scum,  which, 
upon  applying  a  torch  at  a  given  signal,  burst  into  a  complete 
conflagration.  At  the  sight  of  the  flames  the  Indians  gave  forth 
the  triumphant  shout  tliat  made  the  hills  and  valleys  re-echo 
again.  Here,  then,  is  revived  the  ancient  fire-worship  of  the 
East ;  here,  then,  are  the  children  of  the  Sun."  * 

In  1784  Peter  Kalm,  a  celebrated  Swedish  botanist  landed  in 
this  country,  and  spent  three  years  in  travel.  In  1753  and  1761 
he  published  an  account  of  his  travels,  in  which  he  described  the 
oil  springs  of  Western  Pennsylvania.  In  the  latter  part  of  the 
eighteenth  century  in  the  correspondence  of  that  time,  frequent 
mention  is  made  of  oil  observed  in  springs  and  floating  on  water 
in  Western  Pennsylvania,  Eastern  Ohio,  Western  Virginia,  and 
Eastern  Kentucky.^"  It  is  said  that  General  Washington,  in 
1775,  when  visiting  the  Kanawha  Valley,  set  aside  to  the  public 
a  square  mile  of  land,  on  which  was  located  a  gas  well,  above 
Salt  Lick ;  but  a  defect  in  the  deed,  afterwards  discovered,  ren- 
dered the  conveyance  void.  As  early  as  181-1,  in  Washington 
County,  Ohio,  thirty  miles  north  of  Marietta,  in  sinking  a  salt 
well,  l)oth  petroleum  and  gas  were  found.  A  similar  well  was 
bored  in  1819  in  Wayne  County,  Kentucky,  and  it  yielded  so 
much  black  petroleum  that  it  was  abandoned.  In  1829  a  salt 
well  Iwred  near  Burkesvillc,  Cnnd)erland  County,  of  the  same 
State,  yielded  great  quantities  of  oil,  estimated  to  amount  to 
fifty  thousand  barrels  up  to  1860,  most  of  which  was  lost.  Some 
of  it  was  sold  as  a  medicine  under  the  name  of  "American  Oil." 
In  1840  a  well  at  this  place  spouted  oil  at  the  rate  of  seventy- 
five  gallons  a  minute  for  a  short  period.  Tn  1857  oil  was  dis- 
covered by  one  Shaw,  in  Enniskillen  township,  in  the  Province 
of  Western  Ontario;  and  later  a  well  was  dug  which  proved  to 
be  a  flowing  one  at  the  rate  of  fifty-five  gallons  a  minute.  The 
first  flowing  Avell  was  discovered  January  11,  1862,  on  Black 
Creek,  of  that  to^vnship.      In  1854  petroleum  springs  were  dis- 

9  Henry's      History      of      Petrole-  in  North  America."  in   1788,  speaks 

im,  11.  at   length   nf  petroleum   in   Pennsyl- 

K^Loskip],  in  his  "History  of  the  vania  and  Ohio.     See  the  account  in 

fjnited  Brethren  Among  the  Indians  Brannt,   p.   5. 


IIISTORICAl-    SKETCH.  0 

covered  fifteen  miles  west  of  Tulare  Lake,  California,  by  tlie 
United  States  Government  officers. 

§3.     Early  account  of  a  western  New  York  oil  spring. 

As  early  as  1833  Prof.  Benjamin  Silliman,  Jr.,  of  Yale  Col- 
lege, visited  an  oil  spring  or  pool  in  the  western  part  of  Alle- 
gany County,  New  York,  and  wrote  a  very  interesting  account 
of  his  visit  and  the  result  of  his  examination.  The  oil  taken 
from  this  spring  or  pool  was  sold  as  ''  Seneca  Oil  "  for  medicinal 
purposes. 

"  The  Oil  Spring,  as  it  is  called,"  said  he,  "  is  situated  in  the 
western  part  of  the  County  of  Allegany,  in  the  State  of  New 
York.  This  county  is  the  third  from  Lake  Erie  on  the  south 
line  of  the  State,  the  counties  of  Cattaraugus  and  Chautauqua 
lying  -west,  and  forming  the  southwestern  termination  of  the 
State  of  New  York.  The  Spring  is  very  near  the  line  which 
divides  Allegany  and  Cattaraugus.  Being  in  the  County  of  Al- 
legany, I  was  indebted  to  the  kindness  of  a  friend,  who  on  the 
6th  of  September  took  me  from  Angelica  to  the  Spring.  After 
crossing  the  Genesee  River,  our  ride  was  to  the  town  of  Friend- 
ship, six  miles;  then  to  Cuba,  eight  miles;  and  thence  into  the 
township  of  Hinsdale,  three  and  a  half  miles,  making  seven- 
teen and  a  half  miles  from  Belvidere,  the  county-seat  of 
Phillip  Church,  Esq.,  and  twenty-one  miles  from  Angelica 
village.  The  place  will  be  found  without  difficulty  by  taking 
a  guide  at  Hick's  tavern,  which  is  on  the  comer  of  the  road 
to  Cuba  where  it  is  intersected  by  the  road  to  Warsaw,  two 
miles  w^est  of  Cuba.  The  last  half  mile  is  in  the  forest;  and  a 
road  is  cut,  for  the  greater  part  of  the  way,  through  the  woods ; 
but  the  path  becomes  finally  an  obscure  foot-track  in  which  a 
stranger  without  a  guide  might  easily  lose  his  way,  or  at  least 
fail  of  finding  the  object  of  his  search.  The  country  is  rather 
mountainous;  but  the  road  running  between  tlie  ridges  is  very 
good,  and  leads  through  a  cultivated  region  rich  in  soil  and 
picturesque  in  scenery.  Its  geological  character  is  the  same 
with  that  which  is  known  to  prevail  in  tins  western  region  ;  a 
silicious  sandstone,  witli  shale,  and  in  some  places  limestone  is 


6  OIL  AND  GAS. 

tlio  immediate  basis  of  the  country.  The  sandstone  and  shale 
(the  limestone  I  did  not  see)  lie  in  nearly  horizontal  strata. 
The  sandstone  is  usually  of  a  light  gray  color,  and  both  it  and 
the  shale  abound  with  entrocites,  enerinites,  corallines,  terebra- 
tula,  and  other  religUcV,  characteristic  of  the  secondary  tran- 
sition formation.  The  Oil  Si>ring  or  fountain  rises  in  the  midst 
of  a  marshy  ground.  It  is  a  muddy  and  dirty  pool  of  about 
eighteen  feet  in  diameter,  and  is  nearly  circular  in  form.  There 
is  no  outlet  above  ground,  no  stream  flowing  from  it ;  and  it  is  of 
course  a  stagnant  water,  with  no  other  circulation  than  that 
which  springs  from  the  changes  of  tenqx^rature  and  from  the  gas 
and  petroleum  that  are  constantly  rising  on  the  surface  of  the 
pool.  The  water  is  covered  with  a  thin  layer  of  petroleum  or 
mineral  oil,  giving  it  a  foul  appearance  as  if  coated  with  dirty 
molasses,  having  a  yellowish-brow^n  color.  Every  part  of  the 
water  was  covered  by  this  film,  but  it  had  nowhere  the  irradiance 
Avhich  I  recollect  to  have  observed  at  St.  Catherine's  well, 
a  petroleum  fountain  near  Edinburgh  in  Scotland.  There  the 
water  was  pellucid,  and  the  hues  produced  by  the  oil  were  bril- 
liant, giving  the  whole  a  beautiful  appearance.  The  difference 
is,  however,  easily  accounted  for.  St.  Catherine's  well  is  a 
lively,  flowing  fountain,  and  the  quantity  of  petroleum  is  only 
sufficient  to  cover  it  partially,  while  there  is  nothing  to  soil  the 
stream ;  in  tho  present  instance,  the  stagnation  of  the  water,  the 
comparative  almndance  of  the  petroleum  and  tho  mixture  of 
leaves  and  sticks  and  other  productions  of  a  dense  forest  preclude 
any  beautiful  features.  There  are,  however,  upon  this  water, 
here  and  there,  spots  of  what  seems  to  be  a  purer  petroleum  prob- 
ably  recently  risen,  which  is  free  from  mixture,  and  which  has 
a  bright  broAvnish-yellow  appearance  —  lively  and  sparkling. 
Were  the  fountain  covered  entirely  with  this  purer  production, 
it  Avould  be  boantiful.  We  were  informed  that  when  the  foun- 
tain is  frozen,  there  are  always  some  air  holes  left  open,  and  that 
in  these  petroleum  collects  in  unusual  abundance  and  purity, 
having  distinctly  the  beautiful  appearance  which  has  just  been 
mentioned  as  now  occurring  here  and  there  upon  the  water. 
The  cause  of  this  is  easily  understood.  The  petroleum  being 
protected  by  the  ice  from  the  impurities  which  at  other  times 


HISTORICAL    SKETCH.  7 

fall  into  it,  escapes  contaiuiiiation,  and  being  diverted  to  the 
air  holes  both  by  its  lii>litne8s  and  bv  tlie  gas  wliieh  mixes  witli 
it,  collects  there  in  greater  quantity  and  jjurity.  All  the  sticks 
and  leaves,  and  the  ground  itself  around  the  fountain,  are  ren- 
dered more  or  less  adhesive  by  the  petroleum.  They  collect  the 
petroleum  by  skimming  it  like  cream  from  a  milk-pan.  For 
this  purpose  they  use  a  broad,  flat  board,  made  thin  at  one  edge 
like  a  knife.  It  is  moved  flat  u]X)n  and  just  under  the  surface 
of  the  water,  and  is  soon  covei'cd  by  a  coating  of  ]x^troleum 
which  is  so  thick  and  adhesive  that  it  does  not  fall  oft",  but  is  re- 
moved by  scraping  the  instrument  upon  the  lip  of  a  cup.  It  has 
then  a  very  foul  appearance  like  very  dirty  tar  or  molasses ;  but 
it  is  purified  by  heating  it,  and  straining  it  while  hot  through 
flannel  or  other  woolen  stuff.  It  is  used  by  the  people  of  the 
vicinity  for  sprains  and  rheumatism  and  for  sores  u}X)n  tlieir 
horses.  It  is  not  monopolized  by  any  one,  but  is  carried  away 
freely  by  all  who  care  to  collect  it,  and  for  this  pur])ose  the 
spring  is  frequently  visited.  I  could  not  ascertain  how  much  is 
annually  obtained.  But  the  qiumtity  is  considerable.  It  is  said 
to  rise  more  abundantly  in  hot  weather  than  in  cold.  Gas  is 
constantly  escaping  through  the  water,  and  a]>pears  in  bubbles 
upon  the  surface.  It  becomes  much  more  abundant,  and  rises  in 
large  volumes  whenever  the  mud  at  the  bottom  is  stirred  by  a 
pole.  We  had  no  means  of  collecting  or  of  firing  it;  l>ut  there 
can  l>e  no  doubt  that  it  is  tlie  carburetted  hydrogen  —  probably 
of  the  lighter  kind,  but  rendered  heavier  and  more  odorous  by 
holding  a  large  portion  of  the  petroleum  in  solution.  Whenever 
it  is  examined  we  should  expoet,  of  course,  to  find  cai'bonic  acid 
gas  mingled  with  it,  and  not  improbably  ozate  or  nitrogen.  We 
could  not  learn  that  any  one  had  attempted  to  fire  the  gas  as  it 
rises,  or  to  kindle  the  film  of  ]>etroleum  upon  tli(>  water.  We 
were  told  that  an  intoxicated  Indian  hn<l  fallen  into  ihe  pool  and 
been  drowned  many  years  ago,  but  that  his  body  had  never  l)cen 
recovered.  The  story  may  Ix^  true,  and  if  true,  it  would  be  a 
curious  inquiry  whether  the  antiseptic  ]>ro|wrties  of  petroleum 
so  well  exemplified  in  the  Egyptian  mummies  may  not  have  pre- 
served his  body  from  putrefaction.  The  history  of  this  spring 
is  not  distinctly  knowm.     The  Indians  were  well   acquainted 


8  OIL  AND  GAS. 

witli  it^  and  a  square  mile  around  it  is  still  reserved  for  the 
Senecas.  As  to  the  geological  origin  of  the  spring,  it  can 
scarcely  admit  of  a  doubt  that  it  rises  from  beds  of  bituminous 
coal  below.  At  what  depth  we  know  not,  but  probably  far  down. 
The  forraption  is  doubtless  connected  with  tlie  bituminous  coal 
of  the  neighboring  counties  of  Pennsylvania  and  of  the  west 
rather  than  with  the  anthracite  beds  of  the  central  parts  of 
Pennsylvania."  ^^ 

§4.     Washington  county,  Ohio,  oil  well. 

An  account  was  given  in  1833  of  the  Washington  County, 
Ohio,  well,  by  Dr.  S.  P.  Ilildreth,  of  Marietta,  which  is  of  un- 
usual interest  at  the  present  day. 

"  The  greater  abundance  of  stone  coal  in  this  locality,"  said 
he,  '*  than  in  that  of  the  Muskingum,  gives  it  a  decided  advan- 
tage in  the  elaboration  of  petroleum.  On  the  latter  river  the 
wells  afford  but  little  oil,  and  that  only  during  the  time  the 
process  of  boring  is  going  on.  It  ceases  soon  after  the  wells  are 
completed,  and  yet  all  of  them  abound  more  or  less  in  gas.  A 
well  on  Duck  Creek,  about  thirty  miles  north  of  Marietta, 
owned  by  ]\Ir.  McKee,  furnishes  the  greatest  quantity  of  any  in 
this  region.  It  was  dug  in  the  year  1814,  and  is  four  hundred 
and  seventy-five  feet  in  depth.  Salt  water  was  reached  at  one 
hundred  and  eighty-five  feet,  but  not  in  sufficient  quantity. 
However,  no  more  water  was  found  below  this  depth.  The 
rocks  passed  were  similar  to  those  on  the  Muskingum  Piver, 
above  the  flint  stratum,  or  like  those  between  the  flint  and  salt 
deposits  at  McConnellsville.  A  bed  of  coal  two  yards  in  thick- 
ness was  found  at  the  depth  of  one  hundred  feet,  and  gas  at  one 
hundred  and  forty-four  feet,  or  forty-one  feet  above  the  salt 
rock.  The  hills  are  sandstone,  based  on  lime,  one  hundred  and 
fifty  or  two  hundred  feet  in  height,  with  abundant  beds  of  stone 
coal  near  their  feet.  The  oil  from  this  well  is  discharged  period- 
ically, at  intervals  of  from  two  to  four  days,  and  from  three  to 

11  American  Journal  of  Science, 
1833.  set  out  in  full  in  Henry's  His- 
tory of  Petroleum,  pp.  12-19. 


HISTORICAL    SKETCH. 


9 


six  hours'  duration  at  each  ix^riod.  Great  (jnautities  of  gas  ac- 
company the  discharges  of  oil,  which  for  the  hrst  few  years 
amounted' to  from  thirty  to  sixty  gallons  at  each  eruption.  The 
discharges  at  this  time  are  less  frequent  and  diminished  in 
amount,  affording  only  about  a  barrel  ^x^r  week,  which  is  worth 
at  the  well  from  fifty  to  seventy-five  cents  a  gallon.  A  few  years 
ago,  when  oil  was  most  abundant,  a  large  quantity  had  been  col- 
lected in  a  cistern  holding  thirty  or  forty  barrels.  At  night  some 
one  engaged  about  the  works  approached  the  well-head  with  a 
lighted  candle.  The  gas  instantly  became  ignited,  and  commu- 
nicated the  flames  to  the  contents  of  the  cistern,  which,  giving 
Avay,  suffered  the  oil  to  be  discharged  down  a  short  declivity 
into  the  creek,  where  the  water  passes  with  a  ra])id  current  close 
to  the  well.  The  oil  still  continued  to  burn  most  furiously,  and 
spreading  itself  along  the  surface  of  the  stream  for  half  a  mile 
in  extent,  shot  its  flames  to  the  tops  of  the  highest  trees,  exhibit- 
ing the  novel  and  perhaps  never  before  witnessed  spect^icle  of  a 
river  actually  on  fire."  ^" 

§5.     The  first  oil  well  in  United  States. 

In  1853  George  H.  Bissell  saw  a  bottle  of  crude  petroleum  in 
the  office  of  Professor  Crosby,  of  Dartmouth  College.  On 
examining  it,  he  at  once  perceived  its  true  value.  lie  was  en- 
gaged in  the  practice  of  law  in  Xcw  York  City  with  J.  G. 
Eveleth ;  and  he  proposed  to  his  partner  that  they  proceed  at 
once  to  Titusville  and  inspect  the  territory.  The  result  of  this 
visit  was  that  they,  in  1854,  purchased  one  hnndred  and  five 
acres  of  Brewer,  Watson  &  Company,  and  leased  another  tract 
of  about  the  same  size  for  ninety-nine  years,  for  five  thousand 
dollars.  The  deed  bore  date  of  November  10,  1854;  and  the 
land  was  situated  on  Oil  Croc^k,  in  Cherrvtree  Townshi]),  Ve- 
nango County,  and  covered  the  Island  situated  at  the  junction 
of  Pine  and  Oil  Creeks.  On  December  30,  1854,  Jonathan  G. 
Eveleth,  George  H.  Eissell,  James  II.  Salisbury  and  Dexter 
A.  Hawkins  of  j^ew  York,  Prancis  B.  Brewer  of  Titusville  and 

12  Amprican  Journal  of  Rcionoo,  Honry's  History  of  Petroleum,  pp. 
July,  1833,  set  out  nearly  in  full  in       21-26. 


JO  oil.  AND  GAS. 

Anson  Sheldon  of  New  Haven,  Connecticut,  organized  and  in- 
corporated the  Pennsylvania  liock  Oil  Company,  the  first  oil 
company  incorporated  in  America.  On  January  16,  1855,  the 
territory  above  described  was  leased  to  the  new  oil  company. 
Although  the  new  company  had  its  leases,  there  was  an  uncer- 
tainty how  the  oil  should  be  developed ;  and  the  enterprise  was 
allowed  to  drag.  Professor  Silliman  had  been  given  two  hun- 
dred shares  of  stock  in  the  new  company,  in  order  to  make  him 
president  of  it ;  but  owing  to  the  small  amount  of  petroleum 
obtainable,  he  never  expected  much  to  come  of  the  venture. 
Speaking  of  the  plan  of  development,  Mr.  Henry  says :  "  The 
idea  came  from  another  quarter,  and  was  suggested  by  an  inci- 
dent as  trifling  as  that  which  disclosed  the  law  of  gravitation. 
While  seeking  shelter  beneath  the  awning  of  a  Broadway  drug 
store  one  scorching  day  in  the  summer  of  1856,  Mr.  Bissell's 
eye  fell  upon  a  remarkable  show-bill  lying  beside  a  bottle  of 
'  Kier's  Petroleum,'  in  the  window,  Ilis  attention  was  arrested 
by  the  singularity  of  displaying  a  four  hundred  dollar  bank  note 
in  such  a  place ;  but  a  closer  look  disclosed  to  him  the  fact  that  it 
was  only  an  advertisement  of  a  substance  in  which  he  was  deeply 
interested.  He  stepped  in,  and  requested  permission  to  examine 
it.  The  druggist  took  it  from  the  window,  and,  having  plenty  of 
them,  told  him  to  keep  it.  For  a  moment  he  scanned  it,  scrutin- 
izing the  derricks,  and  remarking  the  depth  from  which  the  oil 
was  drawn,  when  instantly,  like  an  inspiration,  it  flashed  upon 
him  that  this  was  the  way  their  lands  must  be  developed  —  by 
artesian  wells."  Nearly  two  years  were  allowed  to  elapse  before 
arrangements  were  completed  which  enabled  the  Oil  Company 
to  send  out  a  man  to  its  leased  territory  to  begin  operations. 
They  selected  Mr.  E.  L.  Drake,  of  jSTew  Haven,  conductor  on  a 
passenger  railway  train,  who  came  to  be  known  in  the  history  of 
oil  operations  as  "  Colonel  Drake,"  to  begin  operations.  He 
arrived  in  the  future  oil  territory  about  jMay  1,  1858.  Drake 
faced  many  difficulties  when  he  arrived  at  the  field  of  his  future 
operations,  among  which  was  the  want  of  ready  money,  the 
difficulty  of  finding  suitable  operators,  and  the  novelty  of  the 
scheme.  Mr.  Kier,  the  patent  medicine  man  of  Pittsburg,  had 
recommended  to  Mr.  Bissell  "  Uncle  Billy  Smith  "  and  his  two. 


IIISTORKWI-    SKETCH.  11 

sons  as  suitable  men ;  and  tliey  were  bronglit  to  Titusville  in 
June,  1859,  when  o])crations  began.  "Aggravating-  delays  fol- 
lowed," says  Mr.  Henry.  "  In  artesian  boring  it  is  necessary  '„o 
begin  on  the  rock  to  drill.  This  had  been  previously  done  by 
digging  a  common  well-hole  and  cribbing  it  up  with  timber. 
When  the  rock  is  within  a  few  feet  of  the  surface  it  is  still  the 
cheajDest  and  easiest  method,  but  in  some  localities  to  do  so  would 
be  practically  im})ossible.  They  started  to  dig  a  hole,  but  it  so 
persistently  caved  in  and  tilled  with  water  when  they  got  a  few 
feet  below  the  surface,  that  Drake  determined  to  give  it  up  and 
try  an  experiment  that  had  suggested  itself  to  his  mind.  This 
was  the  driving  of  an  iron  tube  through  the  quicksand  and  clay 
to  the  rock.  If  this  is  exclusively  his  own  invention,  which  is 
probable,  it  is  a  pity  he  did  not  procure  a  patent  on  it.  The 
royalty  would  have  afforded  him  at  least  a  competency,  though 
the  driving  pipe  is  not  so  much  in  use  as  formerly."  The  o])era- 
tors  in  the  oil  region  have  had  the  benefit  of  this  invention  with- 
out any  return,  unless  indeed  we  except  the  good  feeling  which 
prompted  them  to  send  him  a  present  of  $4,200,  when  they 
heard  he  was  sick  and  in  need.  "  The  pipe  was  successfully 
driven  to  the  rock  thirty-six  feet,  and  about  the  middh^  of  Augnst 
the  drill  was  started.  The  drillers  averaged  about  three  feet  a 
day,  making  slight  '  indications  '  all  the  way  down.  Saturday 
afternoon,  August  28th,  1859,  as  ^Ir.  Smith  and  his  boys  were 
about  to  quit  for  the  day,  the  drill  dropped  into  one  of  those 
crevices,  common  alike  in  oil  and  salt  borings,  a  distance  of 
about  six  inches,  making  the  total  depth  of  the  whole  well  691/2 
feet.  They  withdrew  the  tools,  and  all  went  home  till  Monday 
morning..  On  Sunday  afternoon,  however,  '  Uncle  Billy  '  went 
dowm  to  the  well  to  reconnoitre,  and  peering  in  he  could  see  a 
fluid  within  eight  or  ten  feet  of  the  surface.  He  ])lnggcd  one 
end  of  a  bit  of  tin  water  s]M)ut  and  let  it  down  with  a  string.  He 
drew  it  up  filled  with  petroleum.  That  night  the  news  reached 
the  village,  and  Drake,  when  he  came  down  next  i^'ornin'g  bi'ight 
and  early,  found  the  old  man  and  his  Imu-s  proudly  gu:n'ding  the 
spot,  wnth  several  barrels  of  ])etrolonni  standii'g  abnit.  The 
pump  was  at  once  adjusted,  and  the  well  commenced  ])r(idu<'ing 
at  tlie  rate  of  about  twenty-five  barrels  a  day.     The  news  spread 


12  OIL    AND    GAS. 

like  lii>htnii)g.  The  village  was  wild  with  excitement.  The 
country  ]>eople  round  about  came  pjuring  down  to  see  the  won- 
derful well.  Mr.  Watson  jumped  on  a  horse  and  hurried 
straightway  to  secure  a  lease  of  the  spring  on  the  McClintock 
farm  near  the  mouth  of  the  creek.  Mr.  Bissell,  who  had  nuide 
arrangements  to  be  informed  of  the  result,  by  telegraph,  bought 
up  all  the  Pennsylvania  rock-oil  stock  it  was  possible  to  get  hold 
of,  soon  securing  most  of  that  owned  in  New  Haven,  and  four 
days  afterward  was  at  the  well."  "  "  This  memorable  strike," 
says  Crew,  "  ushered  in  the  Petroleum  Era."  ^* 

^6.     Other  first  oil  wells  in  United  States. 

Naturally  this  great  "find"  of  oil  created  tremendous  excite- 
ment, and  immediately  suggested  the  putting  down  of  other 
wells.  The  second  well  was  put  down  in  February,  1860,  by 
Barnsdal,  Meade  and  Ronse,  to  a  depth  of  one  hundred  and 
sixty  feet,  resulting  in  a  production  of  forty  to  fifty  barrel? 
daily.  This  well  was  on  the  Watson  Flats,  below  Titusville. 
The  third  well  was  located  on  the  afterwards  famous  McClintock 
farm.  It  was  completed  in  the  spring  of  1860,  and  was  sunk  by 
a  Mr.  Angier  for  Brewer,  Watson  and  Company.  These  wells 
had  to  be  pumped.  The  first  flowing  well  was  produced  in  the 
summer  of  1860,  on  the  Buchanan  farm  near  Bouseville,  called 

i"!  Henry's  History  of  Petroleum.  Titusville,  who  gave  him  his  dinner 
14  Crew  on  Petroleum,  142.  and  furnished  him  money  to  return 
Colonel  Drake  made  considerable  home.  On  arriving  at  Titusville  this 
money  in  oil  investments,  but  lost  it  friend  raised  for  him  $4,200  as  a 
all  in  New  York  City  speculating  in  present.  With  the  proceeds  of  this 
oil  stocks.  Becoming  an  invalid,  he  sum  the  family  were  enabled  to  livi 
was  taken  by  his  wife  to  Vermont,  plainly  but  comfortably  for  several 
with  their  children,  and  afterwards  years.  They  settled  in  Bethlehem, 
to  the  highlands  of  New  Jersey,  in  Pa.,  and  in  1873  that  State  provideu 
order  that  he  could  have  the  benefit  for  him  a  pension  of  $1,500  a  year 
of  tlie  sea  breeze.  They  lived  in  ab-  for  life,  and  in  case  his  wife  sur- 
ject  poverty,  his  wife  supporting  the  vived  liim.  the  pension  to  be  con- 
family  with  her  needle.  With  an  ef-  tinned  to  her  during  her  life.  Be- 
fort  she  one  day  raised  forty  cents  publics  are  not  always  ungenerous; 
to  enable  him  to  go  to  New  York  nor  are  employers  who  reap  vast  for- 
City  to  see  if  he  could  not  find  some-  tunes  by  the  labors  of  their  servants 
thing  he  could  do  or  secure  some  aid.  always  generous. 
He  met  an   old   acquaintance   from 


IlISTOUICAI.    SKETCH.  13 

the  "  Curtis  "  well,  but  it  soon  tilled  with  water  and  ecascd  to 
flow.  The  tirst  permanent  flowing  well  was  situated  on  tlie 
Upper  MeElhenny  Farm,  and  was  completed  in  June,  1801,  by 
Messrs.  Phillip  and  Company.  It  was  four  hundred  feet  deep, 
and  produced  three  hundred  barrels  per  day  for  fifteen  months, 
before  it  ceased  to  flow.  The  celebrated  "  Phillip's  Well  "  was 
situated  on  the  Tarr  farm,  and  was  completed  November  14, 
1861.  It  was  a  flowing  well  producing  three  thousand  barrels 
daily,  one  day  producing  3,940.  The  "■  Empire  Well  "  produced 
the  same  amount.  Wells  were  put  down  after  Atigust,  1859,  as 
rapidly  as  the  crude  means  of  drilling  them,  and  the  remoteness 
from  supplies,  would  pemiit.  In  September  of  that  year  crude 
dII  brought  twenty  dollars  a  barrel  in  the  oil  region,  but  in  Xo- 
rember,  1861,  it  was  only  five  cents,  the  lowest  oil  ever  sold.  In 
JaniiSiTj,  1S6.J,  ten  cents.  This  was  due  to  the  lack  of  facilities 
io  transport  it.  After  better  facilities  had  been  employed  to  get 
the  crude  oil  to  market  the  price  arose,  until  July,  1864,  it 
brought  fourteen  dollars  a  barrel. ^^ 

§7.     In  what  countries  petroleum  found. 

It  is  difficult  to  name  all  the  countries  in  which  petroleum  has 
been  discovered.  It  was  known  in  ancient  times  that  oil  existed 
in  the  Echigo  province  of  Japan,  on  the  Japanese  Sea.  The 
springs  there  were  called  the  ''  Evil  Smelling  Springs."  Oil  is 
still  found  in  that  province  in  great  quantities.  In  Java  there 
were  in  1879  at  least  one  hundred  wells.  In  Borneo  in  1899 
was  known  a  considerable  field  of  oil,  some  of  which  was  then 
worked.  In  Sumatra,  in  1898,  it  was  rejTorted  that  the<  field 
was  giving  out.  In  Bunnah  are  ancient  oil  wells,  and  many 
"wells  on  the  Irrawaddy  Biver  are  in  active  ojx'ration.      Near  the 

15  In  1854  it  sold  for  $1  a  pallon.  5(10  ban-els  daily  woro  takon  out  of 

From  1850  to  1876  it  lias  been  esti-  the   wells    in    Ohio    and    West    Vir- 

niated  that  10,500  wells  were  drilled  ginia.     The     two     wells     at     Tcrre 

alone  in  Pennsylvania;   and  from  a  Haute,    Indiana,    in   that  year   only 

territory  of  an   actual   area   of  less  produced  27  barrels  per  day.     They 

than  three  miles  on   Oil   Creek   not  were   the  only   oil   bearing  wells   in 

less    than    .$110,000,000    of    oil    had  that  State. 
been    produced.     In    1S7G    not    over 


14  OIL    AND    GAS. 

Bolan  Pass  in  India  jwtroleum  was  discovered  in  1885  ;  and  at 
Sibi  on  the  northwest  frontier.  It  is  also  found  in  the  Punjab 
regions,  betAveen  Cashmere  and  Cabul.  In  Persia  at  Talish  a 
petroleum  spring  has  recently  been  discovered.  On  the  eastern 
side  of  the  Caspian  Sea,  on  the  Taman  peninsula  are  vast  depos- 
its of  oil ;  while  on  the  western  shore,  immediately  opposite,  is 
the  famous  Baku  district  of  Russia,  once  thought  inexhaustible 
in  both  its  oil  and  gas,  but  now  showing  signs  of  failure.^"  On 
the  shore  of  the  Red  Sea,  at  Djmsah,  in  the  Orange  Pree  State, 
and  in  Algiers,  of  Africa,  oil  is  found  in  considerable  quantities. 
Wells  exist  at  Baico,  Tintca  and  Campina  in  Poumania,  with  a 
capacity  in  1890  of  one  thousand  tons  daily.  Galicia  is  perhaps 
the  greatest  oil  producing  country  of  Europe.  Oil  is  found  in 
Moldavia,  Wallachia,  Albania  and  Dalmatia.  It  is  found  near 
Piacenza  and  Veleja,  Italy.  As  we  have  already  seen,  oil  is 
found  in  Sicily,  in  tlie  Ionian  Islands,  probably  at  Genoa  and 
in  Sardinia,  though  in  small  quantities.  It  is  also  found  in  Al- 
sace, ^^  in  the  valley  of  the  Rhine  near  the  village  of  Schwat wil- 
ier, having  been  discovered  as  early  as  1835  ;  also  in  Hanover,  at 
Luneberg  heath,  south  of  Hamburg,  near  Holle,  in  the  Dithmer^ 
sehen,  Schleswig-Holstein,  at  Lobsaun  and  Bechelbronn  ;  ^*  and 
in  very  small  quantities  in  South  France  near  the  Pyrennes. 
Oil  has  been  drawn  from  a  welLnear  Edinburg,  Scotland,  for 
many  years ;  and  we  have  already  noted  that  it  was  known  in 
Derbyshire,  England,  although  in  very  small  quantities.  It  has 
also  been  found  at  Worsley,  at  Wigan  and  West  Leigh  in  .Lanca- 
shire, and  at  Coalbrookdale  and  Wellington  in  Shropshire,  but 
never  in   commercial  quantities.      Small  quantities  have  been 

16  Described  by  Masudi,  who  died  the  mange.     People  come  from  vast 

in  950.  distances  to  fetch  it,  for  in  all  coun- 

"  On   the    confines   towards   Geor-  tries    round    about    they    have    no 

giana,"  says  Marco  Polo,  "there  is  other  oil."     1.  Yiile-Cordier  edition 

a    fountain   from   which    oil   springs  of  Marco  Polo's  travels   (ed.  1903), 

in   great  abundance,   insomuch   that  p.  49.    This  was  written  about  1272, 

a     hundred     ship     loads     might     be  and      describes      the     now      famous 

taken    from    it    at    one    time.     Tliis  Baku    di.strict. 

oil    is   not    good    to    use   with    f()o<I,  it  Used  in  the  eighteenth  century, 

but   'tis  good    to   burn,   and    is   also  is  A    deep   shaft   in    search   of   oil 

used    to    anoint    camels    that    have  was  dug  in  1735. 


HISTORICAL    SKETCH.  15 

discovered  in  recent  years  in  Australia  '"  and  in  ISGO  in  New 
Zealand.  At  a  place  called  Taranki,  in  the  latter  island,  natural 
gas  escapes  from  the  o-round.  Oil  is  also  found  in  the  Hawaiian 
Islands.  The  oil  lands  of  Peru  are  quite  extensive  in  area,  lying 
on  the  coast  near  the  Paciiic  Ocean.  It  is  likewise  found  in  the 
Argentine  Republic  and  in  Bolivia.  It  is  also  found  in  great 
quantities  in  Ecuador,  having  been  discovered  by  a  priest  in  the 
eighteenth  century.  Near  Tocuyo,  Cap  a  dare  and  Curamich- 
ate,  Venezuela,  petroleum  is  likewise  found.  Small  petroleum 
springs  exist  near  Havana,  Ilolquin  and  Mayri,  of  Cuba,  in 
Santo  Domingo,  Trinidad  and  the  Barbadoes.  Near  Papantla, 
in  the  State  of  Veracruz,  Mexico,  are  several  wells.  We  have 
already  seen  that  oil  exists  in  great  quantities  in  Western  On- 
tario; and  gas  has  l)een  pijx^d  in  great  quantities  from  that  terri- 
tory to  Buffalo  and  Detroit.  There  is  a  small  well  near  Gaspe, 
Quebec,  but  as  late  as  1897  it  had  not  produced  oil  in  paying 
quantities.  The  greatest  oil  field  in  the  world,  perhaps  with  the 
exception  of  the  Baku  district,  w^as  that  of  Western  Pennsyl- 
vania. The  fields  of  West  Virginia,  Kentucky,  Ohio  and  In- 
diana have  proven  sources  of  great  wealth ;  while  Western  New 
York,  Eastern  Tennessee,  Louisiana,  Texas  and  California  have 
proven  fine  deposits  of  oil  wealth.  Variable  quantities  have 
been  found  in  Michigan,  Illinois,  Missouri,  Kansas,  Indiana 
Territory,  Oklahoma,  Alabama,  Nebraska,  Wyoming,  South 
Dakota,  Colorado,  New  Mexico,  Washington,  Alaska,  and  tlie 
Northwest  Territory-  of  Canada. 

§8.     Natural  gas  known  to  ancients. 

In  boring  wells  for  salt  the  Chinese  in  the  district  Tsien  Luon 
Tsing  discovered  natural  gas  in  very  early  times.  Some  of  the 
wells  are  two  thousand  feet  deep.  The  gas  in  recent  times  has 
been  used,  not  only  for  the  purpose  of  evaporating  salt  water,  but 
for  domestic  purposes.  It  was  conveyed  to  the  place  of  con- 
sumption by  bamlx»o  pipes.  When  a  well  became  ignited,  and 
could  not  be  otherwise  extinguished,  they  accumulated  a  body  of 
water  of  considerable  size  ajnd  suddenly  precipitated  it  upon  the 

19  In  1889  near  Yorktown. 


16  OIL    AND    GAS. 

burning  well.  As  early  as  A.  I).  015,  gas  wells  were  known  in 
Japan.  At  least  six  hundred  years  before  the  birth  of  Christ 
the  Magi  of  Asia  were  worshippers  of  the  eternal  fires  that 
blazed  from  fissures  in  the  mountains  on  the  coast  of  the  Caspian 
Sea.  The  region  of  these  fires  was  on  the  Apsheron  penins\ila, 
situated  between  the  Caspian  and  Euxine  Seas,  where  great  de- 
posits of  petroleum  have  been  found  in  recent  years.  The  ad- 
herents of  the  Parsees,  a  sect  founded  by  Zoroaster,  when  they 
subjugated  the  tribes  around  the  Caspian,  adopted  the  fire-wor- 
ship of  the  conquered.  In  A-  ^-  G24  Heraclius  proscribed  their 
rites  and  destroyed  their  temple,  ruins  of  which  still  exist;  and 
tAvelve  years  later  the  country  was  conquered  by  the  Mohamme- 
dans. Marco  Polo  describes  this  region  in  his  travels,  about 
1272.  At  an  early  age  burning  gas  was  known  in  the  vicinity 
of  Genoa,  Italy ;  and  that  city  was  formerly  lighted  with  gas 
brought  from  the  wells  of  Amiano  or  Miamo,  in  Parma.  The 
famous  "  Fontaine  Ardente,"  near  Grenoble,  France,  was  burn- 
ing in  the  time  of  Julius  Ca'sar,  as  it  had  for  ages  before.  At 
Wigan,  Lancashire,  England,  is  a  gas  or  "burning  well." 

§9.     Early  natural  gas  in  America. 

The  early  discoverers  of  petroleum  in  this  country  musf 
have  noticed  escaping  gas  in  connection  with  the  petroleum  ;  mvi 
a  few  of  them  make  mention  of  tliat  fact.  In  1815,  at  Charles 
ton,  West  Virginia,  gas  was  obtained  from  a  salt  Avell ;  and  ^ 
early  as  1841  It  was  used  In  the  evaporation  of  brine  in  the  man 
ufacture  of  salt.  In  1821,  at  Fredonia,  Chautauqua  County 
Xew  York,  a  woman  going  to  a  spring  after  night  for  water  sci 
down  her  lantern,  and  the  spring  immediately  took  fire  from  il. 
Investigation  showed  that  gas  in  considerable  quantities  was  es- 
caping at  that  place.  The  same  year  a  well  was  sunk  in  that 
toAvn,  on  the  bank  of  Canadaway  Creek,  near  the  Main  Bridge, 
Fredonia,  and  s  ifficient  gas  obtained  for  thirty  burners.  On 
the  oci?asion  of  General  Lafayette's  visit  to  that  to-wni  in  1821 
tlie  Taylor  House,  an  inn  or  hotel,  was  illuminated  by  means  of 
the  gas  obtained  from  this  well.  The  well  was  only  twenty-seven 
feet  deep;  and  in  a  few  years  it  burned  out.     In  1850  it  was 


HISTORICAL    SKETCH.  17 

deepened  to  seventy  feet.  In  1858  a  second  well  was  bored, 
which  furnished  gas  for  two  hundred  burners.  In  1871,  a  third 
was  drilled  to  a  depth  of  twelve  hundred  feet.  As  early  as  1803 
natural  gas  was  used  for  nianuacturing  purposes  at  East  liver- 
pool,  Columbiana  County,  Ohio,  and  was  used  at  an  early  date 
for  lighting  the  streets,  the  use  for  that  purpose  probably  being 
the  first  instance  of  the  kind.  In  ISGG  a  gas  well  was  bored 
near  Kenyon  College,  Knox  County,  Ohio,  six  hundred  feet 
deep.  For.  several  years  the  gas  was  allowed  to  escape,  bUizing 
fifteen  feet  high  and  three  feet  in  diameter,  before  use  was  made 
of  it.  In  1854  the  first  gas  well  was  bored  (1,200  feet  deep)  in 
Erie,  Pennsylvania  ;  and  at  quite  an  early  date  gas  was  found 
in  a  well  five  hundred  feet  deep  at  West  Bloomfield,  New  York, 
and  which  was  piped  to  Rochester  for  illuminating  purposes. 
In  1873  natural  gas  was  used  to  light  the  town  of  Fairview, 
Pennsylvania ;  and  the  same  year  it  was  found  flowing  from 
the  ground  in  the  salt  region  above  ]\Iarietta.  In  1873  gas  in 
great  abimdance  was  discovered  on  the  Big  Kanawha,  above 
Charleston,  and  was  used  by  the  workinginen  to  boil  water 
and  cook  their  dinners;  and  in  the  same  year  a  well  located 
in  Armstrong  County,  Pennsylvania,  furnished  the  first  gas 
for  a  rolling  mill.  One  year  later  a  gas  well  of  tremendous 
force  was  drilled  at  Murrysville,  Pennsylvania,  twenty  miles 
from  Pittsburgh  ;  and  for  three  years  the  gas  was  allowed  to 
escape,  no  effort  being  made  to  check  its  flow.  In  1876  the 
town  of  Titnsville,  Pennsylvania,  was  sup])lied  for  the  first  time 
with  gas  flowing  at  the  rate  of  four  million  cubic  feet  a  day, 
from  a  well  seven  hundred  and  eighty-six  feet  deep;  and  the 
same  year  gas  was  brought  from  Butler  County,  nineteeTi  miles, 
to  Pittsburgh,  for  use  in  a  rolling  mill.  About  this  time  the 
value  of  natural  gas  began  to  be  appreciated  ;  but  so  universal 
was  the  belief  that  it  was  inexhaustible  that  little  effort  was 
made  to  husband  it  until  at  the  end  of  the  next  fifteen  or  twenty 
vears,  Avhen  its  decline  became  so  pronounced  that  the  warning 
could  no  longer  be  disregarded  if  the  full  benefit  of  its  use  was 
to  be  preserved.  It  is  safe  to  say  that  wherever  ]ietroleum  is 
found,  natural  gas  will  be  found  in  at  least  small  quantities. 
In  this  country  it  has  been  found  in  abundance  in  Western 


18  OIL    AND    GAS. 

Ontario,  Western  New  York,  Western  Pennsylvania,  West  Vir- 
ginia, Eastern  Kentucky,  Ohio,  Indiana,  Texas,  Southeastern 
Kansas  and  Southern  Oregon.  Probably  the  famous  B^u 
district  has  shown  a  greater  display  of  natural  gas  energy  and 
supply  than  any  other  quarter  of  the  globe.  Quite  recently  it 
has  been  discovered  in  Sussex,  England,  near  London. 

§10.     Sources  and  composition  of  petroleum  and  gas. 

The  origin  of  petroleum  and  natural  gas  is  still  a  controverted 
question  and  one  of  speculation  —  an  unsolved  problem.  At 
least  four  tlieories  have  been  advanced,  and  have  their  several 
advocates.  (1)'  That  they  are  the  result  of  the  distillations 
from  the  greatly  abundant  accumulations  of  palaeozoic  sea- 
weeds, tlie  marks  of  which  are  still  traceable  in  very  many 
numerous  instances  in  rocks.  (2)  That  they  are  the  result  of 
the  destruction  of  the  innumerable  multitude  of  coralloid  sea 
animals,  the  skeletons  of  which  make  up  a  large  part  of  lime^ 
st£)ne  formations.  (3)  That  they  are  the  resultant  of  distilla- 
tion of  bituminous  coal.  (4)  That  they  are,  at  least  petroleum, 
referable  in  the  language  of  Professor  Orton,  State  Geologist 
of  Ohio,  "  to  peculiar  decompositions  chiefly  of  water  and  car- 
bonic acid  which  are  supposed  to  be  carried  on  at  considerable 
depths  in  the  earth  where  these  substances  are  brought  into 
contact  with  metallic  iron  or  with  metallic  bases  of  the  alkalies 
at  high  temperature."  "'*  The  last  two  may  be  regarded  as 
abandoned.  In  discussing  the  origin  of  ]>etroleum  and  the  sev- 
eral theories,  Professor  Orton  advances  the  following  argument : 
"  They  are  most  commonly  referred  to  the  agency  of  distilla- 
tion. Destructive  distillation  consists  in  the  decomposition  oi 
animal  or  vegetable  substances  at  high  temperatures  in  the  ab- 
sence of  air.  Gaseous  and  semi-liquid  products  are  evolved, 
and  a  coke  or  carbon  residue  remains  behind.  The  '  high  tem- 
peratures '  in  the  definition  given  above,  must  be  understood  to 
cover  a  considerable  range,  the  lower  limit  of  which  may  not 
exceed  400  or  500  degrees  F.  Petroleum  and  gas  on  the  large 
scale  are  not  the  products  of  destructive  distillation.     If  shales, 

20  Report  on  Oil   and  Gas,   1887,  p.  9 


JIISTOUKAl,    SKETCH.  19 

sandstones  or  limestones  holding  large  quantities  of  organic 
mattor,  as  they  often  do,  and  huried  at  a  considerable  depth, 
should  be  subjected  to  volcanic  heat  in  any  way,  there  is  no 
reason  to  doubt  that  petroleum  and  gas  would  result  from  this 
action.  Without  question,  there  are  such  cases  in  volcanic  dis- 
tricts, but  the  regions  of  great  petroleum  jiroduction  are  re- 
markably free  from  all  igneous  intrusions,  and  from  all  signs 
of  excessive  or  abnormal  temperatures.  All  claims  for  an 
igneous  origin  of  these  substances  are  emphatically  negatived 
by  the  condition  of  the  rocks  that  contain  them.  There  is  a 
statement  of  the  distillation  theory  that  had  attained  quite  wnde 
acceptance,  which  needs  to  be  mentioned  here.  It  is  to  the 
effect  that  these  substances,  oil  and  gas,  have  resulted  from  whaL 
is  called  "  spontaneous  distillation  at  low  temperatures,"  and 
by  low  temperatures  ordinary  temj^ratures  are  meant.  It  does 
not,  however,  appear  on  what  facts  in  nature  or  ujxm  what  arti- 
ficial processes  this  claim  is  based.  Destructive  distillation  is 
the  only  process  known  to  science  under  the  name  of  distillation 
which  can  account  for  the  origin  of  oil  or  gas,  and  this  does  not 
go  on  at  ordinary  or  low  temj>eratures.  A  process  that  goes  on 
at  ordinary  temperatures  is  certainly  not  destructive  distilla- 
tion. It  may  be  chemical  decom|X)sition,  but  this  process  has 
a  name  and  place  of  its  own,  and  does  not  need  to  be  masked 
under  a  new  and  misleading  designation,  such  as  spontaneous 
distillation.  Xo  help  can  come  to  us,  therefore,  from  the  ado]> 
tion  of  the  spontaneous  distillation  theory.  It  seems  more 
probable  that  these  substances  result  from  the  primary  chemical 
decomposition  of  organic  sulxstances  buried  with  the  forming 
rocks,  and  that  they  are  retained  as  petroleum  in  the  rocks 
from  the  date  of  their  formation.  It  is  true  that  our  knowl- 
edge of  these  processes  is  inadequate,  but  there  are  many  facta 
on  record  that  go  to  show  that  petroleum  formation  is  not  a 
lost  art  of  nature,  but  that  the  work  still  goes  on  under  favor- 
able conditions.  It  is  very  likely  true  that,  as  in  coal  forma- 
tion, the  conditions  most  favorable  for  large  production  no 
longer  occur,  but  enough  remains  to  show  the  steps  by  which 
the  work  is  done.  The  "  spontaneous  distillation  "  theory  has 
probably  some  apparent  support  in  the  fact  that  must  be  men- 


20  OIL    AND    GAS. 

tiuned  here,  viz:  that  where  petroleuin  is  stored  in  a  roek,  gas 
may  be  eonstiuitly  escaping  from  it,  constituting  in  })art,  the 
surface  indications  that  we  hear  so  much  of  in  oil  fields.  The 
Ohio  shale,  for  example,  is  a  formation  that  yields  along  its  out- 
crops oil  and  gas  almost  everywhere,  but  no  recent  origin  is 
needed  for  either.  The  oil  may  be  part  of  a  primitive  store, 
slowly  escaping  to  the  day,  and  the  gas  may  be  constantly  de- 
rived from  the  partial  breaking  up  of  the  oil  that  is  held  in  the 
shales.  The  term  "  sjwntaneous  distillation  "  might,  with  a 
little  latitude,  be  applied  to  this  last  named  stage,  but  it  has 
nothing  to  do  with  the  origin  of  either  substance.  While  our 
knowledge  of  the  formation  of  petroleum  is  still  incomplete  and 
inadequate,  the  following  statements  in  regard  to  it  are  offered 
as  embodying  the  most  probable'  view : 

1.  Petroleum  is  derived  from  vegetable  and  animal  sub- 
stances that  were  deposited  in  or  associated  with  the  forming 
rocks. 

2.  Petroleum  is  not  in  any  sense  a  product  of  destructive  dis^ 
tillation,  but  is  the  result  of  a  peculiar  chemical  decomposition 
by  wdiich  the  organic  matter  passes  at  once  into  this  or  allied 
products.  It  is  the  result  of  the  primary  decomposition  of 
organic  matter. 

3.  The  organic  matter  still  contained  in  the  rocks  can  be 
converted  into  gas  and  oil  by  destructive  distillation,  but  so  far 
as  we  know,  in  no  other  way.  It  is  not  capable  of  furnishing 
any  new  supply  of  petroleum  binder  normal  conditions. 

4.  Petroleum  is,  in  the  main,  contemporaneous  with  the 
rocks  that  contain  it.  It  was  formed  at  or  about  the  time  that 
these  strata  were  deposited. 

William  T.  Brannt,  in  his  work  on  Petroleum,  written  in 
1894,  which  is  based  upon  the  German  work  of  Professor  Plans 
Hoefer  and  Dr.  Alexander  Veith,  gives  the  following  conclu- 
sions ^^  as  the  result  of  his  researches: 

1.  "  Petroleum  is  of  animal  origin ;  saurians,  fishes,  cuttle- 
fishes, coralloid  animals,  etc.,  especially  have  authentically 
contributed  to  its  formation,  though  soft  animals  without  solid 
frame,  of  which  no  authentic,  determinable  remains  are  left 

21  Brannt  on  Petroleum,  163. 


HISTORICAL    SKETCH.  21 

behind,  may  also  have  co-operated.  While  coal  has  \k'v\\ 
formed  by  the  transfonnation  of  vegetable  substances,  petru- 
leimi  and  the  allied  bitumens  originated  from  animal  suV 
stances. 

2.  "  It  is  still  an  unsolved  problem  whether  petroleum  could 
be  formed  from  animal  remains  only  under  sjx^cial  cfuulitinns; 
neither  is  the  nature  of  tliese  conditions  known. 

3.  "  Petroleum  has  been  formed  in  all  ages  of  the  earth's 
history  of  which  animal  remains  exist  The  Archaean  strata 
are  free  from  petroleum. 

4.  "  Petroleum  could  accumulate  and  be  preserved  in  the 
original  deposit  only,  if  during  its  formation  it  was  shut  off 
from  escape. 

5.  "  The  formation  of  petroleum  has  been  effected  without 
the  co-operation  of  an  uncommonly  high  temperature,  and, 

6.  "  It  has  taken  place  under  high  pressure,  the  influence  of 
which  upon  the  chemical  process  is  not  kno^vn. 

7.  "  The  de]X)sits  of  petroleum  are  partially  original  (pri- 
maiy)  and  partially  secondary;  the  latter  may  be  or  were  eonr 
nected  with  the  fonner. 

"  Concerning  the  formation  of  natural  gas  the  same  materials 
and  similar  processes  as  for  the  formation  of  |>etroleum  may 
be  presupposed.  The  accumulation  of  both  also  took  place  in 
the  same  spaces,  frequently  in  such  a  manner  that  the  gas  oc- 
cupied the  higher,  and  the  oil  the  lower  sections  of  the  same 
rock  stratum.  l:\o  process  being  kno^vn  by  which  petroleum 
can  be  formed  from  natural  gas,  while  the  separation  of  the 
latter  from  the  fonner  —  even  at  the  ordinary  —  is  a  well 
known  fact,  it  is  very  probable  that  petroleum  is  the  priuuiry 
and  gas  the  secondary  product." 

§11.     Composition  of  petroleum. 

ISTaturally  ]wtroleum  taken  from  different  quarters  of  the 
world  will  vary  in  composition,  but,  in  general,  it  may  be  said, 
it  is  a  mixture  of  several  hydrocarbons,  and  to  contain  also 
bituminous  materials,  sulphur,  carbonaceous  matter,  sand  and 
clay.^^     The  folloviang  table  of  the  result  of  refining  crude  pe- 

--d  Pop.  Sci.  Mon.  140;   Crew  on  Petroleum.  16.5. 


22 


OIL    AND    GAS. 


troleum  was  inado  as  early  as  ISGO ;  but  it  should  be  remem- 
bered that  oil  even  from  the  same  region  will  not  always  produce 


identical  results.     We  give  the  table 


Gasoline 3 

Naphtha     10 

Benzine    3 

Illuminating  Oil    75 

Residmun     4 

Coke  and  Loss   5 

100 


er  lent. 


A  distinguished  Russian  chemist,  Ludwig  Nobel,  has  given 
the  following  as  the  result  of  refining  crude  petroleum  taken 
from  the  Baku  district : 

Benzine    (light    oil ) 1  per  cent. 

Gasoline     3  " 

Kerosene   (burning  oil) 27  " 

Saliaroui     12  " 

Lubricants  <   Veregenni    10  " 

Lubricating     17  " 

Cylinder     5  " 

Vaseline     1  " 

Liquid    fuel    14  " 

Lost  in  refininjr  10  " 


100 


The  following  table  is  taken  from  S.  F.  Pecldiam's  Rejx>rt 
on  Petroleum  (page  105)  of  tlie  average  percentages  of  commer- 
cial products  obtained  from  crude  petroleum  from  Kew  York, 
Pennsylvania,  Ohio  and  West  Virginia: 

Gasoline    l.o  per  cent. 

C  — naphtha    10.0 

B  —  naphtha    2.5 

A  —  naphtha    2.5         " 

Illuminating  Oil    54.0 

Lubricating  Oil    17.5         " 

Paraffin     2.0 

Coke  and  Loss    10.0 

100.0 


HISTORICAL    SKETCH.  23 

§12.     Composition  of  natural  gas. 

Analyses  of  natural  gas  will  necessarily  differ,  varying  with 
the  locality  from  which  it  is  drawn.  In  the  following  table, 
prepared  prior  to  1888,  one  jx^r  cent,  is  nnacconnted  for,  it  will 
be  noticed : 

Marsh   Gas    67           poi-  cent. 

Hydrogen     22  " 

Ethyl  ichydride   5  " 

Nitrogen    .3  " 

Carbonic  Acid    0  6/10 

Carbonic  Oxide 0  6/10 

Oxygen  0  8/10  " 


An  analysis  of  the  natural  gas  of  Fredonia  showed  the  follow- 


ing results 


Nitrogen   n..54  per  cent. 

Carbondioxide   0.41         " 

Hydrocarbons  of  the  paraffin  series 90.05         " 


100.00 


Another  analysis  of  Murrysville  gas  produced  the  following 
results : 

Nitrogen     2.02  per  cent. 

Carbondioxide 028 

Oxygen    trace 

Paraffins   07.70 

100.00         " 

Several  analyses  by  Bunsen  and  Schmidt  of  the  Caucasus  nat- 
ural gas  give  the  following  results: 

Methane     92.49  93.09  92.24  97.57  95..56 

Olefines 4.11  3.26  4.26          

Carbonmonoxide    0.93  2.18  3.50  2.40  4.4 

Hydrogen    0.04  0.08          

Nitrogen     2.13  0.49          


24  oil.    AND    GAS. 

§13.     Early  attempts  at  distilling  or  refining  petroleum. 

As  early  as  1694-  patents  were  granted  in  England  for  mak- 
ing "  pitch,  tar  and  oyle  out  of  a  kind  of  stone."  In  1781  the 
Earl  of  Uiiiidonald  obtained  oils  from  coal  by  the  same  process. 
As  early  as  1840  "  coal  oil,"  properly  called,  was  distilled  in 
France  from  bituminous  shale.  During  the  next  ten  years 
hundreds  of  exi>eriments  were  made  to  successfully  distill  oil 
from  coal  and  bog  peat.  E.  W.  Binnoy,  the  geologist,  of  Man- 
chester, Pmgland,  about  1847  called  attention  to  the  petroleum 
found  at  Riddings,  near  Alfreton  in  Derbyshire.  The  same 
year  a  patent  had  been  granted  to  one  Mansfield  for  "  the  in> 
provement  in  the  manufacture  and  purification  of  spiritoua 
substances  and  oils  applicable  to  the  jwrposes  of  artificial  light." 
James  Young  the  same  year  began  the  distillation  of  a  substance 
which  he  called  "  petroleum  jieat  "  ;  and  three  years  later  he 
and  Binney  having  discovered  a  highly  bituminous  coal  at 
Boghead,  Scotland,  established  works  for  the  purpose  of  dis- 
tilling oil  from  it,  and  conducted  them  on  an  expensive  scale 
for  fifteen  years.  Several  years  after  Binney  had  called  attei  - 
tion  to  the  petroleum  at  Riddings,  he  and  James  Young  con- 
menced  the  manufacture  of  illuminating  oil  from  it,  but  the 
supply  soon  giving  out,  they  began  distilling  oil  from  boghea  I 
peat,  as  above  stated:!  Refineries  to  distill  oil  from  coal  wer* 
soon  established  in  America  under  the  English  patents,  whicli 
were  taken  out  in  this  countiw  in  1850,  but  afterwards  over- 
thrown by  the  courts  as  illegal.  In  1851  petroleum  on  Oil 
Creek,  Pennsylvania,  was  selling  for  seventy-five  cents  a  gallon. 
It  was  tested  by  Messrs,  Williams,  Luther  Atwood  and  Joshua 
Merrill  at  the  United  States  Chemical  Manufacturing  Com- 
pany's works  at  Waltham,  near  Boston,  and  very  satisfactory 
results  obtained ;  but  the  supply  being  very  limited,  little  effort 
was  made  to  manufacture  and  put  it  on  the  market.  Small 
quantities  of  it,  however,  Avere  put  upon  the  market  in  1852 
and  called  "  Coup-Oil,"  after  the  coup  d'etat  of  Louis  Napo- 
leon. It  was  used  as  a  lubricating  oil.  As  enrly  as  1855 
petroleum  was  refined  and  offered  for  sale  at  Pittsbui'gh  ;  but 
as  the  quantity  was  small,  a  market  in  that  city  was  found  for 


IlISTOllICAI.    SKETCH.  25 

the  entire  ammiiit  of  the  output.  The  niamifacture  creat(.'d 
a  demand  for  tlie  enide  product.  In  1856  Joshua  Merrill  first 
made  an  illnminating-  oil  from  Trinidad  bitumen.  In  1853 
George  H.  Bissell,  having  seen  a  bottle  of  crude  petroleum  in 
the  office  of  Professor  Crosby  of  Dartmouth  College,  that  had 
beeii  sent  to  him  as  a  curiosity  by  Dr.  Brewer  of  Titusville, 
Pennsylvania,  taken  from  the  banks  of  Oil  Creek,  procured 
another  bottle  of  it  directly  from  that  region,  and  submitted 
it  in  the  spring  of  1855  to  Professor  Benjamin  Silliman,  Jr., 
the  eminent  chemist  of  Yale  College,  who  made  a  report  upon 
it  April  16,  1855,  that  has  become  a  classic  in  the  history  of 
•)£troleum.^'  From  that  moment  the  success  of  distilling  illu- 
iTiinating  oil  from  crude  petroleum  was  established,  and  re- 
fineries began  to  spring  up  as  soon  as  the  supply  warranted  their 
•onstruction  and  the  process  of  refining  became  known.  One  of 
fhe  earliest  was  situated  on  Hunter's  Point,  Long  Island,  and 
probably  the  most  celebrated  at  Bayonne,  New  Jersey."* 

§14.     Early  use  of  petroleum  as  a  medicine. 

The  first  use  made  of  petroleum  was  as  a  medicine.  The  In- 
dians of  Western  New  York  mixed  it  with  clay  and  smeared  or 
painted  their  faces  with  the  mixture,  producing  a  hideous  effect. 
It  was  gathered  by  the  whites  and  sold  as  a  medicine,  as  al- 
^eady  stated.  It  was  sold  under  the  name  of  Seneca  Oil,  Amer- 
ican Oil,  afterward  as  Harlem  Oil.  About  1849,  Mr.  Samuel 
M.  Kier  of  Pittsburgh  conceived  the  idea  of  putting  it  in  l-)Ottles 
find  selling  it  as  a  specific  for  all  the  ills  to  which  flosli  is  heir. 
He  procured  a  few  barrels  from  his  father's  salt  wells  in  Alle- 
gheny County,  and  placed  upon  the  bottle  the  following  label  or 

advertisement: 

"  Kier's 
Petroleum    or    Rock    Oil,    celebrated    for    wondeifiil    cura- 
tive powers.     A  natural  remedy.     Procured  from  a  well  in 
Allegheny  Co.,  Pa.  four  hundred  feet  below   the   Earth's 

23  See  Henry's  History  of  Petro-  Kerosene  Works,  located  at  Boston, 
leum  for  this  report.  The   term   "Kerosene"   was   a   trade 

24  The  name  "  Kerosene"  took  its  mark.     Crew  on  Petroleum,  136. 
name    from    the    celebrated    Downer 


26  OIL    AND    GAS. 

surface.     Put  up  and  sold  by  Samuel  M.  Kier,  303  Liberty 
Street,  Pittsburg,   Penn. 

Price   50   cents." 

He  sold  three  barrels  a  day  ;  but  in  three  years  the  demand  for 
it  having  declined,  he  turned  his  attention  to  distilling  the  crude 
oil  and  in  a  measure  was  successful.  "  Barbados  Tar  "  was 
another  production  of  petroleum  used  as  a  medicine.  At  the 
present  day  valuable  medicinal  products  have  been  made  from 
petroleum,  such  as  filtered  paraffin  residues  sold  under  the 
names  of  cosmoline,  vaseline,  j>etroline,  and  the  like. 

§15.     Transportation. 

In  Asia  petroleum  is  transported  in  the  most  primitive  man- 
ner when  not  by  water.  In  the  Baku  district  it  was  transported 
in  casks  placed  above  and  slung  under  the  axle  of  a  two-wheeled 
cart,  the  w^ieels  often  being  seven  feet  in  diameter.  When  oil 
was  first  discovered  on  Oil  Creek,  Pennsylvania,  the  only  means 
of  carrying  it  out  of  that  region  was  by  the  use  of  wagons  to 
haul  it  to  navigable  streams  of  water.  As  the  quantity  to  be 
trans]X)rted  soon  became  very  great,  hundreds  of  wagons  were 
in  use,  resulting  in  bringing  about  a  condition  of  the  country 
dirt  roads  scarcely  without  parallel.  The  demand  for  trans- 
portation was  greater  than  the  supply  resulting  in  very  high, 
prices,  as  high  as  three  dollars  a  barrel  being  charged  for  haul- 
ing a  barrel  four  miles.  Many  a  wagoner  laid  up  a  comfort- 
able sum  for  the  future.  The  oil  was  at  first  placed  in  bar^ 
rels  that  cost  $3.50  apiece,  a  barrel  tliat  today  in  that  region 
would  not  cost  over  one  dollar.  These  barrels  were  made  of 
heavy  oak  staves,  hooped  with  iron,  and  coated  on  the  inside 
with  glue;  but  as  the  crude  oil  had  in  it  some  water,  the  glue 
coating  did  not  prove  a  complete  protection,  and  the  loss  through 
leakage  was  very  considerable.  Oil  Creek  and  Allegheny  River 
were  the  only  channels  through  which  petroleum  could  be  car- 
ried to  a  market.  On  reaching  the  creek  the  barrels  were 
placed  on  rafts  and  floated  down  to  the  Allegheny,  if  the  supply 
of  water  would  permit  it.  The  expedient  of  damming  the 
stream  at  a  number  of  places  and  releasing  the  watter  suddenly 


HISTORICAL    SKKTCII.  27 

was  adopted.  Often  the  accumulations  of  these  rafts  or  boats 
were  many,  and  when  the  ivond-freshets  came  and  the  boats  were 
turned  loose  in  the  stream,  there  being  no  means  of  controlling 
them,  the  loss  was  at  times  very  great,  arising  from  confusion 
and  frequent  collisions  and  wreckages.  At  one  time  the  loss 
was  estimated  at  from  20,000  to  30,000  barrels.  The  empty 
boats  were  towed  up  the  stream  again  by  horses,  driven  along 
the  banks  of  the  creek,  but  more  frequently  in  its  bed  or  chan- 
neh  At  Oil  City  the  barrels  were  transferred  to  boats  and 
steamers.  At  one  time  more  than  one  thousand  boats  and  thirty 
steamers  were  engaged  in  the  oil  traffic  at  this  place,  resulting 
in  frequent  collisions  and  jams,  to  the  great  loss  of  shipjiers. 
During  a  freshet  in  May,  1864,  the  loss  was  over  25,000  barrels. 
Bulk  barges  were  soon  introduced  on  the  Allegheny  and  Ohio 
Rivers,  but  as  they  frequently  careened,  because  of  the  oil  shift- 
ing, the  loss  was  considerable.  To  remedy  this,  the  oil  space 
was  cut  into  apartments  or  rooms,  to  prevent  the  shifting. 
The  railroads  early  saw  their  opportunity,  and  entered  the  oil 
region.  During  the  latter  half  of  the  year  1865  they  introduced 
the  tank  car.  At  first  they  took  an  ordinary  flat  car,  placed 
upon  it  two  tanks  of  four  thousand  gallons  each,  and  securely 
fastened  it  down.  In  1870  or  1871  tanks  of  boiler  iron  were 
introduced,  which  have  continued  in  use  until  the  present  day, 
cars  being  purposely  constructed  for  them.  Transportation  of 
so  bulky  a  product  as  crude  oil  by  means  of  wagon  and  rafts 
and  the  use  of  barrels  was  evidently  too  exjiensive ;  and  as 
early  as  the  autumn  of  1860  S.  D.  Kams  of  Parkersburg, 
West  Virginia,  suggested  the  practicability  of  transporting 
it  in  pipes  laid  on  or  in  the  ground.  In  1862  J.  L.  Hutch- 
inson ran  a  line  of  pijie  on  the  celebrated  Tarr  farm  over 
a  high  hill  to  the  first  refinery  in  the  oil  region,  depending  u]Xin 
the  princi])le  of  a  syphon  to  carry  the  oil ;  but  the  line  Avas  a 
failure.  Tn  1863  he  laid  a  pipe  line  from  the  famous  Sherman 
well  to  the  terminus  of  the  railroad  on  the  ]\filler  farm,  a 
distance  of  three  miles,  depending  iqion  hydraulic  pressure; 
and  although  one  thousand  barrels  were  em])tiod  into  the  line 
at  its  beginning,  only  fifty  reached  their  destination.  Pumps 
were  resorted  to,  but  on  account  of  the  inadequacy  of  the  pipe 


28  OIL    AND    GAS. 

joints,  the  loss  of  the  oil  was  too  great  to  transport  it  in  this 
manner.  After  a  trial  of  two  years  the  line  was  abandoned. 
In  1865  Samuel  Van  Syckle,  by  joining  the  pipes  with  screw 
and  thimble,  laid  a  line  from  the  Miller  farm  to  Pithole,  a 
distance  of  four  miles.  The  pipe  was  laid  two  feet  in  the 
ground  ;  and  the  ascent  from  the  farm  to  Pithole  was  six  hun- 
dred feet.  By  the  application  of  pumps  oil  was  easily  delivered 
at  Pithole.  This  was  the  first  successful  pipe  line.  The  team- 
sters realized  that  their  business  was  seriously  threatened;  and 
they  did  just  what  the  half-civilized  oil  haulers  of  the  Baku 
district  did  when  the  Nobel  Brothers  first  introduced  a  pipe 
line  in  that  district  —  they  tore  up  the  line  and  broke  it  in  pieces 
as  fast  as  he  could  lay  it.  lie  placed  armed  watchmen  along  the 
entire  line,  just  as  was  afterwards  done  in  the  Baku  district ; 
and  after  many  sanguinary  conflicts  with  the  teamsters,  main- 
tained his  pipe  line.  A  second  line  was  com])leted  the  next 
Spring,  running  from  Benninghoff  to  the  Shafi^er  farm.  As 
early  as  1877  there  were  ten  pipe  lines  in  the  oil  region.  The 
construction  of  the  long  distance  lines  was  begun  in  1880,  and 
several  were  extended  until  they  reached  the  sea-board,  one 
even  passed  through  Central  Park  in  Xew  York  City  at  Sixty- 
fourth  street,  in  order  to  reach  the  refinery  on  Hunter's  Point, 
Long  Island.  There  are  now  many  hundred  miles  of  pipe  lines 
in  use  in  the  United  States.  In  Russia  their  use  is  very  com- 
mon.  Oil  is  shipped  to  foreign  countries  by  steamers  especially 
built  for  that  purpose,  having  their  holds  cut  into  many  apartr 
ments  to  prevent  the  oil  shifting  and  sinking  the  vessels.  Some 
of  these  steamers  carry  over  one  and  a  half  million  gallons. 
This  method  of  transportation  has  been  in  use  many  years  on 
the  Caspian  Sea. 

§16.     The  first  oil  lease. 

We  giv'C,  as  a  curiosity,  a  copy  of  the  first  oil  lease.  The 
spring  leased  was  situated  in  the  famous  Oil  Creek  region  of 
Pennsylvania  : 

"  AcjTppri  this  ffiurth  day  of  July,  A.  D.  185.3.  with  J.  D.  Ancior  of 
rberr^tiee  Township,  in  the  County  of  Venango.  Pa.,  that  he  shall  repair 


HISTORICAL    SKETCH.  29 

up  and  keep  in  onlor  tlie  old  oil  sprinj,'  on  land  in  said  C'lu-nytree  Town- 
ship, or  dig  and  make  new  springs,  and  the  expenses  to  be  deducted  out 
of  the  proceeds  of  the  oil,  and  the  balance,  if  any,  to  be  equally  divided,  the 
one-half  to  J.  D.  Angier  and  the  other  half  to  Brewer,  Watson  &  Co.,  for 
the  full  term  of  five  years  from  this  date.     If  profitable. 

"  Bkewer,     Watson    &    Co. 

"  J.    D.    Angier."  25 


§17.     Early  use  of  artificial  illuminating  gas. 

The  earliest  known  use  of  artificial  gas  for  illuminating:  pur- 
poses was  in  1787  when  Lord  Dundonald  of  Eng-hmd  (obtained 
gas  from  coal  tar,  and  occasionally  used  it  for  lighting  up  the 
hall  of  Culross  Abbey.  In  1792  William  Murdoch,  residing 
at  Eedruth,  Cornwall,  succeeded  in  demonstrating  that  an  illu- 
minating gas  could  be  obtained  from  coal;  and  in  1797  publicly 
showed  his  system  as  he  had  matured  it.  One  year  later  he 
was  employed  in  the  famous  Soho  workshop  of  Boulton  and 
Watt,  located  at  Birmingham,  England ;  and  he  fitted  up  an 
apparatus  in  that  establishment  for  the  manufacture  of  gas, 
with  which  it  was  partly  lighted.  Shortly  after  his  apparatus 
was  extended  and  gas  manufactured  for  other  establishments  of 
that  manufacturing  city.  In  1801  M.  Lebon  of  Paris  intro- 
duced into  his  house  gas  distilled  from  wood.  Through  the 
efforts  of  F.  A.  Winsor  of  London,  the  Lyceum  Theatre  of  that 
city  was  lighted  with  gas  in  1803.  The  first  employment  of 
gas  for  street  lighting  was  January  28,  1807,  when  Pall  ]\Iall, 
London,  was  lighted.  In  1810  Parliament  ])assed  an  Act  au- 
thorizing the  incorporation  of  a  gas-light  company;  and  two 
years  later  the  first  gas-light  company  was  incorporated,  called 
the  ''  Chartered  Gas-light  and  Coke  Company,"  Westminster 
bridge  was  lighted  with  gas  in  1813,  for  the  first  time;  and  the 
next  year  the  streets  of  Westminster.  In  1816  London  was- 
lighted  with  it;  and  so  rapidly  did  it  advance  that  by  1820 
many  of  the  princi])al  cities  rf  the  kingdom,  as  well  as  Paris 
and  some  other  cities  on  the  Continent,  were  lighted  by  its  use. 
It  was  used  in  many  large  worksho])s  and  public  buildings.  It 
found  its  way  into  private  houses  very  slowly;  one  of  the  rea- 

25  Henry's  History  of  Petroleum,  60. 


30  OIL    AND    GAS. 

sons  for  its  slow  progress  arose  from  the  annoyance  ocoasioned 
by  it  escaping  from  ill-fitted  pipes,  and  the  other,  and  perhaps 
justly  so  in  a  large  measure,  from  apprehension  of  the  danger 
attending  its  use.  By  1829  there  were  200  gas  works  in  Great 
Britain.  In  the  United  States  gas  was  first  used  for  lighting  in 
Newport,  Rhode  Island,  in  1806,  David  Melville  making  and 
using  it  in  his  house  and  in  the  street  in  front  of  it.  In  1813  he 
took  out  a  patent  on  its  manufacture,  and  lighted  several  large 
factories.  Four  years  later  his  process  was  applied  to  Beaver  Tail 
light-house,  that  being  the  first  instance  where  gas  was  used  in  a 
light-house  lantern.  In  1816  an  attempt  was  made  to  manu- 
facture gas  for  lighting  purposes  in  Baltimore,  but  the  attempt 
was  a  failure,  and  success  was  not  attained  until  1821.  The 
next  year  it  was  introduced  into  Boston.  In  1823  the  New 
York  Gasrlight  Company  was  formed,  but  because  of  the  little 
demand  for  gas  it  did  not  begin  active  operations  until  1827. 
Three  years  later,  success  having  been  assured,  the  Manhattan 
Company  was  organized,  which  entered  the  field  as  a  competi- 
tor of  the  New  York  Company.  Until  1849  both  companies 
made  their  gas  from  oil  or  rosin.  Gas  was  not  introduced  into 
Philadelphia  until  1835.  From  1824  to  1828  the  New  York 
Gashlight  Company  manufactured  gas  from  oil  exclusively,  and 
sold  the  product  at  $10  per  1,000  feet.  The  gas  manufactured 
by  this  company  from  rosin  from  1828  to  1848  was  sold  by  it  at 
$7  per  1,000  feet.  Wood  gas  was  used  at  the  Philadelphia  gas 
works  as  late  as  1856. 


CHAPTER    II. 


LEGAL  STATUS  OF  OIL  AND  NATURAL  GAS. 

§18.  Oil  and  natural  gas  a  mineral. 

§19.  Part  of  realty. 

§20.  Ownership  in  earth. 

§21.  Compared  with  animals  ferae  naturae. 

§22.  When  title  vests  in  owner. 

§23.  Ownership  of  oil  differs  from  that  of  water. 

§24.  Owner  of  land  has  only  a  qualified  ownership. 

§25.  Qualified  ownership  in  oil. —  Power  of  legislature. 

§25a.  Depriving   owTier   of    right   to  oil  and  gas  beneath   surface. 

§26.  Severance  of  oil  or  gas  from  realty. 

§27.  Recovery   of   severed    product. — Trover. 

§27a.  Ejectment  for  possession. 

§28.  Wasting  gas. —  Injunction. 

§29.  Increasing  flow  of  gas  by  pumping  well. 

§30.  Pumping  oil  wells. 

§31.  Exploding  nitroglycerin  in  well  to  increase  flow. 

§32.  Maliciously   boring  well   to   injure   another. 

§33.  Measure  of  damages  for  unlawfully  taking  oil  and  gas  from  the  soil, 

§34.  When  lessee  acquires  title  to  oil. 

§35.  Waste. —  Part   of  realty. —  Reservation. 

§36.  Partition. 

§37.  Oil  and  gas  not   synonymous. 

§38.  "  Other  valuable  volatile  substances." 

§39.  Natural  gas  not  heat. 

§40.  Gas  and  oil  an  article  of  commerce. 

§41.  Judicial  notice. 

§42.  Judicial  knowledge  of  oil  and  gas  properties. 

§43.  Plugging  wells. 

§44.  Not  subject  to  tariff  law  of  1890. 

§45.  Entry  of  government  oil  lands. 

§46.  Property  in  oil  tanks  or  pipe  lines. —  Larceny. 

§18.     Oil  and  natural  gas  a  mineral. 

Whatever  may  have  been  thought  of  oil  or  natural  gas  at  one 
time/  it  is  now  established  beyond  any  question  that  oil  or  pe- 
troleum and  natural  gas  are  minerals,  and  judicially  miifet  be  so 

1  Dunham  v.  Kirkpatrick,  101  Pa.  St.  43. 

31 


32 


OIL    AND    GAS. 


treated."  Whether  or  not  natural  gas  is  a  mineral  was  presented 
in  a  Canadian  case,  and  ably  discussed.  The  question  arose  on 
the  construction  of  a  section  of  the  Municipal  Act.  The  clause 
construed  was  as  follows:  "  The  corporation  of  any  township 
or  county,  wherever  minerals  are  found,  may  sell,  or  lease,  by 
public  auction  or  otherwise,  the  right  to  take  minerals  found 
upon  or  under  any  roads  over  which  the  township  or  county 
may  have  jurisdiction,  if  considered  expedient  to  do  so."  The 
question  was  whether  this  sentence  covered  natural  gas,  and  it 
was  decided  that  it  did.^  Tt  was  also  held  that  this  statute  au- 
thorized the  leasing  of  a  highway  for  the  purpose  of  drilling  for 
gas.* 

S19.     Part  of  realty. 


Oil  and  gas,  until  severed  from  the  realty,  are  as  much  a  part 
of  it  as  coal  or  stone.  So  long  as  they  remain  in  the  ground, 
outside  of  an  artificial  receptacle  at  least,  as  the  casing  of  a 
well  or  a  pipe  line,  they  must  be  treated  as  a  part  of  the  realty 
underneath  the  surface  of  which  they  lie.^      So  much  so  are  they 


2  Murray  T.  Allard,  100  Tenn.  100; 
43  S.  W.  Rep.  355 ;  3D  L.  R.  A.  24!) ; 
66  Am.  St.  Rep.  740;  Kelley  v.  Ohio 
Oil  Co.,  57  Ohio  St.  317;  49  N.  E. 
Rep.  399;  39  L.  R.  A.  765;  63  Am. 
St.  Rep.  721,  affirming  6  Ohio  C.  Ct. 
Dec.  470;  9  Ohio  C.  C.  511;  34 
Wkly.  L.  Bull.  185;  Wilson  v. 
Youst.  43  W.  Va.  826;  28  S.  E.  Rep. 
781;  39  L.  R.  A.  292;  Funk  v.  Hal- 
deman,  53  Pa.  St.  229;  Thompson  v. 
Noble,  3  Pittsb.  201;  17  Pittsb.  L. 
Jr.  45;  Stoughton's  Appeal,  88  Pa. 
St.  198;  Roberts  v.  JepLon,  4  Land 
Dec.  60;  Piru  Oil  Co.  16  Land  Dec. 
117;  Ontario  Natural  Gas  Co.  v. 
Gosfield,  18  Ont.  App.  626;  38  Am. 
and  Eng.  Corp.  253;  Brown  v.  Spill- 
man,  155  U.  S.  665;  15  Sup.  Ct.  Rep. 
245;  People's  Gas  Co.  v.  Tyner,  131 
Ind.  277;  31  N.  E.  Rep.  59,"  16  L.  R. 
A.  443;  Hail  v.  Reed,  15  B.  Mon. 
479;  11  Morr.  Min.  Rep.  103; 
Hughes  V.  L'nited  Line.s,  119  N.  Y. 
423;  23  N.  E.  Rep.  1042;  Westmore- 
land, etc.,  Co.  V.  DeWitt,  130  Pa.  St. 
235;  18  Atl.  Rep.  724;  5  L.  R.  A. 
731;  29  Amer.  L.  Reg.  93;  Given  v. 
State,   160  Ind.  552;   66  N.  E.  Rep. 


750 ;  Poe  v.  Ulrey,  233  111.  56 ;  84  N". 
E.  Rep.  46;  Watford  Oil  &  Gas  Co. 
233  111.  9;  84  N.  E.  Rap.  53;  Kansas 
Natural  Gas  Co.  v.  Haskell,  172  Fed. 
Rep.  545. 

^  Ontario  Natural  Gas  Co.  v. 
Smart,    19    Ont.    Rep.    595. 

*  Ontario  Natural  Gas  Co.  v.  Gas- 
field,  18  Ont.  App.  Rep.  626;  38  Am. 
and  Eng.  Corp.  Cas.  253 ;  see  Gesner 
V.  Cairns,  2  Allen  (N.  B.),  595;  and 
Gesner  v.  Gas  Co.,  James  Rep.  (N. 
B.)  72;  In  re  Buffalo  Natural  Gas 
Co.,  73  Fed.  Rep.  191;  JVLaxwell  v. 
Brierly,  10  Copp.  L.  D.  50;  Roberts 
V.   Jepson,   4   L.   D.   60. 

R  Hail  V.  Reed,  15  B.  Mon.  479;  II 
Morr.  Min.  Rep.  103;  Columbian  Oil 
Co.  V.  Blake,  13  Ind.  App.  680;  42 
N.  E.  Rep.  234;  People's  Gas  Co.  v. 
T\'ner,  131  Ind.  277;  .1  N.  E.  Rep. 
i59;  16  L.  R.  A.  443;  Brown  v.  Spill- 
man,  1155  U.  S.  065;  15  Sup.  Ct. 
Rep.  245;  Acheson  v.  Stevenson,  146 
Pa.  St.  299;  23  Atl.  Rep.  331,  396; 
Williamson  v.  Jones,  39  W.  Va.  231 ; 
19  S.  E.  Rep.  436;  25  L.  R.  A.  222; 
Stoughton's  Appeal,  88  Pa.  St.  198; 
Funk  V.  Haldeman,  53  Pa.  St.  229; 


LEGAL    STATUS. 


33 


a  part  of  the  realty,  as  we  shall  repeatedly  see  hereafter,  that 
a  conveyance  of  tlieni  in  their  natural  state  in  tlie  earth  requires 
all  the  formalities  of  a  conveyance  of  any  otlier  interest  in  tlie 
same  real  estate.*'  A  reservation  of  "  all  mines,  minerals  and 
metals  in  and  under  "  a  tract  of  land  is  a  reservation  of  tlie 
oil  and  gas.'' 

§20.     Ownership  in  earth. 

The  owner  of  the  surface  is  the  o^vner  of  the  gas  and  oil 
beneath  it ;  but  if  they  escajie  into  the  land  of  another  he  ceases 
to  be  the  owner  of  them.  They  are  the  subject  of  grant  or  con- 
veyance, just  as  much  so  as  the  grant  or  conveyance  of  coal  or 
stone  buried  in  the  soil  of  the  same  tract  of  land.* 

§21.     Compared  with  animals  ferae  naturae. 

In  seeking  for  analogous  conditions  in  the  law,  courts  have 
compared  natural  gas  and  oil  to  that  of  animals  ferae  naturae. 
The  Supreme  Court  of  Pennsylvania  made  this  comparison  in  a 
case  that  has  become  a  leading  authority  wherever  the  subject 
of  gas  and  oil  is  discussed.      "  Water  and  oil,"  said  the  court, 


Preston  t.  White,  57  ^\ .  Va.  278; 
50  S.  E.  Rep.  236;  Kansas  Natural 
Gas  Co.  V.  Haskell,  172  Fed.  Rep. 
545;  Waterford  Oil  &  Gas  Co.  v. 
Shipman,  233  111.  9;  84  N.  E.  53. 
The  unauthorized  severance  and 
removal  of  oil  by  a  tenant  consti- 
tutes waste.  Isom  v.  Rex  Crude 
Oil  Co.,  147  Cal.  659;  82  Pac.  Rep. 
317. 

6  Heller  v.  Dailey,  28  Ind.  App. 
555;  63  N.  E.  Rep.  490;  American 
Window  Glass  Co.  v.  Williams  (  ind. 
App.),  66  N.  E.  Rep.  912;  William- 
.son  V.  Jones,  39  W.  Va.  231 ;  19  S.  E. 
436;  Williamson  v.  Jones,  4J  W.  Va. 
662;  27  S.  E.  411;  South  Penn  Oil 
Co.  V.  Mclntirc,  -14  W.  Va.  296; 
28  S.  E.  922;  Wilson  v.  Youst,  43 
W.  Va.  826;  28  S.  B.  781;  Kcllv 
V.  Ohio  Oil  Co.,  57  Ohio  St.  317"; 
49  X.  E.  399;  63  Am.  St.  721;  39 
L.  R.  A.  76."). 

7  Murrav  v.  Allard,  100  Tenn. 
100;  43  S.'W.  Rep.  353;  38  L.  R.  A. 
249;    66  Am.   St.   Rep.   740. 


8  Hail  V.  Reed,  15  B.  Mon.  479; 
11  Morr.  Min.  Rep.  103;  People's 
Gas  Co.  V.  Tvner,  131  Ind.  277;  31 
N.  E.  Rep.  59;  16  L.  R.  A.  443; 
Manufacturer,  etc.,  Co.  v.  Indiana, 
etc.,  Co,,  155  Ind.  461 ;  57  N.  E.  Rep. 
912;  57  L.  R.  A.  768;  State  v.  Ohio 
Oil  Co.,  150  Ind.  21;  49  N.  E.  Rep. 
809;  47  L.  R.  A.  627;  Ohio  Oil  Co. 
•V.  Indiana,  177  U.  S.  190;  20  Supp. 
Ct.  Rep.  585 ;  Townsend  v.  State, 
147  Ind.  624;  47  N.  E.  Rep.  19;  37 
L.  R.  A.  294;  Hughes  v.  Unitod  Pipe 
Lines,  119  N.  Y.  423;  23  N.  E.  Rep. 
1042;  Keir  v.  Peterson,  41  Pa.  St. 
357;  Westmoreland,  etc.,  Co.  v.  De- 
Witt,  130  Pa.  St.  235;  18  Atl.  Rep. 
724;  5  L.  R.  A.  731;  29  Amer.  L. 
Reg.  93;  Acheson  v.  Stevenson,  146 
Pa.  St.  21)9;  23  Atl.  Rep.  3:U.  336; 
Hague  v.  wheeler,  157  Pa.  St.  324; 
27  Atl.  Rep.  714;  22  L.  R.  A.  141; 
Wof)d  County,  etc..  Co.  v.  West  Vir- 
ginia, etc.,  Co.,  28  W.  Va.  210;  Wil- 
liamson v.  Jones,  39  W.  Va.  231 ;  19 
S.   E.   Rep.    436;    25    L.    R.   A.   222; 


34  OIL    AND    GAS. 

"  and  still  more  strongly  gas,  may  be  classed  by  themselves,  if 
the  analogy  be  not  too  fanciful,  as  minerals  ferae  naturae.  In 
common  with  animals,  and  unlike  other  minerals,  they  have 
the  power  and  tendency  to  escape  without  the  volition  of  the 
owner.  Their  '  fugitive  and  wandering  existence  within  the 
limits  of  a  particular  tract  is  uncertain.'  °  They  belong  to  the 
owner  of  the  land  and  are  part  of  it,  and  are  subject  to  his 
control ;  but  when  they  escape,  and  go  into  other  land,  or  come 
under  another's  control,  the  title  of  the  former  owner  is  gone. 
Possessioti  of  the  land,  therefore,  is  not  necessarily  possession 
of  the  gas.  If  an  adjoining,  or  even  a  distant,  owner  drills  his 
own  land,  and  taps  your  gas,  so  that  it  comes  into  his  well  and 
under  his  control,  it  is  no  longer  yours  but  his."  ^^ 

§22.     When  title  vests  in  owner. 

It  has  been  said  repeatedly  by  the  courts  and  \\Titers  that  the 
o^vner  of  the  soil  owns  the  gas  and  oil  beneath  its  surface;  and 
expressions  to  this  effect  will  be  found  in  this  work.  This  is 
an  acknowledgment  of  the  absolute  ownership  of  the  gas  and  oil 
beneath  the  surface  bv  the  owner  of  the  land.^^      But  under  the 


Kansas  Natural  Gas  Co.  v.  Haskell,  Witt,  130  Pa.  St.  235;   18  All.  Rep. 

172  Fed.  Rep.  545;  Kelachny  v.  Gal-  724;    5  L.   R.  A.   731:    29  Amer.  L. 

breath    (Okl.),    110    Pac.   Rep.    902;  Reg.  93;   People's  Gas  Co.  v.  T\Tier, 

Bender  v.  Brooks   (Tex.),  127  S.  W.  131  Ind.  277:  31  N.  E.  Rep.  59;   16 

Rep.  1G8;   Watford  Oil  &  Gas  Co.  v.  L.    R.    A.    443;    Townsend    v.    State, 

Shipman.  233  111.  9;   84  N.  E.  Rep.  147  Ind.  624;   47  N.  E.  Rep.  19;  37 

'53;   Louisville  Gas  Co.  v.  Kentucky  L.    R.    A.    294;    Lowther    Oil    Co.   v. 

Heating  Co.,  117  Ky.  71;   111  S.  W.  Miller   (W.  Va.),  44  S.  E.  Rep.  433. 

Rep.  374;  Lanvon  Zinc  Co.  v.  Free-  n  See  Jones  v.  Forest  Oil  Co.,  194 

man,    68   Kan.' 6911;    75   Pac.   Rep.  Pa.  St.  379;   44  Atl.  Rep.   1074;   30 

995;  McGraw  Oil  Co.  V.  Kennedy,  65  Pittvsb.   L.  J.    (N.   S.)    58;   48  L.   R. 

W.  Va.   595;    64   S.  W.   Rep.    1027;  A.  748;    W^atford  Oil  &   Gas  Co.  v. 

West  V.  Kansas  Nat.  Gas   Co.,   221  Shipman,  233  111.  9;   84  N.  E.  Rep. 

U.   S.   229;   31   Sup.   Ct.  564;   55  L.  53;   Kentucky  Heating  Co.,   117  Kv. 

Ed.    — ;     affirming     172     Fed.    545;  71 ;  111  S.  W.  Rep.  74;  Lanyon  Zinc 

Haskell  v.   Cowham,   187    Fed.   403;  Co.    v.    Freeman,    68   Kan.    691;    75 

Rupel  V.  Ohio  Oil  Co.,  174  Ind.  — ;  Pac.  Rep.  995:  Kansas  Natural  Gas 

95  N.  E.  225.  Co.  v.  Haskell,    172    Fed.   Rep.  545; 

It  has  been  held  that  oil  and  gas  McGraw  Oil  &  Gas  Co.  v.  Kennedy, 

are    not    the    subject    of    ownership,  65  W.  Va.  595;   64  S.  E.  Rep.  1027. 

while  in  the  earth,  distinct  from  the  The    owner    of    the    soil    has   the 

soil.      Watford   Oil   &    Gas    Co.,   233  right    to    put    it    into    the    market. 

111.  9:  84  N.  E.  Rep.  53.  Coalinga   Pacific    Oil    &   Gas    Co.   v. 

"Quoting  from  Brown  v.  Vander-  Associated  Oil  Co.    (Cal.  App.),  116 

grift,  80  Pa.  St.  147.  Pac.   1107;   Haskell  v.  Cowhan,   187 

10  Westmoreland,   etc.,   Co.   v.   De-  Fed.  403. 


LEGAL   STATUS.  35 

Indiana  decisions,  which  have  met  with  the  approval  of  the  Su- 
preme Court  of  the  United  States,''^  the  owner  of  the  land  has 
only  a  qualified  right  to  the  oil  and  gas  Ix^neath  the  surfaoe  — 
the  right  to  reduce  it  to  possession  and  to  exclude  all  others  exer- 
cising tlie  right  on  the  premises  —  and  title  in  him  to  it  does 
not  vest  until  he  has  reduced  it  to  actual  possession,  either  by 
bringing  it  into  a  well  or  into  a  jupe  line,  or  into  a  tank  or 
other  receptacle  in  case  of  oil.  Until  that  has  happened  the  gas 
or  oil  by  natural  forces  may  escape  from  his  land,  be  reduced 
to  possession  by  another,  and  l)ecome  his  property." 

Ownership  of  oil  differs  from  that  of  water. 

The  ownership  of  oil,  however,  is  not  identical  with  the  own- 
ership of  water.  It  is  true  both  are  regarded  as  minerals,  and 
are  also  regarded  as  liquids;  in  this  respect  they  are  legally  and 
physically  identical. 

"  The  second  ground  of  defense,"  said  the  Court  of  Appeals 
of  Kentucky,  ''  relies  uix)n  the  fact  that  the  oil  was  taken  from 
a  well  bored  down  to  a  running  stream  of  oil,  which  was  vague 
and  fugitive,  and  had  not  been  confined,  nor  ever  reduced  to 
possession,  nor  ever  in  possession  of  plaintiffs.  And  in  sup-- 
port  of  this  ground  we  are  presented  with  a  very  ingenious  ar- 
gument, founded  on  the  principles  laid  down  by  elementary 
authors  with  respect  to  water,  which  Blackstone  says  must 
unavoidably  remain  in  common,  susceptible  only  of  a  usufruc- 
tuary property,  belonging  to  the  first  occupant  during  the  time 
he  holds  possession  of  them,  and  no  longer.  Whence  it  is  ar- 
gued that  this  oil,  being  a  li(iuid  like  water,  and  flowing,  as 
alleged  in  a  stream  at  the  bottom  of  this  well,  was  common  to 
all,  susceptible  only  of  a  usufructuary  property,  and  that  the 
particular  portion  of  it  now  in  contest  belonged  to  the  defend- 
ants, as  the  first  occu]>ants  and  appropriators  of  it.  But  it  is  to 
be  observed  that  the  portion  of  Blackstone  to  which  reference  is 

12  Ohio  Oil  Co.  V.  Indiana,  177  Townsend  v.  State,  147  Ind.  624;  47 
U.  S.   190;   20  Sup.  Ct.   Rep.  585.  N.    E.    Rep.   21;    37    L.    R.    A.    294; 

13  State  V.  Ohio  Oil  Co.,  150  Ind.  Crystal  Ice,  etc..  Co.  v.  Marion  C.as 
21;  49  N.  E.  Rep.  809;  47  L.  R.  A.  Co",  35  Ind.  App.  295;  74  X.  E. 
627;  Manufacturer,  etc.,  Co.  v.  In-  Rep.  lo;  New  American  Oil  &  Min- 
diam,  etc.,  Co.,  155  Ind.  461:  57  in<j  Co.  v.  Trover.  16(i  Ind.  402;  77 
N.   E.   Rep.  912;    50   L.   R.  A.   708;  X.  E.  Rep.  739;   7G  X.  E.  Rep.  253. 


36  OIL   AND    GAS. 

made,  is  a  treatise  u]ion  property  in  geiiernl ;  that  is,  njioii  tlio 
principles  on  whieli  the  riij,ht  of  property  in  external  things 
depends,  and  which  he  states  esjjecially  with  respect  to  water, 
the  broad  y)rinciples  applicable  to  the  snhject  in  its  most  general 
aspect,  withont  reference  to  any  distinctions  or  discriniiiiiitions 
by  which  they  might  be  modified.  Then,  Ix-sides  the  fact  that 
water  is  not  oil,  and  that  while  nature  fnrnishes  the  former  al- 
most everywhere,  for  the  common  nse  of  man,  as  being  a  uni- 
versal necessity,  she  fnrnishes  the  latter,  for  the  most  part,  only 
as  the  result  of  arduous  labor  and  intricate  processes,  and  bnt 
rarely  produces  it  in  its  perfect  state;  it  is  to  be  remarked  that 
water  itself,  though  fonnd  generally  ru.nning  upon  the  surface 
of  tlie  earth,  where  it  may  be  obtained  for  use  by  merely  taking 
it,  and  where,  being  furnished  by  nature  for  the  use  of  all  who 
may  conveniently  use  it,  it  is  only  to  be  appropriated  by  use 
and  for  use,  yet  it  is  also  fre(piently  found  under  the  surface, 
and  obtained  or  reached  at  great  expense  and  labor,  by  means 
of  wells  by  which  it  is  intended  to  be  appropriated.  This  dis- 
crimination is  not  made,  nor  was  it  necessary  for  the  purposes 
of  the  author  that  it  should  be  made  in  the  general  view  which 
he  was  taking  of  property  in  general.  The  very  title  of  the 
chapter,  and  the  nature  of  his  observations,  would  lead  to  the 
conclusion  that  he  was  speaking  of  water  as  it  is  furnished  by 
nature  for  the  ordinary  use  of  man,  and  as  it  is  commonly  found 
running  upon  the  surface  of  the  earth.  The  very  fact  that, 
after  ilhtstrating  the  princi]>le  of  property  being  founded  on 
occupancy  and  on  labor,  by  reference  to  the  well  made  by  one  of 
the  ancient  patriarchs,  he  takes  no  notice  of  wells  when  he  comes 
to  treat  of  water  as  a  subject  of  property,  shows  that  he  thought 
only  of  water  on  the  surface,  or  that  he  considered  a  well  by 
which  it  might  be  obtained  from  beneath  the  surface  as  a  means 
of  appropriation.  The  other  authorities  referred  to  treat  espe- 
cially of  water  on  the  snrface ;  the  first,  considering  the  subject 
under  the  title  of  rnnning  waters,  and  showing  that  he  is  con- 
sidering water  rnnning  over  land,  and  the  other  treating  the 
subject  under  the  title  of  water  coui'ses,  and  both  stating  chiefly 
the  rights  of  riparian  owners.  The  latter,  however,  treats  sjie- 
cially,  thongh  bi'iefly,  of  sju'ings,  as  to  which  he  says  the  owner 


LEGAL   STATUS.  37 

(f  1:111(1  is  entitled  to  all  a<lvaiitai;-es  arisiiii::  from  it,  aii.l  ir.ny 
use  a  spring  found  iijion  it,  as  lie  dcies  any  otlier  property, 
without  regard  to  the  convenience  or  advantage  of  others.  And 
that  this  right  is  very  different  from  the  right  of  the  owner  of 
an  estate  through  wliieli  water  ilows.  What  hecomes,  then,  of 
the  common  right  of  all  to  the  use  of  the  water  in  the  spring,  if 
it  may  he  thus  exclusively  claimed  and  used  and  owned  hy  the 
owner  of  the  soil?  And  if  the  water  in  a  spring  found  on  his 
land  is  thus  his  exclusive  property,  there  seems  to  be  much  more 
reason  to  say  that  water  at  the  bottom  of  a  well  which  he  has  by 
his  labor  and  expense  constructed  for  the  very  purpose  of  re- 
taining water  in  it  for  his  use,  and  of  facilitating  the  access  to 
it,  is  his  exclusive  property.  And  still  stronger  is  the  reason 
for  considering  him  as  the  exclusive  owner  of  oil,  a  peculiar 
liquid  not  necessary  nor  indeed  suitable  for  the  common  use  of 
man,  and  for  reaching  and  obtaining  which  for  its  ])ro]ier  uses 
and  for  profit,  he  has  constructed  a  well  with  suitable  fixtures. 
It  is  indeed  said  in  the  answer,  though  it  is  scarcely  to  be  seen 
in  the  evidence,  that  this  well  is  bored  down  to  a  stream  of  oil. 
But  while  there  are  but  slight  traces  even  of  a  see])ing  of  oil 
through  the  well,  it  is  neither  alleged  nor  proved  that  the  well 
presents  no  obstruction  to  the  stream  or  flow  of  oil,  or  that  it 
does  not  hold  or  retain  at  least  a  jwrtion  of  it,  for  facility  in 
drawing  it  out.  We  know  that  in  wells  for  drawing  water  it 
is  usual,  and,  where  the  supjily  is  small,  necessary  to  siid<  the 
well  beloAv  the  point  where  the  water  outers  it,  so  that  it  may 
l^e  retained  there  in  sufficient  quantities  for  use,  and  for  drawing 
it  up.  There  is  nothing  to  show  that  this  was  not  the  case  in 
the  present  instance,  and  the  jury  iiiight  have  so  found.  But 
we  are  of  opinion  that  whether  the  water  or  oil  is  running 
through  the  well  in  a  stream  or  not,  that  which  is  actually  in  the 
well  is,  while  it  is  there,  and  subject  to  be  drawn  out,  though  it 
be  there  only  in  passing  from  one  side  of  it  to  the  other,  i\]y 
propriated  by  the  owner  to  his  own  use,  and  belongs'to  him  when 
it  is  drawn  out,  unless  this  is  done  by  his  license  and  for  an- 
other's use.  If,  as  may  be  jirosumed,  the  well  is  sunk  below  the 
point  at  which  the  water  or  oil  enters,  or  if  the  water  or  oil,  in 
any  quantity,  stands  in  it  until  drawn  out,  the  evidence  of  a|> 
projiriation   is  still   stronger,  and   the  j'ight  of  the  owner  more 

\ 


38 


OIL   AND    GAS. 


eapilv  ostnblishod.  And  in  cither  case,  the  water  or  oil,  if 
drawn  np  l)v  a  wrono;-doer,  is  tlie  propeiiiy  of  the  person  entitled 
to  the  well,  or  its  exclusive  use,  and  may  be  specifically  recov- 
ered. Whether  the  barrels  in  which  the  wrong-doer  has  placed 
it  may  also  be  recovered  with  the  oil,  or  other  barrels  should  be 
furnished  by  the  owner,  we  need    lot  at  present  decide."  " 

^24.     Owner  of  land  has  only  a  qualified  ownership. 

The  Supreme  Court  of  Indiana,  while  havine;  repeatedly  re- 
ferred to  the  fact  that  the  ownership  of  oil  and  2:as  is  compared 


14  Hail  T.  Reed,  15  B.  Mon.  479; 
11  Morr.  Min.  Rep.   103. 

In  Kansas  Natural  Gas  Co.  v. 
Haskell,  172  Fed.  Rep.  545,  it  is 
said  that  the  doctrine  of  this  case 
is  followed  in  all  of  the  states  ex- 
cept in  Indiana,  and  citing  the  fol- 
lowing cases:  Funli  v.  Haldeman,  53 
Pa.  248;  Stoughton's  Appeal,  88 
Pa.  19S;  Blakeley  v.  Marshall,  174 
Pa.  429;  34  Atl.  564;  Gill  v.  Wes- 
ton, 110  Pa.  317;  1  Atl.  921;  Gas 
Co.  V.  DeWitt,  130  Pa.  249;  18  Atl. 
724;  5  L.  R.  A.  731;  Chartiers 
Block  Coal  Co.  v.  Mellom,  152  Pa. 
297;  25  Atl.  597;  18  L.  R.  A.  702; 
34  Am.  St.  Rep.  645;  Hvgue  v. 
Wheeler,  157  Pa.  341;  27  Atl.  714; 
22  L.  R.  A.  141;  37  Am.  St.  Rep. 
736;  Murray  v.  Alfred,  100  Tenn. 
100;  43  S.  W.  355;  39  L.  R.  A. 
249;  66  Am.  St.  Rep.  740;  Moore 
V.  Griffin,  72  Kan.  164;  83  Pac.  395; 
4  L.  R.  A.  (N.  S.)  477;  Isom  v. 
Rex  Crude  Oil  Co.,  147  Cal.  659; 
82  Pac.  317;  Ontario  Natural  Gas 
Co.  V.  Gossfield,  18  Ont.  App.  666; 
Hughes  V.  Pipe  Lines,  119  N.  Y. 
423;  23  N.  E.  1042;  Williamson  .v. 
Jones,  39  W.  Va.  256;  19  S.  E.  436; 
25  L.  R.  A.  222;  South  Penn  Oil 
Oo.  V.  Mclntire,  44  W.  Va.  305; 
28  S.  E.  922 ;  Carter  v.  Tyler  County 
Court,  45  W.  Va.  81)6;  32  S.  E.  216; 
43  L.  R.  A.  7-25;  Williamson  v. 
Jones,  43.  W.  Va.  562;  27  S.  E.  411; 
38  L.  R.  A.  694;  64  Am.  St.  Rep. 
891;  Wilson  v.  Youst,  43  W.  Va. 
834;  26  S.  E.  781;  39  L.  R.  A.  292; 
Preston  v.  White,  57  W.  Va.278;  50 
S.  E.  236;  Kellev  v.  Ohio  Oil  Co., 
57    Ohio    St.    328;    49    N.    E.    399; 


39  L.  R.  A.  765;  63  Am.  St.  Rep. 
721;  Gas  Co.  v.  Ullery,  68  Ohio  St. 
271;  67  N.  E.  494;  Honemaker  v. 
Amos,  73  Ohio  St.  170;  76  N.  E. 
949;  4  L.  R.  A.  (N.  S.)  980;  112 
Am.  St.  Rep.  708;  Brown  v.  Spil- 
man,  155  U.  S.  665;  li5  Sup.  Ct. 
245;    39   L.   Ed.  304. 

In  Kansas  Natural  Gas  Co.  v. 
Haskell,  172  Fed.  Rep.  545,  it  was 
said:  "From  all  of  which  it  becomes 
apparent  the  contention  of  defend- 
ants that  the  natural  gas  found 
within  the  territorial  limits  of  the 
State  is  the  common  heritage  of  the 
people  of  the  State,  which  may  be 
conserved  and  preserved  by  the  State 
as  trustee  of  those  things  in  which 
the  people  have  a  common  intei^est, 
as  flowing  streams,  wild  animal  life, 
etc.,  is  unsound  and  must  be  denied. 
On  the  contrary,  it  must  be  held  he 
who  by  lawful  right  reduces  to  his 
possession  mineral,  gas,  or  oil  hc3 
the  same  absolute  right  of  property 
therein,  witli  the  same  power  of 
barter,  sale,  or  other  disposition,  in- 
cluding, of  necessity,  the  right  of 
transportation  and  delivery  under 
such  reasonable  rules  and  safeguards 
as  the  exigencies  of  the  case  may 
demand  and  the  State  employ,  as 
the  farmer  has  of  his  corn,  his 
wOieat,  or  his  stock,  or  the  merchant 
of  liis  wares,  and  such  absolute 
right  therein  as  the  State  cannot 
deny  him  without  making  just  com- 
pensation, and  any  attempt  to  so  do 
would  be  in  vJ'oIation  of  the  four- 
teenth amendment  to  the  federal 
Constitution." 


LEGAL   STATUS.  39 

witli  tlie  ownership  of  animals  ferae  naturae,  has  pointed  out 
tliat  the  owner  of  huul  does  not  own  the  wild  animals  that  may 
be  upon  it  until  he  has  reduced  them  to  actual  possession,  al- 
though he  has  the  right  to  prohibit  any  one  else  taking  them  so 
long  as  tliey  remain  on  his  land.  That  court  quotes  from  a 
Minnesota  case  ^^  with  respect  to  the  ownership  of  wild  animals, 
in  whicli  it  is  said :  "  We  take  it  to  be  the  correct  doctrine  in 
this  country  that  the  ownership  of  wild  animals,  so  far  as  they 
are  capable  of  ownership,  is  in  the  State,  not  as  proprietors,  hut 
in  its  sovereign  capacity  as  the  representative,  and  for  the  l)one- 
flt,  of  all  its  i>eople  in  common.  The  preservation  of  such 
animals  as  are  adapted  to  consumption  as  food,  or  to  any  other 
useful  purpose,  is  a  matter  of  public  interest;  and  it  is  within 
the  police  ]>ower  of  the  State,  as  the  representative  of  the  people 
in  their  united  sovereignty,  to  enact  such  laws  as  will  pre- 
serve such  game,  and  secure  its  beneficial  use  in  the  future  to 
the  citizens,  and  to  that  end  it  may  adopt  any  reasonable  regu- 
lations, not  only  as  to  time  and  manner  in  which  such  game  may 
be  taken  and  killed,  but  also  by  imposing  limitations  upon  the 
right  of  property  in  such  game  after  it  has  been  reduced  to 
])ossession."  After  having  made  this  quotation,  and  also  re- 
ferring to  the  fact  that  it  had  likened  the  ownership  of  natural 
gas  and  oil  to  the  ownership  of  wild  beasts,  the  Indiana  court 
said : 

"  There  is  no  such  thing  in  such  laws,  either  as  to  wild  ani- 
mals or  fish,  to  the  effect  that  they  become  the  property  of  the 
owner  of  the  land  on  which  the  animals  are  found,  or  iii  the 
waters  of  which  the  fish  are  found.  And  there  is  no  such  thing 
in  such  laws  to  the  effect  that  after  title  has  once  vested  by 
actual  reduction  to  possession,  that  the  same  may  wander  off 
and  vest  in  some  one  else.  To  say  that  the  title  to  natural  gas 
vests  in  the  owner  of  the  land  in  or  under  which  it  exists  today, 
and  that  tomorrow,  having  passed  into  or  under  the  land  of  an 
adjoining  owner,  it  thereby  Ix^comes  his  property,  is  no  less  ab- 
surd and  contrary  to  all  the  analogy  of  the  law,  than  to  say  that 
wild  animals  or  fowls  in  '  their  fugitive  and  wandering  exist- 
ence,' in  passing  over  tlie  land,  become  the  proj^rty  of  the  owner 

.  15  State  V.  TJodman,  58  Minn.  393;  59  N.  W.  Rep.   1098. 


40  OIL   AND    GAS. 

of  such  land,  or  that  fish  in  tJicir  passage  up  or  down  a  stream 
of  water  Iwconie  tb^e  property  of  each  successive  owner  over 
W'hose  land  the  stream  passes.  It  is  as  unreasonable  and  un- 
tenable as  to  say  that  the  air  and  the  smishine  which  float  over 
the  owner's  land  are  a  part  of  the  land,  and  are  the  ]n'operty  of 
the  owner  of  the  land.  We  therefore  hold  that  the  title  to 
natural  gas  does  not  vest  in  any  private  owner  until  it  is  reduced 
to  actual  possession,  and  therefore  that  the  Act  from  which  we 
have  quoted  is  not  violative  of  the  Constitution,  as  an  unwar- 
ranted interference  with  private  property."  ^° 

§25.     Qualified  ownership  in  oil. —  Power  of  legislature. 

The  case  from  which  the  quotation  has  been  made  in  the 
next  preceding  section  was  carried  to  the  Supreme  Court  of 
the  United  States;  and  in  affirming  it  that  court  used  the  follow- 
ing language: 

"  If  the  analogy  between  animals  ferae  naturae  and  mineral 
deposits  of  oil  and  gas,  stated  by  the  Pennsylvania  court  and 
adopted  by  the  Indiana  court,  instead  of  simply  establishing 
a  similarity  of  relation,  proved  the  identity  of  the  two  things, 
there  would  be  an  end  of  the  case.  This  follows  because  things 
which  are  ferae  naturae  belong  to  the  'negative  community'; 
in  other  words,  are  public  things  subject  to  the  absolute  con- 
trol of  the  State,  which,  although  it  allows  them  to  be  reduced 
to  possession,  may  at  its  will  not  only  regulate  but  wholly  for- 
bid their  future  taking.  But  whilst  there  is  an  analogy  be- 
tween animals  ferae  natvrae  and  the  moving  deposits  of  oil  and 
natural  gas,  there  is  not  identity  between  them.  Thus,  the 
owner  of  land  has  the  exclusive  right  on  his  property  to  reduce 
the  game  there  found  to  possession,  just  as  the  owner  of  the 
soil  has  tlie  exclusive  right  to  reduce  to  possession  the  deposits 
of  natural  gas  and  oil  found  beneath  the  surface  of  his  land. 
The  owner  of  the  soil  cannot  follow  game  when  it  passes  frimi 

16  state  V.  Ohio  Oil  Co.,  1.50  Ind.  Rep.  .5S5;  People's  Gas  Co.  v.  Tyner, 

21;  40  N.  E.  Rep.  800;  47  L.  R.  A.  131   Tnd.  277;  .31  N.  E.  Rep.  60;   16 

627;    affirmed    Ohio    Oil    Co.    v.    In-  L.   R.  A.  443. 
dian-i,    177   U.   S.    190;    20   Sup.   Ct. 


LEGAL   STATUS.  41 

his  property;  so,  also,  tlie  owner  may  not  follow  the  natural 
gas  when  it  shifts  from  heneath  his  own  to  the  pro}3crty  (n 
some  one  else  within  the  gas  field.  It  being  trne  as  to  l>oth 
animals  ferae  nalurae  and  gas  and  oil,  thei'efore,  that  whilst  tJie 
right  to  apjirojiriatc  and  become  the  owner  exists,  proprietor- 
ship does  not  take  place  until  the  i)articnlar  subjects  of  the  right 
become  property  by  being  reduced  to  actual  possession.  The 
identity,  however,  is  for  many  reasons  wanting.  In  things, 
ferae  naturae  all  iwc  (Midowed  with  the  ])ower  of  seeking  to 
reduce  a  portion  of  the  ]nil)lic  projierty  to  the  domain  of  pri- 
vate ownershij)  by  i-educing  them  to  possession.  In  the  caso 
of  natural  gas  and  oil  no  such  right  exists  in  the  ])nblic.  It  is 
vested  only  in  the  owners  in  fee  of  the  surface  of  the  earth 
within  the  area  of  the  gas  field.  This  difference  points  at 
once  to  the  distinction  between  the  power  which  the  lawmaker 
may  exercise  as  to  the  two.  In  the  one,  as  the  public  are  the 
owners,  every  one  may  be  absolutely  prevented  from  seeking  to 
reduce  to  possession.  No  divesting  of  private  property,  under 
such  a  condition,  can  be  conceived  because  the  public  are  the 
o\\niers,  and  the  enacting  by  the  State  of  a  law  as  to  the  ])\d)iic 
ownership  is  but  the  discharge  of  the  governmental  trust  rest- 
ing in  the  States  as  to  projx^rty  of  that  character.  On  the 
other  hand,  as  to  gas  and  oil,  the  surface  proprietors  within 
the  gas  field  all  have  the  right  to  reduce  to  possession  the  gas 
and  oil  beneath.  They  could  not  be  absolutely  deprived  of  this 
right  which  belongs  to  them  without  a  taking  of  private  prop- 
erty. But  there  is  a  co-equal  right  in  them  all  to  take  from 
a  common  source  of  sujiply,  the  two  substances  which  in  the 
nature  of  things  are  united,  thougli  separate.  It  follows  from 
the  essence  of  their  right  and  from  the  situation  of  the  things, 
as  to  which  it  can  be  exerted,  that  the  use  by  one  of  his  ])ower 
to  seek  to  convert  a  part  of  the  common  fund  to  actual  posses- 
sion may  result  in  an  undue  ])ro])ortion  Ix^ing  attributed  to  one 
of  the  possessors  of  the  right,  to  the"  annihilation  of  tlie  rights 
of  the  remainder.  1 1  (Mice  it  is  that  the  legislative  ]X)wer,  from 
the  peculiar  nature  of  the  right  and  objects  upon  which  it  is  to 
be  exerted,  can  be  manifested  for  the  purpose  of  protecting  ail 
the  collective  owners  by  securing  a  just  distribution,  to  arise 


42 


OIL   AND    GAS. 


from  the  enjoyment  by  them,  of  their  privilege  to  reduce  to  jxis- 
session,  and  to  reach  the  like  end  by  preventing  waste.  This 
necessarily  implied  legislative  authority  is  borne  out  by  the 
analogy  suggested  by  things  ferae  naturae,  which  it  is  unques- 
tioned the  legislature  has  the  authority  to  forbid  all  from  tak- 
ing, in  order  to  protect  them  from  undue  destruction,  so  that 
the  right  of  the  common  owners,  the  public,  to  reduce  to  posses- 
sion may  be  ultimately  effic<nciously  enjoyed.  Viewed,  then, 
as  a  statute  to  protect  or  to  prevent  the  waste  of  the  common 
property  of  the  surface  owners,  the  law  of  the  State  of  Indiana 
which  is  here  attacked  because  it  is  asserted  that  it  divested 
private  property  without  due  compensation,  in  substance,  is  a 
statute  protecting  private  property  and  preventing  it  from  being 
taken  by  one  of  the  common  owners,  without  regard  to  the  en- 
joyment of  the  others.  Indeed,  the  entire  argument,  upon 
which  the  attack  on  the  statute  must  depend,  involves  a 
dilemma,  which  is  this :  If  the  right  of  the  collective  owners 
of  the  surface  to  take  from  the  common  fund,  and  thus  reduce 
a  portion  of  it  to  possession,  does  not  create  a  property  interest 
in  the  common  fund,  then  the  statute  does  not  provide  for  the 
taking  of  private  property  without  compensation.  If,  on  the 
other  hand,  there  be,  as  a  consequence  of  the  right  of  the  surr 
face  owmers  to  reduce  to  possession,  a  right  of  property  in  them, 
in  and  to  the  substances  contained  in  the  common  reservoir  of 
supply,  then  as  a  necessary  result  of  the  right  of  property,  its 
indivisible  quality  and  the  peculiar  position  of  the  things  to 
which  it  relates,  there  must  arise  the  legislative  power  to  pro- 
tect the  right  of  property  from  destruction.  To  illustrate  by 
another  form  of  statement,  the  arg-ument  is  this:  There  is 
property  in  the  surface  owners  in  the  gas  and  oil  held  in  the 
natural  reservoir.  Their  right  to  take  cannot  be  regulated 
without  divesting  them  of  their  property  without  adequate  com- 
pensation, in  violation  of  the  Fourteenth  Amendment,  and  this, 
although  it  be  that  if  regulation  cannot  be  exerted  one  property 
owner  may  deprive  all  the  others  of  their  rights,  since  his  act 
in  so  doing  will  be  damnum  absque  injuria.  This  is  but  to  say 
that  one  common  o-^vner  may  divest  all  the  others  of  their  rights 
without  wrong-doing,  but  the  lawmaking  power  cannot  protect 


LEGAL    STATUS.  43 

all  the  owners  in  their  enjoyment  without  violating  the  Consti- 
tution of  the  United  States."  ^' 

§  25a.     Depriving  owner  of  soil  of  right  to  oil  and  gas  beneath 
surface. 

From  what  has  been  said,  it  is  very  clear  that  the  owner  of 
land  can  not  be  deprived  of  his  right  to  the  oil  and  gas  be- 
neath the  surface  without  just  compensation.  They  are  just 
as  much  his  as  the  land.  "The  surface  proprietors  in  the  ga^ 
field  all  have  the  right  to  reduce  to  possession  the  good  oil 
beneath.  They  could  not  be  absolutely  deprived  of  the  right, 
which  belongs  to  them,  without  a  taking  of  private 
property."^'"  This,  of  course,  includes  the  right  to  transport 
it  to  a  market  if  it  can  be  done  without  invading  the  rights 
of  adjoining  landowners;  and  to  sell  it,  either  within  or 
without  the  state.^^'' 

§  26,     Severance  of  oil  or  gas  from  realty. 

In  instances  of  solid  minerals  the  severance  of  them  by  arti- 
ficial means  renders  them  personal  property,  the  ownership  of 
which  is  presumptively  in  the  owner  of  the  land,  or  if  the  land 
has  been  leased  for  mining  purposes,  in  the  lessee.'**  But  if  a 
wrong-doer  with  felonious  intent  sever  the  mineral  and  take  it 
away,  his  act  is  not  a  larceny,  but  merely  a  trespass.'"  If  the 
act  of  severance  be  at  one  time,  and  the  carrying  away  at  an- 

17  Ohio    Oil    Co.    V.    Indiana,    177  i"b  Kansas    Natural     Gas    Co.     v. 

U.    S.    190:    20    Sup.    Ct.    Rep.   585;  Haskell,    supra.      Thp   owner    of   oil 

44     L.     Ed.    729;     Given     v.     State  or    gas    eannot    he    deprived    of    tlie 

(Ind.),    66    N.    E.    Rep.    750;    Rich-  right  to  put  it  into  State  commerce, 

mond    Natural    Gas    Co.    v.    Enter-  West    v.    Kansas    Natural    Gas    Co., 

prise  Natural  Gas  Co.,    31  Ind.  App.  221   U.  S.  229;   .31  Sup.  Ct.  564;   55 

222;    66   N.    E.    Rep.    782;    I^wther  L.    Ed.  — . 

Oil  Co.  V.  Miller,  etc.,  Co.,  53  W.  Va.  is  Le port   v.    Mining   Co..   .3    X.   J. 

501;   44  S.  E.  Rep.  433.  L.  .T.  280;    Brown   v.   Morris,  8,3   N. 

This  doctrine  of  the  case  of  Ohio  C.  251;   Watts  v.  Tihhals,  0  Pa.  St. 

Oil   Co.   V.   Indiana,  fixprn.   is  recog-  447;   Rhoades  v.  Patrick,  27  Pa.  St. 

nized    in   Attorney   Gener::l    v.    Hud-  323;    Lyon    v.    Grorley,    53    Pa.    St. 

son  County  Water  Co.  70  N.  J.  Eq.  261;   Green  v.  Ashland  Iron  Co.,  62 

69'5;    65   Atl.    Rep.   480.  Pa.  St.  97:    Lvkens  Valley  Cod  Co. 

For  waste   of   nrtosi'in   wa<^or.   s^e  v.    Dock,    62    Pa.    St.   232:    N'hie  v. 

Huher  v.  Merkel,    117   Wis.   3.55;    94  Sylvester,    42    Vt.     146:     Forbes    v. 

N.  W.  Rep.  354.  Graoey.  94  U.  S.  762. 

17a  Ohio    Oil    Co.    v.    Tndi-ma.    177  m  People  v.  Williams.  35  Cal.  671  : 

U.    S.    190:    20    Sup.    Ct.    Ren.    57fi:  Commonwealth  v.  Steinlinii.    15{)  Pa. 

44  L.  Ed.  729:  Kans.os  Natural  C.ns  St.  400:   27  Atl.  Rep.  297:    State  v. 

Ck).  V.  Haskell,   172   Fed.  Rep.   545.  Burt,   64  N.   C.   619. 


44 


OIL   AND    GAS. 


other,  the  taking  will,  liowever,  be  larceny.-"  The  act  of  sever- 
ance and  the  act  of  carrying  away  must  lea  continuing  one, 
without  separation  ;  fcr  if  it  is  not,  the  severed  mineral  becomes 
the  personal  property  cf  the  owner  of  the  realty.-^  It  matters 
not  that  the  mineral  is  severed  by  a  stranger;  for  in  such  an 
instance  it  becomes  as  much  personal  property  as  if  the  owner 
had  severed  it;--  and  still  remains  the  property  of  the  land 
owner.-''  All  that  has  been  said  of  solid  minerals  is  true  of  oil 
and  gas.  As  soon  as  they  are  severed  from  the  earth  they  be- 
come personal  property.-^  Whenever  oil  or  gas  is  brought  to 
the  surface  and  confined  in  tanks  or  pipe  lines  it  becomes  per- 
sonal property  of  the  owner  of  the  well."^  If  a  lessee  own  the 
Avell,  it  is  his  property,  unless  the  land  owner  is  entitled  to  a 
specific  part,  in  which  event,  they  own  it  jointly  until  a  di- 
vision is  made.-"  If  oil  or  gas  be  taken  from  the  real  estate  it 
still  belongs  to  the  owner  of  the  land  or  the  lessee,  as  the  case 
may  be.-^ 


§  27.     Recovery  of  severed  product. — Trover. 

The  owner  of  the  land,  or  the  lessee  of  it,  from  which  oil  has 
been  taken  may  recover  possession  of  it  wherever  he  can  find 
it;  and  for  that  purpose  an  action  of  replevin  will  lie ;  -^  or  he 
may  bring  an  action  in  trover.-^    A  purchaser  of  oil  wrongfully 


20  Oommonwealtli  v.  Steinling, 
supra. 

21  Commonwealth  v.  Steinling, 
supra. 

-2  Attersoll  v.  Stevens,  1  Taunt 
183. 

-3  Hughes  V.  United  Pipe  Lines, 
119  N.  Y.  423;  23  N.  E.  Kep.  1042; 
Lanyon  Zinc  Co.  v.  Freeman,  (J8 
Kan.  691;   71   Pac.  995. 

24  Stoughton's  Appeal,  88  Pa.  St. 
198;  Shepherd  v.  McClamont  Oil 
Co.,  38  Hun,  37;  Hail  v.  Reed,  15 
B.  Men.  479;  11  :Morr.  Mm.  Rep. 
103;  Hughes  v.  United  Pipe  Lines, 
supra;  Wagner  v.  Alallory,  1G9  N.  Y. 
501;  62  N.  E.  Rep.  584;  affirming 
58  N.  Y.  Supp.  526;  Crystal  Ice, 
etc.,  Co.  V.  Marion  Gas  Co.,  35  Ind. 
App.  295;  74  N.  E.  Rep.  15;  Com- 
monwealth V.  Dingmer,  2(5  Pa. 
Super.  Ct.  615;  Kansas  Natural 
Gas  Co.  V.  Haskell,  172  Fed.  Rep. 
54i5;  Poe  v.  UUrey,  233  111.  56; 
84  N.  E.  Rep.  46. 


2  >  Kelly  V.  Ohio  Oil  Co.,  57  Ohio 
St.  317; '49  N.  E.  Rep.  399;  39  L. 
R.  A.  765;  63  Am.  St.  Rep.  721; 
State  V.  Indiana,  etc.,  Co.,  120  Ind. 
575;  22  N.  E.  Rep.  778;  6  L.  R.  A. 
579 ;  29  Am.  and  Eng.  Corp.  Cas. 
237. 

26  Carter  v.  County  Court,  45  W. 
Va.  806;  32  S.  E.  Rep.  216;  43  L. 
R.  A.  725. 

27  Williamson  v.  Jones,  43  W.  Va. 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A. 
694;  '64  Am.  St.  Rep.  891;  Hughes 
V.  United  Pipe  Lines,  119  N.  Y. 
423;   23  N.  E.  Rep.  1042. 

28  Williamson  v.  Jones,  43  W.  Va. 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A. 
694;  64  Am.  St.  Rep.  891;  Omaha, 
(tc,  Co.  V.  Tahor,  13  Colo.  41;  21 
Pac.   Rep.   925. 

2'JHail  V.  Reed,  15  B.  Mon.  479; 
11  Morr.  IVlin.  Rep.  103;  Oak  Ridge 
Coal  Co.  V.  Rogers,  108  Pa.  St.  147. 
Contra,  Kier  v.  Peterson,  41  Pa.  St. 
357. 


LEGAL    STATUS.  45 

taken  from  the  soil  gains  no  title  to  it ;  and  the  owner  of  the 
land  may  pursue  and  recover  it  or  its  value  wherever  he  may 
find  it.''"  Even  a  purchaser  from  a  j)erson  wlio  took  the  oil  from 
land  under  a  license  from  a  co-tenant  is  liahle  for  its  conver- 
sion, the  same  as  the  person  who  took  it.^^  In  the  case  of  a  life 
estate,  the  remainderman  who  is  in  heing  and  would  take  the 
estate  if  the  life  estate  were  extinguished,  will  be  entitled  to 
the  possession  of  all  the  oil  taken  by  the  life  tenant  or  by  a 
stranger  from  wells  sunk  after  the  life  estate  was  created.^- 
But  neither  replevin  nor  trover  will  lie  against  a  pipe  line  com- 
pany for  the  value  of  oil  taken  from  land  by  one  in  adverse 
possession  of  such  land,  and  delivered  to  the  company  for 
transportation.^^ 

§  27a.     Ejectment  for  possession  of  oil  or  gas. 

Owing  to  the  peculiar  property  of  oil  or  natural  gas,  an 
action  in  ejectment  can  not  be  maintained  to  recover  possession 
of  it  alone.  Thus,  as  no  title  to  the  gas  or  oil  beneath  the 
surface  passes  to  the  lessee  until  he  has  brought  it  to  the  sur- 
face or  secured  it  in  the  tubing  of  the  w^ell,  he  can  not  main- 
tain an  action  in  ejectment  to  recover  its  possession.^''" 

§  28.     'Wasting  gas. — Injunction. 

So  strongly  is  the  notion  of  absolute  ownership  of  the  gas 
and  oil  in  the  land  by  the  owner  of  it,  beneath  wiiich  it  is  found, 
embedded  in  our  law,  that  without  the  aid  of  a  statute  the 
owner  of  such  land  cannot  be  prevented  from  wasting  it  by  the 
owner  of  the  adjoining  premises.  In  the  case  of  gas  where  two 
wells  are  placed  within  a  few  feet  of  each  other  it  is  clear  t!;at 
they  draw  gas  from  the  same  reservoir;  and  this  is  true,  of 
course,  when  a  boundary  line  between  two  tracts  of  land  run 
between  them.  If,  therefore,  the  owner  of  one  of  the  wells 
persist  in  leaving  his  well  open,  not  using  the  gas,  it  is  quite 
manifest  that  the  gas  under  the  surface  of  the  tract,  or  under 
a  portion  of  it,  on  which  the  well  is  not  situated,  will  be  drawn 

•'■"  Hughes    V.    United    Pipe    Lines,  and    contra,    T>ouisville    Oas    Co.    v. 

119  X.  Y.  423;  23  N.  E.  Rep.  1042.  Kentucky  Heating  Co.,   117  Kv.  71; 

;^i  Omalia,     etc.,      Co.     v.     Tabor,  77  8.  W.  368;  25  Ky.  L.  Rep."l221; 

supra.  70    L.     R.    A.    551;     111     Ani.    St. 

32  Williamson   v.    Jones,    supra.  2r25. 

33  Gifnn  V.  Southwest,  etc..  Lines,  33a  Watford  Oil  &,  Gas  Co.  v. 
172  Pa.  St.  580;  33  Atl.  Rep.  578.  Sh-ipman,  233  111.  9;  84  N.  E.  Rep. 
See  Anderson  v.  Hapler.  34  111.  436,  53. 


46 


OIL   AND    GAS. 


off  and  wasted.  And  yet,  with  the  notions  of  absolute  owner- 
ship prevailing  with  respect  to  gas  beneath  the  surface  of  land, 
a  court  of  equity  will  not  enjoin  the  waste,  unless  some  positive 
statute  forbid  it.'^*  But  where  a  statute  forbade  such  a  waste 
of  gas,  it  was  held  that  the  State,  in  its  sovereign  capacity, 
could  enjoin  the  waste ;  and  the  statute  was  upheld  on  the 
theory  that  the  land  owner  had  no  title  to  the  gas  or  oil  be- 
neath the  surface  of  the  tract  of  land  he  owns,  except  the  right 
to  drill  on  his  own  land  to  take  it  into  his  possession ;  and  as 
long  as  he  had  no  title  to  it,  the  legislature  had  the  right  to 
prescribe  the  mode  of  taking  it.^^ 

The  State  also  has  the  power  to  prevent  the  waste  of  gas  by 
the  use  of  Flambeau  Burners.^*^ 

§  29.     Increasing  flow  of  gas  by  pumping  well. 

While  every  land  owner  has  the  right  to  bore  for  gas  on  his 
own  land,  and  to  use  such  portion  of  it  as  rises  by  natural  laws 
to  the  surface  in  his  wells  or  flows  into  his  pipes,  yet  an  adjoin- 
ing owner,  at  least,  has  no  right  to  induce  an  unnatural  flow 
into  or  through  his  well,  or  do  any  act  with  reference  to  the 
common  reservoir  and  the  gas  in  it,  injurious  to  or  calculated 
to  destroy  it ;  and  an  action  may  be  maintained  by  the  owners 
of  the  superincumbent  lands  to  enjoin  another  owner  from 
using  devices  for  pumping,  or  any  other  artificial  process,  that 

34  Hague  V.  Wheeler,  157  Pa.  St.  E.  Rep.  912;  50  L.  R.  A.  7(j>^;  Ohio 
324;  33  W.  N.  C.  83;  27  Atl.  Rep.  Oil  Co.  v.  Indiana,  177  U.  S.  190; 
714;  22  L.  R.  A.  141;  Jones  v.  20  Sup.  Ct.  Rep.  585;  Given  v.  State 
Forest  City  Oil  Co.,  194  Pa.  St.  379;  (Intl.),  66  N.  E  Rep.  750;  Rich- 
44  Atl.  1074;  48  L.  R.  A.  748;  Kelly  mond,  etc.,  Co.  v.  Enterprise,  etc., 
V.  Oliio  Oil  Co.,  57  Ohio  St.  317;  4^  Co.  ( Ind.  App.),  66  i\.  E.  Rep.  782; 
N.  E.  Rep.  399 ;  39  L.  R.  A.  765 ;  63  La  Harpe  v.  Elm  Tp.  Gaslight,  etc., 
Am.  St.  Rep.  721,  affirming  9  Ohio  Co..  69  Kan.  97;  76  Pac.  Rep.  448; 
C.  C.  Rep.  511;  38  Wkly.  L.  B.  299;  Kansas  Natural  Gas  Co.  v.  Haskell, 
39  Wkly.  L.  Bull.  54.  See  6  Oliio  172  Fed.  Rep.  545;  Hathorn  v.  Nat- 
Cir.  Dec.  470;  40  Wkly.  L.  Bull.  ural  Carbonic  Gas  Co.,  194  N.  Y. 
338;    3   Ohio   Dec.    186.  326;    87   N.   E.    Rep.   504,  affirming 

In   recent  cases,    however,    injunc-  128  App.  Div.  33;    112  N.  Y.  Supp. 

tions  have  been  granted  in  such   in-  Rep.    37-j,    modifying    and    affirming 

stances.      Gillespie   v.    Fulton   Oil   &  60  Misc.  Rep.  341;    113  N.  Y.  Supp. 

Gas  Co.,  236  111.  188;  86  N.  E.  Rep.  Rep.  458. 

219;  Louisville  Gas  Co.  V.  Kentucky  se  Townsend    v.     State,     147     Ind. 

Heating  Co.,   117   Ky.  71;    77  S.  W.  624;  47  N.  E.  Rep.  19;   37  L.  R.  A. 

Rep.    368;     25    Ky.    L.    Rep.    1221;  294;    Given    v.    State,   supra;    Rich- 

70  L.  R.  A.  558;   ill  Am.  be  225.  mond,   etc.,    Co.   v.   Enterprise,   etc.. 

35  ilanufacturers',  etc.,  Co.   v.   In-  Co.,  supra. 
diana,  etc.,  Co.,  155  Ind.  461;  57  N. 


LEGAL    STATUS.  47 

shall  have  the  effect  of  increasing  the  natural  flow  of  the  gas." 
In  an  earlier  Indiana  case  a  different  rule  was  adopted.^*  In 
the  more  recent  Indiana  case  the  following  language  was  used 
in  discussing  this  (luestion : 

"Natural  gas  is  a  fluid  mineral  substance,  subterraneous  in 
its  origin  and  location,  possessing,  in  a  restricted  degree,  the 
properties  of  underground  waters,  and  resembling  water  in 
some  of  its  habits.  Unlike  water,  it  is  not  generally  distributed, 
and,  so  far  as  now  understood,  it  can  be  used  for  but  few 
purposes,  the  most  important  being  that  of  fuel.  Its  physical 
occurrence  is  in  limited  quantities  only,  within  circumscribed 
areas  of  greater  or  less  extent.  If  it  could  be  dealt  with  as 
subterranean  waters,  there  would  be  little  difficulty  in  deter- 
mining the  rules  by  which  the  right  of  land  owners,  and  other 
persons  interested  in  it,  should  be  governed.  But  the  differ- 
ence between  natural  gas  and  underground  waters,  whether 
flowing  in  channels  or  percolating  the  earth,  is  so  marked  that 
the  principles  which  the  courts  apply  to  questions  relating  to 
the  latter  are  not  adapted  to  the  adjustment  of  the  difficulties 
arising  from  conflicting  interests  in  this  new  and  peculiar  fluid. 
Natural  gas  being  confined  within  limited  territorial  areas,  and 
being  accessible  only  by  means  of  wells  or  openings  upon  the 
lands  underneath  which  it  exists,  is  not  the  subject  of  public 
rights  in  the  same  sense,  or  to  the  same  extent,  as  animals 
ferae  naturae,  and  the  like,  are  said  to  be.  Without  the  consent 
of  the  owner  of  the  land,  the  public  cannot  appropriate  it,  use 
it,  or  enjoy  any  benefit  whatever  from  it.  This  power  of  the 
owner  of  the  land  to  exclude  the  public  from  its  use  and  en- 

87  Manufacturers',  etc.,  Co.  v.  In-  the  expense  of  the  neighboring  lands, 

diana,    etc.,    Co.,    155   Ind.    461;    57  for  the  sale  thereof,  especially  if  he 

N.   E.  Rep.   912;    50  U   R.  A.   768;  turns    the   water   to   waste,    may   be 

Manufacturers'    Gas    &    Oil    Co.    v.  enjoined  by  a  court  of  equity,  with- 

Indiana  Nat.  Gas  Co.,  156  Ind.  679;  out  any  aiding  statut<>,  at  tlie  suit 

59  N.  E.  169;   60  N.  E.  1080;  Man-  of  the   owners  of   such   neiglilwring 

ufacturers'  Gas  &  Oil  Co.  v.  Indiana  lands.    Hathorn  v.  Natural  Carbonic 

Nat.   Gas  Co.,    155   Ind.  550;    58   N.  Gas   Co.,    194   N.   Y.   326;    87   N.    E. 

E.  851;   Richmond  Nat.  Gas   Co.  v.  Rep.    504,    affirming    128   App.    Div. 

Enterprise    Nat.    Gas    Co.,    31    Ind.  33 ;  112  N.  Y.  Supp.  Rep.  374,  modi- 

App.   222;    66  N.    B.    782;    Jones   v.  fying  60  Misc.  Rep.  341;    113  N.  Y. 

Forest    Oil    Co.,    194    Pa.    379;    44  Supp.    Rep.    458.      See    Lindsley   -v. 

Atl.   1074.  Natural    Gas    Co.,    162    Fed.    Rep. 

The  increasing  by  pumps  the  flow  954. 
of   percolating   mineral    waters   and  ss  ppoplo's  Gas  Co.  v.  Tynor,   131 

gas  upon  lands  by  a   proprietor,  so  Tnd.  277;   31   N.  E.  Rep.  59;    16  L. 

that  he  increases  a  greatly  increased  R.  A.  443. 
proportion  of  a  common  supply,  at 


48  OIL   AND    GAS. 

joyment  plainly  distinguishes  it  from  all  other  things  with 
which  it  has  been  compared,  in  the  use,  enjoyment  and  control, 
of  which  the  public  has  the  right  to  participate,  and  tends 
to  impress  upon  it,  even  when  in  the  ground  in  its  natural  state, 
at  least  in  a  qualified  degree,  one  of  the  characteristics  or  at- 
tributes of  private  property.  In  the  case  of  animals  ferae 
naturae,  fish,  and  the  like,  this  public  interest  is  said  to  be 
represented  by  the  sovereign  or  State.  So,  in  the  case  of 
navigable  rivers  and  public  highways,  the  State,  in  behalf  of 
the  public,  has  the  right  to  protect  them  from  injury,  misuse, 
or  destruction.  But  in  the  case  of  natural  gas,  there  are 
reasons  why  the  right  to  protect  it  from  entire  destruction 
while  in  the  ground  should  be  exercised  by  the  owners  of  the 
land  who  are  interested  in  the  common  reservoir.  From  the 
necessity  of  the  ease,  this  right  ought  to  reside  somewhere,  and 
we  are  of  the  opinion  that  it  is  held,  and  may  be  exercised  by 
the  owners  of  the  land,  as  well  as  by  the  State.  Natural  gas 
in  the  ground  is  so  far  the  subject  of  property  rights  in  the 
owners  of  the  superincumbent  lands,  that  while  each  of  them 
has  the  right  to  bore  or  mine  for  it  on  his  own  land,  and  to  use 
such  portion  of  it  as  when  left  to  the  natural  laws  of  flowage 
may  rise  in  the  wells  of  such  owner  and  into  his  pipes,  no  one 
of  the  owners  of  such  lands  has  the  right,  without  the  consent 
of  all  the  other  owners  to  induce  an  unnatural  flow  into,  or 
through  his  own  wells,  or  to  do  any  act  with  reference  to  the 
common  reference  to  the  common  reservoir,  and  body  of  gas 
therein,  injurious  to,  or  calculated  to  destroy  it.  In  the  case 
of  lakes,  or  flowing  streams,  it  cannot  be  said  that  any  par- 
ticular part,  or  quantity,  or  proportion  of  the  water  in  them 
belongs  to  any  particular  land  or  riparian  owner,  each  having 
an  equal  right  to  take  what  reasonable  quantity  he  will  for  his 
own  use.  But  the  limitation  is  upon  the  manner  of  taking. 
So,  in  the  case  of  natural  gas,  the  manner  of  taking  must  be 
reasonable,  and  not  injurious  to,  or  destructive  of,  the  common 
source  from  which  the  gas  is  drawn.  The  right  of  each  owner 
to  take  the  gas  from  the  common  reservoir  is  recognized  by 
the  law,  but  this  right  is  rendered  valueless  if  one  well  owner 
may  so  exercise  his  right  as  to  destroy  the  reservoir,  or  to 
change  its  condition  in  such  manner  that  the  gas  will  no  longer 
exist  there. ' '  ^" 

^3  Marmfaoturers',  etc.,  Co.  v.  In-  mond  Natural  Gas  Co.  v.  Enterprise 
diana,  etc.,  Co.,  155  Ind.  401;  57  N.  Natural  Gas  Co.  (Ind.  App.),  06  N. 
E.  Rep.  912;  50  L.  R.  A.  708;  Rich-       E.   Rep.   782.      In   this   last   case  it 


LEGAL    STATUS. 


49 


§  30.     Pumping  oil  wells. 

It  is  clear  that  the  doctrine  of  the  Indiana  cases  has  its  lim- 
itations, and  must  not  be  carried  too  far.  For  in  the  case  of  oil 
wells,  if  pumps  cannot  be  used,  little  oil  can  be  taken  out,  and 
the  land  as  an  oil  territory  is  practically  useless.  It  is  prac- 
tically immaterial  whether  a  gas  well  can  be  pumped  if  gas 
cannot  be  otherwise  obtained  ;  for  when  it  becomes  necessaiy  to 
pump  a  gas  well  in  order  to  get  gas  out  of  it,  it  is  of  no  value 
whatever  as  a  gas  well.  But  in  the  case  of  oil  wells,  hundreds 
if  not  thousands  are  pumped  every  day ;  and  if  the  right  to  use 
a  pump  to  get  oil  from  them  did  not  exist,  few  would  ever  be 
drilled.  We  think  the  right  to  pump  them  clearly  exists.''"  It 
should  be  borne  in  mind  that  in  the  Indiana  cases  in  which  the 
right  to  use  a  pump  was  discussed,  the  court  had  before  it  the 
right  to  pump  a  gas  well,  and  not  an  oil  well.^^ 


was  held  that  no  offense  was  com- 
mitted where  the  pump  did  not  de- 
stroy the  back  pressure  of  the  gas, 
and  so  did  not  create  a  suction  in 
the  well,  consequently  not  increas- 
ing the  natural  flow. 

Where  a  statute  prohibited  the  ac- 
celeration or  increase  of  the  flow 
of  percolating  waters  or  natural  car- 
bonic acid  gas  from  wells  bored 
into  the  rock,  by  pumping,  or  other- 
wise; Ij  absolutely  and  without 
qualification ;  2,  where  the  result 
would  be  to  impair  tlic  natural  flow 
or  the  quality  of  the  water  or 
gas  in  the  spring  or  well  of  an- 
other person ;  3,  where  the  object 
of  so  doing  was  to  extract  and  col- 
lect the  carbonic  gas  for  the  market, 
it  was  held  that  the  first  and  second 
propositions  were  unconstitut.onal, 
because  it  was  a  taking  of  the  water 
and  enjoyment  of  private  property, 
the  landowner  being  prohibited  from 
extracting,  by  the  simplest  means 
and. most  modest  contrivance,  water 
from  a  bored  well  on  liis  own  land 
for  purposes  connected  with  the  use 
of  such  land,  if  tlie  well  was  in 
rock  and  the  water  contained  min- 
eral salts  and  carbonic  acid  gas,  he 
having  a  vested  right  to  draw  per- 
colating water  from  under  his  land 
for  purposes  legitimately  connected 
with  the  enjoyment  of  such  land, 
even  though  it  interferes  with  others. 
But  the  third   prohibition   was  held 


constitutional;  a  landowner  having 
no  vested  right  to  unnecessarily  and 
unnaturally  force  the  flow  of  perco- 
lating waters  for  any  pur[)ose  not 
connected  with  the  use  or  enjoyment 
of  liis  land.  Hathorn  v.  Natural 
Carlwnic  Gas  Co.,  194  N.  Y.  326; 
87  N.  E.  Rep.  504,  af!irming  128 
App.  Div.  33;  112  N.  Y.  Supp.  Rep. 
374,  and  modifving  60  Misc.  Rep. 
341;  113  N.  Y.  Supp.  4,58.  See 
Lindsley  v.  Natural  Carbonic  Gas 
Co.,  162  Fed.  Rep.  n,54. 

In  Indiana,  by  statute,  the  pres- 
sure in  tlie  pipes  cannot  be  in- 
creased by  pumping,  so  as  to  ex- 
ceed 300  pounds  to  the  square  inch. 
This  was  held  not  to  prevent  the 
use  of  pumps  for  the  purpose  of 
overcoming  the  friction  incident  to 
tlie  flow  of  gas  through  a  long  pipe, 
if  the  natural  flow  of  the  gas  was 
not  thereby  increased  where  the 
pressure  did  not  exceed  the  limit 
allowed  by  this  statute.  Consumers' 
Gas  Trust  Co.  v  American  Plate 
Glass  Co.,  162J[nd.  302;  68  N.  E. 
Rep.  1020. 

■*o  Jones  V.  Forest  Oil  Co.,  104  Pa. 
St.  370;  44  Atl.  Rep  1074;  48  L.  R. 
A.    748. 

••1  See  Manufacturers',  etc.,  Co.  v. 
Indiana,  etc.,  Co.,  155  Ind.  4fil;  57 
N  E.  Rep  912;  50  L.  R.  A  767; 
Manufacturers',  etc.,  Co  v.  Indiana, 
etc.,  Co.  156  Ind.  670:  58  N,  E. 
Rep-  "f><>:   •'>3  L.  R.  A.  134. 


50  OIL    AND    GAS. 

§  31.     Exploding  nitroglycerin  in  well  to  increase  flow. 

The  owner  of  a  well  has  the  right  to  explode  nitroglycerin  or 
other  explosive  in  a  well  to  increase  tlie  flow  of  gas  or  oil,  even 
though  lie  thereby  may,  or  actually  does,  draw  away  the  gas  or 
oil  in  the  adjoining  territory.*- 

§  32.     Maliciously  boring  well  to  injure  another. 

No  one  has  the  right  to  use  his  property  for  the  sole  purpose 
of  injuring  another.  Such  a  right  is  not  incident  to  ownership, 
and  the  right  to  use  property  in  that  way  does  not  extend  that 
far.  So  no  one  has  the  right  to  dig  a  well  solely  to  drain  an- 
other 's  water  well.  Such  an  act  in  law  is  malicious.*^  What  is 
true  of  a  well  of  water  is  true  of  a  gas  or  oil  well.  If  the  owner 
of  land  sink  an  oil  or  gas  well  on  his  own  land  for  the  sole  pur- 
pose of  injuring  the  oil  or  gas  well  of  another,  and  it  has  that 
effect,  he  may  be  restrained  by  injunction.'** 

§  33.     Measure  of  damages  for  unlawfully  taking  oil  and  gas 
from  the  soil. 

If  oil  has  been  unlawfully  taken  from  the  soil,  the  owner, 
whoever  he  may  be,  has  the  option  either  to  recover  the  oil  or 
its  value. *^  Where  the  act  of  taking  is  a  trespass,  according 
to  one  line  of  cases  concerning  solid  minerals,  the  wrong-doer 
is  not  entitled  t.:>  be  credited  with  the  cost  of  taking  out  the 
mineral,  if  he  knew  it  belonged  to  the  plaintiff.*"    Another  line 

42  People's  Gas  Oo.  v.  TjTier,  131  Exch.  81;  5  Jur.  (N.  S.)  873:  7 
Ind.  277;  31  N.  E.  Rep.  59;  IG  L.  R.  W.  R.  685;  Rjdeout  v.  Knox,  148 
A.  443;  Tyner  v.  People's  Gas  Co.,  Mass.  368;  19  N.  E.  Rep.  390;  Gag- 
131  Ind.  599;  31  N.  E.  61.  See  non  v.  French  Lick,  etc.,  Co.,  163 
as  to  damages  in  shooting  a  well,  Ind.  687 ;  72  N.  E.  Rep.  879.  See 
Davidson  v.  Humes,  188  Pa.  335;  Hathorn  v.  Natural  Carbonic  Gas 
41  Atl.  649;  Zahniser,  etc.,  Co.  v.  Co.,  194  N.  Y.  326;  87  N.  E.  504, 
Pennsylvania  Torpedo  Co.,  190  Pa.  affirming  128  App.  Div.  33;  112 
350;   42  Atl.  707.  N.    Y.    8upp.    374,    modifying    and 

The  lessee  is  not  bound  to  resort  affirming    60    Misc.    Rep.    341;     113 

to  exploding  nitroglycerin  in  a  well  N.   Y.  Supp.  458. 

he  has  drilled,  in  order  to  obtain  oil  ■*4  Dictum    in    Hague    v.    Wheeler, 

or  gas  and  comply  with  his  duty  to  157   Pa.   St.   324;    33   W.   N.   C.   83; 

use  diligence   in  the.  development  of  27  Atl.  Rep.  714;  22  L.  R.  A.  141. 

the    premises,    especially    so    where  45  Buckley  v.  Kenyon,  10  East  139. 

there    is    little    probability   that   the  46  The  cases  we  cite  are  cases  with 

explosion  would   produce  paving  re-  respect    to    solid    minerals.      Martin 

suits.      Rice    V.    Ege,    42    Fed.    Rep.  v.    Porter,    5    M.    &    W.    352;    2    H. 

661.      See    Foster    v.    Elk    Fork    Oil  and  H.  70;  Benson,  etc.,  Co.  V.  Alta, 

and  Gas   Co.,  90   Fed.   Rep.    178.  etc.,  Co..  145  U.  S.  428;   12  Sup.  Ct. 

43  Chasemore  v.  Richards,  7  H.  L.  Rep.  877;  Bennett  v.  Thompson,  13 
Cas.  349;  2  H.  and  N.  168;  29  L.  J.  Ired.    L.    146;     Kock    v.    Maryland 


LEGAL   STATUS. 


51 


of  cases  holds,  in  case  of  solid  minerals,  that  the  measure  of 
damages  is  the  value  of  the  mineral  as  it  existed  in  place  before 
it  was  broken  down."*'  It  must  bo  patent,  however,  to  every 
one  that  the  last  rule  cannot  be  applied  to  a  case  of  oil  or  gas, 
because  of  the  impossibility  of  determining  the  value  of  either 
gas  or  oil  in  situ.  In  the  case  of  a  wilful  or  negligent  trespass 
the  rule  should  follow  the  rule  first  above  enumerated,  and 
the  trespasser  charged  with  the  value  of  the  oil  or  gas  taken, 
without  any  deduction  for  the  cost  of  taking  it  out ;  but  if  the 
trespasser  was  innocent  of  the  fact  that  he  was  a  trespasser, 
and  is  not  guilty  of  negligence  in  entering  upon  the  ground 
and  taking  the  oil  or  gas,  the  cost  of  extracting  it  should  be 
allowed  him.  This  is  tjie  general  rule  where  tlie  trespasser  is 
innocent  of  any  intent  to  do  wrong,  or  has  not  been  guilty  of 
negligence.** 

§  34.     When  lessee  acquires  title  to  oil. 

A  mere  lessee — one  who  has  no  interest  in  the  land  itself,  as 
a  grantee  beneath  the  surface — does  not  acquire  title  to  the 
oil  in  the  leased  premises  until  it  has  been  taken  from  the 
ground.*^     In  passing  on  this  point  the  New  York  court  said : 


Coal  Co.,  08  M(l.  125;  11  Atl.  Rep. 
700;  Jegon  v.  Vivian,  L.  R.  6.  Ch. 
App.  742;  40  L.  J.  Ch.  389;  1!)  W. 
R.  365;  McLean  County  Coal  Co.  v. 
Long,  81  111.  3159;  Wild  v.  Holt,  9 
M.  and  W.  672;  1  D.  N.  S.  876;  11 
L.  J.  Exch.  285;  Morgan  v.  Powell, 
9  M.  and  W.  672;  Baker  v.  Hart, 
123  N.  Y.  470;    25  N.   E.   Rep.  948. 

Another  line  of  cases  hold  that 
the  measure  of  damages  is  the  value 
of  the  mineral  after  severance  and 
before  removal.  Llvnvi  Coal  Co.  v. 
Brogden,  L.  R.  11;  Eq.  183;  40  L.  J. 
Ch.  46;  24  L.  ♦T.  612;  Robertson  v. 
Jones,  71  111.  405;  Sunnvside  Coal 
Co.  V.  Reitz.  14  Tnd.  App.  478;  43 
N.  E.  Rep.  46;  Thomas,  etc.,  Co.  v. 
Herter,  60  111.  App.  58;  Illinois,  etc., 
Ry.  Co.  V.  Ogle,  82  111.  627;  Barton 
Coal  Co.  V.  Cox,  39  :Md.  1;  Franklin 
Coal  Co.  V.  IMcMillan,  49  Md.  549. 

47  Wood  V.  INIorewood,  3  0-  B.  440, 
note;  Hilton  v.  Woods,  L.  R.  4  Eq. 
432;  36  L.  J.  Ch.  491;  16  L.  T.  736; 
15  W.  R.  1105;  In  re  ITnited  Mer- 
thyr  Coal  Co.,  L,  R.  15;  Eq.  46;  21 
W.  R.  117;  Livingston  v.  Rawvards, 
5   App.   Cas.   25;    42  L.  T.   3.34;    28 


W.  R.  357;  Powell  v.  Aikin,  4  Kay 
and  J.  343 ;  Clieesman  v.  Shreve,  40 
Fed.  Rep.  787 ;  Colorado,  etc.,  Co.  v. 
Turck,  70  Fed.  Rep.  294;  Golden  Re- 
ward Mining  Co.  v.  Buxton,  97  Fed. 
Rep.  413;  Durant  Mining  Co.  v. 
Percy,    etc.,   Co.,    93    Fed.    Rep.    166. 

48  Dyke  v.  National  Transit  Co., 
22  N.'y.  App.  Div.  360;  49  N.  Y. 
Supp.  180;  Gladvs  City  Oil,  etc., 
Co.  V.  Right  of  Way  Oi'l  Co.  (Tex. 
Civ.   App.),    137   S.   W.    171. 

If  a  person,  with  notice  of  the 
right  of  another  unoer  a  lease  to 
explore  for  oil,  invade  the  leased 
premises,  he  may  be  enjoined,  and 
he  forfeits  whatever  work  he  has 
done,  and  material  which  cannot  be 
taken  away  witliout  injury  to  what 
has  l>een  done;  but  he  mav  remove 
machinery  or  materinls  used  in  drill- 
ins:,  pumping,  conveying  or  ^^toring 
oil  which  is  not  a  part  of  the  wells, 
themselves.  Gillespie  v.  Fulton  Oil 
&  Gas  Co.,  239  111.  326;  88  N.  E. 
Ren.  192. 

40Wnrner  v.  Alallorv.  169  X.  Y. 
501:  62  >r.  E.  Rep.  584;  aHirming 
58    X.    Y.    Sujjp.    .>26;    Ix)wther    Oil 


52  OIL   AND    GAS. 

"It  will  be  observed  that  there  is,  by  the  terms  of  the  lease 
no  grant  of  the  oil  as  it  exists  in  the  earth,  so  that  there  is  no 
passing  of  the  title  to  the  oil  as  it  exists  in  its  natural  state, 
but  that  the  right  is  limited  to  the  mining  and  excavating,  or 
the  pumping  and  raising,  of  the  oil  from  the  premises.  It  is 
a  right  to  produce  or  extract  the  oil  from  the  earth,  yielding 
one-eighth  thereof  to  the  landlord.  What  was  his  right?  Was 
it  real  estate  or  personal  property?  It  is  said  that  leases  of 
this  character  are  incorporeal  hereditaments,  and  that  pe- 
this  character  are  incorporateal  hereditaments,  and  that  pe- 
troleum oil  is  a  mineral,  and  is  a  part  of  the  royalty  like  coal, 
iron  and  copper.  It  is  true,  it  is  a  mineral  substance ;  but  it 
widely  differs  from  the  minerals  mentioned,  which  are  solids, 
having  a  fixed  location  in  the  earth,  like  the  rock  itself.  Pe- 
troleum oil  is  a  fluid  found  in  the  porous  sand  rock  of  the  earth. 
In  some  instances  it  doubtless  exists  in  pools,  but  where  are  the 
pools  located?  They  may  be  under  the  lands  in  which  the  well 
is  drilled.  They  may  be  in  the  abutting  or  remote  lands,  and 
may  drain  into  the  wells  through  seams  or  crevices  in  the  roek, 
and  then  be  extracted  from  the  earth  and  reduced  to  possession 
by  the  operator.  In  this  respect  oil  resembles  water  as  it 
exists  in  the  earth — especially  salt  and  mineral  waters,  which 
have  a  market  value — and  is  largely  governed  by  the  same 
rule  of  law.  It  consequently  was  held  at  a  very  early  day  in 
the  history  of  the  petroleum  oil  production  that  a  man  could 
not  be  restrained  by  his  abutting  neighbor  from  boring  for  oil 
upon  his  own  premises,  although  he  located  his  well  within  a 
few  feet  of  the  line,  and  would  necessarily  drain  the  oil  from 
his  neighbor's  land,  if  any  existed  therein.  We  consequently 
are  of  the  opinion  that  no  title  to  the  oil  vested  in  the  lessee 
until  it  had  been  taken  from  the  ground  and  reduced  to 
possession."  ^'•'^ 

Co.    V.    Miller,    etc.,    Co.     (W.    Va.),  S.  E.  Eep.   10O5;   O'Neil  v.   Hun  Co. 

44  S.  E.  Rep.  433;   Gillespie  v.  Ful-  (Tex.    Civ.    App.),    123    S.    W.    Rep. 

ton  Oil  &  Gas  Co.,  239  111.  326;   88  172. 

K.  E.   Rep.   192;    Poe  v.  Ulrey,  233  The  grant  of  oil  and  gas  in   the 

111.  '5G;   84  N.  E.  Rep.  46;    Watford  cartli  is  a  grant  of  such  part  as  the 

Oil  &  Gas   Co.  V.  Shipman,   233  111.  grantee  may   find,    and    the   grantee 

9;    84    N.    E.    Rep.    53;    Headley    v.  cannot  maintain  ejectment  or  other 

Hoopengarner    —    W.    Va.    - — ;     55  real   action  to   recover  it.     Watford 

S.  E.  Rep.  744;  Kansas  Natural  Gas  Oil  &  Gas  Co.  x.  Shipman,  233   111. 

Oo.  V.   Haskell,   172   Fed.   Rep.  545;  9;  84  N.  E.  Rep.  53. 

McGraw  Oil  &  Gas  Co.  v.  Kennedy,  49a  O'Neil    v.   Sun   Co.    (Tex.   Civ. 

65  W.  Va.  595;  64  S.  E.  Rep.  1027;  App.),   123   S.  W.   Rep.   172;    Smith 

Smith  V.   Root,   66   W.   Va.  C33 ;    66  v.    Root,    66   W.   Va.    633;    66   S.    E. 


LEGAL   STATUS. 


53 


§  35.     Waste — part  of  realty. — Reservation. 

Where  a  tenant  for  life  was  taking  out  oil  and  gas,  it  was 
held  that  such  oil  and  gas  formed  a  part  of  tlie  realty,  that  he 
could  not  drill  wells  in  order  to  take  out  the  oil  or  gas,''°  and 
that  drilling  a  well  and  taking  out  gas  or  oil  was  an  act  of 
waste  within  the  legal  definition  of  that  term."''  So  in  the  case 
of  an  infant's  lands,  the  guardian  cannot  drill  a  well,  extract 
the  oil  or  gas  and  sell  it;  nor  can  he  dispose  of  it  by  way  of 
lease  or  otherwise.^-  The  same  is  true  of  a  guardian  of  an 
insane  or  incompetent  person."'^  A  conveyance  of  real  estate, 
but  reserving  "all  mines,  mineral  and  metals  in  and  under  the 
land,"  is  a  reservation  of  the  oil  and  gas."'*  A  demise  or  con- 
veyance of  a  tract  of  land,  but  reserving  ten  acres  near  the 
dwelling  house  on  which  no  wells  shall  be  drilled,  is  a  con- 
veyance of  the  oil  and  gas  under  the  ten  acres.''"'  As  between 
the  first  lessee  and  a  second  one  where  the  latter  takes  out  oil 
or  gas  without  the  consent  of  the  first,  such  oil  or  gas  must  be 
treated,  before  it  is  extracted,  rJ3  c  parL  cT  the  realty  ;m.l  Llic 


Hep.  1005;  Watford  Oil  &  Gas  Co. 
V.  Shipman,  233  111.  9;  84  N.  E. 
Rep.  53;  Moore  v.  Sawyer,  167  Fed. 
826;  MclVIillin  v.  Titus,  22^2  Pa. 
500;  72  Atl.  Rep.  240;  Eastern  Oil 
Co.  V.  Coulehan.  6.1  W.  Va.  531; 
64  S.  E.  Rep.  830;  Kansas  Natural 
Gas  Ck3.  V.  Board,  75  Kan.  335; 
8!)  Pac.  Rep.  750;  Bruner  v.  Hicks, 
230  111.  566;  82  N.  E.  Rep.  888; 
Toothman  v.  Courtney,  62  W.  Va. 
167;  58  S.  E.  Rep.  9*15;  Dodridge, 
etc.)  Co.  V.  Smity,  154  Fed.  Rep. 
970;  New  American  Oil  &  ]\Iining 
Co.  V.  Trover,  1-66  Ind.  402;  77 
N.  E.  Rep.  739;  76  N.  E.  Rep.  253; 
Graciosa  Oil  Co.  v.  Santa  Barbara 
County,  155  Gal.  140;  99  Pac.  Rep. 
483;  Richlands  Oil  Co.  v.  Morriss, 
108  Va.  288;  61  S.  E.  Rep.  762; 
Conklin  v.  Krandusky  (N.  Y.),  112 
N.  Y.  Supp.  13;  Ulrev  y.  Poe,  134 
111.  App.  298.  affirmed  233  111.  56; 
84  N.  E.  Rep.  46;  Backer  y.  Penn. 
Luhricatin?  Co..  162  Fed.  Rep.  627; 
Richmond  Natural  Gas  Oo.  y.  Daven- 
port, 37  Ind.  App.  25;  76  N.  E. 
Rep.  535 :  Dickey  v.  CVifTeyville, 
etc.,  Co.,  69  Kan.  106;  76  Pac.  Rep. 
398;  Carr  v.  Huntinsrton  L.  &  F. 
Co..  33  Ind.  App.  1;  70  N.  E.  Rep. 
568;    Headley  v.   Hoopengarner,   60 


Vr.  ^'a.  T'-:  rvr.  S.  E.  Rep.  744;  Gil- 
lespie V.  Fulton  Oil  &  Gas  Co.,  239 
111.  326;  88  N.  E.  Rop.  192;  MdCon- 
nell  V.  Pierce,  2"10  111.  02.7;  71  N.  B. 
Rep.  622;  McGra-w  Oil  Co.  &  Gas  C<r. 
y.  Kennedy,  65  W.  Va.  595;  64  S,  E. 
Rep.  1027;.Ramage  y.  Wilson,  45 
Ind.  App.  5i90;  88  N.  E.  Rep.  862. 

50  Though  he  couW  use  the  wells 
drilled  before  the  life  estate  was 
establis4ied. 

51  Williiamson  y.  Jones,  43  W.  Va. 
562;  27  S.  E.  Re,p.  411;  38  L.  R.  A. 
694;  64  Am.  St.  Rep.  891;  Marshall 
y.  Mellon,  179  Pa.  St.  371;  36  Atl. 
Rep.  201;   35  L.  R.  A.  816. 

•"■-•  Stou,":.hton's  Appeal,  8«  Pa.  Si. 
198;  Haskell  v.  Sutton,  53  W.  Va. 
206;    44    S.    E.   533. 

5i  South  Pennsylvania  Oil  Co.  v. 
IMcIntire.  44  W.  Va.  296;  28  S.  E. 
Rep.  922. 

54  Murray  y.  A'Uard,  100  Tenn. 
100;  43  S.  W.  Rep.  .353;  39  L.  R.  A. 
249;  66  Am.  St.  Rep.  740;  IMoCon- 
nell  V.  Pierce,  210  Ilk  627;  71  N.  E. 
Rep.  622  (citing  Mjanning  y.  Frazier, 
96   111.   279). 

55  Brown  y.  Spilman.  15v5  U.  S. 
665:  15  Sup.  Ct.  Rep.  245,  reversing 
45  Fed.  Rep.  291. 


54  OIL   AND    GAS. 

taking  out  of  it  as  a  waste.^"  It  is  not  waste,  however,  for  a 
land  owner  to  put  down  wells  near  his  boundary  lines,  though 
the  effect  be  to  draw  the  oil  from  beneath  the  surface  of  the 
adjoining  land  owned  by  another."  To  extract  it  unlawfully 
is  an  irreparable  injury  which  to  stop  or  prevent  injunction 
lies.^^ 

§  36.     Partition. 

The  grantee  of  a  mere  mining  right  cannot  maintain  an 
action  for  partition  as  against  his  grantor.'^^-'  Nor  can  the 
owners  of  mineral  rights  in  oil  and  gas  have  partition,  for  the 
reason  that  neither  gas  nor  oil  is  capable  of  distinct  ownership 
so  long  as  it  is  in  place.  Today  they  may  form  a  part  of  the 
premises  of  the  land  occupied  by  their  owner,  but  tomorrow 
they  may  have  escaped  and  formed  a  part  of  the  adjoining  or 
even  other  land,  without  the  volition  or  any  act  of  their 
owners.^" 

§  37.     Oil  and  gas  not  synonymous. 

Oil  and  gas  are  not  synonymous ;  and  a  lease  for  oil  purposes 
does  not  embrace  the  right  to  take  gas.  If  the  lease  requires 
the  production  of  oil,  the  production  of  gas  will  not  satisfy  the 
covenant  requiring  a  development,  within  a  certain  time,  of  the 
territory  for  oil.^^ 

§  38.     "  Other  valuable  volatile  substances. ' ' 

Where  the  phrase  "other  valuable  volatile  substances"  was 
used  in  a  lease  in  connection  with  the  words  "petroleum,  rock 

56  Bettman  v.  Harness,  42  W.  Va.  •''■"  Smith  v.  Cooley,  65  Cal.  46. 

443;  26  S.  E.  Rep.  271;  36  L.  R.  A.  eo  Hall  v.  Vernon,  47  W.  Va.  295; 

566;   Oillespie  v.   Fiilt«n  Oil  &  Gas  34  S.  E.  Rep.  764;  49  L.  R.  A.  464. 

Co.,    239    111.    326;    88    N.    E.    Rep.  See   Carter  v.   Tyler   County   Court, 

192.  45  W.  Va.  806; '32  S.  E.   Rep.  216; 

5T  Kelly  V.  Ohio   Oil   Co.,  57   Ohio  43    L.  -R.    A.    725;    Watford    Oil    & 

St.  317;  49  X.  E.  Rep.  399;  39  L.  R.  Qaa  Co.  v.  Shipman,  233   111.  9;    84 

A.  705;   63  Am.  St.  Rep.  765.  N.  E.  Rep.  53;   Beardsiey  v.  Kansas 

58  Moore   v.   Jenninfjs,   47   W.   Va.  Natural   Gas  Co.,    78   Kan.   571;    96 

181;  34  S.  E.  Rep.  793;   Gillespie  v.  Pic.    Rep.    SSD;    Emery    v.    League, 

Fultrm  Oil  &  Gaa  Co.,  236  111.   188;  31    Tex.    App.    474;    72    S.   W.    603; 

86  N.   E.  Rep.  219;    Haskell   v.   Sut-  Preston    v.   White,   57    W.   Va.   278; 

ton,  53  W.  Va.   206;    44   S.  E.  533;  50  S.  E.  236;   Ziegler  v.  Brenneman, 

Bettman  v.  Harness,  42  W.  Va.  423;  237  111.  15;   86  N.  E.  597. 
26  S.  E.  271;  Murray  v.  Allard,  100  oi  Palmer   v.    Truby,    136   Pa.    St. 

Tenn.    100;    66    Am.    St.    740;    Isam  556;    20    Atl.    Rep.    516;    Taylor   v. 

V.  Rex  Crude  Oil  Co.,  147  Cal.  659;  Peerless    Refining  Co.,    7    Ohio   Dec. 

82  Pac.  317.  368;    14   Ohio    C.    C.    315. 


LEGAL   STATUS.  "  55 

or  carbon  oil,"  the  court  ordered  tlie  issue  to  be  tried  by  a  jury, 
whether  or  not  natural  gas  was  included  in  the  words  first 
quoted,  for  the  reason  that  the  words  have  no  well  defined 
meaning,  and  are  ambiguous."- 

§  39.     Natural  gas  not  heat. 

Natural  gas  is  not  heat  within  the  meaning  of  a  statute  pro- 
viding for  the  incorporation  of  companies  to  supply  heat."^ 

§  40.     Gas  and  oil  an  article  of  commerce. 

Both  gas  and  oil  are  articles  of  commerce  when  severed  from 
the  soil,  not,  however,  while  remaining  in  it.  When  gas  is  car- 
ried from  State  to  State  it  is  an  article  of  interstate  commerce, 
though  carried  in  pipe  lines,  as  much  so  as  coal,  iron  ore  or  any 
other  mineral ;  and  no  greater  restrictions  can  be  laid  upon  it 
than  can  be  laid  upon  solid  minerals  severed  from  the  soil,  or 
any  other  article  of  commerce.  The  carriage  of  oil  and  gas 
beyond  the  boundaries  of  that  State  cannot  be  prohibited ;  "* 
and  State  officers  endeavoring  to  enforce  a  statute  forbidding 
«uch  carriage  may  be  enjoined  by  the  Federal  courts."^"  The 
State  has  only  an  easement  in  its  public  highway  and  a 
statute  forbidding  a  contract  to  the  property  owners  to  lay 
pipes  over  or  across  them,  in  order  to  prevent  the  carrying  of 
natural  gas  out  of  the  State,  is  void.*'*^ 

§  41.     Judicial  notice. 

Courts  will  take  judicial  notice  of  the  properties  of  pe- 
troleum and  natural  gas,  and  that  the  latter  is  a  highly  in- 
flammable and  dangerous  substance."'^    They  will  not,  however, 

62  Ford  V.  Buchanin.  Ill  Pa.  St.  ^55:  28  N.  E.  Rop.  7G;  12  L.  R.  A. 
31;    2  Atl.  Rep.   339.  fi52:  34  Am.  and  Enfr.  Corp.  Cas.  1. 

63  Emerson  v.  Commonwealth,  108  64a  Kansas     Natural     Cis    Co.    v. 
Pa.    St.    126:    Lebanon   Gas    Co.    v.  Hasicell,   172  Fed.  Rep.  545. 
Lebanon  Fuel,  etc.,  Co.,  5  Pa.  Dist.  64b  Kansas    Natural    Gas    Co.    v. 
Rep.  529;  18  Pa.  Co.  Ct.  Rep.  223.  lluskell,     supra,     nfTirmed     West     v. 

64  State  V.  Indiana,  etc.,  Co.,  120  Kansas  Natural  Gas  Co.,  221  U.  S. 
Tnd.  575;  22  N.  E.  Reip.  778:  0  L.  R.  229;  31  Sup.  Ct.  564:  55  L.  Ed.  — . 
A.  570;  29  Am.  and  Eng.  Corp.  Cas.  65  Jamieson  v.  In  .ima.  etc..  Co., 
237:  2  Inter  St.  Com.  Rep.  758.  See  128  Ind.  565;  28  N.  E.  Ren.  70:  12 
Columbia  Conduit  Co.  v.  Com.,  90  L.  R.  A.  fi52:  34  Am.  and  En-jr.  'orp. 
Pa.  St.  307;  West  Virginia  Trans-  Cas.  1;  Alexandria,  ofc.  Co.  v.  Iri-li, 
portation  Co.  v.  Volcanic  Oil  and  10  Ind.  App.  534 ;  44  N.  E.  Rep.  fi80; 
Goal  Co.,  5  W.  Va.  382;  Jamieson  v.  Mississinewa  Mining  Co.  v.  Palton, 
Indiana  Natural  Gas  Co.,   128  Ind.  129  Ind.  472;   28  N.  E.  Rep.   1113; 


56  ■  OIL   AND    GAS. 

presume  or  take  judicial  notice  that  gas  confined  in  an  iron 
pipe,  is,  in  that  condition,  a  dangerous  element  and  liable  to 
explode.*^*'  So  the  courts  will  take  notice  of  the  methods  of 
operating  for  oil  and  gas,  the  means  of  their  conduct  to  the 
points  of  consumption,  and  the  facts  of  the  odor  and  noise 
incident  to  their  production.*''  Courts  will  also  take  judicial 
notice  that  coal  oil  is  inflammable ;  '^^  but  they  will  not  take  ju- 
dicial notice  that  kerosene  oil  is  a  refined  coal  oil,  or  a  refined 
earth  oil,*'^  or  a  "burning  fluid"  or  "chemical  oil"  as  such 
words  are  used  in  a  policy  of  insurance  forbidding  the  use  of 
such  articles  on  the  insured  premises.'"  Where  the  Legislature 
had  declared  that  certain  grades  and  qualities  of  kerosene  are 
proper  and  safe  to  use,  it  was  decided  that  judicial  notice  could 
not  be  invoked  to  establish  that  kerosene  used  in  a  certain  case 
was  in  fact  inflammable  or  explosive.''^  Nor  will  the  courts 
take  judicial  notice  that  gin  and  turpentine  are  inflammable 
liquids,  within  the  meaning  of  that  term  as  used  in  an  insur- 
ance policy  that  provides  it  shall  be  void  if  "inflammable 
liquids"  are  kept  on  the  premises.'^-  But  judicial  knowledge 
will  be  taken  that  gas  cannot  be  brought  to  the  surface  and 
stored  to  await  a  market  for  it ;  and  that  it  must  remain  in  the 
ground,  and  be  taken  out  only  when  the  owner  of  the  g^-ound 
may  be  able  to  find  a  customer  for  it,  unless  allowed  to  waste 
away.'-*^ 

28  Am.  St.  Rep.  203 ;   Indiana,  etc.,  68  state  v.  Hayes,  78  Mo.  307. 

Co.  V.  .Jones,  14  Ind.  App.  55;  42  N.  69  Bennett   v.   North   British,  etc., 

E.Rep.  4S7'.  Ins.  Co.,  8  Daly  471. 

The  court  will  take  judicial  notice  '^o  Mark  v.  National  Fire  Ina.  Co.. 

that  crude  oil  is  of  an  inflammable  24  Hun  5G5;   affirmed  91  N.  Y.  663. 

character.      Texas   &   N.    0.    R.    Co.  ^i  Wood  v.  N.  W.  Ins.  Co.,  46  N. 

(Tex.   Civ.   App.),    112   S.   W.   Rep.  Y.  421. 

323.     "Natural  gas  will  not  explode  ^2  Mosley    v.    Vermont,    etc.,    Ins. 

until    it     is    mixed    with     oxygen."  Co.,   55  Vt.    142. 

Harmel    v.    Brentford    Gas    Co.,    13  ^sa  Eastern    Oil   Co.    v.    Conlehan, 

Ont.  W.  Rep.  873.  65  W.  Va.  531;    64  S.  E.  Rep.  836. 

A  court  will  not  take  judicial  no-  'llie  court  will  also  take  judicial 
tice  that  dry,  fine  coal  dust  is  dan-  notice  that  mining  for  oil  and  gas 
gerous  and  an  explosive  element.  is  a  hazardous  and  dangerous  busi- 
Cherokee,  etc.,  Co.  v.  Wilson,  47  ness,  involving  great  risk  and  re- 
Kan.    460;    28    Pac.    Rep.    178.  quiring  large  expenditures  of  money, 

66  Indiana,  etc.,  Co.  v.  Jones,  and  that  by  the  usual  terms  of  a 
supra.  lease    the    lessor    reserves    but    one- 

67  Brown  v.  Spilman,  1.55  U.  R.  eighth  of  the  oil  as  a  royalty,  and 
'670;  15  Sup.  Ct.  Rep.  245;  30  L.  the  other  seven-eighths  goes  to  the 
Ed.  — ;  Eastern  Oil  Co.  v.  Conle-  operator.  Garrett  v.  South  Penn. 
ban,  65  W.  Va.  531;  64  S.  E.  Rep.  Oil  Co.,  66  W.  Va.  587;  66  S.  E. 
836.  741. 


LEGAL   STATUS.  5< 

§  42.     Judicial  knowledge  of  oil  and  gas  properties. 

"It  is  well  understood  among  oil  operators  that  the  fluid  is 
found  deposited  in  a  porous  sand  rock,  at  a  distance  ranging 
from  five  hundred  to  three  thousand  feet  helow  the  surface. 
This  rock  is  saturated  throughout  its  extent  with  oil,  and  wlien 
the  hard  stratum  overlying  it  is  pierced  by  the  drill,  the  oil 
and  gas  find  vent,  and  are  forced,  by  the  pressure  to  which 
they  are  subject,  into  and  through  the  well  to  the  surface. 
After  this  pressure  is  relieved  by  the  outflow,  the  wells  become 
less  active.  The  movement  of  the  oil  in  the  sand  rock  grows 
sluggish,  and  it  becomes  necessary  to  pump  the  wells  both  to 
quicken  the  movement  of  oil  from  the  surrounding  rock,  and  to 
lift  it  from  the  chamber  at  the  bottom  of  the  well  to  the  sur- 
face. An  oil  or  gas  well  may  thus  draw  its  product  from  an 
indefinite  distance,  and  in  time  exhaust  a  large  space.  Exact 
knowledge  on  this  subject  is  not  at  present  attainable,  but  the 
vagrant  character  of  the  mineral,  and  the  porous  sand  rock  in 
which  it  is  found  and  through  which  it  moves,  fully  justify  the 
general  conclusion  we  have  stated  above,  and  have  led  to  its 
general  adoption  by  practical  operators.  For  this  reason,  an 
oil  lease  partakes  of  the  character  of  a  lease  for  general  tillage, 
rather  than  that  of  a  lease  for  mining  and  quarrying  the  solid 
minerals. ' '  '  ^ 

§  43.     Plugging  wells. 

The  state  has  the  power  to  compel  the  owner  of  a  disused  or 
abandoned  well  to  plug  it,  so  gas  will  not  escape  into  the  o])en 
air,  and  thereby  the  gas  not  only  be  wasted,  but  the  natural 
reservoirs  be  flooded  with  salt  water  to  the  destruction  of  the 
gas  and  the  practical  destruction  of  the  oil.' '  So  a  statute  em- 
powering a  neighboring  land  owner  to  enter  on  adjoin- 
premises,  plug  a  well  that  had  been  abandoned,  and 
recover  the  cost  of  so  doing  from  the  land  owner,  is  valid.  It 
cannot  be  successfully  contended  that  such  a  statute  is  invalid 

TsWettengpl  v.  Gormley,   160  Pa.  State,   160  Tnd.  552;    66  X.  E.  Rep. 

St.  ,550;    28   Atl.  Rep.  034;    40  Am.  750;    Bailey  v.  State,   1G.3  Incl.    I(i5; 

St.  Rep.  733.  71    N.   E.    Rep.   655;    Commonwealtli 

74  State  V.  Ohio  Oil  Co.,  150  Ind.  v.  Trent,  117  Ky.  34;  77  S.  W.  Rep. 

21;  49  N.  E.  Rep.  1055;  47  L.  R.  A.  390;  25  Ky.  L.  Rep.   1180;    Dawson 

627;  Ohio  Gil  Co.  V.  Indiana,  177  U.  v.    Shaw,    28    Pa.    Suiier.    Ct.    563; 

S.  190;  20  Sup.  Ct.  Rep.  576;   State  McDonald    v.   Carlin,    163    Ind.   342; 

V.  Oak  H<irbnr  Gas  Co..  53  Ohio  St.  71    N.    E.    Rep.    961;    Steelsniith    v. 

347:    41    X.   E.   Rep.   584;    reversing  Aiken.    14   Pa.   Super.    Ct.   22(5;    La- 

34   \Vk]v.  L.  Bull.  221;    18  Ohio  C.  Harpe  v.  Elm  Tp.  CasJipht,  etc..  Co., 

Ct.  Rep.   751;    1    Toledo  Lep.   Xews,  69    Kan.    97;    76   Pac.    Rep.   448. 
474;    4    Ohio    C.    C.    158;    Given    v. 


58  OIL   AND    GAS. 

on  the  ground  that  the  owners  of  gas  wells  may  do  as  they 
please  with  gas  after  reducing  it  to  possession ;  for  the  gas 
flowing  from  the  pipes  or  coming  from  the  gas  meter  is  re- 
placed by  other  gas  coming  from  the  wellJ^* 

§  44.     Not  subject  to  tariff  law  of  1890. 

Under  the  tariff  law  of  1890  natural  gas  imported  as  a  fuel 
is  not  subject  to  a  tariff  duty  under  that  clause  of  the  statute 
providing  that  all  imports  of  crude  bitumen  or  crude  mineral 
shall  be  admitted  free ;  nor  is  it  dutiable  under  the  section  pro- 
viding that  all  raw  or  unmanufactured  material  not  enume- 
rated shall  be  dutiable.'''^ 

§  45.     Entry  of  government  oil  lands. 

By  Acts  of  Congress  of  August  4,  1894,  and  of  February  11, 
1897,  oil  lands  can  be  entered  as  placer  mining  claims.'"  "The 
premises  in  controversy  are  oil-bearing  lands,  the  government 
title  to  which,  under  existing  laws  can  alone  be  acquired  pursu- 
ant to  the  provisions  of  the  mining  laws  relating  to  placer 
claims. "  '^^ 

§  46.     Property  in  oil  in  tanks  or  pipelines. — Larceny. 

The  presumption  is  that  the  person  delivering  oil  to  a  pipe 
line  company  is  the  owner  of  it ;  and  if  the  company  deny  his 

74a  Commonwealth  v.  Trent,  supra.  ^r.  United   States    v.    Buffalo,   etc., 

A  firm  sunk  a  well  for  gas  or  oil,  Co.,  172  U.  S.  339;   19  Sup.  Ct.  Rep. 

but,  finding  neither,  they  abandoned  200;  affirming  78  Fed.  Rep.  110;  45 

the  well,  without  plugging  it,  as  re-  U.  S.   App.   345;    24  C.   C.   A.   4. 

quired    by    Burns'    Ann.    St.     1901,  ^6  See    Land    Office    Circular,    Oct 

§T511.      Thereafter    a   third   person  12,  1892,  15  Land  Dec.  760,  and  In- 

became  the  holder  of  a  gas  and  oil  structions,   23   Land   Dec.  322.      For 

lease    covering    the    premises.      He  Act  of   1897,  see  29  Stat,  at  Large, 

sunk  a  well  for  gas  or  oil,  but  the  526,  2  Supp.  R.  S.  549. 

work  was  interfered   with  by  water  ''''  Gird    v.    California    Oil  Co.,   60 

from  the  abandoned  well.     lie  tiien  Fed.    Rep.    531.      This    decision    was 

plugged   the   latter  well.     The   firm  rendered    before    the    two    Acts    re- 

and    the    third    person    then    agreed  f erred    to    alwve    had    been    adopted, 

if   the    third    person    would    furnish  The   Land  Department  at   Washing- 

the  firm  with  work  in  sinking  wells  ton,    after    much    fluctuation,     had 

he  could  take  from  the  money   due  reached  the  same  conclusion.    Union 

for  such  work  the  cost  of  plugging  Oil    Co.,    on    reviev,    25    Land    Dec. 

the  abandoned  well.     The  third  per-  351.      See    /n    re    Piru    Oil    Co.,    16 

son   furnished    the    firm   with   work.  L.  D.  117;  Roberts  v.  Jepson,  4  L.  D. 

It    was    held,    that    the    furnisliing  60;    Maxwell    v.    Brierly,    10    Copps 

of  work  constituted  a  consideration  L.  D.   50;    Ex  parte  Union  Oil  Co., 

for  the  undertaking  to  pay   for  the  23    Land    Dec.    222;    In    re    A.    A. 

cost  of  plugging  tiie  abandoned  well,  Dewey,  9  Copps  L.  0.  51 ;  Dewey  v. 

whether   or   not    such    plugging   was  Rogers,    2    Land    Dec.    707;     In    re 

done  in  the  manner  provided  by  law.  Rogers,  4  Land  Dec.  284. 
McDonald   v.  Carlin,    163   Ind.'   342; 
71  N.  E.  001. 


LEGAL  STATUS.  59 

owiiersliip,  it  has  the  burden  of  proving  it.''*  Oil  in  a  tank  may 
be  pledged;  and  a  written  order  to  the  owner's  agent  in  charge 
of  the  oil  to  hold  it  to  the  order  of  the  pledgee  as  collateral  secur- 
ity for  a  named  sum  of  money  transfers  the  oil  to  the  pledgee 
on  the  agent's  acceptance  of  such  order.'"  Where  B,  the  owner 
of  several  hundred  barrels  of  oil  in  the  pi])es  and  taid-cs  of  the 
Union  Vipe  Line  Company,  delivered  two  orders  on  the  com- 
pany for  the  oil,  which  he  had  accepted,  to  the  firm  of  H.  &  B. 
and  took  from  them  a  receipt  containing  an  agreement  by  them 
to  hold  the  oil  for  storage  at  five  cents  a  barrel  per  month,  the 
oil  at  the  time  being  in  the  tanks  or  ])ipe  lines  of  the  ])i])e-liiie 
company  and  undistinguishable  from  other  oil  in  them;  and  11. 
&  B.  deposited  the  two  orders  to  the  credit  of  their  general  ac- 
count with  the  pipe-line  company,  and  afterwards  deposited  and 
drew  until  they  became  embarrassed,  and,  to  meet  their  obliga- 
tions, continued  to  draw  on  their  balances  on  the  books  of  the 
pipe-line  company  until  they  failed,  it  was  held  that  they  were 
guilty  of  larceny  as  bailees,  on  failure  to  comply  with  the  de- 
mand of  B,  for  a  re-delivery  of  the  oil.  It  was  considered  that 
the  delivery  of  the  receipts  was  a  delivery  of  the  oil  and  consti- 
tuted a  l)ailment,  and  II.  &  B.  having  converted  the  oil  to  their 
own  use,  the  conversion  was  fraudulent,  and  they  were  guilty  of 
larceny.     The  court  said  : 

"  In  the  consideration  of  the  questions  involved  in  this  case, 
we  cannot  close  our  eyes  to  the  total  revolution  in  the  manner  of 
doing  business,  which  has  been  brought  about  by  the  discovery 
of  petroleum  in  this  State.  It  has  develo])ed  a  new  industry  of 
vast  importance.  Methods  for  conducting  it  have  been  devised 
and  put  in  operation,  which  were  wholly  unknown  when  the 
cases  I  have  cited  were  decided.  Instead  of  oil  l)eing  hauled  a 
long  distance  from  the  well  to  a  market  or  shi])j>ing  station,  and 
there  stored  in  barrels  or  in  taidvs  in  a  merchant's  ware-rooms, 
it  is  now  turned  at  once  by  the  producer  into  the  pipes  of  the 
Pipe»-Line  Company,  and  thence  conducted  to  the  line  of  the 
railroad  or  canal  for  shipment,  or  may  l>e  in  said  pipes,  or  th"* 

Ts  Enterprise   Oil    and   Gas   Co.   v.  ^n  i.'jrst    National    Bank    v.    lla.k- 

National  Transit  Co..  172  Pa.  St.  ness,  42  W.  Va.  156;  24  S.  E.  Wvp 
421;  33  Atl.  Rep.  G87.  548;   32  L.  U.   A.  408. 


GO  OIL   AND    GAS. 

tanks  connected  therewith.  Each  producer  knows  that  his  oil 
is  mixed  with  the  oil  of  other  producers.  Each  barrel  of  oil  in 
the  pipes  is  the  precise  counterpart  of  every  other  barrel  con- 
tained therein.  It  differs  neither  in  quantity,  quality  or  price. 
The  oil  is  sold  and  passes  from  hand  to  hand  upon  the  accepted 
orders  or  certificates  of  the  Pipe-Line  Company. 
Thousands  of  barrels  of  oil  are  sold  and  delivered  daily  in  the 
market  upon  similar  orders.  Xo  one  doubts  that  the  property 
passes ;  that  the  orders  drawn  to  them  are  the  constructive  pos- 
session, and  that  tlie  delivery  of  said  orders  is  a  symbolical  deliv- 
ery of  the  oil.  .  .  .  How  can  these  defendants  allege  with 
reason  that  as  to  them  there  was  no  delivery,  when,  in  point  of 
fact,  they  drew  the  oil  out  of  the  pipes  and  applied  it  to  the  pay- 
ment of  their  debts?  If  it  had  not  been  drawn  out,  it  would 
have  been  in  the  pipes  still  to  meet  the  demand  of  the  prosecutor. 
Even  if  delivery  of  the  orders  was  not  a  complete  delivery  of  the 
oil  at  that  time,  such  delivery  became  complete  when  the  defend- 
ants drew  it  out,  or  enabled  others  to  draw  it  out  b}'  a  transfer 
of  the  orders.  It  would  render  the  law  contemptible  in  the  eyes 
of  the  business  men,  were  it  to  say  that  there  was  no  delivery  of 
this  oil  when,  as  a  matter  of  fact,  there  was  a  delivery  for  all 
the  purposes  of  trade  and  commerce ;  such  a  delivery  as  enabled 
the  defendants  to  sell  it  and  apply  the  proceeds  to  the  payment 
of  their  debts."  And  further:  *'  If  there  was  a  delivery  of 
the  oil,  of  which  we  have  no  doubt,  it  follows  necessarily  tliat 
there  was  a  bailment.  This  brings  us  to  the  further  question 
whether  the  defendants  fraudulently  converted  it  to  tluur  own 
use.  This  point  is  free  from  difhcnity.  It  is  a  fraud  per  se 
for  a  bailee  to  convert  to  his  own  use  the  pro]x>rty  conunitted  to 
his  care.  The  conversion  is,  prima  facie ,  evidence  of  the  fraud. 
Larceny  at  c<^)mmon  law  involves  something  more.  It  requires 
the  animus  furandi.  There  must  1)0  a  felonious  taking.  Not 
so  with  larceny  as  bailee.  It  requires  merely  a  fraudulent  con- 
version. .  .  .  In  tlie  cnse  of  a  bailment,  therefore,  so  far 
as  the  intent  to  defraud  u'av  be  regarded  as  of  the  essence  of  the 
crime,  it  mnst  be  presumed  from  the  unlawful  conversion.  If 
I  dnposit  my  riocketb'^iok  for  safe  kee]ung  over  night  with  my 
landlord,  and  he  opens  it  and  converts  the  contents  to  his  own 


LEGAL   STATUS.  61 

use,  he  is  a  thief  both  in  law  and  in  morals.  Nor  does  it  matter 
that  he  parted  with  it  to  pay  his  debt  under  stress  of  an  execu- 
tion, with  the  intention  of  restoring  it  to  me  ultimately. 
But  it  is  said  that  the  defendants  were  bankers  in  oil,  and  that 
the  case  resembled  that  of  the  ordinary  banker  who  receives 
money  upon  deposit.  It  is  difficult  to  see  the  analogy.  By  the 
laws  and  the  usage  of  banking,  the  depositor  who  makes  a  gen- 
eral dejwsit  of  his  money  becomes  a  mere  creditor  of  the  banker. 
The  money  Incomes  property  of  the  banker.  He  has  a  right  to 
use  it  in  his  legitimate  business.  He  may  loan  it  out  to  his 
customers  upon  such  security  and  upon  such  terms  as  are  usual 
with  bankers.  No  such  state  of  facts  exists  here.  The  defend- 
ants acquired  no  property  in  uor  right  to  use  the  prosecutor's 
oil.  .  .  .  They  had  no  right  to  lay  their  hands  upon  the 
property  of  the  prosecutor,  confided  to  them  for  safe  keeping,  in 
order  to  relieve  themselves."  *" 

80  Hutchison   v.   Com.,   82   Pa.  St.  472. 


CHAPTER  III. 

OIL  AND  GAS  LEASES. 

§47.  Peculiarity. 

§48.  Name  applied  to  instrument  does  not  determine  its  legal  effect. 

§49.  Lex  loci  governs. 

§50.  License  and  incorporeal  hereditaments. 

§51.  Interest  of  lessee  is  a  chattel  real. 

§52.  Contract  giving  interest  in  real  estate. 

§53.  Estate  does  not  vest  if  oil  or  gas  not  found. 

§54.  Vesting  title  subject  to  condition   precedent. —  Diligence. 

§55.  Tenancy  from  year  to  year  or  at  will. 

§56.  Unilateral  contract. 

§57.  Legal   interest  of  lessee  in  various  leases. —  Digest. 

§57a.  Digest  of  cases,  continued. 

§58.  Sale   of  oil   and  gas,  and  not  a  lease. 

§59.  Presumption  as  to  ownership  of  oil  or  gas  in  ground. 

§60.  Administrator's  right  to  lease  or   contract. — iPresumption. 

§61.  Lease  and  not  a  license. 

§62.  License. 

§63.  License. — Consideration. — Revocation. 

§64.  License,  revocation. 

§65.  Merger. 

§66.  Consideration. 

§67.  Option  to  purchase  after  development. 

§68.  Option  to  extend  lease. 

§69.  Acceptance    of    second    lease  by  lessee  in  first  lease. 

§70.  Extension  of  time  of  lease  may  amount  to  a  new  lease. 

§70a.  Effect  of  payment  of  rent  for  extension  of  lease  in  point  of  time. 

§71.  Options. —  Revocation. 

§72.  Options  continued. 

§73.  Option  to  pay  rent  or  drill  well. 

§74.  Appurtenances,    what   will    pass   as   such. 

§75.  Statute  of   Frauds. 

§76.  Description  of  leased  premises. 

§77.  Right  of  lessor  to  use  surface. 

§78.  Construction. 

§79.       Contruction   of  instrument  by  parties. 

§80.  Unfilled  blanks. —  Written  and  printed  clauses. 

§81.  Execution   of  lease. 

§82.  Defective  execution  or  acknowledgment. 

§83.  Parol   change  of  written  lease. 

§84-  Acceptance. —  Estoppel. 

62 


LEASES.  63 


§85.  Lessee  need  not  sign  lease. — Deed. 

§86.  Separate  owners  giving  joint  lease. 

§87.  Notice  to  one  of  several   lessees. 

§88.  Second  lease. — Notice. 

§88a.  Right  of  way  of  railroad. 

§SSb.  Enjoining  trespasser  on  adjoining  land. 

§89.  Agent  of  lessee  may  take  lease  after  forfeiture. 

§90.  Exclusive  right  of  licensee  of  lessee. —  Solid  mineral  oil- 

§91.  Implied  covenant. 

§92.  Covenant  running  witli  land. 

§93.  Personal    covenants. 

§94.  Assignment  of  contract  giving  interest  in  land. — Incorporeal  hered- 
itament.—  Lease. —  Surrender. 

§95.  Lessee  liable  after  assignment  on  e.xpress  covenants. 

§96.  When  work  must  be  begun. 

§97.  Diligence  in  operating  leased  premises  after  development. 

§98.  Agreement  as  to  what  constitutes  due  diligence. 

§99.  Unprofitable  lease. 

§100.  Lessor  cannot  impair  value  of  lease  by  drilling  wells  on  his  own 
land. 

§101.  Lessee  draining  premises  by  operations  on  adjoining  territory. 

§102.  Drilling  well  near  boundary  line. 

§103.  Injunction. —  Quieting  title. 

§104.  Damages. 

§105.  Damages  for  failure  to  keep  covenant. 

§106.  Damages  for  neglect  to  develop  or  operate  leased  premises. 

§107.  Damages  for  neglect  to  operate. —  Res  judicata. 

§108.  Damages  for  taking  oil  or  gas. 

§109.  Boundaries. —  Location  of  wells. 

§110.  Selection  of  site. 

§111.  Number  of  wells. 

§112.  Number  of  wells. —  Protecting  lines. 

§113.  Test  wells. —  Excuse  for  nOt  drilling. 

§114.  Test  well,  when  need  not  be  drilled. 

§115.  Test  well.— Depth. 

§116.  Lessor  and  lessee  by  mistake  locating  well  on  stranger's  land. 

§117.  "Shooting"  well. 

§118.  Oil  lease,  who  entitled  to  gas. 

§119.  Oil  lease  gives  no  right  to  gas  if  oil  be  not  found. 

§120.  Eviction.— Ejectment. 

§121.  Failure  of  title,  reimbursement  of  operator. 

§122.  Lessee  denying  tenancy. 

§123.  I^ncertainty  on  lease. —  Unconscionable. 

§124.  Diameter  of  wells. 

§125.  Contract  to  drill  wells  "  in  the  vicinity." 

§47.  Peculiarity. 

Gas  and  oil  leases  are  a  part  hv  thomsclvos.     There  is  senreely 
any  comparison  between  them  and  the  ordinars'  farm  or  house 


64  OIL,   AND    GAS. 

lease ;  although  tliere  is  some  resemblance  in  them  to  coal  or 
solid  mineral  leases.  Usually  an  oil  or  gas  lease  is  for  a  term 
of  a  certain  number  of  years,  upon  a  nominal  consideration, 
sometimes  -with  the  privilege  of  an  extension  of  the  term  at  the 
option  of  the  lessee,  or  as  long  as  gas  or  oil  is  found  in  paying 
(piiintities ;  contains  a  descrijition  of  the  leased  territory,  and  a 
resen'ation  of  a  certain  number  of  acres  around  the  buildings, 
when  any  are  on  the  leased  premises,  where  no  wells  shall  be 
drilled  ;  if  the  boundaries  of  the  reservation  are  not  fixed,  pro- 
vides that  they  shall  be  fixed  by  one  of  the  parties,  usually  the 
OAvner  of  the  land ;  ]>rovides  for  a  part  of  the  oil  produced  as  a 
royalty  or  consideration  for  the  lease,  except  for  operating  pur- 
poses., delivered  in  tanks  or  pipe  lines  to  the  credit  of  the  lessor  ; 
provides,  in  case  only  gas  should  be  discovered,  for  the  payment 
of  a  certain  sum  periodically,  for  each  well,  if  the  gas  be  found  in 
a  quantity  to  justify  transporting  it  off  the  premises  to  a  market, 
of  which  fact  the  lessee  is  sometimes  made  the  exclusive  judge; 
the  growing  crops  and  the  fences,  not  to  be  unnecessarily  di&- 
turbed ;  gives  the  lessee  or"  grantee  the  right  to  enter  on  the 
premises  at  any  time  to  drill  wells,  and  a  right  of  way  to  and 
from  the  wells,  the  right  to  lay  pipe  lines  to  carry  off  the  gas 
and  oil,  the  right  to  remove  all  fixtures  used  in  the  drilling  and 
operation  of  the  wells,  at  the  termination  of  the  lease  or  grant ; 
the  lessee  agreeing  to  commence  a  well  within  a  certain  time, 
and  in  case  of  a  failure  to  do  so  to  pay  for  any  future  delay  a 
certain  sum  periodically  (frequently  so  much  per  acre  of  the 
entire  tract)  as  a  rental  imtil  a  well  is  commenced  or  the  prem- 
ises abandoned,  the  amount  thus  paid  not  infrequently  made 
a  full  consideration  and  payment  for  the  yearly  delay  until  a 
well  shall  be  commenced  ;  and  provides  that  a  failure  to  com- 
mence a  well  or  to  make  the  payments  within  the  specified  time 
shall  render  the  lease  void.  We  say  these  are  the  usual  terms. 
There  are  often  many  others :  such  as  a  thirty  days'  notice  on  the 
part  of  the  lessee  or  grantee  of  his  determination  to  terminate  or 
surrender  the  lease ;  or  that  a  second  or  other  wells  shall  be 
drilled  within  a  specified  time  after  the  first  well  is  drilled,  and 
if  not,  the  lease  to  be  void  or  forfeited ;  or  that  the  lessor  or 
grantor  is  to  receive  so  much  gas  free  of  charge,  giving  the  lessee 


LEASES. 


65 


the  exclusive  right  to  develop  the  lands,  and  the  like.  The 
number  of  conditions  are  many,  as  will  a])pcar  further  on  iu 
this  chapter,  and  which  it  is  unnecessary  here  to  further  enu- 
merate theni.^ 

§48.     Name  applied  to  instrument  does  not  determine  its  legal 
effect. 

In  determining  the  scope  and  legal  effect  of  an  instrument 
giving  rights  and  privileges  to  mine  or  take  mineral,  oil  or  gas, 
it  is  immaterial  by  what  name  it  is  called,  whether  a  "  lease," 
"  contract,"  "  grant,"  or  "  deed  of  conveyance,"  the  courts  will 
look  to  the  language  used  in  the  instrument,  aside  from  these 
terms  so  used,  and  determine  its  legal  effect.  The  most  com- 
monly used  term  is  the  w^ord  "  lease,"  and  yet  many  such  an  in- 
strument has  been  considered  as  giving  an  estate  of  inheritance, 
which  in  fact  made  it  a  deed  of  conveyance.^ 

§49.     Lex  loci  governs. 

The  rights  of  the  parties  must  be  determined  by  the  law  of 
the  State  wdiere  the  leased  premises  lie,  although  it  be  executed 
in  another  State' wdiere  the  lessor  and  lessee  reside,^ 

1  See  Simpson  v.  Pittsburgh,  etc.,  andoah   Land,  etc.,   Co.   v.   Hise,   92 

Co.,  28  Ind.  App.  34,3;  62  N.  E.  Rep.  W.    Va.    238;    28    S.    E.    Rep.    303; 

753.      Cited,     Graciosa    Oil     Co.    v.  Logansport,   etc.,    Gas    Co.    v.   Hull, 

Santa    Barbara     County,     155     Cal.  3fi    Ind.   App.   503;    7'6    N.    E.   Rep. 

140;    9'9   Pac.   Rep.   483.  125;  Stahl  v.  Illinois  Oil  Co.,  45  Ind. 

2Hobart  v.  Murray,  54  Mo.  App.  App.  211;  90  N.  E.  Rep.  632;  Collier 

249;   Suffern  v.  Butler,  21  N.  J.  Eq.  v.    Munger,    75    Kan.    550;    89    Pac. 

410,  affirming  4  C.   E.  Gr.    (N.  ,J.),  Rep.    1011;    Superior  Oil  &  Gas  Co. 

202;    Genet   v.    Delaware,    etc.,    Co.,  v.    INtehlin,    25    Okl.    809;     108    Pac. 

136  N.  Y.  593;   32  N.  E.  Rep.  1078,  Rep.  545. 

reversing  122  N.   Y.  505;    25  N.  E.  Instruments  concerning  the  devel- 

Rep.    956;     Sanderson    v.    Scranton,  opment  of  lands  for  oil  or  gas   are 

105  Pa.  St.  469;   Delaware,  etc.,  Co.  construed    in    the   light   of    the    fact 

V.     Sanderson,     109     Pa.     St.     583;  that    the    principal    purpose    of    the 

Hope's  Appeal,  29  W.  N.   C.    (Pa.),  owner  of  the  land  in  giving  the  con- 

365;   Kingsley  v.   Hillside,  etc.,   Co.,  tracts    or    leases    is    to    procin-o    the 

144  Pa.  St.   613;    23  Atl.  Rep.  250;  exploration  of  the  land   for  oil    and 

Plummer   v.   Hillside,   etc.,   Co.,    160  gas,   to  be   followed  by   the  develop- 

Pa.     St.    483;     28    Atl.     Rep.    8'53;  ment  of  it  if  circumstances  warrant. 

Moore  v.  Miller,  8  Pa.  St.  272;  Gary  Dill  v.  Fra/e,  165  Ind.  53:  79  N.  E. 

Hardware  Co.  v.  IMcCartv,   10  Colo.  Rep.    971;     Conklin    v.    Krandusky 

App.  200;  50  Pac.  Rep.  744;  Lnmbie  (N.  Y.),  112  N.  Y.  Supp.  13. 

v.  Sloss,  etc.,  Co.,   118  Ala.  427;   24  »  Genet  v.   Delaware,  etc..   Co..   35 

So.   Rep.    108;    Hodgson   v.   Perkins,  N.    Y.    Supp.    147;    13    N.    Y.    Misc. 

84  Va.  706;  5  S.  E.  Rep.  710;  Shen-  Rep.  409. 


66  OIL    AND    GAS, 

§  50.     License  and  incorporeal  hereditaments. 

If  one  grant  in  writing  a  privilege  to  mine  in  his  lands,  he 
creates  an  incorporeal  hereditament ;  if  he  grant  by  parol  the 
same  privilege,  he  simply  constitutes  a  license.  A  license  is  a 
mere  personal  privilege,  while  an  incorporeal  hereditament  is 
an  interest  in  lands.  This  distinction  is  not  always  observed, 
and,  when  not,  confusion  arises.  A  license  may,  however,  be 
reduced  to  writing,  or  created  in  writing  by  the  use  of  apt  words. 
When  privileges  are  granted  by  a  writing,  the  writing  alone  de- 
termines the  character  or  legal  nature  of  the  privilege  granted.* 

§51.     Interest  of  lessee  is  a  chattel  real. 

Whatever  rights  an  operator  receives,  unless  he  operates  under 
a  parol  license,  he  receives  by  virtue  of  the  written  instrument 
under  which  he  operates,  and  to  that  instrument  we  must  look 
to  determine  what  legal  interest  he  has  in  the  premises.  But 
restricting  ourselves  to  a  lease,  as  such  purely,  the  question 
arises  "  What  interest  has  the  lessee  in  the  leased  premises  ?" 
In  the  case  of  an  agricultural  lease,  or  tlie  lease  of  a  house  or 
building,  for  a  term  of  years,  the  interest  of  the  lessee  is  easily 
defined  by  means  of  the  decisions  of  courts  running  back  many 
hundreds  of  years.  But  in  the  case  of  an  oil  or  gas  lease,  where 
the  length  of  the  term  is  contingent  on  the  discovery  of  gas  or 
oil  in  paying  quantities,  and  on  its  continuance  in  such  quanti- 
ties, although  limited  to  a  specified  number  of  years,  with  a 
right  to  take  and  carry  away  a  part  of  the  soil  itself,  a  very 
different  question  is  presented.  The  interest  of  a  lessee  under 
such  a  lease  has  been  termed  a  chattel  real,  and  not  a  partnership 


4  See  Negro  v.  Barber,  etc.,  Co.,  17  v.  Youngman,  40  Pa.  St.  341;  Al- 
Mo.  App.  294;  East  Jersey  Co.  v.  gonquin  Coal  Co.  v.  Northern,  etc., 
Wright,  32  N.  J.  Eq.  248;  Stahl  v.  Co.,  1G2  Pa.  St.  114;  28  Atl.  Rep. 
Illinois  Oil  Co.,  45  Ind.  App.  211;  402;  Lee  v.  Bumgardner,  86  Va. 
90  N.  E.  Rep.  632;  Kansas  Natural  315;  10  S.  E.  Rep.  3;  Gillett  v.  Tre- 
Gas  Co.  V.  Board,  75  Kan.  335;  ganza,  G  Wis.  343;  Shepherd  v. 
89  Pac.  Rep.  7'50.  INIcCalmont  Oil  Co.,  38  Hun  37;  Tip- 
Oil  taken  out  under  a  license  is  ping  v.  Robbins,  71  Wis.  507;  37 
the  property  of  the  licensee.    Spring-  N.  W.  Rep.  427. 

field  Foundry,  etc.,  Co.  v.  Cole,   130  Merely  designating  the  instrument 

Mo.    1;    31    S.    W.    Rep.    922;    East  as    a    lease    does    not    make    it    so. 

Jersey  Co.  v.  Wright,  supra;  Grubb  Jennings  Bros.  &  Co.   v.   Bcale,   158 

V.  Bayard,  2  Wall.  Jr.  81;  Clement  Pa.  St.  283;   27  Atl.  Rep.  948. 


LEASES. 


67 


asset.*^  "The  contract  referred  to  was  a  lease  of  the  lands  for  a 
specified  term,"  said  the  Supreme  Court  of  Pennsylvania,  "and 
for  a  particular  purpose,  at  a  fixed  rent  or  royalty  reserved  out 
of  the  production.  As  to  the  legal  force  and  efiect  of  the  writ- 
ing there  can,  we  think,  be  no  doubt:  it  conveyed  an  interest  in 
the  land ;  in  this  resj^ect  it  is  distinguished  from  a  license." 
''  But  although  the  writing  is  a  lease,  it  conveyed  an  interest  in 
the  land  —  a  chattel  interest,  however ;  the  lease  was  a  chattel 
real,  but  none  the  less  a  chattel."  '^  Such  an  interest  may  be 
sold  on  execution,  the  purchaser  being  regarded  as  an  assignee.^ 
If  the  lessee  mortgage  his  interest,  the  mortgage  must  be  execu- 
ted in  accordance  with  the  law  relating  to  a  chattel  mortgage.^ 

§52.     Contract  giving  interest  in  real  estate. 


A  contract  concerning  oil  or  gas  lands  may  be  so  drawn  as  to 
give  an  interest  in  the  premises  granted,  that  can  only  be  con- 


B  Chamberlain  v.  Dow,  16  W.  N, 
C.   (Pa.)   532. 

A  contract  recited  that,  in  consid- 
eration of  $1  and  of  a  royalty, 
grantor  granted  to  decedent  all  the 
bituminous  rock  and  other  minerals 
he  might  choose  to  mine,  quarry, 
and  take  from  certain  land;  that  in 
case  the  land  failed  to  produce  min- 
erals in  paying  quantities  or  of 
good  quality,  decedent  might,  upon 
thirty  days'  notice  in  writing,  re- 
linquish his  rights,  and  tliat  decedent 
should  pa.y  royalty  on  300  tons  an- 
nually, whether  taken  or  not.  After 
the  contract  was  executed,  decedent 
quarried  and  took  away  twenty-seven 
tons  of  rock,  after  which  he  re- 
moved his  machinery,  and  never 
conducted  further  operations  up  to 
his  death,  fifteen  years  later,  though 
he  paid  royalty  for  two  years.  It 
was  held  that  tlie  contract  was  not 
a  grant  of  land  nor  a  lease,  but  a 
grant  of  a  right  in  the  nature  of  an 
incorporeal  hereditament,  and  that 
all  the  rights  of  decedent's  heirs 
were  extinguished  by  the  abandon- 
ment of  the  privileges. — Pavne  v. 
Neuval,   155   Cal.  40;   99  P.  476. 

6  Brown  v.  Beecher,  120  Pa.  St. 
590;  15  Atl.  Rep.  608;  ^McElwaine's 
Appeal  (Pa.),  11  Atl.  Rep.  453.  See 
Ohio  Oil  Co.  v.  Kelley,  9  Ohio  C.  Ct. 
Rep.  511;   6  Ohio  Cir.  Dec.  470;   40 


L.  Bull.  338;  3  Ohio  Dec.  1&6; 
Greensburg  Fuel  Co.  v.  Irwin,  etc., 
Co.,  102  Pa.  St.  78;  29  Atl.  Rep. 
274;  First  Nat.  Bank  v.  Dow,  41 
Hun  13. 

A  conveyance  of  all  the  (solid) 
minerals,  or  a  defined  part  or  kind 
thereof,  in  a  tract  of  land,  passes 
an  estate  in  fee.  McConnell  v. 
Pierce,  210  111.  €27;  71  N.  E.  Rep. 
622;  Manning  v.  Frazier,  96  111. 
279. 

"But  the  contract  in  question 
vests  no  present  title  in  a  stratum 
in  place.  It  leaves  the  title  to  the 
oil  in  the  landowner  until  it  is 
brought  to  the  surface.  Tlie  right 
vested  in  plaintiff  is  an  estate  for 
years,  so  far  as  necessary  for  the 
purpose  of  taking  oil  therefrom,  and 
it  carries  with  it  the  right  to 
extract  the  oil  and  remove  it  from 
the  premises.  The  right  constitutes, 
for  tlie  term  prescribed,  a  servitude 
on  the  land,  and  a  chattel  real  at 
common  law."  Graciosa  Oil  Co.  v. 
Santa  Barbara  County,  155  Cal. 
140;  99  Pac.  Rep.  483,  citing  this 
section. 

7  Aderhold  v.  Oil  Well  Suppiv  Co., 
158    Pa.    St.    401;    28    Atl.    Rep.    22. 

s  Devine  ,v.  Tavlor,  1  Ohio  Dec, 
(N.  P.)  153;  12  Ohio  C.  C.  723; 
4  Ohio  C.  Dec.  248.  See  Willetts  v. 
Brown,  42  Hun  140. 


G8  OIL   AND    GAS.  ^' 

veyod  or  assigned  in  writing.  This  was  held  to  l>c  true  of  a 
grant  of  "  all  the  oil  and  gas  in  and  under  "  a  certain  tract  of 
eighty  acres  of  land,  with  th(;  right  to  enter  thereon  at  all  times 
for  the  purpose  of  drilling  and  operating  for  oil  or  gas,  to  erect 
strnctures  and  lay  pipes,  and  excepting  and  reserving  a  certain 
part  of  the  oil  produced  and  saved  from  the  premises.  If  gas 
were  found,  certain  annual  rental  for  each  well  while  the  gas 
was  used  off  the  premises  was  to  be  paid,  and  the  grantor  was  to 
have  free  gas  for-his  dwelling  houses  and  for  domestic  purposes. 
There  were  other  provisions  with  respect  to  forfeiture,  if  wells 
were  not  sunk  within  a  certain  time.  The  conditions  between 
the  parties  were  expressly  extended  "  to  their  heirs,  executors 
and  assigns."  The  owner  of  the  land  had  the  right  to  cultivate 
the  soil.  The  grant  was  unlimited  in  time.  "  The  contract  is 
not  the  form  of  a  lease  of  the  land,"  said  the  court,  "  or  any  part 
of  it,  for  years  or  for  life  or  in  perpetuity,  with  an  accompany- 
ing right,  as  an  incident  of  the  letting,  of  taking  the  oil  and  gas 
beneath  the  surface."  In  discussing  the  nature  of  this  contract, 
the  court  used  the  following  language :  "  While  for  reasons  we 
have  sought  to  state,  we  do^  not  regard  the  contract  in  suit  as  a 
grant  of  land,  or  as  a  lease  properly  so-called,  but  do  regard  it 
as  a  grant  of  a  right  in  the  nature  of  an  incorporeal  heredita- 
ment, operative  from  the  time  of  its  execution  and  during  the 
accomplishment  of  its  purpose  as  a  transfer  of  an  exclusive  right 
to  search  for,  take  and  appropriate  the  minerals  mentioned  in 
the  instrument,  under  whatever  technical  common  law  term  it 
may  most  properly  be  classed,  it  must  be  held  to  be  a  conveyance 
of  an  interest  in  land  within  the  meaning  of  our  statutes."  In 
discussing  the  nature  of  the  grant,  or  contract,  the  court  used 
the  following  language : 

"  The  grant  is  not  limited  to  any  period  of  time,  though  as  in 
the  case  of  a  grant  of  the  coal  in  certain  land,  it  would  cease  to 
he  operative  whenever  it  should  he  found  that  no  oil  or  gas  was 
beneath  the  soil,  or  none  that  could  be  taken  with  benefit;  where- 
as a  lease  of  land,  projierly  so-called  would  continue  in  force 
according  to  its  provisions  until  the  end  of  the  term.  The  con- 
tract is  in  effect  a  "rant  of  the  riaht  to  take  all  the  oil  and  ffas 


LE.VSES.  69 

that  may  be  found  and  taken  by  making  wells  as  prescribed 
upon  tlie  particular  tract  of  land,  with  accompanying  incidental 
rights  to  do,  as  indicated  in  the  contract,  upon  the  surface,  those 
things  needed  for  the  enjoyment  of  the  principal  right  so  to  take 
oil  and  gas.  It  confers  rights  not  limited  as  to  time,  unless  it 
be  as  to  the  indefinite  period  within  which  oil  or  gas  may  be 
taken  advantageously  under  tJic  conditions  prescril)ed.  The 
right  to  take  all  the  oil  and  gas  in  and  under  the  land  is  in  its 
nature  an  exclusive  right.  Tt  is  inconsistent  with  a  right  in  the 
p-rantor  or  others  under  him  to  take  anv  of  the  oil  or  gas  from 
beneath  tlie  designated  land,  at  least  through  wells  drilled  upon 
that  land.  The  oil  and  gas  in  their  free  and  natural  state 
Avithin  the  land  constitute  a  part  of  it,  though  they  be  fluent  and 
liable  to  depart  to  other  land,  there  to  be  taken  into  possession 
through  Avells  made  for  such  purpose.  The  right  to  take  such 
minerals  from  the  land  constitutes  an  interest  in  the  land.  The 
instrument  under  consideration  does  not  create  a  mere  personal 
privilege  to  take  the  minerals  from  the  land.  Tt  is  an  ex- 
clusive and  assignable  interest  in  land.  If  with  propriety 
it  can  be  called  a  license,  it  must  be  a  license  coupled  with  an 
interest  in  land.  By  its  terms  the  contract  is  a  grant  of  the 
minerals  in  and  under  the  land.  If  by  such  general  terms  all 
of  the  specified  solid  mineral,  as  coal,  in  and  under  the  land 
were  gi-anted,  it  would  be  a  grant  of  real  estate ;  but  Ix^cause  of 
the  fluidity  and  fugitiveness  of  petroleum  and  natural  gas  the 
absolute  ownership  of  these  mineral  substances  within  the  land 
cannot  be  acquired  without  reducing  them  to  actual  control ;  so 
that  a  distinction  must  be  and  is  made  between  these  elusive 
minerals  in  and  under  the  ground  and  the  solid  uiinerals  in 
place  in  the  earth.  Therefore,  a  grant  of  all  the  oil  and  gas  in 
and  under  a  tract  of  land  is  not  a  grant  of  any  particular  specific 
substance  as  would  be  a  grant  of  the  coal  in  and  under  ctnlain 
land.  The  owner  of  land  is  not  by  virtue  of  his  proprietorship 
thereof  the  absolute  owner  of  the  oil  and  gas  in  and  under  it, 
in  its  free  and  natural  state,  not  yet  reduced  to  actual  control  of 
any  person,  but  he,  together  with  the  other  owners  of  land  in  the 
gas  field,  has  a  qualified  ownership,  consisting  of  or  amounting 
to  his  exclusive  right  to  do  what  may  be  done  on,  through  and 
under  his  land   (as  making  of  wells)   necessary  to  reduce  the 


70  OIL,   AND    GAS. 

minerals  to  his  possession,  and  l)y  thus  acquiring  the  exclusive 
control  to  become  tlie  owner  of  the  mineral  substances  as  his 
personal  property,  obsei*ving  due  regard  in  his  operations  to  the 
like  enjoyment  of  such  exclusive  right  by  all  other  land  owners 
in  like  circumstances.  This  exclusive  right  is  his  private 
property.  lie  cannot  grant  more  than  lie  owns;  therefore,  by 
granting  all  the  oil  and  gas  in  and  under  his  land,  he  does  not 
grant  more  than  a  right  to  reduce  to  ownership  the  oil  and  gas 
which  may  be  obtained  by  operating  on  the  land,  whereby  sub- 
stances which  at  the  time  of  the  making  of  the  grant  may  be  in 
and  under  lands  of  other  surface  properties  may  come  into  right- 
ful ownership  of  the  gi'antee  as  his  personal  property.  Though, 
because  of  the  peculiar  nature  of  oil  and  gas,  a  corporeal  interest 
in  them  in  place  cannot  be  created,  and  title  to  the  specific  min- 
eral substances  can  not  be  acquired  without  the  reduction  of 
them  first  to  personal  property,  yet  the  exclusive  and  assignable 
right  to  do  this  with  the  accompanying  rights  necessary  to  such 
accomplishment,  constitutes,  not  a  privilege  revocable  before  it 
has  been  acted  u[>on,  but  a  subsisting,  exclusive,  assignable  and 
irrevocable  right  which  accrues  upon  the  execution  of  the  written 
instrument  of  conveyance  and  before  any  action  has  been  taken 
thereunder.  The  right  so  created  is  not  susceptible  of  livery 
of  seizin,  and  is  in  the  nature  of  an  incorporeal  hereditament. 
The  contract  before  us  cannot  be  regarded  as  a  lease  of  land 
for  three  years  or  less,  or  as  a  lease  of  land  ineffectual  because 
of  uncertainty  or  indefiniteness  of  duration  of  term ;  and  occu- 
pancy thereunder  cannot  be  regarded  as  a  tenancy  from  year 
to  year ;  but  the  interest  granted  is  projDcrly  to  l>e  considered  as 
an  interest  in  land  within  the  meaning  of  our  statutes."  ** 

9  Heller  v.   Dailey,   28   Ind.  App.  inf^  words  of  inheritance,   presump- 

55i5;    63  N.   E.   Rep.   490.     See  Gad-  tively,   a  contrary   intent  not   being 

bury    v.    Ohio,    etc.,    Gas    Co.,     162  affirmatively  showTi,  shows  that  the 

Ind.    9 ;    67    N.    E.    Rep.    259 ;    Stahl  owner  intended  to  vest  in  the  gran- 

V.  Illinois  Oil  Co.,  45  Ind.  App.  211;  tee  the  entire  ownership  of  the  ooal 

90  N.  E.  Rep.  6.32.  in    the    land    described.      Hosack    v. 

Under    a    statute    providing    that  Crill    (Pa.),    53   Atl.    Rep.    641. 
"land"   and   "real   estate"  of   a   city  The   words   "grant   and    lease"    of 

"include    rights    and    easements    of  lands    to    the    grantees,    their    heirs 

an  incorporeal  nature/'. an  oil  lease  and    assigns,    for    the    purpose   of   a 

owned  by  a  city  is  real  estate.    Ker-  gas  well,   so  long  as   it  is  used  for 

lin  Bros.  Co.  v.  Toledo,  20  Ohio  C.  the  siame,  amounts  merely  to  a  cove- 

Ct.   Rep.  603;    8   Ohio  N.   P.  62.  nant    for    quiet    enjoyment    on    the 

An     instrument     concerning    coal  conditions  stipulated  in  the  contract, 

lands,   setting  forth   that  the  owner  Shenk  v.  Stahl,  35  Ind.  App.  493;  74 

does    "grant,  bargain   and   sell"    the  N.  E.  Rep.  538. 
coal   beneath   the  surface,   and  add- 


LEASES.  71 

§53.     Estate  does  not  vest  if  oil  or  gas  not  found. 

There  is  an  implied  condition  in  every  lease  given  for  oil  or 
gas  mining  purposes  that  if  oil  or  gas  l>e  not  found  in  such  quan- 
tities as  will  justify  its  operation,  within  the  time  stipulated,  or 
within  a  reasonable  time  where  no  time  is  specified,  no  estate 
shall  pass  by  it  and  vest  in  the  lessee.  Contrasting  an  oil  lease 
with  a  coal  lease,  the  Supreme  Court  of  Pennsylvania  said: 
"  A  vested  title  cannot  ordinarily  be  lost  by  abandonment  in  a 
less  time  than  that  fixed  by  the  statute  of  limitations,  unless 
there  is  satisfactory  proof  of  an  intention  to  abandon.  An  oil 
lease  stands  on  quite  different  ground.  The  title  is  inchoate 
and  for  purposes  of  exploration  only,  until  oil  is  found.  If  it 
is  not  found,  no  estate  vests  in  the  lessee,  and  his  title,  whatever 
it  is,  ends  when  the  unsuccessful  search  is  abandoned.  If  oil  is 
found,  then  the  right  to  produce  becomes  a  vested  right,  and  the 
lessee  will  be  protected  in  exercising  it  in  accordance  with  the 
terms  and  conditions  of  his  contract."  "  He  [tlie  lessee]  could 
abandon  whenever  he  was  satisfied,  from  the  search  made,  that 
the  further  expenditure  of  time  and  money  upon  any  given 
farm,  or  upon  the  body  of  farms  covered  by  his  leases,  would  be 
fruitless.  Whenever  he  did  so  abandon  a  given  farm,  or  the 
whole  body  of  leased  farms  to  which  his  contract  referred,  his 
rights  therein  were  at  an  end."  ^°  In  a  nisi  prius  court^  of  that 
State,  the  following  language  was  used  with  reference  to  an  oil 
lease  executed  as  early  as  1864:     "  The  contract  is  peculiar  and 

10  Venture  Oil  'Co.  v.  Fretts,  152  drilling,  calling  it  "rental,"  and  pro- 
Pa.  St.  461 ;  25  Atl.  Rep.  732;  Steel-  vided  for  the  delivery  into  pipe 
smith  V.  Grartlan,  45  W.  Va.  27;  lines,  for  the  grantor,  of  one-eighth 
29  S.  E.  Rep.  978;  44  L.  R.  A.  107;  of  all  oil  produced  and  saved  from 
Huggins  V.  Daley,  99  Fed.  Rep.  606;  the  premises,  and  also  for  payment 
40  C.  C.  A.  12-  48  L.  R.  A.  320;  of  a  yearly  rental  for  every  gas  well 
Gadbury  v.  Ohio,  etc.,  Gas  Co.,  162  from  which  gas  was  transported  and 
Ind.  9;    67  N.  E.  Rep.  259.  used    ofT    of    the    premises.      It    was 

By  appropriate  technical  terms,  a  held  not  to  pass  the  title  to  the  oil 

deed  granted  all  the  oil  and  gas  un-  and  gas  in  place,  it  in  efTect  being  a 

der   a    tract   of   land,    together   with  mining  lease,  and  the  title  to  the  oil 

the  exclusive  right  to  enter  thereon  and   gas   in    place  remaining   in  the 

at   all   times   in   order   to   drill    and  grantor.     Toothman  v.  Courtney,  62 

operate  for  oil  and  gas.     It  limited  W.    Va.     167;     58    S.    E.    Rep.  "915, 

the  estate  to  a  term  of  seven  years,  distinguishing  State  v.  Low,  46  W. 

and   as   much    longer   as   oil   or   gas  Va.   451;    33   S.   E.   Rep.   271.     See, 

might  lx>  found  in  paying  quantities,  also,  Oraciosa  Oil  Co.  v.  Santa  Bar- 

and    stipulated    for   the   payment   of  bara  County,  155  Cal.   140;   99  Pac. 

commutation    money    for    delay    in  Rep.  483. 


72 


OIL   AND    GAS. 


one  of  those  instruments  to  which  the  development  of  the  oil  bus- 
iness has  given  rise.  It  is  not  a  grant  of  land,  or  a  present 
leasehold  interest  therein.  It  is  not  a  grant  of  the  mineral,  etc., 
in  place  or  under  the  land,  but  the  right  to  search  for  oil,  etc., 
and  the  right  to  enter  and  occupy  for  the  purpose  of  such  search 
and  no  other.  If  the  search  is  fruitless,  it  is  at  the  cost  of  the 
explorer.  When  the  search  is  abandoned,  the  right  of  entry  is 
gone.  But,  if  the  search  is  successful,  then  the  explorer  be- 
comes a  tenant  for  the  purpose  of  operating  the  land  at  the  rent 
agreed,  and  his  right  of  possession  exists,  not  for  the  purpose  of 
search,  but  for  the  purpose  of  operating  the  oil  or  minerals 
Avhich  his  search  has  discovered.  Whether  the  tenancy  exists 
depends,  therefore,  on  whether  the  oil  which  is  its  object  is 
found  to  exist  upon  the  land."  ^^     If  the  lessee  has  the  right  to 


11  McNish  V.  Stone,  reported  in 
note  to  152  Pa.  St.  457;  23  Pittsb. 
L.  J.  (,N.  S.)  232.  Ruling  followed 
in  Crawford  v.  Ritchie,  43  W.  Va. 
252:  27  S.  E.  Rep.  230;  Elk  Fork 
Oil  and  Gas  Co.  v.  Jennings,  84  Fed. 
Rep.  839 ;  May  v.  Hazlewood  Oil  Co., 
152  Pa.  St.  518;  25  Atl.  Rep.  564; 
Stage  V.  Boyer,  183  Pa.  St.  560;  38 
Atl.  Rep.  1035;  Kenton  Gas,  etc., 
Co  V.  Dorney,  17  Ohio  Cir.  Ct.  Rep. 
101;  9  Ohio  Cir.  Dec.  604;  Eaton  v. 
Allegany  Gas  Co.,  122  N.  Y.  416; 
25  N.  E.  Rep.  981,  reversing  42  Hun 
61 ;  Huggins  v.  Dalev,  99  Fed.  Rep. 
606;  40  C.  C.  A.  12;  48  L.  R.  A. 
320;  Petroleum  Co.  v.  Coal,  etc.,  Co., 
89  Tenn.  381;  18  S.  W.  Rep.  65; 
Muiilenberg  v.  Henning,  116  Pa.  St. 
138;  9  Atl.  Rep.  144;  Cleminger  v. 
Baden  Gas  Co.,  159  Pa.  St.  16;  33 
W.  N.  C.  480;  28  A  .  Rep.  293; 
Miller  v.  Balfour,  138  Pa.  St.  183; 
22  Atl.  Rep.  86;  Foster  v.  Elk  Fork, 
etc.,  Co.,  CO  Fed.  Rep.  178;  61  U.  S. 
App.  576;  32  C.  C.  A.  560;  McGraw 
Oil  &  Gas  Co.  V.  Kennedy,  65  W. 
Va.  595;  64  S.  E.  Rep.  1027;  New 
American  Oil,  etc.,  Co.  v.  Troyer, 
106  Ind.  402;  76  N.  E.  Rep.  253; 
77  K  E.  Rep.  739;  Conkling  v. 
Krandusky  (N.  Y.),  112  N.  )[.  Supp. 
13;  Doddridge,  etc.,  Co.  v.  Smity, 
154    Fed.    Rep.    970;    Toothman    v. 


Courtney,  62  W.  Va.  1'67;  58  S.  E. 
Rep.  915;  Breener  v.  Hicks,  230  111. 
536;  82  N.  E.  Rep.  888;  Kansas 
Nat.  Gas  Co.  v.  Board,  75  Kan.  335 ; 
89  Pac.  Rep.  750;  Eastern  Oil  Co. 
V.  Coulehan,  65  W.  Va.  531;  64  S. 
E.  Rep.  836;  Watford  Oil  &  Gas 
■Co.  V.  Shipman;  233  111.  9;  84  N.  E. 
Rep.  53;  Smith  v.  Root,  66  W.  Va. 
633;  66  S.  E.  Rep.  1005;  O'Neil  v. 
Sun  Co.  (Tex.  Civ.  App.),  123  S.  W. 
Rep.  172;  Ramage  v.  Wilson,  45  Ind. 
App.  599;  88  N.  E.  Rep.  862; 
GiHespie  v.  Fulton  Oil  &  Gas  Co., 
239  111.  326;  88  N.  E.  Rep.  192; 
Headley  v.  Hoopengamer,  60  W. 
Va.  26*;  55  S.  E.  Rep.  744;  Dickey 
V.  Cofieyville,  etc.,  Co.,  69  Kan.  106; 
76  Pac.  Rep.  398;  Richmond  Nat- 
ural Gas  Co.  V.  Davenport,  37  Ind. 
App.  25 ;  76  N.  E.  Rep.  525 ;  Backer 
V.  Penn.  Lubricating  Co.,  162  Fed. 
Rep.  627;  Ulrey  v.  Poe,  134  111.  App. 
298;  affirmed  233  111.  56;  84  N.  E. 
Rep.  46;  Richlands  Oil  Co.  v.  Mor- 
riss,  108  Va.  288;  61  S.  E.  Rep. 
762;  Graciosa  Oil  Co.  v.  Santa  Bar- 
bara County,  155  Cal.  140;  99  Pac. 
Rep.  483;  Moore  v.  Sawyer,  167  Fed. 
Rep.  826;  Rawlings  v.  Armel,  70 
Kan.  778;  79  Pac.  Rep.  683.  See 
Natural  Gas  Co.  v.  harrisj  79  Kan. 
167;   100  Pac.  272. 


LEASES.  73 

abandon  the  lease  after  operations  begun,  and  remove  all  his 
property  from  the  premises,  and  he  abandon  such  operations, 
the  lease  is  at  an  end.^^ 

§  54.     Vesting  title  subject  to  condition  precedent. — Diligence. 

"  While  most  of  the  eases  ^^  have  gone  upon  the  ground  of 
abandonment,  the  governing  prineiple  in  all  oil  leases  of  the 
character  under  consideration  is  that  the  discovery  and  pr-xhic- 
tixm  of  oil  is  a  condition  precedent  to  the  continuance  or  vesting 
of  any  estate  in  tlie  demised  premises ;  that  such  leases  vest  no 
present  title  in  the  lessee,  and  if,  at  any  time,  tlie  lessee  has  the 
option  to  suspend  operations,  the  lease  is  no  longer  binding  on 
the  lessor  because  of  want  of  mutuality;  and,  where  the  only 
consideration  is  prospective  royalty  to  come  from  exploration 
and  development,  failure  to  explore  and  develop  renders  the 
agreement  a  mere  nudum  pactum,  and  works  a  forfeiture  of  the 
lease,  for  it  is  of  the  very  essence  of  the  contract  tJiat  work 
should  be  done.  And,  the  smaller  the  tract  of  land,  the  more 
imperative  is  the  need  for  prompt  and  efficient  drilling;  for  oil 
operations  cumber  the  land,  rendering  it  unavailable  for  agri- 
cultural purposes.  The  land  o\vner  is  entitled  to  his  royalty  as 
promptly  as  it  can  be  had.  The  danger  of  damage  from  his 
sm.all  holding  is  increased  by  delay,  and  the  resulting  damage, 
not  being  susceptible  of  pecuniary  measurement,  is  therefore  not 
compensable.  Xo  such  lease  should  be  so  construed  as  to  enable 
the  lessee  who  has  paid  no  consideration  to  hold  it  merely  for 
speculative  purposes,  without  doing  what  he  stipulated  to  do, 
and  what  was  clearly  in  the  contemplation  of  the  lessor  when 
he  entered  into  the  agreement."  ^* 

12  Paine  v.  Griffiths,  86  Fed.  Rep.  an    exclusive    right   to   drill    for   oil 

452;   58  U.  S.  App.  38;  30  C.  C.  A.  and  gas  in  a  certain  tract,  and  take 

182.  them  out  for  twenty  years,  was  lield 

Where  a  person  invaded,  with  no-  to  amount  to  a  sale,  conditioned  in 

tice,   the    right  of   another   under   a  the   first   instance   on    the   existence 

lease  to  explore  the  premises  for  oil  of  oil  or  gas,  but  made  absolute  by 

and  gas,  he  was  enjoined,  and  held  the    finding   of    either    one.      /n    re 

to    forfeit    whatever    work    he    had  Brunot's    Estate,    29    Pittsb.    L.    J. 

done,   but   he   was    permitted   to   re-  (N.  S.)    105.     See  Gadbury  v.  Ohio, 

move   the   machinery   and   materials  etc..  Gas  Co.,  1G2   Ind.  9;    G7  N.  E. 

used  in  drilling  wells  or  in  pumping.  Rep.  259. 

conveying  and  storing  oil,  which  are  i^  Alluding  to  the  cases  previously 

not  a  part  of  the  wells  themselves.  cited  in  the  opinion. 

Gillespie   v.   Fulton   Oil   &   Gas   Co.,  i*  Huggins  v.  Dalej',  99  Fed.  Rep. 

239  111.  326;   88  N.  E.  Rep.   192.  G06;    40  C.   C.   A.    12;    48    L.   R.   A. 

An    agreement    which    "granted"  320.     Citing   Twin-Lick   Oil    Co.   \. 


74  OIL   AND    GAS. 

§55.     Tenancy  from  year  to  year  or  at  will. 

A  gas  lease  may  be  so  drawn  as  to  create  a  tenancy  from  year 
to  year.  Sudi  an  instance  arose  in  Indiana.  A  statute  of  tliat 
State  provided  "  that  tenancy  at  will  cannot  arise  or  be  created 
withont  an  express  contract,  and  all  general  tenancies,  in  which 
the  premises  are  occupied  by  consent,  either  express  or  implied, 
of  the  landlord,  shall  be  deemed  tenancies  from  year  to  year."^'^ 
An  oil  and  gas  lease  provided  that  it  should  begin  the  day  it  was 
executed,  and  terminate  when  gas  ceased  to  be  used  generally 
for  manufacturing  purposes  in  a  certain  town,  or  on  failure  to 
pay  or  tender  the  rent  agreed  upon  within  sixty  days  after  due. 
As  a  part  of  tlie  consideration  the  lessee  agreed  to  pay  one  hun- 
dred dollars  per  annum  for  each  gas  well  drilled  and  producing 
gas  in  paying  quantities  —  payments  to  begin  and  to  become  due 
as  to  each  well  on  its  completion,  and  to  continue  thereafter  an- 
nually during  the  term  of  the  lease.  If  the  lessee  failed  to  drill 
a  gas  well,  he  was  to  pay  fifty  cents  an  acre;  and  if  wells  were 
not  drilled  within  five  years,  tJien  the  rent  was  to  be  raised  to 
one  dollar  an  acre.  If  any  other  gas  well  was  put  do^vn  on  the 
leased  premises  other  than  those  stipulated  for,  tlien  the  lessee 

Marbury,  91  U.  S.  593;  Guffy  v.  Hu-  S.  W.  Rep.  609;  Mills  v.  Hartz,  77 
kill,  34  W.  Va.  49;  11  S.  E.  Rep.  Kan.  218;  94  Pac.  Rep.  142;  Pleaa- 
754;  8  L.  R.  A.  759,  and  Rorer  Iron  ant  v.  Hanna,  63  W.  Va.  613;  60 
Co. 'v.  Trout,  83  Va.  397;  2  S.  E.  S.  E.  Rep.  618;  Power  v.  Bridgeport, 
Rep.  713;  Conrad  v.  Moorehead,  89  238  111.  397;  87  N.  E.  Rep.  381; 
N  C.  31;  Maxwell  v.  Todd,  112  N.  Gillespie  v.  Fulton  Oil  &  Gas  Co., 
C.  677;  16  S.  E.  926;  Hawkins  v.  236  111.  188;  86  N.  E.  Rep.  219; 
Pepper,  117  N  C.  407;  23  S.  E.  489;  New  American,  etc.,  Co.  v.  Tl-oyer, 
Gadbury  v.  Ohio,  etc..  Gas  Co.,  162  166  Ind.  402;  76  N.  E.  Rep.  253; 
Ind.  «;  67  N.  E.  Rep.  259;  Low-  77  N.  E.  Rep.  739;  74  N.  E.  Rep. 
ther  Oil  Co.  v.  Miller-Sibley  Oil  37;  New  American,  etc.,  Co. 
Co.,  53  W.  Va.  501;  44  S.  E.  Rep.  v.  Wolff,  166  Ind.  704;  76 
433;  Monfort  v.  Lanyon  Zinc  Co.  N.  E.  Rep.  255;  74  N.  E.  Rep. 
67  Kan.  310;  72  Pac.  Rep.  784;  41;  Boal  v.  Citizens'  Nat.  Gam  Co.. 
Flanagan  v.  Marsh  (Ky.),  105  S.  W.  23  Pa.  Super.  Ct.  339;  Armitage  v. 
Rep.  424;  32  Ky.  L.  Rep.  184;  Buf-  Mt.  Sterling  Oil  &  Gas  Co.  (Ky.), 
falo,  etc.,  Co.  v.  Jones,  75  Kan.  18;  80  S.  W.  Rep.  177;  25  Ky.  L.  Rep. 
88  Pac.  Rep.  537;  Murray  v.  Barn-  2262;  Indiana  Natural  Gas  &  Oil 
hart,  117  La.  1023;  42  So.  489;  Co.  v.  Grainger,  38  Ind.  App.  559; 
Troxell  v.  Anderson  Coal  Mining  Co.,  70  N.  E.  Rep.  395;  Stahl  v.  Illinois 
213  Pa.  475;  62  Atl.  Rep.  1083;  Oil  Co.,  45  Ind.  App.  211;  90  N.  E. 
Brewster  v.  Lanyon  Zinc  "Co.,  140  Rep.  632;  Howerton  v.  Kansas  Nat- 
Fed.  Rep.  801 ;  72  C.  C.  A.  213;  Ten-  ural  Gas  Go.,  81  Kan.  553;  106 
nessee  Oil,  etc.,  Co.  v.  Brown,  131  Pac.  Rep.  47;  Smith  v.  Root,  06 
Fed.  Rep.  696;  65C.  C.  A.  524;  J.  M.  W.  Va.  633;  66  S.  E.  Rep.  1005. 
Guffey  Petroleum  Co.  v.  Jeff  Chaison  is  Burns'  Rev.  1901,  Sec.  7089. 
Townsite  Co.    (Tex.  Civ.  App.),  107 


LEASES.  /  O 

was  to  be  roloased  from  the  payment  of  the  rent.  As  tliere  was 
no  definite  time  fixed  for  the  ninnine:  of  t.lie  lease,  it  was  held  to 
he  a  tenancy  from  year  to  year,  witliin  tJie  provision  of  tlie 
statute  quoted ;  and  hence  was  terminable  at  the  end  of  any 
year.^*  A  sale  of  all  tlie  minerals  under  a  tract  of  land,  with 
the  usual  mining  rights  and  privileges,  giving  a  right  to  enter 
at  any  time  with  workmen  and  machinery,  and  mine  and  carry 
away  cflal ;  giving  the  right  to  use  so  much  of  the  surface  as 
might  be  necessaiy  for  the  operations,  to  erect  the  necessary 
buildings,  t/>  constniet  roads,  and  to  use  water ;  the  oonsideration 
to  be  a  payment  quarterly  of  15  cents  per  ton  for  all  iron  ore  so 
taken;  with  tiie  privilege  to  remove  tlie  machinery  and  fixtures 
at  any  time,  was  held  to  create  a  tenancy  at  will.^^  Where  a 
lessee  had  tlie  right  to  surrender  the  lease,  after  which  all  1ms 
liabilities  under  it  should  cease,  it  was  held  that  tliis  provision, 
taten  in  connection  witli  the  gi'anting  clause,  which  stated  no 
time  to  run,  and  the  habendum  clause,  giving  the  lessee  two 
years  in  which  to  drill  for  oil,  did  not  create  an  estate  at  will.'^ 
A  grant  of  oil  privilege,  without  limitation  as  to  time,  in  consid- 

16  Diamond    Plate    Glass    Co.    v.  also,  Dickey  v.  Coffevville,  etc.,  Co., 

Echelbarger,   24    Ind.    App.    124;    55  69  Kan.   106;    76  Pac.  Rep.   398. 
N.     E.    Rep.    233;     Diamond    Plate  i^  Cowan  v.  Radford  Iron  Co.,  83 

Glass  Co.   V.   Curless,   22   Ind.   App.  Va.  547:   3  S.  E.  Rep.  120. 
346;    52  N.   E.   Rep.   782;    Coalin<^a  A  contract   between   a   landowner 

Pacific  Oil  &  Gas  Co.  v.  Associated  and  a  corporation,  giving  the  latter 

Oil  Co.    (Cal.  App.),  116  Pac.   1107.  the  exclusive  right  to  bore  for  gas, 

Several  years  afterwards  the  Su-  and  providing  that  the  corporation 
preme  Court  of  the  State  in  which  should  pay  a  certain  sum  annually 
those  cases  were  decided,  declined  to  until  it  had  put  down  a  gas  well, 
accept  this  interpretation  of  such  but  that  the  contract  should  be 
a  lease;  and  under  a  statute  that  terminated  whenever  natural  gas 
where  there  is  a  conflict  between  the  ceased  to  be  used  generally  for  man- 
decisions  of  the  Appellate  Court  and  ufacturing  purposes,  or  wlienever  the 
of  the  Supreme  Court,  the  latter  corporation  should  fail  to  pay  the 
shall  prevail,  those  decisions  just  anrual  rental  within  sixty  days 
cited  are  no  longer  the  law  in  In-  after  it  became  due,  did  not  create 
diana.  Hancock  v.  Diamond  Plate  a  tenancv  at  will,  within  Rtirns' 
Gla.ss  Co.,  162  Ind.  146;  70  N.  E.  Indiana  Rev.  St.  1901,  Sec.  70R9, 
Rep.  149;  Hancock  v.  Diamond  providincr  that  all  general  tenancies 
Plate  Gla.ss  Co..  37  Ind.  351  :  75  in  which  the  pr.;mises  are  occupied 
N.  E.  Rep.  659  (involves  the  law  of  by  the  consent,  either  express  or 
the  case)  ;  Echelbarger  v.  Diamond  constructive,  of  the  landlord,  shall 
Plate  Glass  Co..  ,33  Ind.  App.  6fW;  be  deemed  tenancies  at  will.  Han- 
70  N.  E.  Rep.  1112:  Curless  v.  Dia-  cock  v.  Diamond  Plate  Glass  Co., 
mond  Plate  Glass  Co..  33  I^d.  App.  70  N.  E.  149;  162  Ind.  146. 
699;  70  JvJ.  E.  Ren.  1112:  F'lores  v.  i«  BrowTi  v.  Fowler,  65  Ohio  St. 
Diamond  Plate  Glass  Co..  33  Ind.  507:  63  N.  E.  Ren.  76;  Patton  V. 
App.  700;  71  N.  E.  Rep.  1143.    See,  Axley,  50  N.  C.  440. 


76  OIL    AND    GAS. 

eratiou  of  one  dollar,  contained  this  clause:  "  In  case  no  well 
is  completed  within  two  years  from  this  date,  then  this  grant 
shall  immediately  become  nnll  and  void  as  to  hoth  parties ;  pro- 
vided, tliat  the  second  party  may  prevent  such  forfeiture  from 
year  to  year  by  paying  to  the  first  party  annually  in  advance 
eighteen  dollars,  at  her  residence  until  such  well  is  completed." 
It  was  held  tliat  by  this  clause  the  grant  was  converted  into  a 
lease  from  year  to  year,  at  the  option  of  tlie  lessee,  until  a  well 
was  completed;  and  that  it  would  then  continue  so  long  as  oil 
was  produced  in  paying  quantities. ^^ 

§56.     Unilateral  contract. 

In  Texas  many  of  the  so-called  gas  leases  are  regarded  as 
unilaterial  contracts.  Thus,  when  the  consideration  for  a  so- 
called  lease  was  only  one  dollar  and  a  promise  to  develop  tlie 
premises  and  deliver  to  the  lessee  a  stated  per  cent,  of  the  oil 
produced ;  and  it  was  stipulated  that  the  lessee  might  terminate 
the  lease  at  any  time,  and  that  the  sum  paid  should  be  the 
lessor's  full  compensation,  it  was  held  that  the  contract  was 
unilateral  and  void ;  that  a  sale  of  the  premises  before  opera- 
tions began  terminated  the  lease,  and  that  it  was  not  a  cloud  on 
the  title  of  such  premises.^" 

The  same  construction  was  put  upon  a  contract  which  pro- 
vided that  operations  should  be  begun  and  continued  at  the 
discretion  of  the  lessee,  and  that  no  cessation  of  operations 
should  operate  as  a  forfeiture. '"^ 

19  Lowther  Oil  Co.  v.  Guffey,  52  W.  v.    Ulery,    233    111.    56 ;     84    N.    E. 

Va.  88;  43  S.  E.  Rep.  101;  Lowther  Rep.  46. 

Oil  Co.  V.  Miller-Sibley  Oil  Co.,  53  20  Roberts    v.    McFaddin,   32   Tex. 

W.  Va.  501;   44   S.  E.  Rep.  433.  Civ.  App.   47;    74   S.   W.  Rep.   105; 

Where   the   lessee   was   given    the  Natural    Oil,    etc.,    Co.    v.    Teel,    95 

right   to   surrender    a    lease   at   the  Tex.  586;   67  S.  W.  Rep.  45;   68  S. 

expiration  of   its  term   on   payment  W.    Rep.    979;    Emery    v.    Ledeque, 

of   one    dollar,    but    the    lessor   was  6    Tex.    Civ.    App.    719;    72    S,    W. 

not    given    the    right    to    enforce    a  Rep.  602;   Hodges  v.  Brice,  32  'xex. 

surrender,   it  was   held   that   it   did  Civ.  App.  358;  74  S.  W.  690;  With- 

not   create   a   tenancy   at   will,   and  erspoon  v.  Staley    (Tex.  Civ.  App.), 

hence   did  not  render   the   lease   in-  138   S.  W.   1191. 
valid   for   lack   of   mutuality.      Poe  20a  Collins  v.  Abel,  151  Ala.  207; 

44  So.  109. 


LEASES.  77 

§  57.     Legal  interest  of  lessee  in  various  leases, — Digest. 

Under  various  heads  we  have  discussed  the  interest  a  licensee, 
lessee  or  grantee  under  a  written  instrument  has  in  the  ])remiscs 
described  in  the  instrument  giving  oil  or  gas  mining  privileges. 
It  is  safe  to  say  that  all  the  cases  cannot  be  reconeile^l  with 
resj^ect  to  the  interest  the  oj^iorator  has  in  the  premises,  and 
notliing  more  can  be  done  than  to  enumerate  each  particular 
case,  or  a  number  of  them;  for  it  will  be  imi)raetical  to  ex- 
amine and  state  the  result  of  all  of  them.  Cases,  however,  with 
respect  to  licenses  will  be  omitted  here,  for  they  have  been 
treated  elsewhere.  To  begin  the  ennmeration.  An  agi-eement 
to  lease  land  for  a  term  of  years,  giving  the  exclusive  right  to 
bore  for  and  collect  all  the  oil  passes  a  corporeal  interest  in  the 
land."^  A  guardian,  while  he  may  usually  give  a  lease  of  his 
ward's  property,  cannot  give  a  lease  for  the  purpose  of  develop- 
ing the  oil  in  it;  for  the  reason  that  it  is  a  part  of  the  realty, 
and  such  a  lease  is  a  part  of  the  estate  of  the  ward."  A  lease 
only  for  the  purpose  of  drilling  f(u-  oil,  coal,  rock  or  ]wtrolonm 
given  to  the  lessee,  his  heirs  and  assigns,  for  twenty-five  years,  in 
consideration  of  one-half  the  oil  found,  vests  in  the  lessee  a  cor- 
poreal interest  in  the  business,  which  is  the  subject  of  eject- 
ment."^ A  grant  to  C,  his  heirs  and  assigns,  of  the  free  and  un- 
interrupted right  to  go  upon  a  tract  of  land  to  prospect,  bore 
and  take  ore,  oil  and  gas  out  of  the  earth,  the  grantor  to  receive 
one-third  of  all  taken  out,  and  reserving  the  right  of  tillage,  vests 
in  C  an  incorporeal  hereditament  in  fee."*  A  grant  of  all  the 
iron  ores  upon  and  under  a  tract  of  land,  with  the  exclusive  and 
full  right  to  mine  tJiem,  is  a  conveyanec  of  an  inc<ir])oreal 
hereditament  passing  in  fee  simple  the  entire  o^^^lersh^p  of  the 


21  Chicago,    etc.,    Co.    v.    United  922 ;   Haskell  v.   Sutton,  53  W.  Va. 
States  Co.,  57  Pa.   St.  83;   Ehike  v.  206;  44  S.  E.  533. 

Hague,   107  Pa.  St.  6G.  23  Barker  v.   Dale,   3   Pitts.   L.   J. 

22  Stoughton's  Appeal,  88  Pa.  St.  '190. 

198;  Chamberlain  v.  Dow,  16  W.  N.  24  Funk  v.   Haldeman,  53   Pa.   St. 

C.  532;   South  Penn.  Oil  Co.  v.  Mc-  229;  Union  Petroleum  Co.  v.  Bliven, 

Intire,  44  W.  Va.  296;  28  S.  E.  Rep.  etc.,  Co.,  72  Pa.  St.   173. 


78  OIL   AND    GAS. 

ore  in  die  land.""'  An  exclusive  possession  of  such  of  the  land  as 
is  necessary,  given  for  the  purpose  of  searching  for,  producing, 
storing  and  tran.sporting  oil,  is  not  a  mere  license.^"  A  grant 
of  the  "  exclusive  right  and  privilege  of  digging  and  boring  fur 
oil  and  other  minerals,"  for  a  term  of  years  is  a  lease  for  the 
production  of  oil  and  not  a  sale  of  the  oil."^  A  lease  for  a  term 
of  years,  ^vith  right  to  bore  for  oil  and  take  it,  rendering  a  part 
to  the  owner  of  the  land,  confers  an  estate  in  the  nature  of  an 
incorporeal  hereditament."*  An  instrument  giving  B  the  right 
to  enter  on  certain  lands  and  prospect  for  coal,  and  if  found  in 
sufficient  quantities  to  satisfy  him,  giving  him  the  privilege  to 
mine  and  remove  it,  paying  a  certain  amount  per  ton,  and  also 
giving  him  the  right,  at  his  pleasure,  to  abandon  the  agreement, 
creates  only  an  estate  at  will.^^  An  instrument  granting  and 
conveying  the  right  to  enter  on  certain  lands  and  take  the  min- 
erals thereon  forever,  unless  none  should  be  found  within  a  cer- 
tain named  period,  is  a  grant  in  fee,  though  called  a  "  lease."  ^° 
A  right  given  in  the  following  language  is  a  lease :  "  The  said 
party,  of  the  first  part,  for  and  in  consideration  of  the  rents 
and  covenants  hereinafter  mentioned,  to  be  paid  and  performed 
on  the  part  of  the  said  party  of  the  second  part,  the  right  to  mine 
and  take  away  coal  from  the  Salem  vein,"  etc.  "  A  right  to 
use  a  mine  necessarily  implies  a  right  to  possess  it;  and  a  grant 
of  the  use  and  possession,  in  consideration  of  something  to  be 
rendered,  is  exactly  what  constitutes  a  lease  of  the  thing  to  be 
possessed."  ^^     A  grant  of  land  for  an  indefinite  period,  with 

25  Grove    v.    Hodges,    55    Pa.    St.  the    usual    oil    lease    was    called    a 

504;  Caldwell  v.  Fulton,  31  Pa.  St.  license   coupled   with   a   conditional 

475.  grant. 

2*5  Kitchen   v.   Smith,   101   Pa.   St.  A    judgment    rendered    against    a 

452.  licensee  operating  an  oil  well  is  not 

■     27Duflfield  V.  Hue.  120  Pa.  St.  94;  a  lien  on  such  well.     Meridian  Na- 

18  Atl.  Rep.  566;  Barnhart  v.  Lock-  tional  Bank  v.  MeConica,  8  Onio  C. 

wood,  152  Pa.  St.  82;   25  Atl.  Rep.  Ct.  Rep.  442;  4  Ohio  Cir.  Dec.  106. 

879.     See  Wettengel  v.  Gormley,  160  29  Knight  v.  Indiana,  etc.,  Co.,  47 

Pa.  St.  559;  28  Atl.  Rep.  934.  Ind.  105. 

2sOhio  Oil  Co.  V.  Toledo,  etc.,  Co.,  3o  Suffern  v.  Butler,  21  N.  J.  Eq. 

4  Ohio  C.  Ct.  Rep.  210;  2  Ohio  Cir.  410;    affirming   4    C.    E.   Green    Ch. 

Dec.   505.  (N.  J.)    202. 

In  Herrington  v.  Wood,  6  Ohio  C.  si  Offerman    v.    Starr,    2    Pa.    St. 

Ct.  Rep.  326,  3  Ohio  Cir.  Dec.  475,  394. 


LEASES.  79 

leave  to  take,  under  specified  conditioTia,  all  the  ooal  contained 
in  the  land,  with  a  provision  for  a  forfeiture  on  non-oompliance 
by  the  grantee,  is  a  lease.^"  A  lease  of  land  in  Kansas  by  a 
married  man,  who  is  the  owner,  occupying  the  same  with  his 
family  as  a  homestead,  giving  to  the  lessee  the  right  to  prospect 
for  ooal,  gas,  oil  and  other  minerals  at  his  pleasure,  to  erect  nec- 
essary buildings,  and  to  excavate  mines  and  pi]>e  oil  and  gas,  is 
such  an  alienation  of  the  homestead  as  requires  the  wife's  con- 
sent, under  the  constitution  of  that  State.^''  A  contract  to  raise 
not  less  than  so  much  ore  a  year  from  mines  on  certain  land, 
for  which  the  contractor  is  to  receive  so  much  per  ton,  to  have 
tools  furnished,  and  the  use  of  the  land  and  buildings,  is  a 
lease.^*  An  agreement  letting  lands  to  be  examined  for  min- 
erals and  taking  them  out  at  a  royalty  payable  quarterly,  the 
right  to  continue  so  long  as  the  grantee  deems  it  advisable  to 
operate,  and  to  be  forfeited  on  cessure  of  one  year  to  operate,  is 
a  lease  from  year  to  year.^^  A  parol  agreement  that  a  person 
may  enter  on  the  land  of  another,  dig  ore  and  erect  buildings, 
for  a  consideration,  has  been  held  to  be  a  lease. "'^^  An  instru- 
ment giving  exclusive  possession  of  land  for  the  purpose  af 
searching  for,  producing,  storing  and  transporting  oil,  is  a  lease, 
establishes  the  relation  of  landlord  and  tenant,  and  en- 
ables the  tenant  or  lessee  to  recover  from  the  landlord  or  lessor 
taxes  he  has  paid  under  a  statute  allowing  a  tenant  to  recover 
the  amount  of  taxes  he  has  paid  on  the  leased  premises.^^  A 
lease  of  land  "  of  the  exclusive  right  for  the  sole  and  only  pur- 
pose of  mining  and  excavating  for  petroleum,  rock  and  carbon 
oil,"  "  to  hold  the  said  premises  exclusively  for  the  said  purposes 
only,"  for  a  term  of  years,  the  lessor  reserving  the  privilege  to 
till  the  land  and  remove  the  timber  on  it  and  the  use  of  all  other 
land  not  necessary  for  producing  oil,  and  also  reserving  certain 

szGartside  v.  Outley,  58  111.  210.  Oil  &  Gas   Co.,    140   111.   App.    147; 

33  Franklin    Co.    v.    Coal    Co.,    43  Bruner    v.    Hicks,    230    111.    53G;    82 

Kan.   518;    23   Pac.   Rep.   (i30.      See,  N.  E.  Rep.  888. 

also,    Monfort   v.    Lanyon    Zinc    Co.  34  Shaw  v.   Wallace,   25   N.   J.    Ij. 

G7  Kan.  310;  72  Pac.  Rep.  784;  Ral-  453. 

ston  V.  Wichita  Natural  (ias  Co.,  81  35  Patton  v.  Axley,  5  Jones  L.  (N. 

Kan.  86;    105  Pac.  Rep.  430;   Homo-  C.)    440. 

stead  in  Oklahoma  Bay  v.  Oklahoma,  36  Sheets  v.  Allen,  SO  Pa.  St.  47; 

etc.,  Co.,   13  Okl.  425;   73  Pac.  Rep.  Moore  v.  Miller,  8  Pa.  St.  272,  283. 

930.    In  Illinois,  Gillespie  v.  Fulton  See  Ganter  v.  Atkinson,  35  Wis.  48. 
Oil  &  Gas  Co.,  236  111.  188;  86  N.  p:.  ■"  ivitchen   v.    Smith,    101    Pa.   St. 

Rep.  210;   Poe  v.  Ulrey,  233  111.  56;  452. 
84  N.  E.  Rep.  46;  Gillespie  v.  Fulton 


80  OIL   AND    GAS. 

royalties,  is  a  lease  in  fact  and  not  a  license.^^  An  instrument 
containing  tlio  words  "  hatli  granted  and  leased,  and  by  these 
presents  do  grant,  lease,  and  to  farm  let,"  and  convey  "  the  ex- 
clusive right  to  enter  upon  all  the  lands  "  of  the  so-called  lessor, 
'^  and  dig  and  mine  upon  the  same  for  phosphate  rock  and  other 
minerals  to  any  extent  he  may  require,  and  carry  away  and  sell 
the  same  for  his  own  use,"  is  a  lease  operating  as  a  conveyance  of 
the  minerals  in  place,  and  not  a  mere  license  to  dig.^^  An  instru- 
ment containing  the  words  ''  does  demise  and  lease  "  for  mining 
purposes  only,  the  grantee  having  the  right  to  erect  all  neces- 
sar\^  buildings  and  machinery,  and  being  required  to  provide 
and  keep  closed  gates  through  which  to  enter  and  pass  oif  the 
land,  giving  him  possession  for  ten  years,  at  a  fixed  rent,  is  a 
lease  and  not  a  license.*"  A  contract  conveying  certain  land  for 
a  term  of  years,  and  so  long  as  gas  and  oil  be  found  in  paying 
quantities,  is  a  lease  coupled  with  a  conditional  grant,  dependent 
on  the  production  of  gas  or  oil  in  paying  quantities.*^  A  con- 
tract allowing  a  person  to  go  to  a  particular  part  of  the  owner's 
land,  giving  him  exclusive  right  to  the  minerals  thereon  so  long 
as  he  complies  with  the  terms  and  conditions  of  his  contract,  on 
payment  of  a  royalty  on  all  minerals  mined,  is  a  lease,  although 
it  has  no  determinate  period.*"  A  grant  of  a  right  to  work  a 
stone  quarry  creates  the  relation  of  landlord  and  tenant.*^  An 
agreement  "for  the  purpose  of  exploring  for,  mining,  taking 
out,  and  removing  therefrom  the  merchantable  shipping  iron 
ore  which  is  or  which  hereafter  may  be  found  in,  or  under  "  cer- 

38  Duke  V.  Hague,  107  Pa.  St.  57 ;  42  Bucnanan  v.  Cole,  57  Mo.  App. 

Brown  v.  Beecher,  120  Pa.  St.  590;  11  ;  Springfield,  etc..  Co.  v.  Cole,  130 

15    Atl.     Kep.    608;     Wettengel    v.  Mo.  1;  Young  v.  Ellis,  91  Va.  297; 

Gormley,    160  Pa.   St.   559;   28  Atl.  21  S.  E.  Rep.  480. 

Rep.  934;   Gale  v.  Petroleum  Co.,  6  43  O'Donnell   v.   Luskin,    12   Mont. 

W.  Va.  200.  Co.  L.  Rep.    (Pa.)    109. 

3f>  Malcomson  v.  Wappoo  ]\Iills,  85  As   to   the   right  of  the  lessee   to 

Fed.  Rep.  907.  maintain  ejectment,  see  Kirk  v.  Mat- 

40  Kirk  V.  Mattier.  140  Mo.  23:  41  tier,  140  Mo.  23;  41  S.  W.  Rep.  252. 

S.  W.  Rep.  252;    Consolidated   Coal  In  New  York  oil  leases  and  wells 

Co.  V.  Peers.  150  111.  344;   37  N.  E.  held  by  virtue  of  them  are  made  per- 

Rep.  937,  affirming  39  111.  App.  453.  sonal  property  by  statute.     Wagnor 

4iHerrington  v.  ^Yood.  6  Ohio  Cir.  v.  Mallory,  169  N.  Y.  501;  62  N.  E. 

Ct.    Rep.    326;    3   Ohio   Cir.   C.   Dec.  Rep.   584.   affirming  58  N.  Y.  Supp. 

475.  526. 


LEASES.  81 

tain  land,  and  which  reserves  the  use  and  possession  of  the 
land,  except  as  such  use  and  possession  may  interfere  with  tlie 
mining  operations,  is  a  lease  for  mining  ore,  and  ceases  when  it 
is  demonstrated  there  is  no  iron  ore  on  the  premises.** 

§  57a.     Digest  of  cases  continued. 

Since  the  first  edition  of  this  work  was  published,  many  cases 
concerning  oil  and  gas  leases  have  been  decided.  Following  the 
plan  pursued  in  the  preceding  section,  we  here  give  a  digest  of 
some  of  the  more  important  ones.  Thus,  an  instrument  was 
executed  wherein  the  owner  of  land,  which  was  therein  de- 
scribed rented  to  another  all  tlte  oil  and  gas  under  such  land, 
giving  him  the  exclusive  right  to  enter  thereon  at  all  times 
in  order  to  drill  and  operate  for  oil  and  gas.  It  provided  for 
the  time  within  which  the  several  wells  should  be  completed, 
with  a  stipulated  monthly  rental  for  each  well  not  finished  on 
time ;  and  that  each  location  should  consist  of  ten  acres  more 
or  less,  no  well  to  occupy  more  than  one  acre.  Of  this  instru- 
ment it  was  said  that  it  was  not  a  lease  as  leases  are  usually 
understood,  but  a  mere  grant  of  an  exclusive  right  to  enter 
and  explore  for  gas  and  oil,  and  to  prosecute  such  business, 
occupying  no  more  land  than  was  needed  for  that  purpose, 
not  more  than  one  acre  to  a  well.**''  Until  oil  and  gas  is  ac- 
tually produced  and  served  under  the  lease,  the  legal  title 
to  it  and  possession  of  it,  remain  in  the  owner  of  the  laud  tc 
which  it  is  confined.**'' 

A  land  owner  entered  into  a  contract  with  a  corporation  by 
the  terms  of  which  the  latter  was  to  have  the  exclusive  right 
to  bore  for  natural  gas  on  the  former's  lands,  and  was  to  pay 
a  certain  sum  annually  until  it  had  put  down  a  gas  well ;  and  it 
was  stipulated  that  the  contract  should  be  terminated  when- 
ever natural  gas  seemed  to  be  used  generally  for  manufactur- 
ing purposes  or  "whenever  the  second  party  [the  corporation]. 
or  their  assigns,  shall  fail  to  pay  or  tender  the  rental  price, 
herein  agreed  upon,  within  sixty  days  of  the  date  of  its  be- 
coming due."     It  was  held  that  the   contract  did  not  create 

**  Gibben    v.    Atkinson,    G4    ]\Iich.  •«4b  Kansas    Natural    Gas    Co.    v. 

©51;  31  N.  W.  Rep.  570.  Board,   75   Kan.   335:    89   Pac.   Rep 

4*aStahl  V.  Illinois  Oil  Co.,  45  750;  Poe  v.  Ulery,  233  111.  56;  84 
IndApp.  211;  DO  N.  E.  632.  X.    E.    Rep.    46;    afTirming    134    111 

App.   298. 


82  OIL   AND   GAS. 

a  tenancy  from  year  to  year,  and  that  the  failure  on  the  part 
of  the  corporation  to  pay  the  annual  "rental  price"  did  not 
terminate  the  contract,  but  merely  gave  the  land  owner  the 
I'ight  to  do  so.***^  A  clause  in  an  oil  lease  gave  the  lessee  the 
option  to  surrender  it  before  the  expiration  of  the  time,  upon 
the  payment  of  one  dollar ;  but  it  did  not  give  the  lessor  the 
power  to  compel  a  surrender.  It  was  held  not  to  create  a 
tenancy  at  will,  and  hence  did  not  render  the  lease  invalid  for 
lack  of  mutuality/^''  The  obligation  of  a  lessor  is  indivisible 
among  his  heirs  when  the  consideration  of  the  lease  is  the 
completion  of  one  well  for  the  exploration  of  the  land  for  gas 
and  oil/^*"  In  an  oil  and  gas  lease,  the  covenants  of  the  lessee 
were  introduced  with  a  statement  that  the  grant  is  on  the  fol- 
lowing terms,  followed  by  a  stipulation  that  the  lessee 's  failure 
to  comply  with  any  of  them  should  render  the  lease  void.  It 
was  held  that  the  stipulation  had  reference  to  the  legal  effect 
of  what  preceded,  and  if  that,  by  necessary  implication,  con- 
tained a  covenant  by  the  lessee  to  exercise  reasonable  diligence 
in  prosecuting  the  development,  such  covenant  is  also  a  condi- 
tion, a  substantial  breach  of  which  would  entitle  the  lessor  to 
avoid  the  lease. ***^ 

A  lease  gave  to  a  lessee  the  right  for  two  years  to  operate 
for  oil  and  gas  on  certain  described  land,  with  a  provision, 
if  no  oil  or  gas  were  found,  for  the  payment  of  rent  of  a 
certain  amount,  and  that,  if  no  oil  or  gas  well  be  drilled  by 
a  certain  date,  all  rights  under  the  contract  should  cease  at 
the  option  of  the  lessor,  unless  the  lessee  should  pay  a  certain 
sum,  entitling  him  to  an  extension  of  thirty  days,  the  lessee 
having  the  right  at  any  time  after  two  years  to  terminate  the 
lease  on  failure  to  find  gas  or  oil,  and  that  on  failure  of  the 
lessee  to  comply  with  any  of  the  agreements  in  the  lease  it 
should  become  void.  It  was  held  that  the  lessee  had  the  right 
to  enter  on  the  land  for  the  purpose  of  exploration,  and  to 
operate  if  oil  and  gas  were  discovered,  but  that  no  estate 
vested  in  him  until  such  discovery.**^ 

4<f  Hancock     v.     Diamond     Plate    .      44e  Murray   v.   Barnhart,    117    La. 

Glass   Co.,    1G2    Ind.    146;    70   K   E.  1023;  42  Sb.  Rep.  480. 

Rep.     140 ;      Hancock     v.     Diamond  **(  Brewster   v.   Lanyon   Zinc   Co., 

Plate  Glass  Co.,  37  Ind.  App.  351;  140-  Fed.    Rep^    801;  "^72    C.    C.    A. 

75  X.  E.  Rep.  6.59.  213. 

44d  Poe  V.   Ulery,   233   111.   56 ;    84-  *'^s  Rawlings    v.    Armel,    70    Kan. 

X.    E.    Rep.    46;    affirming    134   111.  777;    79   Pac*   Rep.   683. 
App.  298. 


LEASES.  83 

An  instrument  granted  all  the  coal,  gas  and  oil  under  a 
certain  described  tract  of  land.  It  was  denominated  a  lease 
for  a  definite  term  of  fifteen  years,  and  provided,  in  addition 
to  a  cash  payment  of  fifty  dollars,  for  the  payment  of  a  roy- 
alty on  all  oil  produced.  It  was  held  that  it  did  not  convey  the 
fee  of  the  mineral  in  place,  but  was  merely  a  lease. ^^'^  A  land 
owner,  in  consideration  of  a  sum  in  hand  paid,  and  a  further 
sum  to  be  paid,  leased  the  right  and  privilege  of  prospecting, 
examining,  and  searching"  for  coal,  oil,  or  other  minerals, 
and  "the  right  and  privilege  to  dig,  excavate,  and  bore"  for 
them,  if  found,  and  to  remove  them,  with  the  use  of  as  much 
wood  and  coal  as  might  be  required  to  operate  the  machinery 
in  the  oil  wells.  Oil  had  b.een  discovered  in  the  vicinity,  and 
there  had  been  at  least  two  wells  put  down  on  the  premises, 
and  the  existence  of  coal  was  well  known.  Oil  was  produced 
in  paying  quantities  from  some  of  the  wells  dug,  and  the  addi- 
tional compensation  was  paid,  and  the  operations  were  con- 
tinued for  several  years.  Fifteen  years  thereafter  the  premises 
were  abandoned.  No  mines  were  opened  for  coal  and  no  use 
was  made  of  the  premises  by  the  parties  nor  their  successors, 
except  for  the  purpose  of  prospecting  and  pumping  oil,  and  the 
premises  were  subsequently  conveyed  "subject  to  such  restric- 
tions and  leases  as  are  now  held  upon  said  premises. ' '  It  was 
held  that,  interpreting  the  instrument  in  the  light  of  the  then 
existing  conditions,  it  was  a  lease  for  oil,  gas,  and  salt  pur- 
poses, and  not  a  deed  conveying,  in  fee  simple,  the  minerals 
under  the  land.^^' 

Where  a  person,  under  a  lease  conveying  to  him  all  the  gas 
and  oil  under  a  certain  described  real  estate,  entered  upon  the 
land  and  caused  to  be  drilled  three  gas  wells,  and  paid  the 
lessor,  under  the  agreement,  $;300  per  annum  rental  therefor, 
it  was  held  that  he  thereby  acquired  a  vested  interest  in  the 
land  for  the  purpose  named  in  the  lease.     "Through  the  in- 

44h  "Applying   to   this   instrument  induce     its     execution."      ^loore     v. 

the   ordinary   rules  of  construction,  Sawyer,    167    Fed.    Rep.   820,   distia- 

and  considering  all  its  parts  with  a  guishing   Brewster    v.    I-/anj'on    Zinc 

view  to   harmonizing  them   and   ar-  Co.,  140  Fed.  Rep.  SOI ;   72  C.  C.  A. 

riving  at  the   real   intention  of  the  213. 

parties,  it  is,  in  my  opinion,  simjdy  44iMcMilIin  v.  Titus,  222  Pa.  500; 

a  lease,  the  $50  mentioned  being  a  72   Atl.   Rep.  240. 
bonus  paid  or  agreed  to  be  paid  to 


84  OIL   AND   GAS. 

strument  and  entry,  and  the  production  of  gas  thereunder, 
appellee  acquired  a  vested  interest  in  the  land  for  the  pur- 
pose named  in  the  lease.  "**■•  Where  a  lease  gave  the  lessee 
the  right  to  prospect  for  gas  and  oil,  in  consideration  of  a 
certain  part  of  the  oil,  if  produced  on  the  premises  in  paying 
quantities,  and,  if  gas  only  were  found,  an  annual  rental  for 
each  well  while  operated,  it  was  held  that  it  vested  no  estate 
in  the  land  prior  to  discovery ;  but  conferred  merely  the  right 
of  exploration,  the  title  remaining  inchoate  and  contingent  on 
the  finding  of  oil  or  gas  in  paying  quantities.**'^  A  provision 
in  a  gas  lease  that  if  wells  are  put  in  operation,  and  at  any 
time  the  lessee  is  satisfied  that  it  is  not  paying,  he  shall  sur- 
render the  lease  and  remove  the  machinery,  was  held  not  to 
make  the  lessee  a  tenant  at  will,  and  the  lease  was  not  termi- 
nable at  his  option,  after  the  productio-n  of  gas,  on  his  assertion 
that  a  well  was  unprofitable,  when  the  contrary  was  true.**' 

By  a  lease  land  owners  granted  a  lessee  the  exclusive  right 
to  enter  on  the  premises,  to  bore  wells,  mine,  or  to  do  whatever 
might  be  necessary  and  proper  for  the  development  and  ex- 
traction of  petroleum,  etc.,  with  the  privilege  of  conveying 
over  the  land  any  of  such  substances  produced  therefrom  and 
of  maintaining  on  the  premises  structures  necessary  for  the 
objects  of  the  lease,  to  hold  the  premises  and  privileges  with 
the  appurtenances  for  the  enumerated  purposes  for  twenty 
years  unless  terminated  for  failure  to  comply  with  the  terms 
of  the  lease,  the  lessee  to  have  the  right  to  abandon  the  lease 
at  any  time  that  it  deemed  it  unprofitable  to  hold  or  operate, 
and,  if  oil  were  found  the  lessee  to  pay  the  lessor  a  royalty  of 
one-tenth  part  of  that  produced.  It  was  held  that  the  contract 
vested  no  present  title  in  the  lessee  to  a  stratum  of  the  land 
in  place,  but  left  the  title  to  the  oil  in  the  land  owner  until  it 
was  brought  to  the  surface,  vesting  in  the  lessee  an  estate  for 
years  so  far  as  necessary  for  the  purpose  of  taking  oil  there- 
from, carrying  with  it  the  right  to  extract  the  oil  and  remove 
it  from  the  premises,  which  constituted  for  the  term  prescribed 

44j  Carr    v.    Huntington    L.    &    F.  44i  Dickey  v.   Coffeyville.  etc.,  Co., 

Co.,  33   Ind.  App.   1;    70  N.  E.  Rep.  08  Kan.  lOG;  70  Pac.  Ecp.  398. 

552.  44m  Graciosa  Oil  Co.  v.  Santa  Bar- 

44k  Richland    Oil    Co.    v.    Morriss,  bara  County,  155  Cal.   140;   99  Pac. 

108  Va.  288  J   61  S.  E.  Rep.  702.  Rep.  483. 


LEASES.  85 

a  servitude  on  the  land  under  the  express  provisions  of  Civ. 
Code,  and  a  chattel  real  at  common  law.''"" 

A  deed  granting,  by  use  of  appropriate  technical  terms,  all 
the  oil  and  gas  under  a  tract  of  land,  together  with  the  ex- 
clusive right  to  enter  thereon  at  all  times  for  the  purposes 
of  drilling  and  operating  for  oil  and  gas,  but  limiting  the  estate 
to  a  term  of  seven  years  and  as  much  longer  as  oil  or  gas  may 
be  found  thereon  in  paying  quantities,  stipulating  for  the  pay- 
ment of  commutation  money  for  delay  in  drilling  denominat- 
ing it  rental,  and  providing  for  one-eighth  of  all  the  oil 
produced  and  saved  from  the  premises  and  also  for  payment 
of  a  yearly  rental  for  every  gas  well  from  which  gas  is  trans- 
ported and  used  off  of  the  premises,  does  not  pass  the  title  to 
the  oil  and  gas  in  place,  but  is,  in  legal  effect,  a  mining  lease, 
and  the  title  to  the  oil  and  gas  in  place  remains  in  the 
grantor.^*" 

In  a  contract  between  the  owner  of  land  and  an  oil  opera- 
tor it  was  provided  that  the  owmer  thereby  granted  to  the 
operator  all  rights,  title,  and  interest  to  the  gas  and  oil  under 
the  land,  with  the  right  to  enter  to  drill  for  gas  and  oil  and 
operate  the  wells,  and  required  him  to  drill  a  well  within  a 
certain  time.  It  was  held  that  the  contract  was  not  a  con- 
veyance of  the  oil  under  the  ground,  but  merely  authorized 
him  to  explore  the  land  and  acquire  title  to  the  oil  upon  ex- 
tracting it  from  the  ground,  which  right  was  the  subject  of 
contract.**" 

An  oil  and  gas  lease  gave  the  lessee  the  right  for  ten  years 
to  explore  for  oil  and  gas,  and  provided  that  if  a  well  be  not 
completed  on  the  premises  wdthin  three  months  from  the  date 
of  the  lease  the  lessee  should  pay  to  the  lessor,  in  advance,  a 
quarterly  cash  rental  for  each  additional  three  months'  delay. 
It  was  held  that  the  so-called  lease  was  only  an  executory 
contract  which  vested  no  title  in  the  lessee  to  tlie  oil  and  gas 
in  place.**" 

4*nToothman  v.   Courtney,  G2   W.  44o  O'Xeil    v.    Sun   Co.    (Tex.   Civ. 

Va.  167;   58  S.  E.  Rep.  015;  Gilles-  App.),   123  S.  W.  Rep.   172. 

pie  V.    Fulton    Oil    &    Gas   Co.,   239  44p  Smith  v.  Root,  GO  W.  Va.  633 ; 

111.  326;  88  N.  x:..  Rep.  102;  Headley  66  S.  E.  Rep.    1005. 
V.    Hoopengarnor,    GO    W.    Va.    26; 
55  S.  E,  Rep.  744. 


86  OIL   AND   GAS. 

A  grant  to  a  «orporation  and  its  assigns  of  all  gas  and  oil  in 
and  under  a  tract  of  land,  on  consideration  that  the  grantee 
should  drill  a  well  within   six  months,   or  thereafter  pay  a 
certain  annual  sum,  or  reconvey  the  property  to  the  grantor, 
and  that  the  grantee  might,  at  any  time,  remove  its  property 
and   reconvey   the    premises,    thereupon   the   contract   in   the 
grant  should  be  void,  after  six  months,  and  until  a  well  was 
drilled,   was  held  to  he  a  lease  at  an  annual  rental,  at  the 
option  of  the  lessee  only/^^     A  husband  and  wife  leased  to  a 
corporation  certain  land,  with  the  privilege  of  entering  thereon 
for  ten  years  and  boring  gas  and  oil  wells  and  conveyed  the 
title  to  any  such  products  for  a  specified  royalty;  and  the 
corporation  agreed  to  complete  a  well   within  two  years,  or 
pay  a  fixed  rental.    The  contract  provided  that  the  term  might 
be  extended  indefinitely  on  discovery  of  gas  or  oil,  and  that 
the  corporation  could  surrender  the  contract  at  any  time.     It 
was  held  that  the  instrument  was  not  a  lease  of  the  premises, 
but  a  sale  to  the  corporation  of  an  option  to  exercise  the  privi- 
lege granted  as  it  might  choose. ^■*''     Where  a  lease   provided 
that  the  lessee  should  explore  the  lands  for  gas  and  oil  within 
a  certain  time,  or  pay  a  certain  sum  quarterly  in  case  of  delay, 
it  was  held  that  the  lessee  had  no  right  to  secure  possession 
until  default  by  the  lessee,  both  in  not  exploring  the  land  and 
not  paying  for  the  delay.****    A  lease  for  ten  years  and  as  much 
longer  as  gas  and  oil  should  be  found  in  paying  quantities,  a 
ro3''alty  to  be  paid  on  the  oil  and  so  much  per  annum  for  each 
gas  well,  reciuiring  a  well  to  be  drilled  within  three  months 
from  its-  date  or  a  certain  rental  to  be  paid  per  annum  in  ad- 
vance, giving  the  lessee  and  his  heirs  and  assigns  the  right  to 
surrender  it  at  any  time  on  notice  to  the  lessor  of  an  intent 
to  do  so,  but  providing  that  on  giving  such  notice  the  lease 
should  be  void,  is  a  mere  option  without  valuable  considera- 

44<i  Central  Ohio  Nat.  Gas  &  Fuel  ■«•"■  rittsbiirg,    etc.,    Co.    v.    Bailey, 

Co.  V.  Eckert,  70  Ohio  127:  71  N.  E.  70     Kan.    42;     90     Vac.     Rep.    80.3; 

Rep.   281;    Oil  Co.   v.  Crawford,   5.5  Ringle   v.   Qiiigg,   74    Kan.   581;    87 

Ohio   St.    161;    44  N.  E.  Eep.    109,3;  Pac.  Rep.   724. 

34  L.  R.  A.  62;   Tvowther  Oil  Co.  v.  44s  Houssierre-Latreille  Oil   Co.   v. 

Guffey,    52    W.    Va.    88;    43    !N.    E.  Jenning--Heywood  Oil  Syndicate,  115 

Rep.   101;    Warner  v.  Cochrane,   128  La.  107;  38  So.  Rep.  932.     See  Mar- 

Fed.  Rep.  553;    63  C.  C.  A.  207.  tcl   v.  Jennings-Heywood   Oil  Syndi- 
cate,  114  La.  351;  38  S(j.  Rep.  253. 


LEASES. 


87 


tion,  constituting  only  an  estate  at  will  in  the  lessee,  and  de- 
terminable at  the  will  of  the  lessor,  without  cause/*' 


§  58.     Sale  of  oil  and  gas,  and  not  a  lease. 

An  instrument  may  be  so  drawn  as  to  convey  an  interest  in 
the  solid  minerals  beneath  its  surface,  with  the  right  to  mine 
them.  Such  an  instrument  is  not  to  be  strictly  construed  as 
conveying  an  interest  in  the  land.  Thus  where  a  so-called  lease 
of  lands  provided  that  the  lessee  (so  called)  should  have  all  the 
coal  beneath  the  surface  for  a  long  term  of  years,  the  lessee  to 
take  out  a  minimum  number  of  tons  each  year  until  all  the 
available  coal  was  removed,  and  pay  so  much  a  ton,  the  mini- 
mum amount  to  be  paid  for  whether  mined  or  not,  it  was  held 
that  this  was  an  absolute  sale  of  the  coal,  conditioned,  of  course, 
upon  its  being  removed,  and  not  a  lease  of  the  premises  for  min- 
ing purposes.*'^  Similar  decisions  have  been  made  with  refer- 
ence to  oil  and  gas,  the  royalty  representing  the  purchase 
money.*"     Thus,  a  contract  to   drill   and  operate  gas  and   oil 


44tLovett  V.  Eastern  Oil  Co.,  68 
W.  Va.   667;   70  S.  E.  707. 

Certain  acts  held  to  constitute  a 
breach  of  a  covenant  in  an  oil  lease. 
Millan  v.  Bartlett,  69  W.  Va.  — ; 
71  S.  E.  13. 

■Contract  for  digging  an  oil  and 
gas  well,  held  not  to  create  the 
relation  of  landlord  and  tenant,  but 
a  mere  option  which  expired  on  the 
defendant's  failure  to  begin  a  well 
or  to  pay  rent.  Risch  v.  Burch, 
174  Ind.  — ;   95  N.  E.   123. 

Contract  continued  and  held  not 
to  contain  a  positive  condition;  and 
that  a  purchaser  of  the  land  was 
bound  by  a  duly  recorded  lease 
thereon.  Busch-Everett  Co.  v.  Viv- 
ian Oil  Co.,  128  La.  — ;  .55  So.  564. 

An  instrument  held  to  create  the 
relation  of  landlord  and  tenant. 
Coalinga  Pacific  Oil  &  Gas  Co.  v. 
Associated  Oil  Co.  (Cal.  App.),  116 
Pac.   1107. 

43  In  re  Lazarus'  Est.,  145  Pa.  St. 
1;  23  Atl.  Rep.  372;  Hope's  Appeal, 


3  Atl.  Rep.  23;  In  re  Hancock's  Est., 
7  Kulp.    (Pa.),  36;   Hobart  v.  ,vlur- 
ray,  54  Mo.  App.  249;   Lehigh  Coal 
Co.   V.  Wright,  7   Kulp    (Pa.),  434; 
15   Pa.   Co.   Ct.   Rep.   433.      (Contra 
Austin  V.  Huntsville  Coal,  etc.,  Co., 
72   Mn.  '535.)      Raynolds   v.   Hanna,  " 
55    Fed.    Rep.    783;    Adams    v.    Ore 
Knob,    etc.,    Co.,    7    Fed.    Rep.    634; 
Williams  v.  Gibson,  84  Ala.  228;  4 
So.   Rep.   350;    Manning  v.   Frazier, 
96  HI.  279;  Consolidated  Coal  Co.  v. 
Peers,   \:>0  111.  344;    37   N.   E.   Rep. 
937 ;    Chester    Emery   Co.    v.   Lucas, 
112   Mass.   424;    Delaware,   etc.,   Co. 
v.  Sanderson,  109  Pa.  St.  583;  LiMi- 
bridge  v.  Lackawanna  Coal  Co.,  143 
Pa.    St.    293;    22    Atl.    Rep.    1035; 
Woodside  v.  Ciceroni,   93   Fed.   Rep. 
1;  35  C.  C.  A.  177;   Ho.sack  v.  Crill 
(Pa.),  53  Atl.  Rep.  640.    See  Rowell 
V.  Bodfish    (Me.),  10  Atl.  Rep.  448; 
Fairchild    v.    Dunbar,    128    Pa.    .St. 
485;    18   Atl.    Rep.   443. 

46 /n   re   Dunat's   Est.,   29    Pittsb. 
L.  J.    105;    Wilson   v.  Youst,  43   W. 


88  OIL    AND    GAS. 

wells  for  a  royalty  for  the  gas  or  oils  produced  with  time  limit 
within  which  wells  are  to  l)e  completed  and  extensions  of  the 
term  granted  in  case  profitable  wells  are  developed  and  upon 
failure  to  complete  wells  within  stipulated  periods,  subject  to 
rental  at  a  stipulated  sum  per  acre  or  forfeiture  of  lease  of 
lands  for  the  term,  is  not  a  lease,  but  is  a  sale  of  petroleum, 
products.*^*^ 

§  59.     Presumption  as  to  ownership  of  oil  or  gas  in  ground. 

The  presumption  is  that  the  owner  of  the  land  owns  the  gas 
and  oil  beneath  the  surface ;  but  this  is  a  presumption  that  may 
be  rebutted,  by  showing  that  either  the  present  owner  or  a 
former  one  had  conveyed  such  oil  and  gas  to  ancther.*' 

§  60.     Administrator's  right  to  lease  or  contract. — Presumption. 

The  right  of  an  administrator  of  the  lessee  to  lease  or  con- 
tract for  searching  for  oil  or  gas  and  the  operation  of  the 
premises,  will  depend  upon  Avhether  the  estate  granted  is  an 
estate  of  inheritance  or  merely  personal  property.  In  the  case 
of  solid  minerals  the  minerals  may  be  conveyed  separate  and 
apart  from  the  soil  in  which  they  rest ;  and  when  so  conveyed 
they  constitute  a  separate  and  distinct  estate,  vested  in  the 
grantee,  while  the  grantor  retains  the  fee  of  the  land,  except 
that  of  the  minerals.  The  presumption  is  that  the  mineral's 
belong  to  the  owner  of  the  land,  but  that  "may  be  rebutted  by 
evidence,  showing  a  severance  of  the  mines,  and  a  distinct 
estate  and  interest  in  them  by  grant  or  reservation. ' '  *^  Min- 
erals so  conveyed  constitute  an  inheritance  separate  and  dis- 
tinct from  the  surface ;  ^'-^  and  pass  to  the  heirs  and  not  to  the 

Va.  826;   28  S.  E.  Rep.   781;    39   L.  47  Adams    v.    Briggs    Iron    Co.,    7 

R.    A.    292;    Detlor    v.    Holland,    57  Cnsh.  361;   Crove  v.  Hodges,  55  Pa. 

Ohio   St.   492;    49   N.   E.   Rep.   690;  St.   504    (cases   concerning  coal   and 

Kerlin,  etc.,  Co.  v.  Toledo,  20  Ohio  iron  ore). 

C.   C.   Rep.   603;    8   Ohio  N.   P.   62;  48  Adams   v.    Briggs    Iron    Co.,    7 

Lawson    v.    Kirchener,    50    W.    Va.  €ush.  361 ;  Kincaid  v.  McGowan,  88 

344;   40  S.  E.   Rep.  344;    Hosack  v.  Ky.  91;   4  S.  W.  Rep.  802;   Chester 

Crill      (Pa.),     53     Atl.     Rep.     641;  Emery  Co.  v.  Lucas,  112  Mass.  424; 

Blakeley  v.  Marshall,   174  Pa.  425;  Hobart  v.  Murray,  54  Mo.  App.  249. 

34  Atl.  504.  49  Warden  v.  Watson,  93  Mo.  107 ; 

46a  Miller  v.  Vandergrift,  30  Ohio  5  S.  W.  Rep.  G05:  Hartwell  v.  Cam- 

Cir.  Gt.  Rep.  730.  man,  '2  Stock  Eq.    (X.  J.)    128;  Suf- 


LEASES. 


89 


administrator.''"  Since  oil  and  gas  is  also  a  mineral  and  a  part 
of  the  soil  which  holds  it,  belonging  to  the  owner  of  such  soil, 
and  the  subject  of  a  distinct  conveyance  which  gives  the 
grantee  (by  whatever  name  he  may  be  called)  an  interest,  it 
necessarily  follows  that  a  grant  of  the  oil  and  gas  beneath  the 
surface  of  a  tract  of  land  will  pass  to  the  heir  of  the  grantee 
and  not  to  his  personal  representatives;  but  if  the  instrument 
gives  the  grantee  a  mere  lease  and  does  not  give  him  an  in- 
terest in  the  land,  it  does  pass  to  his  administrator.^^ 

§  61.     Lease  and  not  a  license. 

It  is  often  difficult  to  determine  whether  an  instrument  is  a 
lease  or  a  license ;  and  in  fact  courts  differ  so  much  that  their 
decisions  on  the  question  cannot  be  reconciled.  The  same  in- 
strument will  be  considered  a  lease  by  some  courts  and  a 
license  by  others.     We  give  several  examples  that  have  been 


fern  v.  Butler,  4  C.  E.  Gr.  Ch.  (N. 
J.)  202;  affirmed  21  N.  J.  Eq.  410; 
Canfield  v.  Ford,  28  Barb.  336 ;  Mar- 
A'in  V.  Brewster,  etc.,  Co.,  55  X.  Y. 
538;  Lacustrine,  etc.,  Co.  v.  Lake 
Guano,  etc.,  Co.,  82  N.  Y.  476 ;  First 
Natiomil  Bank  v.  Dow,  41  Hun  13; 
Edwards  v.  McClurg,  30  Ohio  St. 
41;  Newark  Coal  Co.  v.  Upsoi,  40 
Ohio  St.  17;  Logan  v.  Washington 
Oo.,  29  Pa.  St.  373:  Caldwell  v. 
Fulton,  31  Pa.  St.  475;  Harlan  v. 
Lehigh,  etc.,  Co.,  35  Pa.  St.  287; 
Caldwell  v.  Copeland,  37  Pa.  St. 
427;  78  Am.  Dec.  436;  Brown  v. 
Corey,  43  Pa.  St.  495;  Pennsylva- 
nia Salt  Co.  V.  Xeel,  54  Pa.  St.  9; 
Briggs  V.  Davis,  81%  Pa.  St.  470; 
Sanderson  v.  Scranton,  105  Pa.  St. 
469;  Hope's  Appeal,  29  W.  N.  C. 
(Pa.)  365;  Montooth  v.  Gamble,  123 
Pa.  St.  240;  16  Atl.  Rep.  594;  Fair- 
child  V.  Dunbar  Furnace  Co.,  128 
Pa.  St.  485;  18  Atl.  Rep.  443;  Lilli- 
bridge  v.  Lackawanna,  etc.,  Co.,  143 
Pa.  St.  293;  22  Atl.  Rep.  1035; 
Kingsley  v.  Hillside,  etc.,  Co.,  144 
Pa.    St.    613;     23    Atl.    Rep.    250; 


Lazarus'  Estate,  145  Pa.  St.  1:  23 
Atl.  Rep.  372;  Plummer  v.  Hillside, 
etc.,  Co.,  160  Pa.  St.  483;  28  Atl. 
Rep.  853;  Powell  v.  Lantzy,  173  Pa. 
St.  543:  34  Atl.  Kep.  450;  Massot 
v.  Moses,  3  S.  C.  168;  Lee  v.  Baum- 
gardner,  86  V.a.  315;  10  S.  E.  Rep.  3. 

•'0  Barksdale  v.  Parker,  87  Va. 
141;  12  S.  E.  Rep.  342;  Keeler  v. 
Trueman.  15  Colo.  143;  25  Pac.  Rep. 
311;  Carrhart  v.  jlontana,  etc.,  Co., 
1   Mont.   245. 

•'Ji  Lanyon  Zinc  Co.  v.  Freeman, 
6i8  Kan.  691;  75  Pac.  995.  Where 
a  statute  provided  that  oil  wells 
and  fixtures,  and  rights  held  by  vir- 
tue of  any  lease,  should  be  deemed 
personal  property  for  all  purposes 
except  ta.xation,  the  right  to  oil  is 
personalty,  and  does  not  pass  under 
a  deed  executed  by  an  executor,  the 
devi.see  of  the  lessee  having  the  right 
to  convey  all  the  lands  owned  by  the 
latter,  of  in  wiiich  he  has  an  inter- 
est. Wagner  v.  Mallory,  169  X.  Y, 
501;  62  N.  E.  Rep.  584;  affirming 
58  N.  Y.  Supp.  526. 


90  OIL   AND   GAS. 

construed  by  the  courts.  An  instrument  which  grants,  demises 
and  lets  "all  petroleum  and  gas  in  or  under  that  certain  tract 
of  land  .  .  .  and  also  all  the  said  tract  of  land  for  the 
purpose  and  for  the  exclusive  right  to  drill  and  operate  upon 
said  premises  for  said  petroleum  and  gas,"  for  a  limited  time, 
is  a  lease  and  not  a  mere  license.^-  An  instrument  for  a  year 
containing  the  following  clause:  "The  party  of  the  second 
part  hereby  agrees  to  work  said  mine  in  a  workmanlike 
manner,  and  to  pay  to  the  party  of  the  first  part  royalty  from 
all  ores  taken  out  .  .  .  from  the  mine  by  the  party  of  the 
second  part" — constitutes  a  lease,  and  not  a  mere  license.^* 
An  agreement  giving  an  exclusive  right  to  mine  coal  on  certain 
land  for  a  term  of  years  is  a  lease  and  not  a  mere  license.^* 
An  agreement  of  an  owner  of  mining  lands,  allowing  a  person 
to  enter  on  them  at  a  particular  place  and  have  exclusive 
possession  to  dig  for  minerals  thereon,  so  long  as  he  complies 
with  the  conditions  of  the  contract,  is  a  lease  and  not  a 
license.^"  An  instrument  in  terms  granting  all  the  oil,  gas, 
coal,  and  asphaltum  under  certain  described  land,  but  which 
was  denominated  a  lease,  had  a  definite  term  of  fifteen  years ; 
and  provided,  in  addition  to  a  cash  payment  of  $50,  for  the 
payment  of  a  royalty  on  all  oil  produced,  was  held  not  to  be  a 
conveyance  in  fee  of  the  mineral  in  place,  but  merely  a  lease. "^^^ 

§  62.    License. 

As  said  previously,  a  license  may  be  created  by  parol,  and 
whatever  right  is  attempted  to  be  given  by  parol  is  a  mere 

52  Woodland  Oil  Co.  v.  Crawford,  ss  Buchanan  v.  Cole,  57  Mo.  App. 


55  Ohio  St.  IGl ;  36  Ohio  L.  .J.  231 
44  N.  ^.  Rep.  1003;  34  L.  R.  A.  G2 
Brown  v.  Fowler,  G5  Ohio  St.  507 


11.  See  also  Young  v.  Ellis,  91  Va. 
297;  21  S.  E.  Rep.  480;  Harlan  v. 
I>;high    Coal    Co.,   35    Pa.    St.    287; 


63   N.    E.   76;    Martin  v.   Jones,    G2  Funk  v.  Haldeman,  53  Pa.  229    (oil 

Ohio  St.   519;   57   N.  E.  238.  license)  ;   Dark  v.  Johnston,  55   Pa. 

53  Paul  V.  Cragnas,  25  Nev.  293;  154  (oil  license);  Kelly  v.  Keys, 
59  Pac.  Rep.  857;  60  Pac.  Rep.  983;  213  Pa.  296;  62  Atl.  911  (oil  li- 
47  L.  R.  A.  540.  cense)  ;  Carr  v.  Benson,  L.  R.  3  Ch. 

54  Consolidated  Coal  Co.  v.  Peers,  App.  524;  78  L.  T.  696;  16  W.  R. 
150  111.  344;  37  N.  E.  Rep.  937;  744;  Hodgson  v.  Parkins,  84  Va, 
Harlan  v.  Coal  Co.,  35  Pa.  St.  287;  706;  5  S.  E.  Rep.  710. 

Marquis    of   Bute    v.   Thompson,    13  See  also  Poe  v.  Ulrey,  233  111.  56; 

M.  and  W.  487;   14  L,  J,  Exch.  95;  84  N.  E.  Rep.  46. 
Massot  V.  Moses,  3  S.  C.  168.  ssa  Moore  v.  Sawyer,  167  Fed.  Rep. 

826. 


LEASES. 


91 


license  and  nothing  more.  As  oil  or  gas  is  a  mineral,  a  parol 
grant  to  bore  for  either  of  them  is  merely  a  license.  But  when 
the  oil  has  been  severed  from  the  ground,  and  put  into  a  pipe 
line  or  a  tank,  it  becomes  personal  property  of  the  licensee ;  and 
so  the  same  is  true  of  gas.'"'  This  is  the  case  with  respect  to  hard 
minerals.^^  One  operating  under  a  parol  license  is  not  a  tenant 
of  the  licensor ;  nor  is  he  a  trespasser.^^  A  mere  license  to  mine 
is  not  assignable — it  is  a  mere  personal  privilege.'^''  One  tenant 
in  common  cannot  bind  his  co-tenant  by  giving  a  license.""  A 
subsequent  lessee  or  licensee  with  knowledge  of  the  first  license 
takes  it  subject  thereto."^  A  husband  may  give  a  license  to 
mine  on  the  homestead  premises,  without  the  consent  of  his 
wife,  if  the  mining  does  not  impair  its  enjoyment  for  the  uses 
of  a  homestead ;  and  even  though  her  consent  was  necessary, 
yet  it  will  be  inferred  if  she  had  full  knowledge  of  the  work 
done,  or  expenses  incurred,  and  made  no  objection."-  The 
.owner  of  land  leased  it  ten  years  for  mining  purposes;  and 
subsequently  entered  into  an  agreement,  before  the  term  had 


56  Heller  v.  Dailey,  28  Ind.  App. 
555;  63  N.  E.  Rep.  490;  Wagner  v. 
Mallory,  169  N.  Y.  501;  62  N.  E. 
Eep.  584;  Parish  Fork  Oil  Co.  v. 
Bridgewater  Gas  Co.  (W.  Va.)  ;  42 
S.  E.  Rep.  655. 

57  Williams  v.  Morrison,  32  Fed. 
Rep.  177;  Wheeler  v.  West,  71  Cal. 
126;  11  Pac.  Rep.  871;  Omaha,  etc., 
Co.  V.  Tabor,  13  Colo.  41;  21  Pac. 
Rep.  925. 

In  Utah  a  parol  lease  of  a  mine 
is  valid,  if  the  lessee  has  entered 
and  expended  labor  and  money  in 
preparations  for  mining.  RufTatti 
V.  Sooiete,  etc.,  10  Utah  3'86 ;  37  Pac. 
Rep.  591. 

58  Wheeler  v.  West,  71  Cal.  126; 
11  Pac.  Rep.  871;  Kamphouse  v. 
Gaffner,  73  111.  453;  Desloge  v. 
Pearce,  38  Mo.  588. 

59  Manning  v.  Frazier,  96  111.  279; 
East  Jersey  Co.  v.  Wright,  32  N.  J. 
Eq.  248;  Cahoon  v.  Bayaud,  123  N. 
Y.  298 ;  25  N.  E.  Rep.  376 ;  Dark  v. 
Johnston,  55  Pa.  St.   164;   Hodgson 


V.  Perkins,  84  Va.  706;  5  S.  E.  710; 
Dark  v.  Johnston,  55  Pa.  154.  A 
license  coupled  with  an  interest  is 
assignable.  Funk  v.  Haldeman,  53 
Pa.   St.   229. 

60  Tipping  V.  Robbins,  64  Wis. 
546;  25  N.  W.  Rep.  713;  Tipping 
V.  Robbins,  71  Wis.  507;  37  N.  W. 
Rep.  427. 

61  Harkness  v.  Burton,  39  la.  101. 

62  Harkness   v.   Burton,  supra. 

In  Illinois  a  lease  of  unlimited 
duration  giving  the  lessee  the  right 
to  enter  on  land  occupied  as  a 
homestead  to  prospect  for,  and  mine 
oil  and  gas,  and  erect  necessary 
buildings  and  structures,  is  a  con- 
veyance of  such  an  interest  in  the 
homestead  as  is  void,  unless  the 
lease  is  executed  and  acknowledged 
as  provided  for  by  the  statute  con- 
cerning the  conveyance  of  home- 
steads. Gillespie  v.  Fulton  Oil  & 
Gas  Co.,  236  111.  188;  86  N.  E.  Rep. 
219;  Poe  v.  Ulrey,  233  111.  56;  84 
X.   E.   Rep.   46;    Gillespie  v.   Fulton 


92  OIL   AND    GAS. 

expired,  with  the  lessee  by  which  it  was  agreed  that  if  the 
latter  would  sink  a   well,  plank  it,   and  put  in  a  pump  and 
engine,  he  should  be  entitled  to  dig  all  the  ore  on  the  lessor's 
land,  paying  twenty-five  cents  per  ton  for  it.    It  was  held  that 
this  was  not  a  conveyance  of  the  ore,  but  a  mere  license  to 
take  it,  the  compensation  for  the  privilege  of  taking  it  being 
rated   at   twenty-five    cents    a   ton."^      An    owner   of   land   be- 
queathed it  to  his  son,  using  the  following  language:  "To  ray 
son,  John,  I  give  and  bequeath  the  farm  or  plantation  he  now 
occupies;  to  be  enjoyed  by  him,  his  heirs  and  assigns  forever, 
with  free  privilege  of  taking  what  coal  he  wants  for  his  own 
use  or  plantation  off  the  home  plantation."    At  the  time  the 
will  was  made,  an  open  mine  existed  on  the  home  plantation, 
but  none  on  the  farm  occupied  by  the  son.     It  was  held  that 
the   privilege    of  taking  coal   from  the   home  plantation  was 
personal  to  the  son,  and  did  not  pass  to  his  successors  in  title 
to  the  premises  devised."*     An  agreement  giving  "the  exclu- 
sive use  and  privilege  of  digging,  hauling  off,  and  working 
any  ore  now  found,  or  which  may  hereafter  be  found,  any- 
where" on  a  certain  tract  of  land,  confers  a  mere  license,  and 
creates  no  easement  or  estate  in  the  land.""'    In  Pennsylvania  a 
lessee  of  oil  territory  who  has  exclusive  privilege  of  the  land 
for  the  purpose  of  searching  for  oil,  producing,  storing  and 
transporting  it,  is  more  than  a  mere  licensee — he  is  a  tenant."' 
A  conveyance  of  "the  free  and  uninterrupted  use,  privilege, 
and  liberty  to  go  on  to  any  part"  of  a  certain  described  tract 
of  land  "for  the  purpose  of  prospecting,  digging,  excavating, 
and  boring  and  erecting  machinery"  "necessary  for  prospect- 
ing, experimenting,  or  searching  to  find  oil,"  with  a  right  to 

Oil   &  Gas   Co.,    140   111.   App.    147;  v.  Fulton,  7  Casey  475,  and  saj's  It 

Brunei  v.  Hicks,  230  111.  530;  82  N.  closely  follows  Johnston  Iron  Co.  v. 

E.   Rep.  888.  Cambria  Iron  Co.,  8  Casey  241,  and 

Where,  in  an  action  by  a  gas  com-  Clement     v.      Younger,      4      Wright 

pany  to  enjoin  a  forcible  removal  or  (Pa.),   oil. 

destruction    of   its    pipe    line    across  «*  Yougliiogheny    R.    Coal    Co.    v. 

a    homestead,    it   appears   that   both  Tierce,  153  Pa.  St.  74;  25  Atl.  Rep. 

the  husband  and  wue  consented  that  1020. 

the   line  he  laid,  whether  such  con-  c=  Barksdale    v.    Hairston,    81   Va. 

sent   was    jointly    given    is    immate-  764;     Hodgson    v.    Perkins,    84    Va. 

rial.      Ralstcm    v.    Wichita    Natural  706;   5  S.  E.  710. 

Gas   Co.,    105    P.    430;    81    Kan.    SO.  so  Kitclien   v.    Smith,    101    Pa.   St. 

63Neumoyer    v.    Andreas,    57    Pa.  452;  Duke  v.  Hague,  107  Pa.  St.  57; 

St.    446.      The    court    distinguishes  Chicago,  etc.,  Co.   v.  United  States, 

this  case  from  the  case  of  Caldwell  etc.,  Co.j  57  Pa.  St.  83. 


LEASES.  93 

the  exclusive  use  of  one  acre  about  each  well,  and  a  riglit  of 
way  for  "himself,  lands,  and  teams,  tenants  and  undertenants, 
occupiers  or  possessors  of  said  springs,  mines,  ores,  or  coal 
beds,  in  common  with"  the  grantor,  the  consideration  being 
two  hundred  dollars,  and  if  oil  or  minerals  were  found,  one- 
third  of  the  product,  and  if  none  be  found,  the  premises  to 
revert  to  the  grantor — creates  a  license  coupled  with  an  interest 
to  work  the  land  for  minerals."^  Where  an  owner  of  an  island 
and  a  farm  granted  the  right  to  search  for  oil  on  the  island, 
and  agreed  if  the  grantee  found  oil  there,  to  sell  him  the  island 
for  a  named  sum ;  and  he  also  gave  him  the  exclusive  right  to 
bore  wells  on  the  farm,  at  a  certain  rent  for  each  well,  and  that 
he  might  remove  the  machinery  if  unsuccessful,  this  was  held 
to  be  personal  license,  and  not  assignable. ''^  A  quit  claim  deed 
has  been  held  to  be  a  mere  license  to  mine.""  A  contract  of  sale 
and  purchase,  absolute  in  form,  but  requiring  payment  to  be 
made  out  of  mineral  produced  from  the  land,  has  been  held  to 
be  a  mere  option,  coupled  with  a  license  to  work.""  So  a  gas 
and  oil  lease  conferring  on  the  lessee  the  right  to  enter  upon, 
operate  for,  and  procure  gas  and  oil  on  the  land  therein  de- 
scribed, and  containing  no  provision  indicating  otherwise,  was 
held  to  grant  a  license  to  enter  and  explore,  and,  if  gas  or  oil 
was  found,  the  right  to  produce  and  sever  it.'^'*'^ 

§  63.     License. — Consideration. — Revocation. 

A  license  reduced  to  writing,  if  supported  by  a  sufficient  con- 
sideration, may  be  irrevocable.  Such  a  license  may  have  the 
force  of  an  incorporeal  hereditament,  and  take  effect  as  a 
covenant.^^     Such  a  license  is  one  coupled  with  an  interest. ^- 

67  Funk  V.  Haldeman,  .53  Pa.  St.  70a  Kansas  Natural  C.as  Co.  v. 
229.  Board,   75   Kan.   335;    89    Pac.    Hep. 

68  Dark  v.  .Johnston,  55  Pa.  St.  750 ;  Martel  v.  Jenninps-Heywood 
164;  9  Morr.  Min.  Rep.  283;  Rynd  Oil  Syndicate,  114  I>a.  903;  38  vSo. 
V.   Rynd   Farm   Oil   Co.,   63   Pa.   St.  253. 

397 ;'  Thompson's    Appeal,    101    Pa.  ti  Boone   v.    Stover,    GG    IMo.    430; 

St.  225;  Lyncli  v.  Seymour,  15  Can.  Desloge     v.     Pearce,     38    Mo.     588; 

Sup.   Ct.   Rep.   341;    Keily   v.   Keys,  Crubb  v.   Bayard,   2   Wall.    Jr.    81; 

213  Pa.   296;    G2   zitl.   OH.             "  Crubb    v.    Cuilford,    4    Watts    (Pa.) 

09  Baker   v.    Clark.    128   Cal.    181;  223.     See  Pifer  v.  Brown.  43  W.  Va. 

60  Pac.  Rep.  677;  McMillan  v.  Titus,  412;  27  S.  E.  399  Rep.  399;  49  L.  R. 

222   Pa.   500;    72   Atl.   240.  A.  497;  and  note  in  last  volume. 

70  Smith   V.   .Jones,    21    Utah   270;  72  Brown   v.    Beecher.    120  Pa.    St. 

60   Pac.   Rep.    1104.  590;     15    Atl.    Rep.    608;     Funk    v. 

Haldeman,  53  Pa.  St.  229. 


94 


OIL   AND    GAS. 


Thus  where  a  license  was  given,  in  consideration  of  one  hun- 
dred dollars  already  paid,  of  an  exclusive  privilege  to  drill  oil 
wells  on  certain  land  for  the  term  of  ten  years,  the  licensee  to 
pay  ten  dollars  a  year  for  each  well  drilled  from  which  he  con- 
tinuously pumped  oil,  it  was  held  to  be  an  irrevocable  license.''^ 

§  64.     License,  revocation. 

While  a  parol  license  protects  the  licensee  against  the  charge 
of  trespass  so  long  as  it  is  in  force,  yet  the  licensor  may  revoke 
it  at  any  time.  A  conveyance  of  the  property  is  a  revocation  of 
the  license,'^*  for  the  reason  that  a  license  is  purely  personal, 
and  not  a  part  of  the  land.'^  But  after  a  license  has  been  fully 
executed,  and  is  not  dependent  on  continuous  acts,  it  cannot  be 
revoked.'^*'  Improvements  placed  upon  the  ground  will  not  pre- 
vent the  revocation  of  a  parol  license ;  ' '  but  the  licensor  must 


73  Dark  v.  Johnston,  55  Pa.  St. 
164;  93  Am.  Dec.  732;  9  Morr.  Min. 
Eep.  283;  Grubb  v.  Bayard,  2  Wall 
Jr.  81;  11  Fed.  Cas.  89;  Pyle  v. 
Henderson,  65  W.  Va.  39:  63  S.  E. 
Rep.  762.  But  while  the  courts 
treat  the  privilege  given  in  these 
cases  as  licenses,  it  may  well  be 
doubted  if  the  instruments  did  not 
give  an  actual  interest  in  the  real 
estate   itself. 

7*  East  Jersey  Co.  v.  Wright,  32 
N.  J.  Eq.  248. 

75  Kamphouse  v.  Gaffner,  73  111. 
453;  Barry  v.  Worcester,  143  Mass. 
476;  10  N.  E.  Rep.  186;  Desloge  v. 
Pearce,  38  Mo.  588;  Barfcsdale  v. 
Hairston,  81  Va.  764;  Geiger  v. 
Green,  4  Gill  (Md.)  472;  Miser  v. 
CyShea,  37  Ore.  231;  62  Pac.  Rep. 
491;  Wheeler  v.  West,  71  Cal.  126; 
11  Pac.  Rep.  871;  Omaha,  etc.,  Co. 
V.  Tabor,  13  Colo.  41;  21  Pac.  Rep. 
925;  5  L.  R.  A.  236;  Kiddle  v. 
Brown,  20  Ala.  412;  56  Am.  Dec. 
202. 

76  Kamphouse  v.  Gaflfner,  supra; 
Funk  V.  Haldeman,  53  Pa.  St.  229; 
Rynd  v.  Rynd  Farm  Oil  Co.,  63  Pa. 
St.  397;  Le  Fevre  v.  Le  Fevre,  4  S. 


and  R.  241 ;  Wood  v.  Leadbitter,  13 
M.  and  W.  838;  Dark  v.  Johnston, 
55   Pa.   St.    104;    93   Am.    Dec.   732: 

An  option  to  purchase  mining 
lands,  with  privilege  of  prospecting 
and  mining  ore  is  a  license  coupled 
with  an  interest;  and  the  licensee 
having  gone  into  possession  and 
made  expenditures,  the  license  is  ir- 
revocable, and  he  is  entitled  to  ex- 
clusive possession  during  the  life  of 
the  agreement,  and  has,  during  such 
time,  an  interest  in  the  realty  and 
ore  produced.  Hall  v.  Abraham,  44 
Ore,  477 ;  75  Pac.  Rep.  882. 

77  Kamphouse    v.    Gaffner,    supra. 

A  custom  in  mining  districts  that 
a  prospector  who  has  gone  upon  the 
premises  of  another  to  mine  under 
an  oral  license  shall  be  allowed  to 
remain  and  work  out  the  prospect 
of  ore  against  the  will  of  the  owTier, 
is  opposed  to  the  statute  of  frauds, 
and  cannot  prevent  a  revocation  of 
the  license,  even  though  expense  has 
been  incurred  and  improvement 
made  on  the  faith  thereof.  Ent- 
whistle  V.  iienke,  211  111.  i:73;  71 
N.  E.  Rep.  990;  affirming  113  111. 
App.  572. 


LEASES.  95 

give  the  licensee  the  common  law  notice  of  six  months — the 
notice  due  a  tenant  at  will — or  refund  to  him  his  expenditure 
in  making  the  improvements.  The  object  of  the  six  months' 
notice  is  to  make  the  improvements  available.^^  The  fact  that 
the  licensee  had  not  worked  a  mine,  under  a  license,  long 
enough  to  reward  him  for  labor  and  expenditures  made — will 
not  prohibit  the  revocation  of  his  license.''-'  I'pon  a  revocation 
of  the  license  by  notice  the  licensee  may  remove  his  machinery 
and  fixtures.^*'  After  revocation,  if  the  licensee  take  out  min- 
eral, he  acquires  no  title  to  it.'**^  A  license  given  to  a  partner- 
ship to  take  out  mineral  is  revoked  by  a  dissolution  of  the 
partnership.*- 

§  65.     Merger. 

If  the  lessor  convey  the  fee  to  the  lessee,  there  is  a  merger  of 
the  estate,  and  the  lease  ceases  to  exist.'*^  So  if  the  event  hap- 
pens upon  which  the  lease  is  to  cease,  there  is»a  merger. ''•*  And 
the  same  is  true  where  the  owner  may  and  does  abandon  liis 
lease ;  or,  where  he  may  not  abandon  it,  the  lessor  acquiescing 
in  his  abandoning  it.^^  So  a  deed  of  conveyance  will  merge  all 
previous  contracts  with  respect  to  the  land  between  the  vendor 
and  vendee,  although  in  writing.'^"  If  a  co-lessee  purchase  the 
lands  of  the  lessor  or  his  grantee,  such  co-lessee  becomes  the 
absolute  owner  of  the  royalty  reserved  in  the  lease  due  from 
the  other  lessee,  in  the  proportion  the  shares  held  by  him  bears 
to  that  of  such  co-lessee;  but  the  latter 's  interest  is  merged  in 

78  Bush     V.     Sullivan,     3     Greene       S.   E.   Rep.   756:    Carroll   v.   Provin- 
(la.)   344;  54  Am.  Dec.  506;  Beatty       cial,  etc.,  Co.,  26  Can.  S.  C.  591. 

V.  Gregory,  17  la.  109;  85  Am.  Dec.  Restate  v.  Coosaw  Mining  Co.,  47 

546;    Harkness    v.    Burton,    39    la.  Feci.    Rep.    225;    Fairchild    v.    Dun- 

101;   Huff  V.  McCauley,   53   Pa.   St.  bar,   128   Pa.   St.  485;    18   Atl.   Rep. 

206;    Funk  v.  Haldeman,  53  Pa.  St.  443. 

229.  85  Elk    Fork   Oil    and   Gas   Co.   v. 

79  Desloge  v.  Pearce,  supra.  Jennings,  84  Fed.  Rep.  839 ;  Bloom- 
so  Desloge  v.  Pearce,  supra.  field  Coal,  etc.,  Co.  v.  Tidrick,  99  la. 
81  Limsford  V.  La  Motte  Lead  Co.,  83;    68   N.   W.   Rep.    570;    Hawkins 

54    Mo.    426.      See    Chynowitch    v.  v.  Popper,   117  X.  C.  407;   23   S.  E. 

Granby,  etc.,  Co.,  74  Mo.  173.  Rep.   434;    Stage  v.   Boyer,   183   Pa. 

82Barksdale   v.   Ilairston,   81    Va.  St.  560;  38  Atl.  Rep.  1035. 
764.  8"  Carroll    v.    Prudence,   etc.,    Co., 

83Snoddy  v.  Bolen,   122  Mo.  479;  26    Can.    S.    C.    591;     Raymond    v. 

24   S.  W.   Rep.    142;    Detlor  v.  ITol-  Johnson,  17  Wash.  232;  49  Pac.  Rep. 

land,  57  Ohio  St.  492;  49  N.  E.  Rep.  492. 
690;   Silva  v.  Rankin,  80  Ga.  79;   4 


96 


OIL    AND    GAS. 


the  fee/'  So  if  two  owners  of  separate  properties  make  a 
joint  lease  of  both  tracts,  and  the  lessee  purchase  one  of  the 
tracts,  the  -lease  as  to  it  is  merged,  and  thereafter  the  lessee 
pays  only  one-half  the  rent  he  was  to  have  paid  the  two 
lessors.®^ 

§  66.     Consideration. 

Every  lease  to  be  binding  must  be  based  upon  a  considera- 
tion ;  if  it  is  not,  it  is  void.^"  Thus  w^here  the  lease  did  not  bind 
the  lessee  to  begin  and  prosecute  the  work  with  diligence,  and 
the  only  consideration  for  it  was  a  part  of  the  oil  produced,  it 
was  held  that  it  was  void  for  want  of  mutuality."'^  The  same 
result  w^as  unhesitatingly  reached  where  the  lessee  had  a  right 
at  any  time  to  surrender  the  lease  without  paying  therefor,  and 
was  not  bound  to  begin  operations,  the  only  consideration  being 
a  part  of  the  oil  produced.''^  An  agreement,  however,  to  pay  a 
dollar  an  acre  rent,  or  sink  a  well  as  the  lessee  may  see  fit,  the 
work  to  begin  by  a  certain  time,  and  the  lessor  to  have  a  certain 
part  of  the  oil  produced  and  so  much  for  each  gas  well  devel- 
oped, is  supported  by  a  sufficient  consideration.^^     Where  one 


87  Xorthwestern,  etc.,  Co.  v.  Davis, 
9  Ohio  C.  Ct.  Rep.  551;  38  Wkly. 
L.  Bull.  200;  40  Wkly.  L.  Bull.  251; 
6   Ohio   Cir.   Dec.   5.^9. 

88  Higgins  V.  California,  etc.,  Co., 
109  Cal.  304;  41  Pac.  Rep.  1087. 

89  Foster  v.  Elk  Fork,  etc.,  Co.,  90 
Fed.  Rep.  178;  Gl  U.  S.  App.  570; 
32  C.  C.  A.  560;  Huggins  v.  Daley, 
99  Fed.  Rep.  GOG;  40  C.  C.  A.  12; 
48  L.  R.  A.  320 ;  Brewster  v.  Lanyon 
Zinc  Co.  140  Fed.  801 ;  72  C.  C*  A. 
213;  Central  Ohio  Nat.  Gas  Co.  v. 
Eckert,  70  Ohio  St.  127;  71  K  E. 
281;  Allegheny  Oil  Co.  v.  Snyder, 
106  Fed.  764;  45  C.  C.  A.  604. 

90  Foster  v.  Elk  Fork,  etc.,  Co., 
supi'a. 

Though  an  oil  lease,  for  a  money 
consideration,  does  not  bind  a  lessee 
to  drill  or  pay  money  in  lieu  thereof, 
but  leaves  it  optional  with  him  to  do 
so  or  not,  yet  the  lessor  cannot 
amend  the  law  for  want  of  mutu- 
ality. Pyle  V.  Henderson,  65  W.  Va. 
39;    63   S.  E.   Rep.  762. 


91  Eclipse  Oil  Co.  v.  South  Penn. 
Oil  Co.,  47  W.  Va.  84;  34  S.  E.  Rep. 
923 ;  Treas.  v.  Eclipse  Oil  Co.,  47  W. 
Va.  107;  34  S.  E.  Rep.  933. 

92  McMillan  v.  Philadelphia  Co., 
159  Pa.  St.  142;  28  Atl.  Rep.  220; 
Allegheny  Oil  Co.  v.  Snyder,  106 
Fed.  Rep.  764;  Jennings-Hepvood 
Oil  Syndicate  v.  Houssiere,  etc.,  Oil 
Co.,  119  La.  793;  44  So.  Rep.  481; 
Friend  v.  Mallory,  52  W.  Va.  53 ;  43 
S.  E.  114;  Pittsburg,  etc.,  Brick  Co. 
V.  Bailey,  76  Kan.  42;  90  Pac.  Rep. 
803. 

Where  the  real  consideration  for 
the  execution  of  the  lease  was  the 
exploration  of  the  mineral  resources 
of  the  farm,  and  not  the  recited 
consideration  of  one  dollar,  it  was 
held  that  the  nonpayment  of  one 
dollar  did  not  invalidate  the  lease. 
Gillespie  v.  Fulton  Oil  &  Gas  Co., 
236  111.  188;  86  X.  E.  Rep.  219; 
:Murray  v.  Barnhart,  117  La.  1023; 
42  So.'  Rep.  489. 


LEASES.  97 

dollar  was  paid  for  a  lease,  to  run  two  j^ears,  with  the  privilege 
of  twenty-five  years  on  payment  of  one  dollar  per  acre,  it  was 
held  there  was  a  sufficient  consideration  to  hold  it."^  But  where 
the  consideration  was  nominal,  and  the  lessee  led  the  lessor  to 
believe  operations  would  begin  soon,  but  the  lessee  had  the 
power  to  postpone  operations  on  payment  of  a  small  sum  of 
money,  a  court  of  equity  refused  to  uphold  the  lease,  regarding 
it  merely  as  an  option. °*  Where  the  lessee  agreed  to  complete 
a  second  well  within  a  certain  time  after  the  completion  of  the 
first  one,  but  did  not  agree  to  complete  or  even  commence  such 
first  one,  as  to  the  second  well  it  was  held  there  was  no  consid- 
eration for  the  contract.""'  An  agreement  to  pay  "one  dollar 
per  acre  each  year,"  where  no  oil  or  gas  was  found  within  two 
years,  was  held  too  indefinite  as  an  agreement  for  the  further 
extension  of  the  lease.""  Where  the  lessee  was  to  pay  at  least 
one  thousand  dollars  per  annum  for  the  use  of  mining  property, 
it  was  held  not  to  be  error  to  refuse  to  cliarge  the  jury  that 
owing  to  the  almost  entire  absence  of  ore  in  mining  the  con- 
sideration for  the  lease  had  failed.""  A  lease,  on  a  considera- 
tion of  one  dollar  paid,  gave  the  lessee  the  right  to  drill  for  cil 
and  gas,  with  privileges  incidental  to  the  production  and  re- 
moval of  the  oil  and  gas  produced,  for  a  term  of  two  years,  and 
as  long  thereafter  as  they  should  be  found  in  paying  quantities, 
not  exceeding  in  all  twenty-five  years.  The  lessee  was  to  pay 
a  royalty  on  the  production.  It  then  provided  that  "in  case 
no  well  shall  be  drilled  on  said  premises  within  two  yeap:'s  from 
the  date  hereof,  this  lease  shall  become  null  and  void,  unless 
the  lessee  shall  pay  for  the  further  delay  at  the  rate  of  one 
dollar  per  acre  at  or  before  the  end  of  each  year  thereafter." 
It  was  held  that  the  lease  constituted  an  entire  contract,  and 
that  the  consideration  recited  in  it  supported  both  the  grant 
of  the  two  years'  term  and  the  privilege  of  extending  the  time 
for  drilling   by  paying   the   stipulated   price   therefor."'^     The 

93BrowTi  V.  Ohio  Oil  Co.,  21  Ohio  "•»  Eclipse  Oil   Co.  v.  South  Penn. 

C.  C.   117;    11   Ohio  C.  C.  Dec.  810:  Oil  Co.,  supra. 

affirmed  G5  Ohio  St.  507;    63  N.   E.  »-' Federal   Oil   Co.  v.  West.-rn  Oil 

Rep.  70.     See  also  Monfort  v.  Lan-  Co.,    112    Fed.    Rep.    373. 

yon  Zinc  Co.,  07  Kan.  310;   72  Pac.  oo  Brown   v.    Fowler,   C5    Oliio    St. 

Rep.  784.  -yOl:   03  N.  E.   Rep.  76. 

One   dollar  and   rental  thereafter,  ""  Barmford    v.   Leliijrh    Zinc    and 

if   oil    be    discovered,    is    a   sufficient  Iron    Co.,   33    Fed.    Rep.    077. 

consideration    for   the   lease.      Pitts-  os  Alleg'tieny  Oil  C/O.  v.  Snyder,  106 

burtr   Vitrified,    etc.,    Co.    v.    Bailey,  Fed.  Rep.  764;  45  C.  C.  a".  604. 
76  Kan.  42;   00  Pac.  Rop.  803. 


98  OIL   AND    GAS. 

payment  of  one  dollar,  and  the  erection  of  valuable  machinery 
on  the  demised  premises,  has  been  held  to  be  a  sufficient  con- 
sideration for  a  lease. "^  Where  the  lease  required  the  lessee  to 
commence  a  test  well  on  the  premises  within  a  certain  time,  and 
this  requirement  was  complied  with,  it  was  held  that  there 
was  a  sufficient  consideration  for  such  lease.^"** 

"  A  person  or  company  purposing  to  obtain  natural  gas  in 
large  quantity  for  sale  or  for  manufacturing  purjwses,  finds  it' 
desirable  to  acquire  exclusive  right  to  search  for  the  fugitive 
mineral  in  a  large  contigiious  area  or  areas;  and  though  it  be 
not  necessary  for  the  proper  development  of  a  particular  well 
or  to  drill  wells  upon  the  land  of  all  the  several  proprietors 
within  the  district,  it  is  desirable  and  profitable  to  have  no 
comi>eting  wells  on  the  territory  near  to  the  wells  deemed  suffi- 
cient for  the  development  of  the  territory.  This  accounts  for 
and  leads  to  the  insertion  in  contracts  made  between  such  pros- 
pectors and  the  land  owners  of  provisions  for  exclusive  rights, 
and  stipulations  forbidding  the  land  owners  from  drilling  wells 
uix)n  their  own  land  or  permitting  others  to  do  so ;  also,  along 
witli  a  provision  for  an  exclusive  right,  it  is  common  to  insert 
a  stipulation  for  the  privilege  of  delay  in  drilling  wells,  upon 
a  specified  consideration.  Such  provisions  constitute  valuable 
considerations  in   these  contracts. "'°^ 

99  Herrington  v.  Wood,  6  Ohio  C.  An  oil  lease  granting  the  lessee 
C.   Rep.  326 ;    3  Ohio  Cir.  Dec.  475.       the  right  to  operate  on  forty   acres 

100  Stahl  V.  Van  Vleck,  .53  Ohio  of  land  on  which  oil  had  never  been 
St.  136;  41  N.  E.  Rep.  35;  33  Wkly.  produced,  and  worth  only  $10  an 
L.  Bull.  335.  acre,  under  a  contract  to  begin  oper- 

Where  the  lessee  agrees  to  com-  ations  in  six  months,  or  $5  quarterly 
plete  a  second  well  within  ninety  in  advance  for  each  three  months 
days  after  the  completion  of  the  delay  and  for  a  payment  of  royalty 
first,  but  does  not  agree  to  complete  on  the  oil  severed  and  the  gas  mark- 
er even  commence  the  first  well,  eted,  was  held  to  be  based  on  a 
such  agreement  as  to  the  second  well  sufficient  consideration.  Heywood 
is  no  consideration  for  the  contract.  Oil  Syndicate  v.  Houssiere-Latrelle 
Federal  Oil  Co.  v.  Western  Oil  Co.,  Oil  Co.,  119  La.  793;  44  So.  Rep. 
112  Fed.  373;  affirmed  121  Fed.  481;  Pittsburg,  etc.,  Brick  Co.  v. 
674;   57  C.  C.  A.  428.  Bailey,    76    Kan.    42;    90    Pac.    Rep. 

101  Simpson  v.  Pittsburg,  etc.,  803;  Dill  v.  Frazee,  109  Ind.  53; 
Co.,  28  Ind.  App.  343;  62  N.  E.  79  X.  E.  791  (as  against  assignee 
Rep.   753.  of    lease    a    small    consideration    is 

valid). 


LEASES. 


99 


§67.     Option  to  purchase  after  development. 

A  lcai;e  provided  tliat  "  after  the  first  \vc]\  is  completed,  pro- 
vided it  is  a  pa^'ing  well,  said  second  party  shall  have  tlie  privi- 
lege of  buying  or  leasing  the  remainder  of  said  Schiller  farm, 
provided  he  and  said  Sehnlcr  can  agree  iijx)n  the  terms  within 
six  months."  The  court  did  not  consider  this  was  an  option  in 
the  ordinary  sense  of  the  term,  nor  an  offer  to  tlie  lessee  of  the 
remainder  of  the  farm  upon  defined  terms,  either  of  purchase 
or  of  lease  on  royalty,  Iw  the  acce]itance  of  which  ho  could  be- 
come either  a  purchaser  or  a  lessee.'"" 


A  test  well  having  been  commenced 
and  completed  at  a  designated  place 
within  ninety  da,ys  and  the  existence 
of  oil  ascertained  sufficiently  com- 
plies with  the  alternative  provision 
of  a  lease  requiring  lessees  "to  covi- 
mence  a  test  oil  or  gas  loell"  at  that 
place  in  ninety  days,  and  the  fact 
that  such  well  was  immediately 
plugged  and  casing  withdrawn  and 
all  operations  thereon  had  ceased 
for  several  months  does  not  defeat 
the  consideration  for  the  lease. 
Stahl  V.  Van  Vleck,  30  Ohio  Cir.  Ct. 
R.  755. 

An  agreement  by  a  lessor  to  re- 
duce the  annual  gas  rental  provided 
for  by  his  lease  if  the  lessee  would 
lay  a  pipe  line  to  the  well  and  util- 
ize the  gas  is  founded  on  a  suffi- 
cient consideration,  and  will  be  en- 
forced. Consumers'  Heating  Co.  v. 
American  Land  Co.,  31  Pittsb.  Leg. 
J.  (K  S.)   24. 

The  consideration  of  an  oil  lease 
having  a  granting  clause,  a  haben- 
dum clause,  a  condition  subsequent, 
and  a  surrender  clause,  apjilies  to 
the  whole  lease,  and  to  each  clause 
of  it.  Brown  v.  Fowler,  65  Ohio 
St.   507:    03   X.   E.   Rep.    76. 

102  Childs  V.  Gillespie,  147  Pa.  St. 
173;  23  S.  E.  Rep.  312.  See  case 
of  a  coal  lease.  Pollard  v.  Sayre, 
45  €olo.   195;   98  Pac.  Rep.   816. 


A  lease  of  asphalt  land  provided 
that  if,  on  or  before  July  1,  1900, 
the  lessees  should  not  have  paid 
royalty  on  34,000  tons  of  asphalt  at 
the  rate  fixed,  they  should  pay  to  the 
lessor  on  such  day  royalty  equal  to 
the  difference  between  the  royalty 
paid  and  that  payable  on  that  num- 
ber of  tons,  and  if  at  that  time  the 
lessees  should  have  performed  all 
the  conditions  contained  in  tlic  lease, 
the  lessor  covenanted  to  renew  the 
lease  at  the  lessees'  option.  It  was 
held  that  the  conditions  for  renewal 
and  payment  were  eoncurrcnt,  and 
the  lessor,  having  refused  to  renew, 
was  not  entitled  to  recover  the  dif- 
ferential payment  provided  for. 
Warner  v.  Cochrane,  128  F.  553;  63 
C.  C.   A.  207. 

Where  the  lessee  served  notice  of 
an  intention  to  exercise  his  rigiit 
of  purchase  and  take  the  premises, 
and  a  deed  was  then  prepared  but 
not  delivered  for  three  months,  be- 
cause of  failure  of  the  lessee  to  pay 
the  purchase  money,  it  was  held  th:it 
the  lessee  must  pay  for  the  coal 
he  had  mined  during  the  three 
months  of  delay,  for  the  contract  oi 
purchase  was  not  completed  when 
the  option  of  purchase  was  exer- 
cised. Flynn  v.  Wliite  Breast  Coal 
Co.,  72  la.  738;  32  X.  W.  Rep. 
471. 


100 


OIL   AND    GAS. 


§  68.     Option  to  extend  lease. 

A  lease,  given  for  five  years,  required  the  lessee  to  drill  a 
well  within  six  months,  or  in  default  pay  for  further  delay  an 
annual  rental  in  advance,  until  a  well  should  be  completed. 
For  a  failure  to  complete  the  well  or  pay  the  rental  for  ten  days 
after  the  time  specified,  the  lease  should  be  void,  only  to  be  re- 
newed by  mutual  consent;  and  "no  right  of  action  should  after 
such  failure  accrue  to  either  party  on  account  of  the  breach  of 
any  condition"  in  the  lease.  The  lease  was  construed  to  give 
the  lessee  an  option  to  put  down  a  well  within  six  months,  and 
by  paying  the  rental  named,  the  further  option  for  one  year  ^°^ 
Where  it  is  optional  with  the  lessee  whether  he  will  take  the 
land  or  not  at  the  end  of  the  year,  and  the  lessor  represents  to 
the  lessee  he  would  extend  the  time,  and,  on  the  faith  of  such 


103  Van  Voorhis  v.  Oliver,  22 
Pittsb.  L.  J.    (N.   S.)    114. 

A  grant  to  a  corporation,  its  suc- 
cessors and  assigns,  of  all  the  oil 
and  gas  in  and  under  a  tract  of 
land,  on  consideration  that  the  sec- 
ond party  shall  drill  a  well  within 
rsix  months,  or  thereafter  pay  a  cer- 
tain annual  sum,  or  reconvey  the 
property  to  the  first  party,  and  that 
the  lessee  may  at  any  time  remove 
its  property  and  reconvey  the  prem- 
ises, whereupon  the  lease  shall  be 
void,  after  six  months,  and  until  a 
well  is  drilled,  is  a  lease  at  an 
annual  rental,  at  the  option  of  the 
lessee  only.  Central  Ohio  Natural 
Gas  &  Fuel  Co.  v.  Eckert,  70  Ohio 
127;  71  X.  E.  281. 

Where  a  lease  of  asphalt  land  pro- 
vided for  a  renewal  concurrently  on 
the  pajTnent  by  the  lessees  of  a 
sum  equal  to  the  difl"erence  between 
the  royalty  paid  and  that  which 
would  be  payable  on  a  specified  num- 
ber of  tons  of  asphalt,  and  the  lessor 
wrongfully  refused  to  make  such  re- 
newals, the  lessees  or  their  assignees 
were  at  liberty  either  to  tender  such 
difl"erential   rent  and  insist  on   spe- 


cific performance  of  the  covenant  to 
renew,  or  refuse  payment,  and  treat 
the  contract  as  at  an  end.  Warner 
V.  Cochrane,  128  F.  .553;  63  C.  C.  A. 
207. 

A  gas  lease  is  not  void  merely  be- 
cause the  lessee  stipulates  that  at 
the  end  of  a  certain  period  he  shall 
have  the  right  to  keep  the  lease  in 
force  by  then  doing  some  act  which 
at  the  date  of  the  lease  he  is  unable 
to  perform.  Ringle  v.  Quigg,  74 
Ivan.  581;   87  Pac.  Rep.  724. 

One  of  the  lessees  in  a  lease  of  oil 
lands  parted  with  all  interest  there- 
in and  thereafter  purchased  a  fourth 
interest  in  the  fee  of  land  other  than 
that  covered  by  the  original  lease. 
Thereafter  the  o^^Tier  of  iiie  land 
covered  by  the  original  lease  con- 
tracted in  writing  with  the  owner 
of  the  one-fourth  interest  in  the 
other  land,  in  whicli  it  was  recited 
that  he  was  a  part  owner  in  such 
land,  and  agreed  that,  when  he  be- 
came owner  of  the  three-fourths  of 
such  land,  he  woiild  extend  the  orig- 
inal lease  to  the  owner  of  the  quar- 
ter interest,  and  the  latter  agreed  to 
surrender  a   certain   interest   in   the 


LEASES.  101 

representations,  the  lessee  goes  on  and  expends  moneys,  and 
carries  out  his  part  of  the  contract,  the  lessor  will  be  bound ; 
and  if  the  property  is  community  property,  representations 
of  the  lessor's  husband  to  the  same  effect,  followed  by  the 
expenditure  of  money  and  carrying  out  the  provisions  of  the 
lease,  will  bind  the  wife.'"*  Where  a  gas  and  oil  lease  pro- 
vided that  the  lessee  should  explore  the  lands  for  these  min- 
erals within  a  certain  time,  or  pay  a  certain  sum  quarterly  in 
case  of  delay,  the  lessor  had  no  right  to  resume  possession 
until  default  by  the  lessees,  both  in  not  exploring  the  land  and 
not  paying  for  the  delay/"*" 

§  69.     Acceptance  of  second  lease  by  lessee  of  first  lease. 

If  a  lessee  is  improperly  refused  possession  by  the  lessor,  and 
assenting  to  this  refusal  he  accepts  a  second  lease  for  the  same 
premises,  the  act  of  executing  and  accepting  the  second  lease 
amounts  to  a  rescinding  of  the  first  one  and  terminates  all 
rights  under  it:'"*''  And  an  assignee  of  the  first  lease,  who  took 
it  with  notice  of  the  execution  of  the  second  lease,  is  bound  by 
the  result,  even  though  he  expend  large  sums  of  money  in 
developing  the  premises  before  finding  out  that  the  lessor  is 
treating  such  assignee's  possession  as  one  under  the  second 
lease  which  he  had  never  seen.  A  mere  rumor  that  the  lease 
has  been  assigned  is  not  sufficient  to  affect  the  lessor ;  but  a 
communication  made  directly  to  him  by  either  the  lessee  or 
assignee  of  the  assignee's  understanding,  of  his  right  of  pos- 
session, will  require  him  to  act  and  be  binding  upon  him.^"^ 

oil  produced  as  provided  by  the  orig-  i04b  Garrett  v.  South  Penn.  Oil  Co., 

irial    lease.      It   was    held   that   such  66  W.  Va.  587;  66  S.  E.  Rep.  741. 

agreement     referred     only     to     the  los  Natural    Cas    Co.    v.    Philadel- 

fourth    interest    in    the    land    pur-  phia  Co.,   158   Pa.   St.   317:   27  Atl. 

chased,  and  not  to  the  land  covered  Rep.   951;    Elk  Fork  Oil  &   Gas  Co. 

by  the  original   lease   in   which   the  v.   Jennings,    84   Fed.   839 ;    afTirnied 

lessee  had  no  further  interest.     Col-  90  Fed.  178;  32  C.  C.  A.  560;  Eaton 

lins  V.  South  Penn.  Oil  Co.,  222  Pa.  v.    Allegheny    Gas    Co.,    122    X.    Y. 

345;  71  Atl.  319.  416;  25  X.  E.  981:   Pyle  v.  Hender- 

104  Presidio  Mining  Co.  v.   Bullis,  son,   65   W.   Va.   39;    63    S.   E.   Rep. 

68    Tex.    581;    4    S.    W     Rep.    860;  762. 

Pittsburg,  etc.,  Brick  Co.  v.  Bailey,  Where  an  agent  of  a  lessee  o-f  oil 

76    Kan.   42;    90   Pac.    Rep.   .jU3.  lands,  \\hose  business  it  was  to  take 

104  1  IIoussiere-Latreille   Oil    Co    v.  leases,    had    knowledge    of    a    prior 

Jennings-Heywood      Oil      Syndicate,  lease  at  the  time  of  taking  his  prin- 

115  La.  107;   38  So.  Rep.  932.  cipal's  lease,  and  the   vice-president 


102 


OIL   AND    GAS. 


The  subsequent  lessee  cannot  question  the  validity  of  the  first 
lease  on  the  ground  that  it  lacks  mutuality,  or  that  it  was 
revoked  by  the  giving  of  a  subsequent  one.^"^"  Where  A.  and 
B.  joined  in  a  lease  of  their  land  to  C,  and  thereafter  the 
lease  was  abandoned,  B.  making  a  separate  lease  for  one  year 
on  different  terms,  and  on  the  discovery  of  oil  on  B.'s  tract  C. 
entered  on  the  land  of  A.  and  was  enjoined  by  A.,  who  soon 
thereafter  sold  a  one-fifth  interest  to  plaintiffs  in  the  land, 
they  acquired  a  title  free  of  the  first  lease,  and  were  not 
affected  by  a  subsequent  compromise  of  the  suit  and  a  recog- 
nition by  A.  of  the  first  lease  in  a  modified  form/'^"''^  Any 
equities  in  favor  of  a  lessor  in  an  oil  lease  arising  out  of  sup- 
pression of  facts  when  the  lease  was  made  or  failure  to  pay  a 
bonus  provided  for  therein,  and  the  receipt  of  which  was 
acknowledged,  does  not  affect  the  validity  of  the  lease  in  the 
hands  of  assignees  who  took  it  for  value  in  good  faith  and 
without  any  knowledge  of  such  facts.^°^*^ 


of  such  lease  also  had  sufficient  in- 
formation to  put  liim  on  inquiry, 
and  the  lessee  interposed  no  defense 
of  innocent  purchaser,  it  was  held 
that  the  lessee's  rights  were  sub- 
ordinate to  those  of  the  prior  lessee. 
South  Penn.  Oil  Co.  v..  Stone  (Tenn. 
Ch.  App.),  57  S.  W.  Rep.  374. 

Where  defendant  claimed  -an  in- 
terest in  land  as  lessee  under  an  oil 
anfd  gas  lease  which  plaintiff  claimed 
was  forfeited  for  nonpayment  of 
rent,  and  defendant  alleged  that  its 
assignor  had  made  the  payments  be- 
fore defendant  procured  the  lease, 
evidence  was  admissible  to  show  that 
the  lease  in  question  was  but  a  sub- 
stitution for  a  prior  one  between 
plaintiff  and  defendant's  assignor, 
and  that,  when  the  later  lease  was 
made,  the  assignor  was  paying  rent 
under  the  former  one,  and  it  was 
agreed  between  plaintiff  and  the  as- 
signor that  the  payments  should  con- 
tinue under  the  later  lease,  and  that 
the  payments  in  question  were  made 
on  the   prior   lease   and  not   on   the 


later  one;  the  evidence  not  being 
addressed  to  what  the  terms  of  the 
new  lease  were  or  what  the  rights 
of  the  parties  would  be  under  it, 
but  merely  to  the  application  of  a 
payment  of  rent,  and  hence  not  being 
contradictory  of  the  terms  of  the 
written  lease.  Erie  Crawford  Oil 
Co.  V.  Jones,  86  N.  E.  1027;  43  Ind. 
App.  187. 

If  the  first  lease  be  recorded,  all 
are  charged  with  notice  of  the  pro- 
visions. Busch-Everett  Co.  v.  Vivian 
Oil  Co.,  128  La.  886;  55  So.  504, 
So,  if  a  suit  be  pending  to  cancel  a 
lease,  all  are  charged  with  notice  of 
that  fact.  Fox  v.  Simmons,  251  111. 
316;   96  N.  E.  233. 

105a  Compton  v.  People's  Gas  Co., 
75  Kan.  572;  89  Pac.  Rep.  1039;  10 
L.   R.  A.    (N.   S.)    787. 

io5b]\iartel  v.  Jennings-HeyAvool 
Oil  Syndicate,  114  I^.  351;  38  So. 
Rep.  253. 

105C  Moore  v.  Sawyer,  167  Fed. 
Rep.  826. 


LEASES.  108 

§  70.     Extension  of  time  of  lease  may  amount  to  a  new  lease. 

The  extension  of  the  time  of  a  lease  may  amount  to  a  new 
lease.  Thus  where  an  oil  lease  was  for  a  term  of  five  years 
and  as  much  longer  as  oil  or  gas  was  found  or  produced  in  pay- 
ing quantities,  the  consideration  being  one-eighth  of  all  the  oil 
produced  or  found  on  the  premises,  delivered  free  of  expense 
in  the  tanks  or  pipe  lines  to  the  credit  of  the  lessor ;  and  if  gas 
was  found  in  sufficient  quantity  to  justify  marketing  it,  then 
the  consideration  was  a  royalty  of  one  hundred  dollars  a  year 
for  each  well,  so  long  as  gas  was  used  from  it ;  and  a  well  was 
to  be  completed  within  nine  months,  and  in  case  of  failure  to 
do  so,  the  lessee  was  to  pay  a  yearly  rental  .of  fifty  cents  per 
acre,  and  it  was  conditioned  that  a  failure  to  drill  the  well  on 
time  or  pay  the  rent  should  render  the  lease  "null  and  void," 
and  to  remain  ' '  without  any  effect  between  the  parties ' ' ;  and 
neither  possession  was  taken  nor  work  commenced  within  the 
five  years,  it  was  held  that  the  lease  terminated  after  the 
expiration  of  five  years,  as  no  gas  or  oil  was  produced  within 
that  time,  and  any  extension  of  time  after  the  expiration  of 
the  five  years  was  in  effect  the  execution  of  a  new  lease.^""  A 
deed  conveyed  one-sixteenth  of  the  gas  and  oil  under  a  tract 
of  land.  It  provided  that  it  was  subject  to  any  rights  existing 
in  the  lessee  under  a  prior  lease,  but  if  that  lease  had  expired 
or  become  void,  or  if  no  such  lease  ever  existed,  it  then 
granted  to  the  lessee  all  the  rights  and  privileges  of  drilling 
and  operating  on  the  land  to  produce,  store  and  remove  'said 
oil  and  gas  necessary  and  usually  granted  to  the  lessee  in  an 
oil  and  gas  lease. "  It  was  held  that  the  words  "said  oil"  could 
not  grammatically  and  did  not  refer  to  the  one-sixteenth 
granted  in  fee,  but  referred  to  their  next  preceding  antecedent, 
to-wit,  the  oil  and  gas  covered  by  the  prior  lease,  and  hence 
the  new  lease  conveyed  not  only  a  one-sixteenth  of  all  the  oil 
and  gas,  but,  subject  to  the  prior  lease,  was  a  lease  of  the 
land  to  the  grantee  for  oil  and  gas  purposes,  with  exclusive 
rights,  reserving  the  usual  royalty  and  with  covenants  and 
agreements  usually  contained  in  an  oil  and  gas  lease.'*""'" 

106  Northwestern  Oiiio,  etc.,  Co.  r.  N.    E.    Rep.    76.      See    also    Martel 

City  of  'liffin,  5'9   Ohio   St.   420;    54  v.   Jennings-Heywood   Oil  Syndicate, 

N.   E.    Rep.   77;    41    Wkly.    L.    Bull.  114  La.  351;   38  So.   Rep.  253. 
48.     See   Biven   v.   Ohio  Oil   Co.,    11  looa  Garrett    v.    South    Penn.    Oil 

Ohio  C.  C.  Dec.  810:   21   Ohio  C.  C.  Co.,  66  W.  Va.   587;    60   S.  E.   Rep, 

117;    affirmed   65   Ohio   St.   507;    63  741. 


10-4  OIL   AND    GAS. 

§  70a.     Effect  of  paymen-  of  rent  upon  extension  of  lease  in 
point  of  time. 

Payment  of  rent  instead  of  development  of  the  land  for  gas 
and  oil  may  have  the  effect  to  extend  the  time  of  the  lease. 
Thus  a  provision  in  a  lease  that  the  annual  rental  should  be 
payable  within  three  months  after  the  six  months  during  which 
a  well  was  to  be  completed  was  held  to  extend  the  lease  one 
year  from  the  termination  of  the  six  months'  period,  but  not 
from  the  additional  three  months'  period."*'^  So  where  an 
oil  lease  was  given  for  sixty  days,  and  as  much  longer  as  gas 
and  oil  should  be  found  in  paying  quantities,  and  it  provided 
for  the  drilling  of  one  well  within  sixty  days,  and  on  failure 
to  commence  drilling  within  such  time  the  lessees  were  to  pay 
$50  per  month  in  advance  in  full  payment  for  such  delay  until 
one  well  should  be  completed,  unless  the  lease  was  surrendered 
before  payment  was  due,  and  that  a  failure  to  complete  the 
drilling  of  a  well  or  to  pay  any  rental  should  render  the  lease 
void,  it  was  held  that  on  the  hypothesis  that  the  term  was 
extended  for  sixty  days  in  addition  to  the  original  term  by  a 
payment  of  $50  per  month,  the  lessees  would  not  hold  o\er 
longer  than  such  additional  time,  unless  they  found  and  pro- 
duced oil  in  paying  quantities  within  that  time.^"*'*'  But  where 
a  lease  of  two  acres  out  of  a  large  tract  of  land  stated  that  it 
was  to  give  the  lessee  the  right  to  drill  for  oil  or  gas,  and  that 
it  was  for  a  term  of  twelve  years,  and  so  long  thereafter  as 
oil  or  gas  could  be  produced  in  paying  quantities,  or  payments 
afterward  provided  for  were  made ;  and  it  was  then  provided 
that  the  lessee  should  give  the  lessor  one-eighth  of  all  petro- 
leum obtained  from  the  premises,  pay  a  certain  sum  annually 
for  gas  from  each  productive  well,  and  furnish  sufficient  gas 
to  heat  and  light  the  lessor's  dwelling;  and  the  lessee  then 
covenanted  to  drill  wells  within  one  year,  or,  in  lieu  thereof,- 
to  pay  a  certain  sum,  which  was  to  be  payable  each  year  until 
operations  were  commenced  and  a  well  completed,  it  was  held 
that  where  no  well  had  been  drilled,  tlie  term  of  the  lease 
could  not  be  extended  beyond  twelve  years  by  payment  of  the 
yearly  rental  therein  provided  for.^"^*^    Where  lessors  accepted 

106b  Baker   v.    Stow,   30   Ohio  Cir.  loed  Indiana    Natural    Gas    &    Oil 

Ct.   Rep.    724.  Co.  v.  Beales   ( Ind.  App.),  74  N.  E. 

106c  Murdock- West    Co.    v.    Logan,  Rep.   551.     This  case,   however,  was 

69  Ohio  St.  514;   69  N.  E.  Rep.  984,  transferred   to    the   Supreme    Court 


LEASES.  105 

and  used  gas  supplied  by  a  gas  company  and  paid  for  by  the 
lessees,  in  consideration  for  which  the  lessees  were  granted  un 
extension  of  time  to  open  a  well  producing  gas  and  oil,  whicli 
by  reason  of  the  intermingling  of  the  oil  with  the  gas,  and 
for  want  of  marketable  facilities  of  the  oil,  was  unprofitable  to 
operate  for  either  gas  or  oil,  it  was  held  to  neither  extend  the 
terms  of  the  lease  nor  waive  conditions  of  forfeiture  for  non- 
compliance therewith,  especially  after  the  expiration  of  the 
time  contracted  for  and  in  the  absence  of  a  well  profitably 
producing  either.  And  it  was  further  held  that  the  lessor 
was  not  required  directly  to  notify  lessees  to  shut  off  the  gas 
from  the  house  after  giving  general  notice  of  the  expiration 
of  the  lease.""*  A  gas  lease  required  a  well  to  be  completed 
within  a  year.  No  time  for  the  expiration  of  the  lease  was 
designated,  except  that  it  should  terminate  on  failure  to  pro- 
duce oil  or  gas  in  paying  quantities.  On  completion  of  a  well 
within  the  year,  it  was  held  that  the  lessor  was  not  entitled  to 
rental,  payment  of  which  was  to  be  made  if  the  well  was  not 
completed  within  the  designated  time.  In  this  instance  the 
lessees  had  made  a  cash  payment  of  $1,500  upon  the  date  of 
the  contract,  and  expended  $2,200  in  developing  a  well  within 
the  designated  time,  though  not  a  paying  producer.  It  was 
held  that  they  were  entitled  to  a  reasonable  extension  of  time 
to  make  further  search  for  oil  and  gas  in  paying  quantities, 
and  that  an  injunction  would  not  lie  within  five  months  of 
the  completion  of  such  well,  upon  a  refusal  to  pay  such  rental, 
to  restrain  them  from  entering  upon  the  premises  and  oper- 
ating them  for  oil  and  gas.^-"""  But  where  a  contract  granted 
an  exclusive  right  to  drill  and  operate  oil  and  gas  wells  for  a 
term  of  three  years,  and  as  much  longer  as  oil  and  gas  were 
found  in  paying  quantities,  in  consideration  for  which  the 
.operators  were  to  pay  a  royalty  on  oil  produced  and  $300  per 
well  for  gas,  and,  in  case  no  well  was  drilled  within  the  first 
six  months,  a  stipulated  rental  per  month,  it  was  held  that  the 

of  the  State  wherein  the  Appellate  which  to  l)egin  operations.     Indiana 

Court  decided  as  above   stated,  and  Natural    Gas   &    Oil    Co.   v.    Beales, 

that  court  held  that  the  lessor  could  100    Tnd.   «84;    76   X.   E.    Rep.   520. 

noc,  at  the  expiration  of  the  twelve  moe  Miller  v.  Vandergift,  30  Ohio 

years,     arbitrarily     determine     the  Cir.  Ct.  Rep.  730. 

lease  without  giving  the  lessee  a  rea-  losf  Deihl  v.  Ohio  Oil  Co.,  30  Ohio 

sonable    time,    after    notice,    within  Cir.   Ct.    Rep.    7.50. 


106  OIL   AND    GAS. 

contract  terminated  upon  the  expiration  of  three  years  unlecs 
gas  or  oil  was  produced  in  paying  quantities.  It  was  also  held 
that  the  payment  of  yearly  rental  and  tender  of  $300  per  year 
for  non-producing  gas  well  did  not  effect  an  extension  of  its 
terms;  nor  did  a  separate  agreement  upon  consideration  of 
three  years  and  eight  months  after  the  date  of  the  contract, 
granting  an  extension  to  a  fixed  date  more  than  a  year  in  the 
future,  the  terms  of  which  was  endorsed  on  the  original  agree- 
ment, continue  the  original  contract  in  force  beyond  such  fixed 
date,  especially  since  no  new  nor  further  efforts  had  been 
made  to  develop  gas  or  oil  on  the  premises.^°®s 

§  71.     Options. — Revocation. 

Options  concerning  oil  or  gas  territory  in  the  past  have  not 
been  uncommon,  much  to  the  detriment  of  the  owner  of  such 
territory.  An  option  as  applied  to  oil  or  gas  territory,  is  an 
offer  whicli  has  not  been  accepted,  containing  the  terms  and 
conditions  on  whicli  the  person  making  it  will  sell  or  lease  his 
premises,  and  giving  the  holder  of  it,  or  the  person  to  whom 
it  is  made,  a  specified  time  within  which  to  elect  to  accept  it. 
The  holder  of  the  option  is  under  no  obligation  to  accept  it,  but 
if  he  elects  to  do  so  he  must  give  the  person  making  it  notice  of 
that  fact.  After  notice  given  of  an  election  to  accept  the  offer, 
it  becomes  a.  valid  and  binding  contract.  But  the  acceptance 
must  he  made  within  the  time  fixed ;  for  after  that  time  has  ex- 
pired the  owner  of  the  premises  is  no  longer  bound  by  his  offer, 

io6g  Northwestern   Ohio   Nat.   Gas  The   provision   of   a    gas    and   oil 

Co.    V.    WTiitacre,    30   Ohio   Cir.    Ct.  lease    that   the   annual   rental   shall 

Rep.  737;  Flanagan  v.  Marsh  (Ky.),  be  paj-able  within  three  months  ai- 

32  Ky.  L.  Rep.  184;   105  S.  W.  Rep.  ter  the  six  months  during  which  a 

424;  Indiana  Natural  Gas  &  Oil  Co.  well    was    vo   be    completed    extends, 

V.  Sexton,  39  Ind.  App.  575 ;   G8  N.  the  lease  one  year  from  the  termina- 

E.  Rep.  692;  Erie  Crawford  Oil  Co.  tion  of  the  six  months'  period,  and 

V.  Meeks,  40  Ind.  App.  15C):  81  N.  E.  not      from      the      additional      three 

Rep.   518;    Indiana   Natural    Gas   &  months'  period.     Baker  v.  Stow,  30 

Oil   Co.   V.   Lee,   34   Ind.   App.    119;  Ohio  Cir.  Ct.  R.   724. 
T2  N.  E.  Rep.  492;  Indiana  Natural  Contract   construed   and   held   not 

Gas  &  Oil  Co.  V.  Grainger,  33   Ind.  to  contain   a   postestative  condition. 

App.  559;   70  N.  E.  Rep.  3i95;  Con-  Busch-Everett  Co.  v.  Vivian  Oil  Co., 

sumers'    Gas    Trust   Co.    v.    Littler,  128  La.  886;  55  So.  564. 
162  Ind.  320;   70  N.  E.  Rep.  363. 


LEASES.  107 

and  the  option  is  at  an  oiul.'"'  Tims  where  the  ownicr  of  hind 
entered  into  an  agTeenient  providing  that  A  shoukl  "  have  the 
1  ight  to  enter  npon  tlie  premises  .  .  .  with  men,  teams, 
v>nd  tools  for  the  pnr]X)se  of  prospecting  and  examining  for 
•..lines  and  minerals,  and  to  dig,  carry  away,  and  test  such  ]3or- 
v.ions,"  etc.,  ''  as  he  may  think  proper,"  .  .  .  '^  and  if  he, 
|fter  making  such  examination  and  test,"  etc.,  "  shall  ))c  of 
opinion  that  they  are  worth  working,  he  shall  then  have  the 
right  to  go  on  and  dig,  carry  away,  and  canse  to  be  worked  such 
.•)f  the  substances  there  found,"  the  expenses  to  be  borne  by  A ; 
it  was  held  that  the  instrument  conveyed  no  title  to  the  land  to 
A.,  but  gave  him  a  license  or  authority  to  enter  upon  the  lands 
for  the  specific  purpose  of  prospecting  for  minerals,  and  of  ex- 
tracting the  ores,  and  if  he  considered  them  worth  working,  he 
had  an  option  he  could  enforce.  However,  before  he  could 
acquire  an  interest  in  the  land,  he  had  to  declare  his  election 
to  exercise  his  option  ;  when  he  had  done  that  he  would  be  in  a 
position  to  compel  a  conveyance.  Until  he  had  declared  his 
election,  he  had  a  mere  license,  which  was  a  personal  privilege 
only  and  not  assignable  or  transmissible.  The  agrocment  by  its 
terms  was  binding  on  the  land  OAvuers,  "  heirs  and  assigns  of  the 
respective  parties."  The  owner  sold  the  land.  For  twenty 
years  A  visited  the  land  and  did  some  prospecting,  but  nothing 
more.  At  the  end  of  ten  years  the  owner  sold  the  land.  It 
was  held  that  A  Avas  bomul  to  declare  his  position  towards  the 
owner  of  the  land  as  soon  as  it  Avas  fairly  possible.  "  Fair 
dealing,"  said  the  court,  "  required  of  him  to  take  the  requisite 
steps,  under  this  agreement,  within  a  reasonable  time.  No  time 
being  specified  in  the  instrument,  the  law  afiixed  to  it  the  obli- 
gation of  proceeding  within  what  would  be  deemed  a  reasonable 
time."  As  the  owner  had  a  right  to  revoke  the  license,  and  A 
had  failed  to  declare  his  position  with  refei'cnu'e  to  the  land,  the 
court  considered  the  conveyance  a  revocation  of  the  license.^"* 
Where  the  instrument  was  to  run  ninet^'-nine  years  and  was  of 

107  McMillan  v.  Philadelphia  Co.,  los  Cahoon  v.  Bayaud,   123  N.  Y. 

159  Pa.  St.   142;   28  Atl.  Rep.  220;       298;  25  N.  E.  Rep.  376. 
Barrett   v.    McAllister,    33    W.    Va, 
738;    11    S.    E.    Rep.    220. 


108  OIL   AND    GAS. 

tlie  "  mineral  and  petroleum  interests  "  in  the  land,  the  so- 
called  lessees  to  pay  "  one-tenth  ])art  of  the  net  ])rotits  of  what- 
ever may  be  discovered  and  worked  in  and  njwn  said  lands 
deemed  admissible  to  be  tested  and  worked,"  and  the  lessees 
agreed  "  to  connnence  testing  said  ]>roperty  within  three  years' 
time,"  it  was  held  that  the  lessee  was  under  no  obligation  to 
commence  work  unless  ho  deemed  it  advisable,  that  thei'c  was  no 
consideration  for  the  instrument,  and  tiioi'cfore  it  was  void; 
and  that  it  was  a  mere  option. ^'^'■*  \Vii(>re  a  lease  provided  if  oil 
or  gas  "were  found  the  lessee  should  have  the  refusal  for  three 
months  of  a  lease  of  an  adjoining  tract,  on  terms  ''  that  may  be 
equal  to  the  best  terms  offered  by  any  other  person  or  persons 
therefor,"  it  was  held  that  this  option  passed  with  an  assign- 
ment of  the  lease,  even  though  the  lease  was  not  assignable,  the 
lessor  having  entered  intc^  a  new  agreement  with  the  assignee,  es- 
pecially providing  for  a  continuance  of  the  covenants  of  the  lease 
unmodified. ^^'^  An  option  without  any  consideration  for  it, 
may  be  withdrawn  at  any  time  before  its  acceptance."^  A  so- 
called  lease,  not  binding  on  the  lessee  to  carry  out  its  covenants, 
but  reserving  to  him  the  right  to  defeat  it  at  any  time,  and 
relieve  himself  from  the  payment  of  any  consideration  for  it, 
is  invalid  to  create  any  estate  except  a  mere  optional  right  cff 
entry,  which  can  be  terminated  by  either  party  at  his  will,  and 
which  the  death  of  the  lessor  does  teiininate.^^^  A  lease  pro- 
vided that  it  should  become  null  and  void,  and  all  rights  under 
it  should  cease  and  determine,  unless  a  well  should  be  com- 
pleted on  the  premises  wdthin  one  month  from  the  date  thereof, 

109  Petroleum  Co.  v.  Coal,  etc.,  what  he  agrees  to  do  for  the  privi- 
Co.,  89  Tenn.  381;  18  S.  W.  Rep.  lege  of  choosing  whether  or  not  he 
65;  Snpdgrass  v.  South  Penn.  Oil  will  perform  or  claim  performance 
Co.,  47  W.  Va.  509 ;  35  S.  E.  Rep.  of  the  contract,  and  for  the  consider- 
■820.  ation  received  the  seller  parts  with 

110  GuflTey  v.  Clever,  146  Pa.  St.  his  right  of  choice.  Pittsburg,  etc., 
548;    23   Atl.   Rep.    161.  Brick  Co.  v.  Bailey,  76  Kan.  42;   90 

111  Snow  V.  Nelson,  113  Fed.  Rep.  Pac.  Rep.  803. 

353;   Risch  v.  Burch    (Ind.),   915  N.  112  Trees    v.    Eclipse    Oil    Co.,    47 

E.  123;  Cortelyou  v.  Barnsdall,  236  W.    Va.    107;    34    S.    E.    Rep.    933; 

III.  138;   86  X.  E.  Rep.  200;  affirm-  Steelsmith    v.    Gartlan,    45    W.    Va. 

ing  140  111.  App.  1C3.  27;  29  S.  E.  Rep.  978;  44  L.  R.  A. 

A  contract  is  not  void  for  mutu-  107;     Tennessee     Oil,    etc.,     Co.    v. 

ality,   where  it  gives   the   defendant  Brown,  131  Fed.  Rep.  696;   65  C.  C. 

an   option   to  explore   the   land   for  A.  524. 
gas    or    oil,    if    the    purchaser    does 


LEASES. 


109 


or  unless  the  lessee  should  pay  at  the  rate  of  one  hundred  dol- 
lars monthly,  in  advance,  for  each  additional  month  such  com- 
pletion was  delayed,  from  the  time  mentioned  for  the  comple- 
tion of  the  well,  until  a  well  was  completed.  It  M-as  held  that 
this  was  a  mere  option,  revocable  at  the  pleasure  of  the 
lessee."^  Where  a  lease  contained  a  clause  that  at  the  end 
of  the  term  the  lessee  might  have  the  right  to  purchase  the 
leased  premises,  this  was  held  to  give  the  assignee  of  the  lease 
the  right  to  make  the  purchase."*  Oil  and  gas  leases  and  a 
contract  between  the  parties  thereto  fixed  no  term  or  time  for 


113  Glasgow  V.  Griffith,  22  Pittsb, 
L.   J.    (N.    S.)    181. 

11*  Napier  v.  Darlington,  70  Pa. 
St.  64. 

Where  an  instrument  showed  on 
its  face  that  the  real  consideration 
was  the  prospecting  and  developing 
of  the  land  witli  due  diligence  for 
oil,  and  was  to  remain  in  force  only 
so  long  as  the  parties  complied  with 
their  mutual  agreements,  it  was  held 
that  it  was  at  most  a  mere  option 
which  was  terminated  by  tlie  fore- 
closure of  a  judgment  lien  against 
the  lands.  Hodges  v.  Brice,  32  Tex. 
Civ.  App.  358;   74   S.  W.   Rep.   500. 

A  lease  for  mining  for  oil  and  gas, 
which  grants  to  the  lessee  the  right 
to  mine  for  oil  or  gas  so  long  as 
the  same  is  produced  and  the  royalty 
and  rentals  are  paid,  but  which  does 
not  bind  the  lessee  to  perform  any 
obligation,  is  a  mere  option,  which 
the  lessor  may  withdraw  before  the 
lessee  has  done  some  act  bj^  which 
he  binds  himself  to  exercise  the  op- 
tion. COrtelyou  v.  Barnsdall,  86 
N.  E.  200;  23G  111.  138. 

The  lessor  in  an  oil  and  gas  lease 
granted  to  a  lessee  for  the  term  of 
three  years,  and  so  long  tliereafter 
as  oil  or  gas  is  produced  from  the 
land  leased  and  roj'alty  and  rentals 
paid,  the  exclusive  right  to  mine  for 
and  produce  petroleum  and  natural 


gas  of  a  tract  of  land  described,  with 
the  provision  that  the  lessee  was  to 
deliver  to  the  lessor  one-eiglith  of  all 
petroleum  produced,  and  to  pay  $100 
per  annum  for  each  gas  well  on 
which  the  gas  is  marketed,  the  lease 
to  be  null  and  void  if  a  well  is  not 
commenced  within  twelve  months 
from  the  date  of  the  lease  unless 
the  lessee  shall  thereafter  pay  an- 
nually to  the  lessor  twenty-five  cents 
per  acre  per  year  for  each  year's 
delay  j^  commencing  said  well,  eacli 
payment  to  extend  the  time  for  com- 
pletion for  one  year.  It  was  held 
that  the  lease  is  a  mere  option,  with- 
out any  consideration  for  its  execu- 
tion, and  was  taken  by  tlie  lessee 
solely  for  speculative  purposes,  and, 
there  having  been  no  performance  on 
the  part  of  the  lessee  or  his  as- 
signees before  it  was  revoked  by  the 
lessors,  that  the  lessors  Iiave  the 
lawful  right  to  revoke  the  option. 
Cortelyou  v.  Barnsdall,  140  111.  App. 
163. 

An  oil  and  gas  lease  providing  for 
exploitation  or  exploration  may  be 
valid  notwithstanding  its  jirovisions 
are  to  a  largo  extent  optional  with 
respect  to  what  the  lessees  shall 
do.  Ulrey  v.  Poe,  134  111.  App.  298, 
judgment  affirmed  Poe  v.  Ulrey 
(1908),  84  N.  E.  46;   233  111.  56. 


110  OIL   AND    GAS. 

the  leases  to  run,  and  provided  no  consideration  for  the 
grantor  other  than  an  interest  in  the  production  where  oil 
was  found  in  paying  (luantities,  and  so  much  per  year  where 
gas  was  found,  and  nothing  in  either  required  the  lessees  to 
drill  within  any  designated  time,  though  each  lease  provided 
that,  if  no  well  was  commenced  within  a  year,  the  grant 
should  become  null  and  void  unless  the  lessees  paid  the  lessor 
a  certain  sum  for  each  year  thereafter  commencement  was 
delayed.  It  was  held  that  the  leases  were  simply  options  for  a 
year  with  the  right  of  renewal  on  payment  of  the  sum  stipu- 
lated if  the  lessees  did  not  begin  operation,  that  there  was 
nothing  in  either  the  leases  or  contract  binding  the  lessee  to 
do  anything  on  which  the  lessor  could  sue  for  specific  perform- 
ance, and  they  were  void  for  want  of  mutuality.^"* 

§  72.     Options  continued. 

As  a  rule  time  is  of  the  essence  of  an  option,  as  is  well  illus- 
trated by  an  agreement  providing  that  the  prospective  pur- 
chaser should  "have  the  refusal  ten  days  from  date";  and  it 
was  held  that  the  purchaser  must  exercise  his  option  within 
that  time  by  a  declaration  of  an  intention  to  purchase,  although 
it  was  not  necessary  to  complete  the  purchase  within  that 
time.^^^  In  speaking  of  options  on  oil  or  gas  lands,  the  Supreme 
Court  of  the  United  States  used  this  language:  "The  fluctu- 
ating character  and  value  of  this  character  of  property  is  re- 
markably illustrated  in  the  history  of  the  production  of  mineral 
oil  from  wells.  Property  worth  thousands  today  is  worth 
nothing  tomorrow ;  and  that  which  we  today  sell  for  a  thousand 
dollars  as  its  fair  value,  may  by  the  natural  changes  of  a  week, 
or  the  energy  and  courage  of  desperate  enterprise,  in  the  sa.oie 
time,  be  made  to  yield  that  much  every  day.  The  injustice, 
therefore,  is  obvious  of  permitting  one  holding  the  right  to  as- 
sert an  ownership  in  such  property  to  voluntarily  await  the 
event,  and  then  decide,  when  the  danger  which  is  over  had  been 

114a  Young   V.   Mclllhenny    (Ky.),  72    C.    C.    A.    213;    Pittsburg,    etc., 

116  S.  W.  Rep.   728;   Jcnnings-IIey-  Brick    Co.    v.    Bailey,    70    Kan.    42; 

■wood  Sjmdicate  v.  Houssiere-Latrille  00  Pac.  Rep.  803. 

Oil   Co.,    119   La.   7t)3;    44   So.   Rep.  n"- Smith's  Appeal,  69  Pa.  St.  474. 

481;    O'Neill    v.    Risinger,    77    Kan.  See  Flynn  v.  White  Breast  Coal  Co., 

63;   93  Pac.   Rep.   340;   Brewster  v.  72  la.,  738;  32  N.  W.  Rep.  471. 
Lanyon  Zinc  Co.,  140  Fed.  Rep.  801; 


LEASES.  Ill 

at  the  risk  of  another,  to  come  in  and  share  tlie  profit.  While 
a  much  longer  time  might  be  allowed  to  assert  this  right  in  re- 
gard to  real  estate  whose  vahie  is  fixed,  on  which  no  outlay  is 
made  for  improvement,  and  but  little  change  in  value,  die  class 
of  pro})erty  here  considered,  subject  to  the  most  rapid,  frequent 
and  violent  fluctuations  in  value  of  anytliing  known  as  property, 
requires  prompt  action  in  all  who  hold  an  option,  whether  they 
will  share  its  risks  or  stand  clear  of  them."  ""  One  who  pur- 
chases land,  with  knowledge  that  another  holds  an  ojrtion  ujKjn 
it,  takes  it  subject  to  the  right  of  the  person  holding  such  option, 
and  he  holds  it  in  trust  for  him.  The  person  having  the  option 
may  follow  the  land  and  compel  such  purchaser  to  execute  to 
him  a  lease  or  a  deed  of  conveyance,  as  the  option  may  provide ; 
or  he  may,  in  case  of  an  option  to  purchase,  com}>el  the  original 
owner  to  pay  him  what  he  had  agreed  to  take  for  the  land,  and 
have  a  decree  to  sell  it  in  order  to  satisfy  his  claim.  Of 
course,  l>oth  the  original  owner  and  purchaser  are  necessary 
parties  to  -the  suit.^^^  Where  lands  and  the  oil  and  gas  in  it 
were  let,  demised  and  granted  for  the  purpose  and  with  the  ex- 
clusive right  to  drill  and  operate  for  oil  and  gas  for  five  years, 
and  as  much  longer  as  oil  and  gas  should  be  found  in  paying 
quantities,  the  consideration  being  one  dollar  and  a  promise  to 
pay  certain  rentals  for  further  delay  if  default  should  be  made 
in  drilling  a  test  well  within  a  year;  and  there  was  a  provision 
in  the  lease  that  a  failure  to  drill  the  well  or  pay  the  rent  should 
render  it  void  both  as  to  lessor  and  lessee,  it  was  held  this  was 
more  than  an  option  or  license,  being  a  lease  of  the  land,  oil  and 
gas  for  the  time  and  purposes  specified. ^^^ 

lie  Twin-Lick  Oil  Co.  v.  Marbury,  55  Ohio  St.  161;  44  N.  E.  Rep.  1093; 

91    U.     S.    587.       See    .Johnston    v.  34    L.    R.    A.    62;     Pittsburg,     vtc. 

Standard    Mining    Co.,     148    U.    S.  Brick  Co.  v.  Bailey,  70  Kan.  42;   !)0 

360;   13  Sup.  Ct.  Rep.  585;  Hoyt  v.  Pac.  Rep.  803.     See  Monfort  v.  Lan- 

Latham,  143  U.  S.  553;   12  Sup.  Ct.  yon  Zinc  Co.,  67  Kan.  128;   72  Pac. 

Rep.  568;  Hammond  V.  Hopkins,  143  Rep.  784. 

U.  S.  224;   Felix  v.  Patrick,  145  U.  A  nominal  consideration  will  not 

S.  317;  12  Sup.  Ct.  Rep.  862.  prevent  a  so-called  lease  being  con- 

117  Barrett  v.  McAllister,  33  W.  sidered  an  option.  Eclipse  Oil  Co. 
Va.  738;  11  S.  E.  Rep.  220.  See  v.  South  Ponn.  Oil  Co.,  47  W.  Va. 
Weaver  v.  Burr,  31   W.  Va.  736;    8  107;   34  S.  E.  Rep.  !)23. 

S.  E.  Rep.  743.  "Contracts   unperformed,   optional 

118  Woodland  Oil  Oo.  v.  Crawford,       as  to  one  of  the  parties,  are  optional 


112  OIL   AND    GAS. 

§  73.     Option  to  pay  rent  or  drill  well. 

As  a  rule  a  lessee  cannot  exercise  an  option  concern ine;  the 
develojnneiit  or  workin^;-  of  the  j)reinises  to  avoid  the  obligation 
of  a  lease.  This  was  well  illustrated  by  a  case  in  which  the 
lessee  was  to  pay  a  monthly  rental  until  a  well  was  completed, 
and  for  a  failure  to  complete  the  well  or  ])ay  the  rental  the  leate 
was  to  be  absolutely  null  and  vciid.  It  was  held  that  the  fact 
that  the  lessee  had  the  option  to  drill  the  well  or  not,  or  pay 
,he  rental  or  not,  simply  gave  him  the  i-ight  merely  to  elect  to 
drill  the  well  or  to  pay  the  rental,  and  not  to  elect  to  do  neither 
and  merely  suffer  a  forfeiture  of  the  lease.^"*  Where  the  in- 
itrument  executed  by  the  o\vuer  of  the  land  and  otlier  persons 
granted  all  the  oil  and  gas  on  the  land  described,  to  be  paid  for 
by  a  royalty  named,  operations  to  be  commenced  within  two 
years  or  the  instrument  to  be  void  ;  bnt  a  forfeiture  might  be 
averted  from  year  t^)  year  thereafter  by  paying  one  hundred 
dollars  in  advance;  it  was  held  that  the  contract  could  not  be 
regarded  as  a  sale,  to  be  defeated  on  condition  subsequent,  for 
the  reason  that  the  real  consideration  was  for  the  development 
of  the  property ;  and  as  no  definite  time  was  fixed  for  its  devel- 
opment, and  it  being  requisite  to  an  option  that  there  be  some 
time  for  j)erformance,  the  owner  might  ]-escind  the  contract,  in 
the  absence  of  any  equities  owing  to  any  work  having  been 
begun  by  such  other  persons.^"" 

§74.     Appurtenances,  what  will  pass  as  such. 

"  A  conveyance  of  one  acre  of  land  can  never  be  made,  by 
legal  construction,  to  carry  another  acre  by  way  of  incident  or 
appurtenant  to  the  first  "  ^^^     Nor  can  one  tract  be  so  appur- 

as  to  both."     Steelsmith  v.  Gartlan,  make    the    quarterly    payments    the 

45   VV.   Va.  27;    29   S.   E.   Rep.  978;  only    offer    of    performance,    it    was 

44  L.  R.  A.  107;  Brewster  v.  Lanyon  held   the   lessee   could    make   was   to 

Zinc  Co.,  140  Fed.  801;   72  C.  C.  A.  develop  the  land  for  oil.     Jennings- 

213.      See    Presidio    Mining    Co.    v.  Hevwood  Oil  Syndicate  v.  Houssiere- 

Bellis,   68  Tex.   581;    4   S.   W.   Rep.  Latreille   Oil    Co.,    119   La.   793;    44 

860.  So.   Rep.  481. 

119  Jackson  v.  O'llara,  183  Pa.  St.  i2"  National  Oil  and  Pipe  Line  Co. 

233;    38    Atl.    Rep.    624.      But    see  v.  Teel    (Tex.  Civ.  App.),  67  S.  W. 

Monfort  v.  Ijanvon  Zinc  Co.  (Kan.),  Rep.  545. 
72  Pac.  Rep.  784.  121  Child    v.    Starr,    4    Hill    369; 

Where  the  obligation  on  the  part  Trustees   of    School    v.    Schroll,    120 

of  the   lessee  was   either    to   exploit  HI.  509;    12  N.  E.  Rep.  243;   Ogden 

the  land  for  oil,  or  else  to  pay  $50  v.  Jennings,   02  N.  Y.  526. 
in  advance  quarterly,  on  failure  to 


LEASES. 


113 


tciiniif  to  nnotlicr  as  to  earn'  the  latter  witli  it  in  case  it  is  con- 
veyed.''" A  deed  conveying  land  and  "  all  apj)urtenances  '' 
conveys  incor|M)i'eal  and  not  corporeal  riglits.^"^  A  grant  of  a 
right  to  drill  for  oil  and  gas  in  a  certain  tract  carries  with  it,  as 
appurtenant  thereto,  a  right  of  ingress  and  egress,  and  space 
enough  to  operate,  to  store  oil,  and  necessary  pipe  lines  to  cany 
away  the  oil  and  gas.'^* 

§75.     Statute  of  Frauds. 

A  few  decisions  may  be  stated  involving  the  Statute  of  Frauds 
without  a  discussion  of  any  particular  rule.  Thus  a  lessor  may 
by  parol  release  the  lessee  from  the  payment  of  a  royalty  cr 
rent.''"  A  parol  agreement  between  a  lessee  and  a  well  driller, 
to  put  do^^^l  a  well,  for  an  interest  in  the  oil  obtained  is  valid. '''^ 
So  is  parol  agreement  between  land  owners  not  to  drill  within  a 
certain  distance  of  the  Ixmndary  line  between  their  resj)€Ctive 
tracts  of  land;  '■'  and  likewise  a  parol  agreement  to  locate  a 
mine  and  share  the  expense  of  locating  and  developing  it ;  ^'^  or 
that  a  mine  should  be  worked  on  the  shares.''^  An  oral  agree- 
ment to  deliver  a  certain  share  of  oil  to  be  produced  from  land, 
when  put  in  a  tank,  is  an  agreement  to  give  an  interest  in  land, 
and  is  within  the  statute.^^^ 


122  Humphreys  v.  McKissock,  140 
U.  S.  304;  11  Sup.  Ct.  Kep.  779; 
Grover  v.  Howard.  31  Me.  546. 

i23Hofer's  Appeal,  116  Pa.  St. 
360;    9   Atl.   Rep.  441. 

124  Dietz  V.  Mission  Transfer  Co., 
95  Cal.  92;  30  Pac.  Rep.  380. 

A  grant  of  a  lower  vein  of  coal 
carries  with  it,  as  appurtenant 
thereto,  the  right  to  pass  through 
the  upper  vein.  Chartiers  Block 
Coal  Co.  V.  Mellon,  152  Pa.  St.  286; 
25  Atl.  Rep.  597;  18  L.  R.  A.  702. 

A  side  track,  used  in  operating  a 
mine,  passes  with  a  lease  of  the 
mine,  as  appurtenant  thereto.  Con- 
solidated Coal  Co.  V.  Savitz,  57  111. 
App.  659. 


125  Crawford  v.  Bellvere,  etc..  Gas 
Co..  183  Pa.  St.  227;  38  Atl.  Rep. 
595;  Nilson  v.  Goldstein,  152  Pa.  St. 
493;   25  Atl.  Rep.  493. 

i-T.Haight  v.  Conners,  (Pa.  St.)  ; 
24  Atl.   Rep.  302. 

127  Ware  v.  Longmade,  9  Ohio  C. 
Ct.  Rep.  85. 

i28Moritz  v.  Lovelle,  77  Cal.  10; 
18  Pac.  Rep.  803. 

120  Hudepohl  v.  Lihort,  etc.,  Co., 
80  Cal.  553;   22  Pac.  Rep.  339. 

isoLithgow  V.  Shook,  39  Oliio 
Wkly.  L.  Bull.  39.  See  Hellor  v. 
Dailoy.  28  Ind.  App.  555;  63  N.  E. 
Rep.  490. 


114  OIL   AND    GAS. 

§76.     Description  of  leased  premises. 

Parol  evidence  is  iidt  admissible  to  vary  a  definite  descrijv 
tion  contained  in  a  lease,  or  to  show  that  it  was  the  intention  to 
cover  another  tract.'"      "  In  the  description  of  real  estate  in  a 
written  instrument  the  land  must  be  so  far  described  that  it  may 
be  ident.itied  without  I'csort  to  parol  evidence.      In  such  cases,j 
if  an  officer  is  unal)le  to  locate  the  laud  without  the  exercise 
of  an  arbitrary  discretion,  the  description  is  insufficient."      lu 
the  case  from  which   this  quotation  is  made  the  lease  was  of 
"  one  tract  of  land,  each  twenty  feet  S(]uare  of  the  following  real 
estate,  towit :     All  that  part  of  W.  Y_>,  K.  E.  14,  Sec.  24,  town 
23  north,  range  5  east,  which  lies  south  and  west  of  Wild  Cat 
Creek,  containing  in   all  thirty-two  acres,  one  of  said  twenty- 
*  foot  tracts  being  eight  rods  south  and  fifteen  east  of  northwest 
corner  of  the  above  described   tract."      It   was   held   that   this 
descrijition  was  void  for  insufficiency,  even  admitting  that  the 
word    "  rods  "   should   be  supplied   after  the  word   "  fifteen  "  ; 
for  it  was  manifest  that  every  part  of  the  square  could  not  be 
eiffht  rods  south  and  fifteen  rods  east  of  the  northwest  corner 
of  the  whole  tract;  and  the  description  failed  to  state  what  part 
of  it  is  so  situated.^''"     But  a  lease  of  a  large  tract,  only  a  part 
of  it  to  be  operated,  which  part  the  lessor  is  to  desigiiate,  is  not 
void ;  and  the  lessor  may  sue  on  the  covenants  of  the  lease,  al- 
though he  has  not  designated  the  part  to  be  occupied  by  the 
lessee  because  he  refused  to  allow  him  to  do  so,  if  he  has  been 
ready  to  point  them  out  to  such  lessee,  and  so  avers  in  his  com- 
plaint.^^^     A  description  in  a  lease  of  a  tract  of  land  twenty 
feet  square  "  situated  at  the  southeast  corner  of  the  north  half 
of  the  southwest  quarter  "  of  a  certain  quarter  section  of  land 
sufficiently    describes    tlie    tract    granted."*     The    owner     of 

"1    DiifRekl   V.   Hue,    12fl   Pa.   St.  Lingeman    v.    Shirk,    15    Ind.    App. 

94;   18  Atl.  Rep.  066.  432;   4.'5   N.   E.   Kep.  3.3;   Cheney  v. 

132  Diamond  Plate  Glass  Co.  v.  Cook,  7  Wis.  357;  Washburn  v. 
Tennell.  22  Ind.  App.  132;  52  N.  E.  Fletcher,  42  Wis.  152;  Roehl  v.  Hau- 
Rep.   108.  messer.  114  Ind.  311;   15  N.  E.  Rep. 

133  Indianapolis  Natural   Gas   Co.  345. 

V.  Spaugh,  17  Ind.  App.  683;  46  N.  1 34  Simpson    v.     Pittsburgh,    etc., 

E.  Rep.  691.  See  Stahl  v.  Van  Vleck,       Co.,  28  Ind.  App.  343;  62  N.  E.  Rep. 
53  Ohio  St.  136;  41  N.  E.  Rep.  35;       753. 


I 


LEASES. 


115 


three  forty-acre  and  adjoiniiifi;  tracts  leased  one  acre,  to 
be  selected  by  himself;  and  in  the  lease  it  was  "  agreed  on 
the  party  of  the  iirst  part  that  if  oil  or  gas  be  obtained  by  the 
second  party  or  assigns  .  .  .  upon  said  tract,  or  on  lands 
adjoining  the  same  premises  of  which  the  foregoing  one  acre 
described  embraces  a  part,  said  second  party  shall  have  the 
right  to  operate  acres  of  the  balance  of  said  premises  on  the 
same  terms  as  above."  It  was  held  that  the  forty-acre  tract  in 
which  the  one  acre,  after  the  lease  had  been  executed,  had  been 
selected  by  the  lessor,  was  the  forty  acres  to  be  operated  under 
the  contract.^'"' 


135  Stahl  V.  Van  Vleck,  53  Ohio 
St.  136;  41  N.  E.  Rep.  35. 

Where  a  grant  of  a  right  to  oper- 
ate for  oil  required  the  grantees 
to  complete  a  well  every  ninety 
days  from  the  completion  of  the 
first  well,  if  it  proved  to  be  a  pay- 
ing well ;  or  surrender  the  lease,  ex- 
cepting ten  acres  for  each  paying 
well,  the  grantees  were  held  bound, 
after  the  first  well  proved  to  be  a 
paying  well,  either  to  continue  to 
drill  wells,  as  provided,  or  them- 
selves to  select  tracts  of  ten  acres 
each  appurtenant  to  each  well 
drilled.  INIonaghan  v.  Mount,  36 
Ind.   App.    188;    74   X.   E.    Rep.   579. 

Where  the  owner  of  three  adjoin- 
ing forty-acre  tracts  leases  oac  acre 
to  be  designated  by  him,  agreeing 
that,  if  oil  or  gas  be  obtained,  under 
the  lease  or  on  lands  adjoining  tlie 
same  premises  of  which  the  forego- 
ing acre  is  a  part,  lessee  shall  have 
the  right  to  operate  forty  acres  of 
the  balance  of  such  premises  on  the 
terms  before  stated,  the  forty-acre 
tract  out  of  which  the  first  acre  was 
designated  constitutes  the  forty 
acres  to  be  drilled  under  the  con- 
tract. Stahl  V.  Van  Vleck,  30  Ohio 
Cir.   Ct.    R.    755. 

The  owner  of  a  tract  of  land  com- 
prising sixty  acres  executed  a  lease 


granting  the  oil  and  gas  under  the 
land  "bounded  and  described  as  fol- 
lows, to-wit:  North  by  lands  of  Ohio 
river,  east  by  land  of  Mrs.  T.  P. 
Pollock,  south  by  lands  of  W.  M. 
Irwin,  west  by  lands  of  Mrs.  J.  C. 
Sharp,  containing  thirty  acres,"  and 
also  giving  the  lessee  the  refusal  of 
the  lessor's  thirty  acres  reserved, 
which  right  of  option,  however,  the 
lessee  never  exercised.  It  was  lield, 
that  the  lease  was  void  for  uncer- 
tainty; it  being  impossible  to  deter- 
mine from  the  description  therein 
what  part  of  the  tract  was  intended. 
South  Penn.  Oil  Co.  v.  Calf  Creek 
Oil  &  Gas  Co.,   140  F.  507. 

Where  a  contract  granting  the 
right  to  drill  for  oil  and  gas  on 
plaintiff's  land  required  the  grantees 
to  complete  a  well  in  every  period 
of  ninety  days  from  the  completion 
of  the  first  paying  well,  or  to  sur- 
render lease,  excepting  ten  acres  for 
each  paying  well,  but  the  contract 
did  not  further  describe  such 
ten-acre  tracts  to  be  excepted 
out  of  the  one  hundred  acres  covered 
by  the  lease,  plaintiff,  on  a  breach 
of  the  contract  bj'  the  defendants, 
was  not  entitled  to  arbitrarily  set 
off  such  separate  parcels,  and  have 
his  title  quieted  as  to  the  balance. 
Monaghan  v.  Mount,  supra. 


IIG  OIL   AND    GAS. 

§77.     Right  of  lessor  to  use  surface. 

A  lease  of  a  tract  of  land  for  oil  or  gas  purposes  does  not 
necessarily  cxchide  the  lessor  from  nsing  or  cultivating  its  sur- 
face, if  he  does  not  interfere  with  the  operations  of  the  lessee. 
Usually  the  lessee  is  given  possession  of  so  much  of  the  surface 
surrounding  the  well  or  wells,  with  ingress  and  egress,  as  will 
enable  him  to  drill  and  0|Derate  them,  with  a  right  to  storage 
and  ways  to  lay  pipe  lines;  and  the  remainder  of  the  surface 
is  resc.i'\'ed  for  the  use  of  the  lessor.  Or  the  lessee  may  he  re- 
stricted in  his  operations  to  a  certain  described  tract  carved  out 
of  a  larger  tract,  although  the  right  to  take  the  oil  or  gas  under 
sucli  larger  tract  is  unqualifiedly  given  him.  An  instance  of 
this  kind  came  before  the  Supreme  Court  of  the  United  States. 
An  owner  of  forty  acres  gave  a  lease  on  it  "  for  the  sole  and 
only  purpose  of  boring,  mining,  and  excavating  for  petroleum 
or  carbon  oil  and  gas,  and  piping  of  oil  and  gas,"  "  excepting 
reserved  therefrom  ten  acres,"  for  two  years,  or  as  long  as  gas 
should  be  found  in  paying  quantities.  Pie  was  to  receive  one- 
eightli  of  tlie  oil  produced,  and  two  hundred  dollars  ]Ter  annum 
for  each  gas  well  drilled.  The  lessor  reserved  the  right  to 
"  fully  use  and  enjoy  the  said  premises  for  the  purpose  of 
tillage,  except  such  parts  as  may  be  necessary  for  said  mining 
purposes,  and  a  right  of  way  to  and  from  the  place  or  places 
of  said  minino"  or  excavatimr."  In  constniing  the  lease,  the 
court  said:  "  The  subject  of  the  grant  was  not  the  lands,  cer- 
tainly not  the  surface.  All  of  that,  except  the  portions  actually 
necessary  for  operating  purposes  and  the  easement  of  ingress 
and  egress,  was  expressly  reserved  to  Taylor.  The  real  sub- 
ject of  the  grant  was  the  gas  and  oil  contained  in  or  obtainable 
from  the  land,  or. rather  the  right  to  take  possession  of  the  gas 
and  oil  bv  minina,"  and  borino-  for  the  same."  Of  course,  tiio 
lease  gave  all  the  oil  and  gas  under  the  entire  forty  acres. '''° 
In  another  case,  where  the  lease  sjoecified  that  no  wells  were  to 
be  drilled  within  throe  hundred  yards  of  a  certain  building  on 

130  Brown  v.   Spillman,   155  U.  S.       665;    15  Sup.  Ct.  Rep.  245;   revers- 
ing 45  Fed.  Rep.  291. 


LEASES. 


117 


the  leased  trnet,  and  the  lessor  had  undertaken  to  lease  this 
three  hundred  yards  to  a  thii'd  party,  the  eourt  said  :  "  The 
■well  which  resjXTndent  ]ir()])oses  to  hore  is  within  this  ])rohihited 
distance;  and  the  resjiondcMits  claim  that  Ijrowii,  and  they  as 
his  lessees,  have  the  rii;ht  to  drill  wells  within  that  part  of  the 
territory.  But  the  clause  in  question  is  neither  a  reservation 
nor  an  exception  as  to  the  land,  but  a  limitation  as  to  the  privi- 
lege granted.  It  docs  not,  in  any  way  diminish  the  area  of  the 
land  leased  —  that  is  still  the  whole  tract;  but  it  restricts  the 
operations  of  the  lessees  in  putting  down  wells  to  the  portion 
outside  of  the  prohibited  distance.  For  right  of  way  and  other 
pu]'])oses  of  the  lease,  exce])ting  the  location  of  wells,  tJie  space 
inside  the  stipulated  line  is  as  much  leased  to  the  lessee  as  any 
other  part  of  the  tract.  The  terms  of  the  grant  would  im]>ly 
the  reservation  to  the  lessor  of  the  ])Ossession  of  the  '^oil  for  pur- 
poses other  than  those  granted  to  the  lessee,  and  the  ])arties  have 
expressed  what  otherwise  wonld  have  been  im])lied  by  the  ])rovi- 
sion  that  the  lessor  is  to  fully  use  and  enjoy  the  said  premises 
for  the  pnrpose  of  tillage,  except  snch  part  as  shall  be  necessary 
for  said  operating  purposes."  '^^ 

whether  it  was  known  to  the  pa<'tie8 
at  the  date  of  tlie  lease.  Pi'igg  v. 
Preston,    28    Pa.    Super.    Ct.    272. 

A  lease  for  the  purpose  of  mining 
phasphates  and  pliosphatic  deposits 
provided  for  the  building  of  rail- 
roads, together  with  the  right  to 
cut  and  use  the  timber  on  the  land 
for  the  construction  of  the  super- 
structure of  such  tramways,  and 
to  use  fuel  necessary  for  the  ma- 
chinery and  employees  of  the  lessee, 
including  fuel  necessary  for  washing 
rock.  It  was  held  not  to  give  tlie 
right  to  use  timber  to  build  houses 
for  employees,  to  Iw  left  under  the 
lease  on  the  landj  though  by  tlie  use 
of  coal  the  use  of  wood  for  fuel  had 
been  much  reduced.  I>ewis  v.  Vir- 
ginia-Carolina (  hemical  Co.,  48  S.  E. 
280;   69  R.  C.  .364. 

The  word  "surface"  used  in  an 
oil  lease  means  that  portion  of  the 
land  which  is  or  may  be  used  for 
agricultural  purposes.  Williams  v. 
South  Penn.  Oil  Go.  (W.  Va.),  43 
S.  E.  Rep.  214. 


1.37  Westmoreland,  etc.,  Co.  v.  De- 
Witt,  130  Pa.  St.  235:  18  Atl.  Rep. 
724 ;  29  Amer.  L.  Reg.  93 ;  5  L.  R.  A. 
731.  See  Fuuk  v.  Haldeman,  53  Pa. 
St.  229;  Barker  v.  Dale,  3  Pittsb. 
190. 

Tlie  lessee  has  the  right  to  oc- 
cupy enough  territory  to  enable  him 
to  drill  and  operate  a  well  or  the 
necessary  wells.  Wardell  v.  Wat- 
son, 93  Mo.  107;  5  S.  \Y.  Rep.  605. 

A  lease  to  mine  and  occupy  so 
much  of  the  land  as  may  be  neces- 
sary does  not  give  the  lessee  any 
right  to  occupy  any  part  of  the 
land  for  residences  for  his  employees. 
Fowler  v.  Delaplain,  79  Ohio  St. 
279;   87  N.  E.  Rep.  2G0. 

In  order  to  establish  the  existence 
of  a  custom  in  an  oil-producing 
country  permitting  a  lessee  under 
an  oil  lease  to  erect  on  the  land 
described  in  the  lease  a  ihcelling  for 
the  occupancy  of  his  employees,  it 
must  be  shown  what  oil-proilucing 
countries  are  meant,  the  time  when 
the  custom  began,  and  to  whom  and 
where  such  custom  was  known,  and 


118  OIL   AND    GAS. 

§  78.     Construction. 

In  a  celebrated  oil  case  it  was  said  with  reference  to  the  rule 
to  be  applied  to  the  construction  of  oil  leases  that  "  Sueli  leases 
are  construed  most  strictly  against  the  lessee,  and  favorable  to 
the  lessor."  *■"*  "  When  a  lease  provides  the  mode,  manner, 
and  character  of  search  to  be  made,  implications  in  regard 
thereto  are  excluded  thereby  as  repugnant.  And  the  demise 
for  the  purpose  of  operating  for  oil  and  gas  for  the  period  of 
five  years  is  dependent  u]K)n  the  discovery  of  oil  and  gas  in  the 
search  provided  for,  if  such  search  is  unsuccessful,  the  demise 
fails  tlierewith,  as  such  discovery  is  a  condition  precedent  to 
the  continuance  or  vesting  of  the  demise.  The  lessee's  title 
being  inchoate  and  contingent,  both  as  to  the  five-year  limit  and 
time  thereafter,  on  the  finding  of  oil  and  gas  in  paying  quan- 
tities, did  not  become  vested  by  I'cason  of  his  putting  down  a 
non-productive  well.  This  gave  him  no  new  or  more  extensive 
rights  than  he  enjoyed  before,  but  in  fact  destroyed  all  his 
rights  under  the  lease."  ^^" 

"  Generally,  it  is  the  lessee  who  is  favored,  and,  after  a  sub- 
stantial compliance  by  him  with  the  terms  of  the  contract, 
equity  will  not  regard  a  technical  breach.  But,  with  mining 
leases,  it  is  otherwise.  This  is  due  principally,  if  not  entirely, 
to  the  nature  of  the  business  of  mining,  and,  more  specifically, 
oil  mining;  to  the  temptation  offered  the  shrewd  operator  to 
purchase  at  a  nominal  price  the  right  of  develojiing  the  lands, 
the  owner  of  which  is  ignorant  of  their  real  value  for  any  pur- 
pose, and  then  to  hold  thorn  indofinitoly,  should  it  suit  his  pur- 
pose, neither  working  them  himself  nor  ]>ennitting  another  to 
do  so.      Of  course,  it  may  be  s;iid,  in  a  general  way,  that  ]n\r- 

138  Citing  Bettman  v.  Harness,  42  Kep.  655;   Stahl  v.  Illinois  Oil   Co., 

W.  Va.  433;    21   8.  E.   Dep.  271;   30  45  Ind.  Aip.  211;  90  N.  E.  Rep.  632; 

L.   R.  A.   5GG;    Parish   Fork   Oil   Co.  New    American    Oil    &    M.     Co.    v. 

V.   Bridgewater  Gas  Co.,  51   W.  Va.  Trover,  IGO  Ind.  402;  70  N.  E.  Rep. 

583;  42  S.  E.  Rep.  055.  253*;  77  N.  E.  Rep.  739;  New  Amer- 
igo stcelsmith    V.   Gartlan,   45   W.  ican  Oil  &  M.  'Co.  v.  Wolff,  100  Ind. 

Va.  27;  2 J  S.  E.  Rep.  978;  44  L.  R.  402;    70  N.    E.   Rep.    255. 

A.   107;   Superior  Oil  &  Gas  Co.  v.  If  the  parties  act  upon  interlinea- 

Melilin    (Okl.),    108    Pac.    Rep.   545.  tions  improperly  made,  the  eonstrue- 

An  oil   lease  will  be  so  construed  tion   they    thus    put    upon  the   lease 

as  to  promote  development  and  pre-  will     be     adopted     by     the     courts. 

vent     delay     and     unproductiveness.  Barnsdall   v.  ^Boley,    119    Fed.   Rep. 

Parish  Fork  Oil  Co.  v.  Bridgewater  191. 

Gas  Co.,  51   W.  Va.  583;    42   S.  E. 


I 


LEASES.  119 

ties  may  make  an}'  contract  which  they  desire,  and,  if  a  lessor 
should  by  way  of  lease  make  his  intt'ntion  clear  to  grant  the  oil 
and  gas  rights  ujwn  his  pro})erty  for  an  inadequate  considera- 
tion, the  courts  will  enforce  it.  But  the  lessee,  where  tlie  in- 
strument presents  a  semblance  of  inequality  or  unfairness,  will 
find  that  he  has  a  thorny  road  to  travel  before  reaching  a 
judicial  establishment  of  his  claims.  And,  in  the  case  sui>- 
posed,  the  mere  fact  that  the  instrument  would  seem  to  con- 
template the  equivalent  of  an  absolute  gift  of  valuable  rights 
would  at  once  arouse  the  suspicion  of  a  chancellor,  which,  if 
not  dispelled  by  the  clearest  proof,  would  lead  to  its  prompt 
reforming  or  setting  aside  upon  the  application  of  the  proper 
parties."  ^*'^  A  lease  must  be  construed  as  a  whole.^^^  Thus 
the  consideration  of  a  lease  having  a  granting  clause,  a  haben- 
dum clause,  a  condition  subsequent,  and  a  surrender  clause, 
applies  to  the  whole  lease  and  to  each  clause  of  it.'^^''^ 

§  79.     Construction  of  instrument  by  parties. 

In  cases  where  the  parties  have  put  a  construction  upon  an 
instrument,  especially  in  instances  of  doubt,  that  construction 
will  be  applied  to  the  instrument  by  the  courts  in  litigation 
arising  between  them  over  the  subject-matter  of  the  instru- 
ment."^'' Thus  where  a  lease  had  been  treated  by  both  parties 
to  it  as  a  lease  at  will,  in  an  action  by  the  lessor  to  rescind, 
brought  sixteen  months  after  its  commencement,  the  court 
held  that  the  lessee  was  entitled  to  recover  whatever  his  ad- 
vancement exceeded  the  amount  of  the  royalties  on  the  ore 
taken  out,  applying  to  it  the  rule  with  respect  to  a  tenancy  at 
will,  although  another  construction  was  possible."" 

140  Bryan  on  Petroleum,  p.  146,  gas  wells  on  a  certain  tract  in  all 
quoted  in  Huggins  v.  Daley,  99  Fed.  deeds  for  tlie  conveyance  of  any  and 
Rep.  G06;  40  C.  C.  A.  12;  48  L.  R.  all  portions  thereof,  it  will  not  be 
A.  320.  enlarged    by    implication    to    include 

141  Steelsmith  v.  Gartlan,  supra.  the   proliibition    in    a   lease   on   such 
»i4i  Brown  v.  Fowler,  65  Ohio  St.       tract.     Test  Oil  Co.  v.   La  Tourelte 

507;   63  N.  E.  Rep.  76.  (Old.),  91  Pac.  Ptcp.  1626. 

i4ia  Restrictions    and    prohibitions  A  provision  giving  the   lessee  the 

in  the  use  of  real   property  are  not  exclusive  right  not  only  t^  drill  for, 

favored   by    law,    and    the    terms    of  but    to    produce,    oil    on    the    leased 

such  covenants  will  not  be  enlarged  premises,  is  construed  to  apply  only 

by  implication,  but  confined  to  their  to  wells  drilled  in  the  future.    l>odd- 

accepted  usage  and  the  intention  of  ridge  Countv  Oil  &  (ias  C"o.  v.  Smity, 

the    parties.      Test    Oil    Co.    v.    La  154   Fed.  Rep.  970. 

Tourelte    (Okl.),  91   Pac.  Rep.   1025.  i42  Otrlesbys     v.     Hughes,    96    Va. 

If    the    intention    of    the    parties  115;    30    S. "  E.    Rep.    439;    Scott    v. 

be  clearly    expressed    in    a   covenant  Lafayette  Oas  Co.,  42  Ind.  App.  614; 

to   prohibit  the  drilling  of   oil   and  86  N.   E.   Eep.   495;    Swift  v.   Occi- 


120  OIL   xiND    GAS. 

§80.     Unfilled  blanks. —  Written  and  printed  clauses. 

It  is  no  Cfiiuiiion  occurrence  for  unfilled  blanks  to  be  left  in 
leases,  especially  where  printed  forms  are  used.  Occasionally 
the  lease  for  this  reason  is  so  uncertain  as  to  be  void.  Thus 
where  the  o])orations  were  to  be  commenced  and  ])rosecuted  for 
two  years  from  tlio  date  of  the  lease,  "  or  thereafter  pay  to  the 
party  of  the  first  part  $ jx^r ,  until  work  is  com- 
menced," the  lease  was  held  void  for  uncertainty  by  reason  of 
the  unfilled  blanks.  The  lease  otherwise  was  a  hard  one,  and 
the  court  seized  upon  the  uncertainty  to  declare  it  void.^*^  If 
an  oil  lease  be  partly  written,  and  an  ambiguity  arise  out  of  the 
inconsistency  between  the  printed  and  written  parts,  the  latter 
\v\]]  control.  This  is  the  rule  with  respect  to  all  instruments 
that  are  partly  printed  and  ]iartly  written. ^^*  And  it  is  espe- 
pecially  so  where  the  parties  have  acted  in  accordance  with  the 
written  stipulations.^*^ 

§81.     Execution  of  lease. 

If  a  statute  provide  the  manner  or  form  in  which  a  lease  shall 
be  executed,  it  must  be  followed,  or  else  it  will  be  void.  Thus 
in  Ohio  a  statute  provides  that  the  signature  of  a  lessor  of  a 
lease  exceeding  three  years  must  be  attested  by  two  subscribing 
witnesses;  and  under  its  provisions  it  is  held  that  if  there  be 
no  such  attestation,  the  lease  is  void.^*" 

dental,   etc.,   Co.,    141    Cal.    161;    74  Albright,   1&  Ind.  App.   151;    47  K 

Pac.  Rep.  700.     As  to  unavithorized  E.   Rep.   082. 

changes  becoming  binding,  sec  Barns-  Where  an  oil  lease  did  not.  fix  a 

dall  V.  Boley,   111)  Fed.  Rep.  191.  time   when    the   lessee   should   begin 

Construction  by  parties  conclusive,  operations,     but    provided    that,     in 

when    meaning    doubtful.      Smit    v.  case   no  well   was  completed   within 

South  Penn.  Oil  Co.,  59  W.  Va.  204 ;  years   from   the   date  of  the 

53   S.   E.   Rep.   152 ;    Moore  v.   Ohio  lease,  the  grant  should  be  void  unless 

Valley  Gas  Co.,  03  W.  Va.  455;   GO  the    lessee    should    pay    an    agreed 

S.  E.  40;  Scott  V.  Lafayette  Gas  Co.,  acreage  in  advance,  it  was  held  that 

42    Ind.    App.    014;    80    N.    E.    495.  the    lessee    was    only    entitled    to    a 

143  Eaton  V.  Wilcox,  42  Hun  01.  reasonable  time  within  which  to  be- 

144  Fort  Orange  Oil  Co.  v.  Wich-  gin  operations.  Erie  Crawford  Oil 
man,  17  Ohio  Cir.  Ct.  Rep.  57;  9  Co.  v.  Mecks,  40  Ind.  App.  156; 
Ohio    Cir.    Dec.    650;    IMcArthur    v.  81  N.  E.  Rep.  518. 

Tionesta  Gas  Co.,  28  Pa.  Super.  Ct.  i4c  Langmade  v.  Weaver,  C5  Ohio 

Rep.  508.  St.    17;    60    N.    E.    Rep.    992.     See 

145  Kokomo    Natural    Gas    Co.    v.       Marks  v.  Rushville  Gas  &  Oil   Co., 

30  Ohio  Cir.  Ct.  Rep.  798. 


LEASES.  121 

^;82.     Defective  execution  or  acknowledgment. 

A  lessee  cannot  assert  an  iinjierfeet  execution  of  a  lease  to 
escape  the  payment  of  rent  or  royalty;  nor  the  fact  that  the 
lessor  has  not  used  his  correct  name,  en-  had  used  an  assumed 
one."^  And  the  fact  that  the  acknowledo-ment  is  not  such  as 
to  bind  a  married  woman  makinc;  it  will  not  prevent  her  recover- 
ing rentals  from  the  lessee  in  an  action  brought  by  her  after  the 
lease  had  expired  by  its  own  limitation/"'-  If  a  seal  is  required 
in  the  execution  of  a  lease  by  a  corporation  and  one  is  not  used, 
yet  if  the  lessor,  or  its  successors,  accept  rent  or  royalty  under 
the  lease  it  will  be  estopjied  to  deny  its  validity. ^^'■* 

§83.     Parol  change  of  written  lease. 

A  parol  change  of  a  written  lease  already  executed  is  valid, 
especially  if  it  relates  to  the  consideration  to  Ikj  paid  for  it.^^' 
If  the  lease  be  altered,  without  the  consent  of  the  lessor,  by 
Vv'riting  in  it  additional  conditions;  and  the  lessor,  with  knowl- 
edge that  the  changes  have  been  made,  make  no  objection,  but 
insist  throughout  the  term  (or  even  a  part  of  it)  on  the  per- 
formance of  the  contract  by  the  lessee,  and  accept  royalties  or 
rents  thereunder,  such  lessee  will  waive  his  right  to  insist  on 
the  invalidity  of  the  lease  because  of  the  alteration.^^^ 

§84.     Acceptance. —  Estoppel. 

Acceptance  of  a  lease  may  be  shown  by  an  actual  oral  or  writ- 
ten acceptance.  Taking  it  to  the  pro])er  office,  by  the  lessee, 
and  filing  it  for  recording  is  such  an  act  as  from  wliich  an  ac- 
ceptance may  be  presumed,  or  from  which  an  inference  of  ac- 
ceptance may  be  drawn.  Entering  upon  the  ]>roiniscs  and  be- 
.'!;inning  the  performance  of  the  agreements  or  covenants  con- 

i47Marmet   Co.   v.   Archibald,    37  i*9  Bicknoll  v.  Austin,  G2  Fed.  Rop. 

W.  Va.  778 ;  17  S.  E.  Rep.  299.  432. 

149  Kunkle    v.    People's    Gas    Co.,  '"'"Sargent   v.   Robcrlsrn.    17   Tml. 

165  Pa.  St.   133;    3  OAtl.  Rep.   719;  App.  411;   4G  X.  E.   Ron.  92.1;    \Vil- 

33  L.   R.  A.   847.  fi^us   v.   Whitehead,   fO    Pa.   ft.    131. 

Reformation     of     acknowledpntent  See  Vanderi-n  v.  Hovis,   l.')2  Pa.  St. 

under  Pennsylvania  Act  of  May  25,  11;    25  Atl.  Rep.  232. 

1879.     P.   L.    149.      Manufacturers',  i^-i  Rarnsdall    v.    Boley,    119    Fed. 

etc.,    Co.    V.    Douglass,    130    Pa.   St.  Rep.   191. 
283;  18  Atl.  Rep.  630. 


122  OIL   AND   GAS. 

tained  in  the  lease  is  such  an  act  of  acceptance  as  will  estop  the 
lessee  from  saying  that  he  had  not  accepted  the  lease/''-  If  a 
co-lessee  has  signed  the  lease  on  behalf  of  both  not  only  will  such 
co-lessee  be  estopped  to  deny  he  had  no  authority  to  sign  for  hia 
fellow  lessee,  but  the  latter,  by  accepting  benefits  under  the  lease 
ratifies  the  act  of  the  co-lessee  in  signing  his  name  to  the  lease, 
especially  if  he  knew  at  the  time  it  was  done  that  his  name  had 
been  so  signed. ^^^  Where  a  lessee  denies  the  execution  of  a 
lease,  a  printed  form,  such  as  the  lessee  generally  uses,  and 
which  is  printed  in  a  book  used  in  an  office  of  public  records, 
cannot  be  put  in  evidence;  nor  can  the  declarations  of  an  al- 
leged agent,  that  he  signed  the  deed  on  behalf  of  the  lessee,  be 
used,  unless  used  to  contradict  the  testimony  of  such  alleged 
agent.''* 

§85.     Lessee  need  not  sign  lease. —  Deed. 

A  lessee  need  not  sign  the  lease ;  by  the  acceptance  of  it  he  is 
bound  by  all  its  provisions.  "  Nor  is  it  material  that  this  con- 
tract is  not  signed  by  the  grantee.  The  acceptance  of  the  deed 
makes  it  a  contract  in  writing,  binding  upon  the  grantee  just  as 
the  acceptance  by  a  lessee  of  a  lease  in  wanting  signed  only  by 
the  lessor  makes  it  a  written  contract  binding  upon  such  lessee; 
and  suit  can  be  instituted  upon  it,  and  the  same  rights  main- 
tained, as  though  it  were  also  signed  by  the  grantee."^'' 

§86.     Separate  owners  giving  joint  lease. 

There  is  nothing  to  prevent  the  owners  of  separate  and  dis- 
tinct tracts  of  land  giving  a  joint  lease  of  their  separate  prem- 
iss Ahrns  V.  Chartiers  Valley  Gas  v.  Kibbey,   135   Ind.  357;   35  N.  E. 
Co.,   188  Pa.   St.   249;   41   All.  Rep.  Rep.    392;    Midland    R.    W.    Co.    v. 
739;    Grove   v.   Hodges,   55    Pa.   St.  Fisher,   125  Ind.   19;   24  N.  E.  Rep. 
504;  Harlan  v.  Logansport,  etc.,  Co.,  756;  Ricard  v.  Sanderson,  41  N.  Y. 
133    Ind.   323;   32   N.   E.   Rep.   930;  179;     Atlantic    Dock,    etc.,    Co.    v. 
Indianapolis,  etc.,  Co.  v.  Kibbey,  135  Leavitt,  54  N.  Y.  35;    13  Am.  Rep. 
Ind.  357;  35  N.  E.  Rep.  392.  556;    Rogers    v.    Eagle    Fire    Co.,    9 
153  Rice  V.  Ege,  42  Fed.  Rep.  661.  Wend.  611,  618;    Spaulding  v.   Hal- 
134  Morris   v.  Guffey,   188   Pa.   St,  lenbeck,  35  N.  Y.  204;  Huff  v.  Nick- 
534;    41   Atl.   Rep.   731.  erson,  27  Me.  106;  Burbank  v.  Pills- 
155  Schumucker  v.  Sibert,  18  Kan.  bury,  48  N.  H.  475;  Goodwin  v.  Gil- 
104;    Indianapolis  Natural   Gas  Co.  bert,  9  Mass.  510;  Harrison  v.  Vree- 


LEASES. 


123 


ises  on  royalty  payable  to  them  jointly ;  and  if  the  lessee  pur- 
chase the  land  of  one  of  them,  he  must  continue  paying  one- 
half  the  royalty  to  the  other/'"'  So  where  a  widow  executed 
an  oil  and  gas  lease  on  lands  of  which  she  owned  an  undi- 
vided one-half,  and  the  other  half  belonged  to  her  children,  a 
subsequent  lease  of  the  same  lands  to  a  third  person  by  her 
children  was  held  to  convey  their  undivided  interest  and  each 
lessee  was  entitled  to  the  possession  of  the  premises  to  mine 
for  gas  and  oil,  but  neither  was  entitled  to  exclusive  posses- 
sion thereof.^'''"  Where  a  person  owning  a  one-half  interest 
in  land  conveys  such  one-half,  reserving  "the  one-fourth  part 
of  all  oil,  gas,  or  other  minerals  in,  under,  or  upon  said  land," 
and  thereafter  executes  an  oil  lease  by  which  the  lessees  cov- 
enants to  deliver  to  the  lessor  "one-eighth  of  all  the  cil 
produced  from  the  one-quarter  interest  of  said  first  party,  or 
in  other  words,  the  one-fourth  of  one-eighth  royalty  he  may 
produce  from  said  land,"  the  lessor  is  not  entitled  to  the  one 
thirty-second  part  of  all  the  oil  produced  on  the  entire  prop- 
erty, but  only  to  a  one  thirty-second  of  a  half  interest  in  the 
property.^^"** 


land,  38  N.  J.  L.  366;  Harlan  v. 
Logansport  Natural  Gas  Co.,  133 
Ind.  323;    32  N.  E.  Rep.   930. 

A  person  whose  name  is  not  men- 
tioned in  the  body  of  the  lease  is 
not  a  party  to  it,  nor  bound  by  it 
as  grantor,  although  he  signs  and 
acknowledges  it  as  his  deed.  Barns- 
dall  V.  Boley,  119  Fed.  Rep.  191. 
And  one  whose  name  is  mentioned 
in  the  body  of  the  lease  as  a  lessor, 
but  who  does  not  sign  the  lease,  is 
not  a  party  thereto,  and  need  not 
be  joined  with  the  other  lessor  as 
plaintifT  in  an  action  to  recover  roy- 
alties. Boa!  V.  Citizens'  Natural 
Gas  Co.,  23  Pa.   Super.   Ct.  339. 

156  Higgins  V.  California,  etc.,  Co., 
109  Cal.  304;  41  Pac.  Rep.  1087; 
Rymer  v.  South  Penn.  Oil  Co.,  54 
W.  Va.  530;  40  S.  E.  459.  For  an 
instance  of  a  lease  of  two  separate 
tracts  of  this  kind,  made  by  husband 


and  wife,  that  was  held  their  joint 
lease,  see  Harness  v.  Eastern  Oil 
Co.,  49  W.  Va.  232;  38  S.  E.  Rep. 
GG2.  See  also  Northwestern  Ohio, 
etc.,  Co.  V.  UUery,  68  Ohio  St.  259; 
67  N.  E.  Rep.  494,  and  Wettengel 
V.  Gormley,  160  Pa.  St.  559;  28  Atl. 
Rep.  934;   40  Am.  St.  Rep.  733. 

Of  an  instance  of  a  father  and 
minor  son,  see  Swint  v.  ilcCalmont 
Oil  Co.,  184  Pa.  St.  202;  38  Atl. 
Rep.  1021. 

i3Ga  Compton  V.  People's  Gas  Co., 
75  Kan.  572;  89  Pac.  Rep.  1039; 
10  L.  R.  A.  (N.  S.)  787;  Wettengel 
V.  Gormley,  160  Pa.  559;  28  Atl. 
934;  40  Am.  St.  733;  Wettengel  v. 
Gormley,   184   Pa.   354;    39   Atl.   57. 

1. -,0b  Dickson  v.  Fertig,  21  Pa. 
Super.  Ct.  Rep.  283 ;  Northwestern 
Ohio  Natural  Gas  Co.  v.  Ullery,  68 
Ohio  St.  259;   67  N.  E.  494. 


124  OIL   AND    GAS. 

§  87.     Notice  to  one  of  several  lessees. 

A  notice  to  one  of  several  joint  lessees  is  notice  to  all  of 
them.  Thus  where  a  lease  or  grant  was  made  lO  four  persons 
jointly,  a  notice  addressed  to  one  of  them  that  the  lease  or 
grant  had  expired,  and  to  keep  off  the  premises,  was  held  a 
sufficient  notice  to  all  of  them.^^^ 

§  88.     Second  lease. — Notice. 

A  person  who  takes  a  lease  on  premises  already  leased,  with 
notice  of  the  first  lease,  takes  it  subject  to  the  rights  of  the  first 
lessee.^"^  Notice  to  the  agent  of  the  second  lessee  is  notice  to 
the  lessee,  if  such  agent  is  employed  by  such  lessee  in  securing 
leases  for  him.^"'"  Where  the  law  partner  of  the  second  lessee, 
on  being  consulted  by  the  lessor,  drew  up  the  lease,  knowing  all 
the  facts,  for  the  express  purpose  of  defeating  the  title  of  che 
holders  of  the  prior  and  unrecorded  lease,  it  was  held  that  such 
lessee  was  chargeable  with  notice  of  the  facts  brought  to  his 
partner's  knowledge  during  the  consultation,  and  he  took  his 
lease  subject  to  the  first  lessee's  rights.'*^''  If  the  lessee  does  not 
record  his  lease,  the  drilling  of  a  well  in  the  vicinity  of  the 
leased  premises,  on  another  farm,  in  fulfillment  of  a  covenant 
with  his  lessor,  will  not  be  notice  to  an  innocent  second  lessee ; 
for  such  an  act  is  not  sufficient  to  put  others  on  notice  of  his 
possession  of  the  leased  premises.^''^  Where  a  statute  required 
a  lessee  or  licensee  to  record  his  oil  or  gas  lease  or  license,  and 

157  Detlor  V    Holland,  57  Ohio  St.  In  Ohio  the  lease  must  be  recorded 

492;    49   N.   E.   Rep.  G90;    40  L.  E.  or  the  lessee  have  actual  possession 

A.  266;    Baker  v.  Kellogg,   29   Ohio  to   put  the  second   lessee  or  a   pur- 

St.  6'63.  chaser  on  his  guard.     Northwestern, 

ir.8  Thompson  v.  Christie,  1.38  Pa.  etc.,   Co.    v.   City   of  Tifiin,   59   Ohio 

St.   230;    27   W.  N.   C.   87:    20  Atl.  St.  420;  54  X.  E.  Eep.  77. 

Eep.   934;    11   L.  E.  A.   23G;   Henne  I'n  South    Ecnn.    Oil    Co.    v.    Stone 

V.   South  Penn.   Oil   Co.,  52  W.  Va.  (W.  Va.),  57  S.  E.  Rep.  374. 

192;   43  S.  E.  Eep.  147;   Partley  v.  loo  Thompson   v.    Christie,   supra; 

Phillips,   179  Pa.   175;   .30  Atl.  217;  Compton    v.    People's    Gas    Co.,    75 

Carnegie  Natural   Gas  Co.  v.  Phila.  Kan.  572:   89  S.  W.   1029;  Gillespie 

Co.,  158  Pa.  317:  27  Atl.  95;  Hicks  v.    Fulton    Oil    &   Gas   Co.,    236   Til. 

V.  Gas  Co.,  207  Pa.  570;  57  Atl.  55:  188;  86  N.  E.  219;   Hicks  v.  Ameri- 

Pyle   V.   Henderson,    G5    Pa.   39;    03  can  Nat.  Gas  Co.,  207  Pa.   570;    57 

S.    E.    762;    National    Oil,    etc.,   Co.  Atl.  55. 

V.  Teel,  95  Tex.  586;   67  S.  W.  545;  isi  Aye    v.    Philadelphia    Co.,    193 

68  S.  W.  797.  Pa.  St.  457:  44  Atl.  Rep.  556. 


LEASES. 


125 


made  its  record  the  only  notice  that  could  be  available  against 
third  persons  acquiring  an  interest  in  the  land  adverse  to  I  he 
lessee,  unless  the  latter  was  in  actual  possession ;  it  was  held 
that  a  lease  which  gave  the  lessee  the  sole  right  for  a  term  of 
years  to  drill  and  operate  for  oil  and  gas  upon  the  leased  prem- 
ises, although  not  witnessed  as  the  statute  required  to  constitute 
it  a  legal  lease,  was  still  good  as  a  lease,  and  entitled  to  record 
as  such ;  and  also  good  in  equity  as  an  agreement  to  make  a 
lease ;  and  the  record  of  it  was  notice  to  third  persons  of  all 
rights  of  the  lessee  under  it.  It  was  also  said  that  if  the  instru- 
ment was  not  one  entitled  to  record,  then  notice  of  its  contents 
could  not  be  given  to  third  persons  by  recording  it,  but  actual 
knowledge  of  its  provisions  would  be  effectual  to  charge  a  sub- 
sequent lessee  with  notice  of  the  equities  of  the  grantor 
therein/*^- 

§  88a.     Right  of  way  of  railroad. 

One  who  leases  land  for  gas  and  oil  purposes  is  charged 
with  notice  of  the  rights  of  a  railroad  company  occupying 
the  premises  as  a  right  of  way,  and  to  the  extent  of  the  conflict 
between  the  terms  of  the  lease  and  the  rights  of  the  railroad 


162  Allegheny  Oil  Co.  v.  Snyder, 
106  Fed.  Rep.  764;  45  C.  C.  A.  G04. 
In  this  case  it  was  held  that  a  suit 
to  quiet  Litle  would  lie  in  favor  of 
the  lessee  out  of  possession,  under 
a  statute  giving  one  citlier  in  or 
out    of    possession    such    a    right. 

One  who  has  actually  read  tlie 
record  of  an  instrument  not  entitled 
to  record  is  chargeable  with  notice 
of  the  contents  of  the  original.  Wal- 
ter V.  Hartwig,  106  Ind.  123;  G 
N.  E.  Rep.  5;  Musick  v.  Barney-,  49 
Mo.  458;  Hastings  v.  Cutler,  24  X. 
H.  481;  Gilbert  v.  Jess,  31  Wis. 
110;  Musgrove  v.  Bonser,  5  Ore. 
313;   210  Am.  Rep.   737. 

The  second  lessee,  with  notice  of 
the  first  lease,  cannot  question  its 
validity  on  the  ground  that  it  lacks 
mutuality,  or  that  it  has  been  re- 
voked by   the  giving  of   the   second 


lease.  Compton  v.  People's  Gas  Co., 
75  Kan.  572:  89  Pac.  Rep.  1039; 
10   L.   R.   A.    (X.   S.)    787. 

Where  an  agent  of  a  lessee  of  oil 
lands,  whose  business  it  was  to  take 
leases,  had  knowledge  of  a  prior 
lease  at  the  time  of  taking  his 
principal's  lease,  and  the  vice-presi- 
dent of  such  lessee  also  had  suffi- 
cient information  to  put  him  on 
inquiry,  and  the  lessee  interposed 
no  defense  of  innocent  purchaser, 
the  lessee's  rights  will  be  subordi- 
nate to  those  of  the  prior  lessee. 
South  Penn.  Oil  Co.  v.  Stone,  57 
S.  W.   374. 

T]\e  fact  that  a  company  had 
drilled  within  certain  territorial  lim- 
its of  the  tract  described  in  its  lease, 
but  not  on  the  leased  land,  does 
not  constitute  such  actual  and  open 
possession    of    the    land    as    to    give 


126  OIL   AND    GAS. 

company  the  rights  of  the  latter  are  paramount.  The  general 
rule  is  that  a  railroad  company  has  only  an  easement  for 
its  right  of  way,  at  least  if  it  acquires  such  right  of  way  by 
adverse  possession.  Where  such  is  the  case,  a  lessee  of  a  tract 
of  land  through  which  the  right  of  way  runs  has  a  superior 
right  to  the  gas  and  oil  underneath  such  right  of  way  and 
may  enjoin  the  railroad  company,  or  its  lessee,  from  sinking 
a  well  on  its  right  of  way.  "The  possession  of  the  company 
which  owned  the  easement  was  so  far  exclusive  that  the  gas 
company  was  not  authorized  to  enter  upon  the  right  of  way 
for  the  purpose  of  drilling  a  gas  well,  but,  in  case  the  ease- 
ment should  be  abandoned  while  the  gas  company's  lease 
continues  in  force,  such  company  would  then  have  the  right 
to  drill  gas  wells  upon  said  strip  of  land.  The  gas  company, 
as  respects  the  right  to  drill  for  gas,  stands  in  the  position 
of  the  owner  of  the  fee.  The  mere  fact  that  such  an  owner 
may  not  enter  and  enjoy  it  will  not  destroy  his  property  rights 
in  the  servient  estate.  In  a  case  of  this  kind,  where  the  gas 
company  may  draw  off  the  gas  in  the  common  reservoir  from 
a  point  within  the  right  of  way,  it  hardly  seems  to  admit  of 
debate  that  the  proprietary  interest  of  such  company  was 
about  to  be  invaded  by  the  drilling  of  the  gas  well  on  the 
right  of  way.  Under  the  evidence  in  the  case,  it  must  be 
inferred  that  one  of  the  purposes  of  a  gas  company  in  leasing 
a  large  tract  of  land  for  gas  purposes  is  that  the  flow  of  gas 
in  such  wells  as  it  sinks  thereon  may  not  be  diminished  by 
the  sinking  of  wells  by  third  persons  within  the  area  covered 
by  the  lease.  Under  the  facts  disclosed,  we  do  not  doubt  the 
right  of  the  gas  company  to  an  injunction  restraining  the 
drilling  of  wells  upon  that  part  of  the  right  of  way  which 
extends  across  the  tract  leased  by  it."  ^^"'' 

effect  to  the  unrecorded  lease  under  i62a  Consumers'  Gas   Trust  Co.  v. 

Ohio    Rev.    St.    §  4112a.      Marks    v.  American  Plate  Glass  Co.,   162  Ind. 

Eushville    Gas   &   Oil    Co.,    30   Ohio  393;    68  N.   E.   Rep.   1020.     In  this 

Cir.  Ct.   R.   798.  case  a  pipe  line  had  been  construct- 

A  purchaser  of  land  is  bound  by  a  ed  within  the  limits  of  the  railroad's 

duly  recorded  lease  thereon.     Busch-  right  of  way  over   lands   leased   for 

Everett  Co.   v.   Vivian   Oil   Co.,   128  natural  gas  purposes,  except  a  short 

La.   886;    55   So.  564.     So  he  must  link,   at  a  cost  of  $5,000;    and   the 

take  notice  of  a  suit  pending  to  can-  court  refused  lo  enjoin  the  eomple- 

cel  it.    Fox  V.  Simmons,  25  111.  316;  tion,  there  being  an  adequate  remedy 

96  N.  E.  233.  at   law    for   damages. 


LEASES.  127 

§  88b.    Enjoining  trespasses  on  adjoining  land. 

If  the  proprietor  of  adjoining  lands  have  the  right  to  sink 
wells  and  extract  oil  and  gas — and  it  is  an  invariable  rule  that 
he  has  such  a  right,  unless  he  has  parted  with  it, — his  neigh- 
bor can  not  object  to  a  trespasser  on  such  adjoining  lands 
putting  down  a  well  and  taking  out  oil  and  gas.  For  such 
a  violation  of  law  the  wrongdoer's  accountability  is  only  to  1he 
proprietor  who  has  a  standing  to  complain  of  the  trespass 
involved  in  drilling  the  well.^"-'' 

§  89.     Agent  of  lessee  may  take  lease  after  forfeiture. 

The  agent  of  a  lessee,  who  has  entered  on  the  leased  premises 
as  such  agent,  may  take  a  lease  from  the  owner  of  such 
premises  after  a  forfeiture  has  been  made ;  and  if  for  some 
reason  his  principal's  lease  is  void,  he  may  take  a  lease  of  the 
premises  after  it  is  fully  developed  that  his  principal  will  not 
be  able  to  obtain  any  benefit  under  his  lease. ^"^ 

§90.     Exclusive  right  of  licensee  of  lessee. —  Solid  mineral  — oil. 

*'  A  license  to  dig  and  take  ore  is  never  exclusive  of  the  licen- 
sor, unless  expressed  in  such  words  as  to  show  tliat  it  was  the 
intention  of  the  parties.  Where  the  license  siiiipl}'  gives  the 
licensee  the  right  to  dig  and  take  ore,  the  licensor  may  take  ore 
from  tlie  same  nunc  at  the  same  time,  and  also  grant  permis- 
sion to  others  to  exercise  the  same  right."  ^"*  The  words  of  a 
license  may  be  such  as  to  exclude  the  right  of  the  grantor  to 

i62h  Consumers'   Gas  Trust  Co.  v.  v.  Abell,  2G  Colo.  4G2;   58  Pac.  Rep. 

American  Plate  Glass  Co.,   1G2  Ind.  612. 
393;    68  N.  E.  Rep.   1020.  i64  Silsby  v.  Trotter,  29  N.  J.  Eq. 

Equity  may  enjoin  a  second  lessee  228;  ]\Iountjoy's  Case,  Godb.  18;  1 
from  removing  oil  from  the  lands  Amb.  307 ;  4  Leon.  147 ;  Chetham  v. 
covered  by  a  prior  lease  at  the  in-  Williamson,  4  East  469 ;  Grubb  v. 
stance  of  the  senior  lessee.  Smith  Bayard,  2  Wall  Jr.  81;  Funk  v. 
V.  Root,  66  W.  Va.  633;  66  S.  E.  iraldeman,  53  Pa.  St.  229;  Stock- 
Rep.  1005;  Midland  Oil  Co.  v.  Tur-  bridge  Iron  Co.  v.  Hudson  Iron  Co., 
ner,  179  Fed.  Rep.  74  (modifying  107  Mass.  290;  Manganese  Co.  v. 
Turner  v.  Seep,  167  Fed.  Rep.  646)  ;  Trotter,  29  N.  J.  Eq.  561;  Jennings 
Seep  v.  Spade,  179  Fed.  Rep.  77;  Bros.  &  Co.  v.  Beale,  158  Pa.  St. 
Gillespie  v.  Fulton  Oil  &  Gas  Co.,  283;  27  Atl.  Rep.  948;  iMassott  v. 
239  111.  326;    88  N.   E.  Rep.   192.  Moses,  3  S.  C.  168;   Barker  v.  Dale, 

icsDudield   V.    Michaels,    97    Fed.  2    Fed.    Cas.    810;    3    Pittsb.    190; 

Rep.  825.  Woodside   v.   Ciceroni,   93    Fed.   Rep. 

The  lessee  of  mining  property   is  1 ;   35  C.  C.  A.   177. 
not  the  agent  of  the  owner.    Wilkins 


128  OIL   AND   GAS. 

mine/*^"  Tluis  a  license  giving-  the  licensee  "  full  and  free  lib- 
erty "  to  "work  will  be  sufficient  to  make  the  license  an  exclusive 
one.^"*^  "  A  license  may  confer  a  sale  or  exclusive  right,  or 
simply  a  right  in  oonimon.  If  it  simply  confers  a  right  to  dig 
and  take  ore,  or  to  work  a  mine,  it  is  not  exclusive,  and  the 
licensor  may  himself  take  ore  from  the  same  land  or  mine,  or 
license  others  to  do  so.  And  when  it  autluirizes  the  licensee  to 
dig  and  carry  away  all  the  ore  to  be  found  in  certain  lands,  it 
does  not  confer  an  exclusive  right.  If  it  be  merely  a  license, 
and  no  estate  in  the  property  or  land  passed,  the  licensee  ac- 
quires no  title  to  the  ore  until  he  has  severed  it.  Such  a  license 
has  been  adjudged  to  confer  a  privilege  similar  to  a  right  of 
common  sans  nomhre,  to  give  a  right  without  stint  as  to  quan- 
tity, but  not  exclusive  of  the  grantor.  There  can  be  no  doubt 
that  tlie  instrument  under  consideration  conferred  an  exclusive 
right.  The  licensor  has  expressed  his  intention  in  tliat  respect 
in  plain  words."  ^"^  These  are  cases  of  solid  minerals,  and  at 
first  blush  one  would  suppose  that  the  same  rules  would  be  aj>- 
plied  to  gas  or  oil ;  such  is  not  the  case.  Owing  to  the  "  fugi- 
tive and  wandering  nature  "  of  oil  and  gas,  if  the  licensor  or 
lessor  could  put  down  a  well  on  the  leased  premises  he  might 
render  the  right  of  the  licensee  or  lessee  worthless,  by  drawing 
off  tlie  oil  and  gas,  even  after  he  had  expended  large  sums  of 
money  in  developing  the  premises.  It  necessarily  follows  that 
the  "  grant  of  well  rights  is  necessarily  exclusive."  ^''^  This 
rule  is  well  illustrated  in  a  Pennsylvnnia  ease.  The  owner  of 
land  leased  a  certain  tract  of  land,  according  to  a  division  of 
tlie  tract  into  numbered  sites,  each  site  situated  on  a  lot  num- 
bered respectively  on  a  map;  and  also  sites  for  three  wells  south 
of  the  railroad  track  on  it ;  to  be  designated  and  mutually  agreed 
upon  by  him  and  the  lessee,  for  a  term  of  fifteen  years,  ''  with 

165  Caldwell  V.  Fulton  31  Pa.  St.  Pa.    St.   9;    Jennings   v.   Beale,    158 

475.  Pa.  St.  '283 ;  27  Atl.  Rep.  948 ;  Rey- 

166  Doe.  d.  Hanley  v.  Wo<xl,  2  nolds  v.  Cook,  83  Va.  817;  3  S.  E. 
Barn,  and  Aid.  7'24;  Sutherland  v.  Rep.  710;  Bronson  v.  Lane,  91  Pa. 
Heathcote     [1802],     Ch.     504;     East  St.   153. 

Jersey  Co.  v.  Wright,  32  N.  J.  Eq.  los  Funk  v.  Haldeman,  53  Pa.  St, 

248.  '  229,  247;  Westmoreland,  etc.,  Co.  v. 

167  East  Jersey  Co.  v.  Wright,  32  DeWitt,  130  Pa.  St.  235;  18  Atl. 
N.  J.  Eq.  248;  Johnston  Iron  Co.  Rep.  724;  29  Am.  L.  Reg.  93;  5  L. 
V.  Cambria  Iron  Co.,  32  Pa.  St.  241;  R.  A.  731. 

Gloninger  v.   Franklin  Coal   Co.,  55 


LEASES.  12D 

the  sole  and  exclusive  riffht  and  privilege  durinsi;  said  period  of 
diamine:  and  borinc:  for  oil  and  other  minerals  on  said  lot." 
The  lessee,  for  oil  mining  jmrjioses,  was  restricted  to  the  speci- 
fied sites;  and  he  had  no  right  of  possession  for  any  other  pur- 
pose at  any  other  place  on  the  tract  of  land  described.  It  was 
held  tliat  the  lessor  could  not  drill  wells  on  the  tract  of  land 
outside  of  the  designated  sites,  nor  authorize  any  one  else  to  do 
so ;  and  if  he  undertook  to  do  so  a  court  of  equity  would  restrain 
him ;  for  the  reason  that  tlie  sinking  of  wells  outside  of  such 
sites  would  lessen  the  production  of  the  wells  drilled  by  the  les- 
see, and  the  injury  would  be  destructive  of  his  rights  and  was 
incapable  of  an  adequate  remedy  at  law.^*'" 

§91.     Implied  covenant. 

By  giving  a  lease  the  lessor  does  not  covenant  that  oil  or  gas 
is  on  the  premises,  or  tliat  it  can  be  found  on  them.^^°  There 
is,  however,  an  implied  covenant  of  right  of  entry  and  quiet  en- 
joyment for  tlie  purposes  of  tlie  lease;  and  it  is  broken  by  the 
exclusion  by  the  lessor  of  the  lessee  from  taking  possession  for 
the  purposes  of  the  lease,  or  his  withholding  from  him  the  pos- 
session for  such  purposes.^^^  But  making  anotlier  lease  during 
the  term,  by  the  lessor,  whether  the  first  lessee  be  in  actual  jx>s- 
session  or  not,  is  not  a  violation  of  the  covenant  for  quiet  enjoy- 
ment.^'^" As  has  been  said  elsewhere,  there  is  not  only  a 
covenant  on  tJie  part  of  the  lessee  that  he  will  fully  develop  the 

leoDuffield    v.    Hue.    1.36    Pa.    vSt.  Tucker  v.  Watts,   25   Ohio   Cir.   Ct. 

602:    20   Atl.   Rep.   526;    Duffield  v.  Rep.  320 ;  Shenk  v.  Stalil,  swpra. 

Hue,    12n    Pa.    St.   94;    18   Atl.   Rep.  Whatever    is     implied     in    an    nil 

566;  DufTield  v.  Rosenzweig,  114  Pa.  lease  is  as  efTectual  as  what  is  ex- 

St.  520;   23  Atl.  Rep.  4;  Duffield  v.  pressed.     Brewster   v.   Lanvon   Zinc; 

Rosenzweig,     150    Pa.    St.    543;    24  Co.,  140  Fed    Rep.  801;  72' C.  C.  A. 

Atl.  Rep.  705;   Union  Petroleum  Co.  213. 

V.  Bliven  Petroleum  Co.,  72  Pa.  St.  When  oil  is  produced,  the  amount 

173;   Heller  v.   Daley,  28  Ind.  App.  stipulated    for   in   the   lease   is   also 

555;  63  X.  E.  Rep.  490.     See  Guffey  protected    hy   the    implied    co\Tn;int 

V.  Deeds,  9  Pa.  Co.  Rep.  449.  for    peaceable    jiossession.      Kilcoyne 

i"o  Kokomo    Natural    Gas    Co.    v.  v.  Southern  Oil  Co.,  61  W.  Va.  53S; 

Albright,  18  Ind.  App.  151;  47  N.  E.  56   S.    E.   Rep.   888. 

Rep.   682;    Shenk   v.   Stahl,   35   Ind.  i72  Knotts   v.  McGregor,   supra. 

App.  493;    74  N.  E.   Rep.  538.  In    Pennsylvania    the    implication 

171  Knotts  V.  ^McGregor,  47  W.  Va.  of   a    covenant   for    quiet   enjoyment 

566;  35  S.  E.  Rep.  899;   Kilcoyne  v.  arising    from    words    of   grant    in    a 

Southern  Oil  Co.,  61  W.  Va.  538;  56  conveyance  by  virtue  of  Act  of  ]May 

S.  E.  Rep.  888:  Heidley  v.  Hoopen-  28,   1715,  Sec.  6.  applies  only  to  an 

garner,  60  W.  Va.  626;  55  S.  E.  144;  estate  of   inheritance  in  fee 'simple, 


130 


OIL   AND    GAS. 


leased  premises,  but  that  he  will  do  so  with  diliii:eiioe.^"  There 
is  also  an  implied  covenant  on  the  part  of  the  lessee  that  he  will 
put  down  enough  wells  to  protect  tlie  leased  premises  from  being 
drained  by  wells  on  adjacent  territory.^^*  If,  however,  the  lease 
si>ecifies  the  number  of  wells  tliat  are  to  be  drilled,  there  is  no 
implied  covenant  that  more  than  the  number  specified  are  to  be 
drilled,  even  though  more  are  needed  to  fully  develop  the  terri- 
tory, or  to  protect  the  premises  from  wells  on  adjoining  terri- 
tory."^ The  lessee  is  under  no  implied  covenant  to  work  the 
premises  at  a  loss,  where  the  lessor  is  to  receive  a  part  of  tlie 
product  as  his  compensation;  and  his  judgment  whether  or  not 


and  not  to  a  lease  of  a  mere  right 
to  drill  oil  or  gas  wells  and  take 
the  products.  Chambers  v.  Smith, 
183  Pa.  St.  122.;  38  Atl.  Rep.  522. 

173  Huggins  V.  Daley,  99  Fed.  Rep. 
606;  48  L.  R.  A.  320;  Steelsmith 
V.  Gartlan,  45  W.  Va.  27;  29  S.  E. 
Rep.  978;  44  L.  R.  A.  (See  the 
subject  of  "Forfeiture.")  Adams  v. 
Stage,  18  Pa.  Super.  Ct.  Rep.  308; 
Sharp  V.  Behr,  117  Fed.  Rep.  864; 
Core  V.  N.  Y.,  etc.,  Co.  (W.  Va.), 
43  S.  E.  Rep.  128;  Venedocia  Oil  & 
Gas  Co.  V.  Robinson,  71  Ohio  St. 
302;  73  N.  E.  Rep.  r222;  Baker  v. 
Stow,  30  Ohio  Cir.  Ct.  Rep.  724; 
J.  M.  Guffey  Petroleum  Co.  v.  Oliver 
(Tex.  Civ.  App.),  79  S.  W.  Rep. 
884;  Howerton  v.  Kansas  Nat.  Gas 
Co.,  82  Kan.  367;  108  Pac.  Rep. 
813;  reversing  81  Kan.  553;  l06 
Pac.  Rep.  47;  Poe  v.  Ulrev,  233  111. 
56;  84  N.  E.  Rep.  46;  ix)gan  Nat. 
Gas  &  Fuel  Co.  v.  Great  Southern 
Gas  Co.,  126  Fed.  Rep.  623;  Kellar 
V.  Craig,  126  Fed.  Rep.  630;  Con- 
sumers' Gas  Trust  Co.  v.  Littler, 
162  Ind.  320;  70  N.  E.  Rep.  363; 
Steelsmith  v.  Gartlan,  45  W.  Va. 
27:  20  S.  E.  978;  Mcintosh  v.  Robb, 
4  Cal.  App.  484;  88  Pac.  Rep.  517; 
Brewster  v.  Lanyon  Zinc  Co.,  140  Fed. 
Rep.  801;  72  C.  C.  A.  213;  Powers 
V.  Bridgeport  Oil  Co.,  238  111.  397; 
87  N.  E.  Rep.  381;  New  American 
Oil,  etc.,  Co.  V.  Trover,  160  Ind. 
402;  76  N.  E.  Rep.  253;  New  Ameri- 
can Oil  Co.  V.  Wolff,  166  Ind.  402; 
76   N.   E.   Rep.  255. 

If  the  provisions  of  the  lease  spe- 
cifically permit  delay,  the  lessor 
cannot  complain  of  any  delay  within 


its  provisions.  Ringle  v.  Quigg,  79 
Kan.  S-Sl;  87  Pac.  Rep.  724;  Brew- 
ster V.  Lanyon  Zinc  Co.,  140  Fed. 
Rep.  801;   72  G.  C.  A.  213. 

A  grant  in  consideration  of  one 
dollar  of  all  the  oil  and  gas  under 
certain  premises,  with  the  riglit  to 
enter  thereon  to  operate  the  same, 
excepting  to  the  grantor  one-sixth 
part  of  the  o.l  produced,  to  be  de- 
livered in  the  pipe  lines  with  which 
the  grantee  may  connect  his  wells, 
implies  an  engagement  by  the  lessee 
to  develop  the  premises.  Venedocia 
Oil  &  Gas  Co.  v.  Robinson,  73  N.  B. 
222;   71  Ohio  St.  302. 

1-4  Harris  v.  Ohio  Oil  Co.,  57  Ohio 
St.  629;  5»  N.  E.  Rejx  1129;  48  N. 
E.  Rep.  502;  Colgan  v.  Forest  Oil 
Co.,  30  Pittsb.  L.  J.  (N.  S.)  68; 
Kleppner  v.  Lemon,  176  Pa.  St.  502; 
35  Atl.  Rep.  109;  Glasgow  v.  Char- 
tiers,  152  Pa.  St.  48;  25  Atl.  Rep. 
232;  Allegheny  Oil  Co.  v.  Snvder, 
45  C.  C.  A.  604;  106  Fed.  764; 
J.  M.  AIcGuffey  Petroleum  Co. 
(Tex.),  79  S.  W.  884;  Acme  Oil  Co. 
V.  Williams,  140  Cal.  681;  74  Pac. 
296;  Huggins  v.  Dailev,  40  C.  C.  A. 
12;  09  Fed.  606;  48  L.  R.  A.  320; 
Phillips  V.  Hamilton,  17  Wyo.  41; 
05  Pac.  84'6 ;  Powers  v.  Bridgeport 
Oil  Co.,  23S  la.  397;  87  N.  E.  381; 
Buffalo  Valley  Oil  &  Gas  Co.  v. 
Jones,  75  Kan.   18;   88  Pac.  537. 

1""  Colgan  v.  Forest  Citv  Oil  Co., 
194  Pa.  St.  234;  45  Atl.  Rep.  119; 
75  Am.  St.  Rep.  695;  Brewster  v. 
Lanyon  Zinc  Co.,  140  Fed.  Rep.  801- 
72  C.  C.  A.  213;  Ave  v.  Philadolpjiia 
Co.,  19a  Pa.  451;   44  Atl.  o3o. 


LEASES.  I'M 

the  work  can  be  carried  on  at  a  profit,  if  honest,  is  entitled  to 
great  weight,  and  should  prevail  as  against  the  opinion  of  tlie 
lessor,  or  exj^erts,  or  the  court's,  or  all  of  them,  to  the  con- 
trary.^'"^  Where  the  lessee  was  to  pay  the  lessor  a  r(»yalty  if 
the  flow  of  gas  was  sufficiently  strong  to  be  used  off  the  premises, 
and  one  well  was  drilled  which  enabled  the  lessee  to  pay  the 
royalty ;  but  afterwards  the  well  having  got  out  of  order,  was 
abandoned;  it  was  held  that  the  lessee  was  under  no  implied 
covenant  to  fully  develop  the  premises  for  gas  for  the  C(jmmon 
benefit  of  the  parties  to  the  lease;  for  the  reason  that,  because 
of  the  peculiar  nature  of  natural  gas,  the  effort  of  the  lessee  to 
discharge  such  an  obligation  might  result  in  the  entire  destruc- 
tion of  the  leasehold.^"  If  the  causes  for  forfeiture  of  a  lease 
are  specified  in  it,  the  courts  will  not  infer  that  tliere  arc  other 
causes  of  forfeiture  not  declared  in  it  to  be  such.  Ordinarily 
a  breach  of  an  implied  covenant  will  not  work  a  forfeiture  of 
the  lease.^" 

§92.     Covenant  running  with  land. 

Covenants  that  run  with  the  land  bind  all  that  hold  under  the 
lease,  whether  as  assignee  or  otherwise.  A§  a  rule  the  inten- 
tion of  the  parties  to  the  lease  or  deed  determines  the  question 
whetlier  a  covenant  runs  with  tJie  land ;  and  to  ascertain  that  in- 
tention resort  must  be  had  to  the  words  of  the  covenant,  consid- 
ered, of  course,  in  the  light  of  the  circumstances  of  the  transac- 
tion and  the  subject  of  the  grant.^"  A  covenant  to  use  due 
diligence  in  developing  the  land  is  such  a  covenant.'^"     So  is  a 

176  Young  V.  Forest  Oil  Co.,  194  Tn  the  case  of  a  sale  of  a  mine, 
Pa.  St.  243;  45  Atl.  Rep.  121;  30  where  the  contract  provided  for  tlie 
Pittsb.  L.  J.  (N.  S.)  221:  Stoddard  payment  to  tlie  vendor  of  a  certuin 
V.  Emery,  128  Pa.  St.  436;  24  W.  N.  portion  of  tlie  net  profits  arisin;,' 
C.   566;    18   Atl.   Rep.   33!).  from  operating  it,  but  contained  no 

If    the    lessee   claims    that   gas    is  provision   requiring  its  operation,  it 

being  produced  in  paying  quantities  was  held  that   there  was  no  implied 

and  is  willing  to  pay  for  it,  the  sum  covenant  on  the  part  of  the  vendee 

stipulated    in    the    lease,    the    lease  to  work  the  mine.     Hawks  v.  Tay- 

cannot    be    forfeited    upon    such    a  lor,    70    111.   App.    255. 

claim.      IMcCraw    Oil    &    Gas    Co.   v.  .     I'S  Core    v    New    York    Petroleum 

Kennedy,  05  W.   Va.  599;    64   S.   E.  Co.,  52   \V.  Va.   276;    43  S.  E.   Rep. 

Rep.   1027.  128. 

177  Knight  V.  Mfg's.  Natural  Gas  i79TvandelI  v.  Hamilton,  175  Pa. 
Co.    (Pa.),  23  Atl.  Rep.  104;   29  W.  St.   327:    34    Atl.   !{ep.  003. 

N.  C.  261.  180  Bradford  Oil  Co.  v.   Blair,   113 

Pa.   St.   83;    4  Atl.   Rep.   218. 


132  OIL   AND    GAS. 

covenant  for  rent  or  royalty,^""  or  a  certain  amount  of  the  oil 
produced. ^*''  An  agreement  that  rent  should  be  paid  for  so 
niucli  of  the  surface  oi  the  ground  as  is  used  for  dumping  pur- 
jKJses  is  a  covenant  running  witli  the  laiid.'^'  So  an  agreement 
that  the  lessor  should  have  a  part  of  the  gas  free  is  such  a 
covenant.^^^ 

§93.     Personal  covenants. 

A  right  in  the  lessor  to  receive  gas  in  a  cert.ain  quantity,  or 
for  a  certain  pur}X)se,  may  he  a  mere  personal  covenaiit,  and  one 
not  binding  on  an  assignee  of  the  lease  or  grantee  of  the  prem- 
ises. Such  was  held  to  be  the  case  with  resjDcct  to  the  right  to 
take  coal  out  of  a  mine.  Thus  a  will  provided  as  follows: 
"  To  my  second  son,  John,  I  give  and  bequeath  the  plantation 
he  now  occupies,  to  be  enjoyed  by  him,  his  heirs  and  assigns 
forever,  with  free  pri\'ilege  of  taking  what  coal  he  wants  for  his 
own  use  off  tlie  home  plantation."  When  the  will  was  made 
there  was  an  open  mine  on  the  "  home  plantation,"  but  none 
on  the  farm  John  occupied.  The  court  considered  the  right  to 
take  the  coal  a  mere  privilege  which  was  personal  to  Jfihn,  and 
one  that  did  not  pass  to  his  grantee  of  the  land  devised  to  hini.^^^ 
So  an  agreement  in  a  lease  that  the  lessee  may  operate  an  ad- 
joining tract,  if  the  lessor  shall  so  elect,  is  personal  between  the 
lessor  and  lessee ;  and  if  the  lessor  has  not  elected  to  have  it 
operated,  a  bona  fide  purchaser  takes  it  free  from  the  right  of 
the  lessee  to  operate  it.  In  such  an  instance  the  purchaser  is 
only  bound  to  inquire  if  the  lessor  has  elected  to  have  the  land 
operated  according  to  the  terms  of  the  lease."*'      An  agreement 

isiFennell   v.  GiifFey.   139  Pa.  St.  Bridge,  etc.,  Co.  187  Pa.  St.  500;  41 

341;  20  Atl.  Eep.  1048;   Springer  v.  Atl.  Rep.  4.58;   Indiana,  etc.,  Oil  Co. 

Gas   Co.,   145   Pa.    St.   430;    22   Atl.  v.  Hinton,    159   Ind.   398;    64  X.   E. 

Rep.  986;  Fennell  v.  Guffey,  155  Pa.  Rep.  224. 

St.  38;  29  Atl.  Rep.  785.  iss  Coal  Co.  v.  Pierce.  153  Pa.  St. 

"2  Akin     V.     Marshall     Oil     Co.  74 ;  25  Atl.  Rep.  1026;  Indiana,  etc., 

(Pa.).  41    Atl.  Rpp.   748;    Crawford  Oil  Co.  v.  Hinton    (Ind.),  64  N.  E. 

V.  Witherbee,  77  Wis.  419;  46  N.  VV.  Rep.  224. 

Rep.   545.  ^^s  Emerine  v.  Stool.  S  Oliio  C.  Ct- 

isf  Schooley  v.  Butler  Mining  Co.,  Rep.  381;   4  Ohio  C.  Doo.  92;    Nor- 

9  Knlp    (Pa.),  291.  cross  v.  .Tames,  140  Mass.  188;    2  N. 

184  Electric  City,  etc.,  Co.  v.  West  E.  Rep.  940. 


LEASES.  133 

on  tlie  part  of  the  lessee  to  devote  all  his  time  to  the  deve!c{»meiit 
and  operation  of  the  land  is  purely  personal ;  and  if  tlie  lease  be 
assigned  by  the  lessor  the  lessee  may  o])ernte  other  territory.'^' 
An  agreement  at  the  end  df  the  Icnsc  tluil  the  Icj^sor  would  buy 
all  the  tools  and  nuicliinory  used  on  the  leased  preanises  is  a  per- 
sonal eoveuant.^**^ 

§94.     Assignment   of   contract   giving   interest   in   land.—  Incor- 
poreal hereditament. —  Lease. —  Surrender. 

If  a  contract  concerning  the  right  to  drill  for  oil  or  gas  on 
certain  premises,  and  to  operate  them  if  either  or  both  be  found, 
is  such  as  to  operate  as  a  grant  of  an  interest  in  the  premise.-, 
then  it  can  be  assigned  or  transferred  only  in  writing,  and  a 
parol  transfer  of  it  is  void.  "  At  common  law,  corporeal 
hereditaments  were  demisable  without  deed  or  writing,  the  lease 
being  perfected  in  the  case  of  a  demise  for  years,  by  the  entry 
of  the  lessee,  and  by  livery  of  seizin  in  the  case  of  a  lease  for 
life;  but  a  deed  was  always  required  for  the  conveyance  of  in- 
corporeal hereditaments.  The  provision  of  the  first  section  of 
the  English  Statute  of  Frauds,^**'"*  that  leases  not  in  writing- 
should  have  the  effect  of  leases  at  will,  left  untouched  leases  of 
incorporeal  hereditaments.'""  At  common  law,  a  lease  of  cor- 
poreal hereditaments  might  be  surrendered  to  him  who  had  the 
reversion  or  remainder  without  deed,  writing,  ov  livery;  but  a 
deed  was  indispensable  to  a  surrender  of  incorporeal  heredita- 
ments.^"^ At  common  law,  a  lease  for  years  or  for  life  might 
be  surrendered  by  parol  or  by  operation  of  law.^**"  Incor]ioreal 
hereditaments,  the  conveyance  of  which  could  not  be  evidenced 
and  accompanied  by  livery  of  seizin,  but  lay  only  in  grant,  al- 
ways at  common  law  could  pass  only  by  deed,*  and  could  not 
be  surrendered  by  operation  of  law.'"''     By  section  three  of  the 

isTFindlay  v.  Carson,  97  la.  537;  flio    assifrnnr   is   not   ontitlod   to   ro- 

66  N.   W.   liep.  750.  covor    of    tlio    assifrneo    the    $I.O(H) 

188  Etowah    Mining    Co.    v.    Wills  niontioncd  in  the  assitrnment.    Fisher 

Valley,  etc.,    Co.,    121   Ala.    672;    25  v.  Oufrev,   1!)3  Pa.  393;   44  All.  452. 

So.   Rep.   720.  i^p29  Car.  II,  Chap.  3. 

An    assignment   of    a    lease    for    a  i!i"2    Piatt   Leases,    1,   2. 

certain  sum  "and  the  further  sum  of  i^'^  2   Piatt  Tx>ases,  499. 

$1,000    if  oil    is    found    in    any   well  i!'2  J^yncli   v.  Lynch,  6  Irish  L.   R. 

drilled  on  any  of  the  territory,  and  131. 

said  well  or  territory  is  operated  by  i'-'' Brown    St.    of    F.,    Sec.    2,    5; 

the  said  assignee,"  creates  no  cove-  Reed    St.    of    V.,    Sec.    767;    VVashb. 

nant  which  runs  with  the  land,  and  Real  Prop.,  Sec.  552;  Lyon  v.   Reed, 


134  OIL   AND    GAS. 

English  Statute  of  Frauds  it  was  provided,  that  '  no  leases 
shall  be  assigned,  granted  or  surrendered,  unless  it  be 
by  deed  or  note  in  writing  signed,  .  .  ,  or  by  act  and 
operation  of  law.'  After  the  enactment  of  this  statute,  which 
introduced  no  change  as  to  incorporeal  hereditaments,  they 
could  not  be  surrendered  except  by  deed.^"*  The  common  law 
in  respect  to  the  surrender  of  leases  must  be  regarded  as  in 
force  in  this  State,  except  so  far  as  it  is  modified  by  our  o^vTl 
statutes.^'''^  Our  statutes  do  not  contain,  as  do  those  of  some  of 
our  States,  any  express,  separate  provision  relating  to  assign- 
ments or  surrenders  of  leases,  corresponding  to  the  third  section 
of  the  English  statute. ^'*''  But  our  statutes  contain  nothing  ex- 
pressly or  by  necessary  implication  forbidding  surrender  by 
act  and  operation  of  law,  and  construing  our  express  require- 
ments concerning  conveyances  as  relating  to  transfer  by  con- 
tract, and  as  including  surrenders  in  fact,  we  may  hold  that 
such  surrenders  as  properly  come  within  the  meaning  of  the 
words  '  by  act  and  operation  of  law  '  as  used  in  the  British 
Statute  of  Frauds  and  in  similar  statutory  provisions  of  sister 
States,  may  be  upheld  in  this  State.  The  provisions  of  the 
English  statute  for  surrender  by  act  and  operation  of  law  was 

13  M.  and  W.  285;  Wood  Landlord  "grantor,"   aa   used    in   the    statute, 

and    Tenant     (2d    ed. ),     1154,    and  embraced    "every    person    by    whom 

notes.  any  estate  or  interest  in  land  is  cre- 

194  Lyon  V.  Reed,  13  M.  and  W.  ated,  granted,  bargained,  sold,  con- 
285;  2  Piatt  Leases,  503;  Brown  St.  veved,  transferred  or  assigned."  (R. 
of  F.,  Sec.  2,  5.  S."  Indiana,    1901,   Sec.   3375.)      An- 

A  contract  of  a  landowner  of  "all  other     statute     provided     that     the 

the    oil    and    gas    in    and    under"    a  word       "land"       included       "lands," 

certain  tract  of  land,  and  providing  "tenements"     and    "hereditaments." 

penalties   for   delay   in   the   drilling  (R.    S.    Indiana,     1901,    Sees.    241, 

of  wells,  can  only  be  surrendered  in  1309.)      While     still     another     dis- 

writing  sufficient  to  convey  the  real  pensed   with   the   use  of   the   words 

estate.      Heller    v.    Dailey,    28    Ind.  "heirs  and  assigns"  to  create  in  the 

App.  555;   63  N.  *E.  Rep.  490.     See  grantee    and    estate    of    inheritance, 

also  Heller  v.   Daiiey,  34   Ind.  App.  (R.    S.    Indiana,    1901,    Sec.    1'90I ) . 

424;   70  N.  E.  821.  By   the    Statute   of    Frauds   of  that 

195  R.   S.    1901,   Sec.  236.  State    no    action    could    be    brought 

196  The  court  had  already  quoted  on  any  contract  for  the  sale  of  lands 
a  statute  which  provided  that  unless  the  contract  or  some  memo- 
"Conveyances  of  lands  or  of  any  randum  or  note  thereof  was  in  writ- 
interest  therein,  shall  be  by  deed  in  ing  and  signed  by  the  party  to  be 
•writing,  subscribed,  sealed  and  duly  charged  therewith,  or  by  some  person 
acknowledged  by  the  grantor  or  by  authorized  to  sign  it,  excepting 
his  attorney,  except  bona  fide  leases  leases  not  exceeding  the  term  of 
for  a  term  not  exceeding  three  three  years.  (R.  S.  Indiana,  1901, 
years."      (R.  S.   Indiana.   1901,  Sec.  Sec.  6629.) 

3335),  and  it  had  said  that  the  term 


LEASES.  135 

but  a  statutory  regulation  of  a  common  law  method.  It  seems 
sufficiently  plain  tliat  an  interest  in  land  lying  only  in  grant  or 
a  term,  unless  it  be  for  tliree  years  or  less,  cannot  be  surren- 
dered by  express  contract,  tliat  is,  cannot  be  transferred  or 
yielded  up  by  surrender  in  fact,  without  a  writing  sufficient  for 
the  conveyance  of  an  interest  in  land  greater  than  can  be  created 
by  parol."  ^" 

§95.     Lessee  liable  after  assignment  on  express  covenants. 

"  It  is  generally  established  tliat  the  lessee,  who  before  his 
assignment  of  the  lease  to  a  tliird  j)erson  is  bound  by  both  the 
express  and  implied  covenants  of  the  leas©,  continues  after  the 
assignment  to  be  liable  upon  his  express  covenants  therein,  as  if 
no  assignment  had  been  made,  and  that  the  assignee  is  liable 
to  the  lessor  upon  all  the  covenants  which  run  with  the  land, 
for  non-performance  thereof  while  the  estate  is  in  him,  but  is 
not  liable  for  broach  of  any  covenants  which  occur  before  tlie 
assignment  to  him  or  after  his  assignment  to  another,  the  lia- 
bility of  the  lessee  after  his  assignment  resting  in  privity  of 
contract,  that  of  the  assignee  resting  in  privity  of  estate 
and  continuing"  only  while  such  privity  exists,  though  ho 
remains,  after  his  assignment  to  another,  liable  for  breach  which 
he  committed  while  he  had  the  estate.  If  the  assignee  hold  pos- 
session under  the  lease,  or  have  immediate  right  ta  the  posses- 
sion, when  any  rent  falls  due,  he  will  continue  liable  therefor, 
and  will  not  escape  such  liability  by  his  subsequent  assignment, 
and  this  is  true  whether  he  become  assignee  by  the  act  of  the 
lessee  or  of  the  lessee's  assignee  or  by  act  of  law,  as  by  purchase 
at  a  sheriff's  or  an  owner's  sale."  ^^* 

197  Heller  v.  Dailey,  29  Ind.  App.  Supply  Co.,  158  Pa.  St.  401;  28  Atl. 
555;  63  N.  E.  Rep.  490,  citing  to  Hep.  22;  Edmonds  v.  Mounsey,  15 
last  proposition  McCall  Heal  Prop.  Ind.  App.  391);  44  N.  E.  Rep.  lOfi; 
95,  96;  Taylor  L.  and  T.,  Sec.  509;  Breckenridge  v.  Parrott,  15  Ind. 
Wood  L.  and  T.,  Sees.  488,  494;  1  App.  411;  44  N.  E.  Rep.  66;  In- 
Washb.  Real  Prop.  (5th  ed.)  579;  diana  Natural  Cas  and  Oil  Co.  v. 
Peter  v.  Barnes,  10  Ind.  219;  Ross  Hinton,  159  Ind.  395;  64  N.  E.  Rop. 
V.  Schneider,  30  Ind.  423.  224;  Washington  Natural  Gas  Co.  v. 

198  Heller  v.  Dailey,  28  Ind.  App.  Johnson,  123  Pa.  576;  16  Atl.  799; 
555;  63  N.  E.  Rep.  490;  Fennell  v.  Jackson  v.  O'Hara,  183  Pa.  233; 
Guffey,    139    Pa.    St.    341;    20    Atl.  38  Atl.   624. 

Rep.    1048;    Aderhold    v.    Oil    Well 


136  OIL   AND    GAS. 

§  96.     When  work  must  be  begun. 

If  no  time  is  specified  within  which  the  work  of  develop- 
ment is  to  be  begun,  then  the  law  steps  in,  as  we  have  seen, 
and  requires  it  to  be  begun  within  a  reasonable  time,  and 
the  circumstances  of  each  particular  case  must  determine 
what  would  be  a  reasonable  time.  For  if  the  premises  are 
surrounded  by  other  oil  or  gas  lands  that  are  being  rapidly 
developed,  and  thereby  in  all  probability  drawing  the  gas 
and  oil  from  under  the  leased  premises,  the  lessee  must  pro- 
ceed with  greater  celerity  than  if  such  were  not  the  case ;  and 
if  the  leased  premises  are  only  a  few  acres  so  that  the  chanees 
of  losing  the  oil  or  gas  beneath  the  surface  would  be  greater 
than  if  they  were  of  great  or  considerable  extent,  then  greater 
celerity  is  probably  required  than  in  the  latter  instances.'^® 
Usually,  however,  the  time  within  which  work  is  to  begin  is 
fixed  in  the  lease,  in  which  case  the  lessee  has  the  whole  time 
allowed  within  which  to  begin  the  work  of  development,  but  no 
more.-""  Thus  where  thirty  days  were  given  within  which 
operations  must  be  begun  or  the  lease  be  void,  work  began 
upon  the  premises  in  good  faith  upon  the  afternoon  of  the 
thirtieth  day  was  held  to  be  in  time.'°^     The  lessee  may  be 

199  Kleppner  v.  Lemon,  29  Pittsb.  New  American  Oil,  etc.,  Co.  v.  Wolff, 

L.    J.     (N.    S.)     34G;     Danghatee    v.  166   Ind.   402;    76   N.    E.   Rep.   235; 

Ohio  Oil   Co.,   151   111.  App.   102.  Lafayette    Gas    Co.    v.    Kelsey,    164 

2ooDetlor  v.  Holland,  57  Ohio  St.  Ind.  563;    74  N.   E.   Rep.  7;   Kellar 

492;  49  X.  t.  Rep.  690;  Monfort  v.  v.   Craig,    126  Fed.   Rep.   630;    Oon- 

Lanyon  Zinc   Co.,   67   Kan.  310;    72  sumers'    Gas    Trust    Co.    v.    Littler, 

Pac.  Rep.  784;   Ringle  v.  Quigg,  74  162   Ind.   320;    70   N.   E.   Rep.   363; 

Kan.   581;   87   Pac.   Rep.   724;    Erie  Puritan   Oil    Co.   v.   Myers,   39   Ind. 

Crawford    Oil    Co.    v.    Meeks     (Ind.  App.  695;  80  N.  E.  Rep.  851;  Kim- 

App.),  81  N.  E.  Rep.  518.  ball   Oil   Co.    v.   Keeton    (Ky.),    101 

The  lease  cannot  be  extended  be-  S.    W.    Rep.    887;    31    Ky.    L.    Rep. 

yond  its  terms  on  the  ground  that  146;    Gillespie    v.    Fulton    Oil    Co., 

the    lessee    has    failed    to    find    oil.  236    111.    188;    86    ^'.    E.    Rep.   219; 

Cook  V.  Gulf  Refining  Co.,   127   La.  Florence  Oil,  etc.,  Co.  v.  Orman,  19 

592;  53  So.  874;  Hodges  V.  Brice,  32  Colo.    App.    79;    73    Pac.    Rep.    628. 

Tex.  Civ.  App.  358;   74   S.  W.  Rep.  201  Henderson   v.  Ferrell,    183   Pa. 

590;    lower   v.   Bridgeport   Oil   Co.,  St.  547-;   41   W.  N.  C.  404;   38  Atl. 

238  111.  397;  87  N.  E.  Rep.  381;  New  Rep.   1018;   Simon  v.  Northwestern, 

American  Oil,  etc.,  Co.  v.  Troyer,  166  etc.,   Co.,   12   Ohio  C.   C.   Rep.,   170; 

Ind.  402;  76  N.  E.  Rep.  255;  Mills  v.  5  Ohio  Cir.  Dec.  456;  Duffield  v.  Rus- 

Hartz,   77  Kan.   218;    94   Pac.    142;  sell,   19  Ohio  Cir.  Ct.  Rep.  266;   10 


/ 


LEASES.  137 

required  to  develop  tlie  oil  in  the  land,  especially  where  he 
controls  adjoining  lands  from  which  he  is  taking  oil.-"'"  The 
rule  of  diligence  applies,  although  no  time  for  commencing 
operations  is  specified  in  the  lease.-""'  Wliere  upon  expira- 
tion of  a  gas  and  oil  contract  for  a  term  of  tliree  years,  to  be 
extended  so  long  as  gas  and  oil  should  be  produced  in  paying 
quantities,  lessees  upon  consideration  were  granted  an  exten- 
sion of  one  year's  time  to  develop  oil  and  gas,  but  failed  to 
commence  operations  on  the  first  well  until  within  seven  days 
of  the  expiration  of  the  extended  term,  lessor  has  the  riglit 
to  treat  the  contract  as  having  expired  at  the  end  of  the 
year's  extension,  and  it  is  no  excuse  for  delay  that  lessees  had 
made  arrangements  with  a  contractor  to  commence  drilling 
operations  in  sufficient  time  to  complete  the  well  before  expi- 
ration of  the  extended  time,  but,  on  account  of  an  accident 
to  his  apparatus,  he  forced  them  to  contract  with  another 
operator  unable  to  begin  operations  until  too  late  to  complete 
the  well  in  time.-°^*^ 

§  97.     Diligence  in  operating  leased  premises  after  develop- 
ment. 

Every  gas  or  oil  lease  contains  an  implied  covenant  that  the 
lessee  will  use  reasonable  diligence  in  operating  the  premises 
after  they  have  been  developed.  One  can  readily  see  that  a 
lessee,  after  he  has  developed  the  premises,  may  work  them  in 

Ohio   C.   D.    472;    Fleming   Oil   and  Nat.   Gas   Co.   v.   Ganiard,  215    Ind. 

Gas  €o.  V.  South  Penn.  Oil  Co.,  37  App.  613;  91  N.  E.  Rep.  362;  Swift 

W.  Va.  645;   17  S.  E.  Rep.  203;  Elk  v.  Occidental  M.  &  P.  Co.,  141  Cal. 

Fork  Oil   and  Gas  Co.   v.  Jennings,  161;  74  Pac.  Rep.  700;  Federal  Bet- 

84   Fed.  Rep.  839.  terment  Co.   v.   Blaes,   75   Kan.   69; 

The    date    of   the    lease    must    be  88  Pac.  Rep.  555;   Brewster  v.  Lan- 

excluded    in     computing    the    time.  yon    Zinc   Co.,    140    Fed.    Rep.    801; 

Eastern  Oil  Co.  v.  Coulehan,  65  W.  72    C.    C.    A.    213;     Buffalo    Valley 

Va.  531;   64  S.  W.  Rep.  836.  Oil"  &    Gas    Co.    v.    Jones,    75    Kan. 

Whether    hauling    lumber    on    llie  18;    88   Pac.   Rep.   537. 

ground  the  last  day  is  a  commence-  ^nia  Power   v.   Bridgeport   Oil   Co., 

ment  of  the  work   is  a  question  for  238  111.  397;   87  N.  E.  Rep.  381. 

the    jury.      Forney    v.    Ward    (Tex.  201b  Logan   Nat.   Gas   &   F.   Co.  v. 

Civ.  App.),  62  S.  W.  Rep.  108.  Great   Southern    Gas    Co.,    120    Fed. 

What  is  a  reasonable  time  within  Rep.    623. 

which  work  shall  begin  is  a  question  201c  Hollister    v.    Vandergrift,    30 

of   fact,    and   not   of   law.      Indiana  Ohio  Cir.  Ct.  Rep.  759. 


138 


OIL   AND    GAS. 


SO  leisurely  a  way  as  to  be  of  little  profit  to  the  lessor,  and  that 
the  latter  may  suffer  a  serious  damage  by  reason  of  the  conduct 
of  the  lessee.  It  will  not  do  to  say  that  the  lessee  has  such  an 
interest  in  the  working  of  the  premises  as  it  is  to  his  advantage 
to  work  them  diligently;  for  his  interests  may  be  adverse  to 
those  of  the  lessor — as,  for  instance,  he  may  take  leases  at  a 
lower  rental  or  royalty  on  the  adjoining  premises  whereby  he 
can  drain  the  premises  first  leased.  A  failure,  therefore,  to 
work  the  premises  diligently  will  subject  the  lessee  to  an  action 
for  damages.  And  an  express  covenant  to  work  the  premises 
diligently  may  bring  about  a  forfeiture  of  the  lease,  if  they  are 
not  so  worked.'^-  In  the  case  of  a  coal  mine,  it  cannot  be  in- 
ferred, from  an  agreement  to  carry  on  mining  operations  in  a 


202Kock's  Appeal,  93  Pa.  St.  434; 
Elk  Fork  Oil  and  Gas  Co.  v.  Jen- 
nings, 84  Fed.  Rep.  839;  Kleppner 
V.  Lemon,  1/6  Pa.  St.  502;  35  Atl. 
Rep.  109;  Barnsdall  v.  Boley,  119 
Fed.  Rep.  191;  Harris  v.  Ohio  Oil 
Co.,  57  Ohio  St.  6i29;  50  N.  E.  Rep. 
1129;  Glasgow  v.  Chartiers  Oil  Co., 
152  Pa.  St.  48;  25  Atl.  Rep.  232; 
Parish  Fork  Oil  Co.  v.  Bridgewater 
Gas  Co.,  51  W.  Va.  583;  42  S.  E. 
Rep.  655;  McNight  v.  Mfg.  Natural 
Gas.  Co.,  146  Pa.  St.  185;  23  Atl. 
Rep.  164;  Core  v.  N.  Y.,  etc.,  Co., 
52  W.  Va.  276;  43  S.  E.  Rep.  128; 
Edwards  v.  lola  Gas  Co.,  65  Kan. 
3'62;  69  Pae.  Rep.  350;  Beatty- 
Nickel  Oil  Co.  v.  Smethers  (lud. 
App.),  9'6  N.  E.  19;  Daughtee  v. 
Ohio  Oil  Co.,  151  111.  App.  102  (bur- 
den to  show  diligence)  ;  Gadberry  v. 
Ohio,  etc.,  Co.,  162  Ind.  9;  67  N.  E. 
2'59;  Doddridge  Oil  &  Gas  Co.  v. 
Smith,  154  Fed.  970;  Allegheny  Oil 
Co.  V.  Snyder,  45  C.  C.  A.  604;  106 
Fed.  764;  Brewster  v.  Lanyon  Zinc 
Co.,  140  Fed.  Rep.  801;  72  C.  C.  A. 
213;  Acme  Oil,  etc.,  Co.  v.  Williams, 
140  Cal.  681;  74  Pac.  Rep.  296; 
Howerton  v.  Kansas  Nat.  Gas  Co., 
82   Kan.  367;    108    Pac.    Rep.    813; 


reversing  81  Kan.  553;  106  Pac. 
Rep.  47;  Cherokee  Const.  Co.  v. 
Bishop,  86  Ark.  489;  112  S.  W.  Rep. 
189;  Tucker  v.  Watts,  25  Ohio  Cir, 
Ct.    Rep.    320. 

The  lessee  of  oil  land  agreed  to 
properly  develop  the  land  and  to 
give  the  lessor  a  specified  royalty. 
Subsequently  a  new  agreement  was 
entered  into  between  the  lessor  and 
lessee  providing  for  the  operation 
of  the  only  well  on  the  property 
(naming  it),  and  limiting  the  out- 
put to  less  than  one-sixth  of  the 
well's  capacity,  on  account  of  the 
low  price  and  inadequate  storing 
facilities.  It  was  held  that,  though 
the  instrument  referred  to  the  one 
well,  it  was  intended  to  limit  the 
production  from  the  whole  of  the 
leased  property,  and  the  lessor 
waived  her  right  to  require  the  lessee 
to  produce  a  larger  amount  there- 
from in  the  absence  of  conditions 
rendering  it  necessary  for  the  pro- 
tection of  the  lease  from  drainage 
by  wells  on  adjoining  tracts.  J.  M. 
GufTey  Petroleum  Co.  v.  Jeff  Chaison 
Townsite  Co.  (Tex.  Civ.  App.),  107 
S.  W.  609. 


LEASES. 


139 


safe,  skilful  and  workmanlike  manner  that  there  is  a  covenant 
to  work  the  mine  continuously.-"^ 

§  98.     Agreement  as  to  what  constitutes  due  diligence. 

The  lessor  and  lessee  may  agree  concerning  what  shall  con- 
stitute due  diligence,  in  which  event  they  will  he  bound  by  the 
agreement,  whether  the  degree  of  diligence  constitute  due  dili- 
gence or  not.  In  that  event  a  purchaser  from  the  lessor,  even 
without  notice  of  the  special  agreement,  but  with  a  knowledge 
of  the  existence  of  the  lease,  will  be  bound  by  such  agree- 
ment.-«* 

§  99.    Unprofitable  lease. 

Where  the  lessor  is  to  receive  a  part  of  the  profits,  or  even  a 
part  of  the  product  as  a  royalty,  the  lessee  is  not  bound  to 
operate  the  premises  at  a  loss,  and  may  abandon  them.-°'^    And 


203  Mclntyre  v.  Mclntyre  Coal  Co., 
105  N.  Y.  264. 

Whether  a  lessee  had  used  reason- 
able diligence  in  developing  land  and 
marketing  the  product  within  the 
terms  of  his  lease  is  a  question  for 
the  jury.  Buffalo  Valley  Oil  &  Gas 
Co.  V.  Jones,  75  Kan.  18;  88  Pac. 
Rep.  537. 

In  an  action  against  a  lessee  of 
oil  lands,  though  a.  charge  requiring 
of  it  the  exercise  of  "business-like 
diligence"  in  developing  the  land, 
and  that  it  should  have  acted  as  a 
"prudent  business-like  man,"  may 
not  be  calculated  to  give  the  jury 
an  erroneous  idea  as  to  the  degree  of 
diligence  and  care  required  of  the 
lessee,  the  use  in  a  charge  of  expres- 
sions to  designate  ordinary  care 
which  differ  from  the  well-estab- 
lished definitions  is  to  be  condemned. 
J.  M.  Guffey  Petroleum  Co.  v.  Jeff 
Chaison  Townsite  Co.  (Tex.  Civ. 
App.),  107  S.  W.  609. 

A  right  vested  in  an  oil  and  gas 
lessee  by  discovery  to  produce  oil  or 


gas  in  an  upper  sand  is  not  lost  if 
the  lessee  continues  to  drill  deeper 
in  search  for  oil  or  gas  in  a  lower 
sand,  though  he  does  not  find  oil 
in  the  lower  sand  witliin  the  time 
prescribed  in  the  lease;  but,  if  oil 
or  gas  is  not  found  in  the  lower 
sand,  production  from  the  upper 
sand  cannot  be  long  deferred  with- 
out incurring  the  penalty  of  aban- 
donment or  forfeiture.  Eastern  Oil 
Co.  V.  Coulehan,  65  W.  Va.  531; 
64  S.  E.  836. 

204  Bartley  v.  Phillips,  179  Pa.  St. 
175;  36  Atl.  Rep.  217;  Ringle  v. 
Quigg,  74  Kan.  581;  87  Pac.  Rep. 
724;  Brewster  v.  I^nyon  Zinc  Co., 
140  Fed.  Rep.  801;  72  C.  C.  A.  213; 
Indiana  Nat.  Gas  &  Oil  Co.  v.  Grain- 
ger, 33  Ind.  App.  559 ;  70  X.  E.  Rep. 
395;  Aye  v.  Philadelphia  Co.,  193  Pa. 
451;  44  Atl.  555. 

205  Bradford  Oil  Co.  v.  Blair.  113 
Pa.  St.  83;  4  Atl.  Rep.  218;  Adams 
V.  Stage,  18  Pa.  Super.  Ct.  Rep. 
308. 


140  OIL   AND    GAS. 

tlie  honest  opinion  of  tlie  lessee,  tliat  the  lease  cannot  be  operated 
profitably,  is  entitled  to  more  weight  tlian  the  opinion  of  the 
lessor,  of  experts,  of  the  judge  who  tries  the  case,  or  of  all  com- 
bined."*'" If  no  rent  has  been  agreed  upon,  to  be  paid  the  lessor 
if  oi>erations  are  not  carried  on,  under  an  agreement  giving  the 
lessee  (so  called)  all  right,  title  and  interest  in  the  oil,  such 
lessee  is  liable  only  for  nominal  damages."'^^  If  the  lease  sets 
forth  the  number  of  wells  that  must  be  drilled,  the  lessee  is  not 
required  to  drill  more  than  the  number  in  order  to  make  the 
lease  profitable.""**  He  is  not  bound  to  put  down  a  well  that 
would  be  unprofitable,  unless  he  has  expressly  agreed  to  do  so.""** 

§100.     Lessor  cannot  impair  value  of  lease  by  drilling  wells  on 
his  own  land. 

A|S  a  general  proposition,  a  lessor  cannot  drill  wells  on  his 
own  lands  so  close  to  the  premises  he  has  demised  as  to  seriously 
impair  the  value  of  the  latter,  by  extracting  the  oil  or  gas 
from  them.  Not  infrequently  a  protecting  territory  of  a  cer- 
tain width  surrounding  tlie  leased  premises,  where  it  is  wholly 
or  in  part  bounded  by  the  lessor's  lands,  is  provided  for  in 
the  lease,  within  which  neitlier  the  lessor  nor  the  lessee  may 
operate.  A  rather  anomalous  case  on  this  question  arose  in 
Pennsylvania.  In  that  instance  a  lease  of  less  than  four  acres 
was  taken,  with  "  a  protection  of  ten  rods  on  the  east  side  " 
of  the  lot  "  and  eight  rods  on  the  north  side."  This  "  protec- 
tion," so  far  as  the  part  in  dispute  was  concerned,  made  a 
rectangle  on  the  northeast  corner  of  the  lease  eighty  rods  square. 

208  Young  V.   Forest  Oil   Co.,    194  30  Pittsb.  L.  J.   (N.  S.)   68;  75  Am. 

Pa.   St.   243;    45  All.   Rep.    121;    30  St.    Rep.   695;    Stoddard    v.    Emery, 

Pittsb.    L.    J.     (X.    S.)     221;    Glas-  128  Pa.  St.  436;   24  W.  N.  C.  5GG; 

gow  V.  Chartiers  Oil  Co.,  152  Pa.  St.  18  Atl.   Rep.  339;    Stahl  v.   Illinois 

48;    25  Atl.   Rep.   232;    affirming  23  Oil  Co.,  45  Ind.  App.  211;  90  N.  E. 

Pittsb.    L.    J.    (N.    S.)     146;    Snod-  Rep.  632 ;  Ramage  v.  Wilson,  45  Ind. 

grass  V.   South   Pa.  Oil   Co.,   47   W.  App.    509;    88   N.    E.   Rep.    862. 

Va.   509;    35   S.   E.    Rep.   820;    Low-  2on  Adams  v.  Stage,  18  Pa.  Super, 

ther  Oil  Co.  v.  Miller-Siblev  Oil  Co.,  Ct.    Rep.    308 ;    Venture    Oil    Co.    v. 

53  W.  Va.  501;   44  S.  E.  Rep.  433.  Fretts,  152  Pa.  St.  451;  25  Atl.  Rep. 

207  Chamberlain  v.  Parker,  40  N.  732 ;    Steelsmith   v.   Gartlan,   45   W. 
Y.  569.  Va.  27;  29  S.  E.  Rep.  978;  44  L.  R. 

208  Colgan  V.   Forest  Oil  Co.,    194  A.  107. 
Pa.    St.    234;     45     Atl.     Rep.     119; 


LEASES.  141r 

In  strict  sense,  this  left  a  square  of  eight  by  ten  rods  iK^tweon 
the  east  luul  north  '"  jiroteetions  "  ;  and  in  this  s<inare  tJie  lessee 
sought  to  drill  a  well.  This  the  court  held  he  could  not  do,  and 
in  discussing  tlie  question  used  the  following  language: 

"  If  tlie  stipulation  in  the  lease,  on  which  tho  right  to  the 
injuneti(»n  depends,  is  to  bo  strictly  construed  according  to  tlie 
literal  meaning  of  the  language,  the  defendant's  well  cannot  be 
regarded  as  within  tho  ])rotection  for  which  it  provides,  and  if 
so,  the  plaintiffs  have  no  legal  or  equitahlc  right  to  tlie  relief 
asked  for  in  the  bill.  But  the  agreement  must  be  construed 
with  reference  to  the  subject  matter,  and  so  as  to  effectuate,  if 
possible,  the  pur]X)se  for  wdiicli  it  was  intended.  The  lease  was 
'  for  the  sole  and  only  pur]X)se  of  mining  and  excavating  for 
petroleum,  coal,  rock  or  carbon  oil '  in  the  tract  described 
therein.  The  parties  probably  knew  that,  if  oil  was  found  in 
the  demised  premises,  a  well  bored  within  a  short  distance 
would  draw  off  more  or  less  of  the  oil,  and  that  for  the  same 
reason  a  well  on  the  border  or  side  of  the  tract  would  draw  part 
of  its  supply  from  the  adjoining  ground.  The  object  of  the 
agreement  was,  therefore,  twofold :  To  prevent  the  lessor  or 
any  one  under  him  from  mining  or  boring  wells  within  eight 
rods  of  the  north  and  ten  rods  of  the  east  line  of  the  tract 
described  in  the  lease  and  to  give  the  lessees  more  ground  for 
the  supply  of  any  wells  they  might  drill  or  iMjro  on  the  demised 
premises  in  proximity  to  these  lines.'  Is  it  then  a  reasonable 
sup]>osition  that  the  parties  intended  to  leave  a  gap  at  the 
corner  where  these  lines  intersect  which  would  render  the 
'  protection  '  valueless  and  defeat  the  jiurpose  for  which  it  wr.s 
intended  ?  The  master  and  the  court  below  were  of  the  opinion 
that  it  was  the  intention  of  the  parties  to  secure  the  same  pro- 
tection to  the  corner  as  to  the  sides  of  the  demised  tract,  and 
that  the  agreement  should  be  so  construed  as  to  carry  out  their 
intention.  This,  as  it  seems  to  us,  is  its  reasonable  inter])reta- 
tion;  and,  if  so,  the  defendants  had  no  right  to  construct  build- 
ings, machinery,  and  to  put  down  a  well  within  a  few  feet  of 
the  corner  of  the  plaintiff's  leaselK)l(l,  and  [)uiii]i  thcrofrom,  as 
they  did,  large  quantities  of  oil.  Nor  can  there  he  a  doubt 
that  the  plaintiffs  have  a  sufficient  title  to  enable  them  to  obtain 


142  OIL   AND    GAS. 

redress  by  injunction  of  tlio  wrong  done  by  tlio  defendants. 
The  trespass  of  which  tJioy  complain  is  of  a  jx^nnanent  nature, 
and,  under  the  facts  found  by  the  master,  destnictive  of  their 
leaseliold.  It  is  clear,  then,  that  under  the  equitable  powers 
conferred  by  the  statute,  tlie  court  below  had  jurisdiction  for 
its  prevention  or  restraint."  ^^° 

Where  the  lease  provided  tliat  no  wells  should  be  drilled 
within  three  hundred  yards  of  a  certain  building,  and  there 
was  a  reservation  of  the  surface  for  tillage;  it  was  held  that 
the  land  witliin  this  three  hundred  yards  could  not  be  leased  by 
the  owTier  to  a  third  party  to  drill  wells  upon ;  for  the  lessee 
had  a  right  to  draw  all  the  oil  from  beneath  its  surface  that  he 
could  by  wells  sunk  in  that  portion  of  the  tract,  of  which  the 
three  hundred  yards  was  a  part,  where  he  had  a  right  to  drill 
them.''' 

§101.     Lessee  draining  premises  by  operations  on  adjoining  ter- 
ritory. 

A  lessee  must  act  in  good  faith  in  the  operation  of  the  leased 
premises.  He  cannot  under  the  guise  of  ownership  of  tlie  ad- 
joining premises  drain  tlie  lands  he  has  leased  by  sinking  wells 
on  such  premises,  under  the  claim  of  a  right  to  do  so,  and  not 
put  down  a  sufficient  number  of  wells  on  the  leased  territory  as 
will  protect  it  from  the  wells  oj^eratcd  on  such  adjoining  terri- 

210  Allison's  Appeal,  77  Pa.  St.  The  use  of  pumps  to  pump  the 
221.  gas  to  a  distant  city,  does  not  vio- 

211  Westmoreland,  etc.,  Co.  v.  De-  late  the  rights  of  land  proprietors 
Witt,  130  Pa.  iSt.  235;  18  Atl.  Rep.  whose  lands  adjoin  the  leased  prop- 
724;  29  Amer.  L.  Reg.  93 ;  5  L.  R.  erty,  at  least  so  long  as  the  pumps 
A.  731;  Lynch  v.  Burford,  201  Pa.  simply  push  the  gas  in  the  mains 
52;   50  Atl.  Rep.  228.  to   the   consumer   or   the    company's 

The  intention  of  the  parties  being  reservoir,  and  not  cause  the  gas  to 

clearly   expressed   in   a    covenant   to  flow  from  the  well  in  greater  quan- 

prohibit  the  drilling  of  oil  and  gas  titles  than  it  would  if  the  well  were 

v/ells.  on  a  certain  tract  in  all  deeds  left    open    and    the    gas    permitted 

for   the   conveyance   of   any   and    all  to    escape,    unobstructed,    into    the 

portions  thereof  will  not  be  enlarged  atmosphere.      Richmond,    etc.,    Gas 

by   implication   U)    include   tlie   pro-  Co.   v.  Enterprise,  etc..   Gas  Co.,  31 

hibition    in    a    lease    on    said    tract.  Ind.  App.  222;    66  N.   E.  Rep.  782; 

Test  Oil  Co.  V.  La  Tourette,  19  Okl.  Consumers'  Gas  Trust  Co.  v.  Ameri- 

214;   91  P.  1025,  can  Plate  Glass   Co.,   162  Ind.  393; 

68  N.  E.  1020. 


LEASES.  143 

torv,  when  the  lessor,  at  least,  receives  his  compensation  by  a 
royalty  on  or  a  part  of  the  oil  produced,  or  l)v  a  i-cntnl  of  so 
much  per  producing-  well.  Of  course,  if  the  lessor  receives  a 
lump  sum  per  annum  for  the  ground,  or  so  much  per  acre  per 
annum,  then  it  is  immaterial  to  him  whether  his  premises  are 
developed  or  not;  and  the  lessee  may  conduct  operations  on  the 
adjoining  territory,  even  though  he  drain  the  leased  j>rcmises 
entirely  of  their  oil  and  gas.  Where  an  operator  obtained 
leases  of  two  adjoining  farms,  and  placed  a  well  on  one  of 
them,  so  close  to  the  line  between  them  as  to  drain  both  farms 
alike,  and  failed  to  sink  a  well  on  the  other  farm  to  offset  the 
well  he  had  already  drilled  on  the  first  farm,  it  was  held  that 
tlie  owner  of  such  other  farm  was  entitled  to  damages ;  and  in 
estimating  the  damages  the  oil  actually  extracted  will  be  con- 
sidered in  the  same  way  as  where  an  owner  wrongfully  mingles 
and  confuses  his  0"wn  goods  witli  another's.'^^  And  if  the 
lessee  refuse  to  develop  such  other  farm,  within  a  reasonable 
time,  the  court  may  decree  a  forfciiure  of  the  lease  of  it,  or  of 
so  much  of  it  as  remains  undeveloped.'^^ 

§102.     Drilling  well  near  boundary  line. 

By  drilling  a  well  close  to  the  boundary  line  of  his  land  the 
owner  may  not  only  drain  the  oil  or  gas  from  his  own  territory 
but  from  that  of  his  adjoining  neighbor.  This  is  easily  per- 
ceived in  instances  of  drilling  wells  on  ordinary  town  lots,  which 

212  Kleppner  v.  Lemon,  29  Pittsb.  A  covenant  in  an  oil  and  gas  lease 

L.    J.    346 ;     Beatty-Nickle    Oil    Co.  that    the    first    parties    agree    that 

V.   Smethers    (Ind.  App. ),   9G  N.   E.  they  will  in  any  deed  hereafter  ex- 

IQ ;    Barnard    v.   ^Vlonongahela   Nat.  ecuted   by   them   or   either   of   them 

Gas  Co.,  216  Pa.  362;   65  Atl.  Rep.  for  any  part  of  a  certain  addition, 

801;   Powers  v.   Bridgeport  Oil  Co.,  prohibit  any  drilling  for  oil  or  gas 

238  111.  397;  87  N.  E.  381.     See  also  on   any   land   so   hereafter   conveyed 

J.  M.  GufTey   Petroleum   Co.  v.  Jeff  in  said  addition,  under  the  general 

Chaison    To\\Tisite    Co.     ( Tex.    Civ.  usage    and    acceptance   of   the   term 

App.),    107    S.   W.   Rep.   609.  "deed,"  a  lease  is  not  included,  and 

-1"  Kleppner  v.  Lemon,  176  Pa.  St,  there  is  no  prohibition  against  leas- 

502;   35  Atl.  Rep.   109.     See  Henne  ing    the    tract    for    tlie    purpose    of 

V.  South   Penn.  Oil   Co.,  52  W.  Va.  drilling  oil  and  gas  wells.     Test  Oil 

192;   43   S.  E.  Rep.    147;    Powers  v.  Co.  v.  La  Tourette,  19  Okl.  214;   91 

Bridgeport  Oil  Co.,  238  111.  397;   87  P.  1025. 
N.  E.  381. 


144  OIL   AND    GAS. 

are  often  only  thirty  or  forty  foot  wide  and  tliroo  or  fi>nr  times 
as  long.  It  is  quite  obvions  in  such  an  instance  one  well  may 
drain  the  oil  or  gas  from  under  several  or  even  many  lots.  And 
yet,  who  has  the  right  to  say  the  owTier  of  a  lot  may  not  put 
down  a  well  on  it,  for  fear,  or  from  the  fact,  he  may  get  the  oil 
or  gas,  or  a  part  of  it,  under  his  neighbor's  lot?  His  neighlx)r 
has  the  power  to  protect  his  interests,  by  sinking  a  well  on  his 
own  lot;  and  if  he  does  not  see  fit  to  do  so,  ho  has  no  right  to 
prevent  another  and  adjoining  lot  owner  fnnu  developing  his 
o^vn  territory.  He  cannot  play,  as  it  were,  the  "dog  in  the 
manger  "  policy.  Of  course,  the  same  is  true  of  larger  tracts, 
—  tracts  of  even  hundreds  of  acres.  One  land  owner  may  not 
deprive  another  and  adjoining  one  of  the  right  to  drill  a  well 
on  his  own  land  wherever  he  wills.  If  his  neighbor  put  a 
well  within  a  few  feet  of  his  boundary  lino,  tlien  he  may  put  a 
well  immediately  opposite  and  just  within  the  line  on  his  own 
land,  although  he  must  necessarily  draw  oil  or  gas  from  his 
neighbor's  soil.  This  is  his  protection.'"^'*  The  adjoining  land 
owner  may  even  encrease  the  flow  of  gas  on  his  owm  premises 
by  shooting  his  wells,  although  it  will  have  the  effect  to  draw 
gas  from  his  neighbor's  adjoining  territory. "'°  But  if  a  man 
through  mere  malice,  in  order  to  injure  his  neighbor's  gas  well, 
sink  a  well  on  his  own  land,  and  it  has  that  effect,  then  he  will 
be  liable  to  an  action  for  damages  brought  against  him  by  the 
injured  person."'*^  A  statute  that  prohibits  drilling  within  a 
certain  distance  of  the  boundary  line  is  constitutional.^^^  Land 
owners  may  agree  tliat  they  will  not  drill  within  a  certain  dis- 

214  Kelly  V.  Ohio  Oil  Co.,  57  Oliio  215  People's     Gas     Co.     v,    Tyner, 

St.  317;  49  N.  E.  Rep.  399;  39  L.  R.  supra. 

A.    765;    63    Am.    St.    Rep.    721;    9  21 « Dictum    in   Hague    v.   Wheeler, 

Ohio  C.   Ct.   Rep.  511;    38  Wkly.  L.  supra. 

Bull.   299;    39    Wkly.   L.   Bull.    54;  If  a  landowner  have   ample  rem- 

Beople's  Gas  Co.  v.  Tyner,  131  Ind.  edy    otherwise,    an    injunction    will 

277;   31  N.  E.  Rep.  59;   16  L.  R.  A.  not  lie  to  protect  his  interests.    Ers- 

443;  Westmoreland,  etc.,  Gas  Co.  v.  kine  v.  Forest  Oil  Co.,  80  Fed.  Rep. 

DeWitt,    130    Pa.    St.    235;    18    Ail.  583. 

Rep.   724;    29  Amer.   L.   Reg.   93;    5  2ir]^japle  v.  John,  42  W.  Va.  30; 

L.  R.  A.  731 ;  Hague  V.  Wheeler,  157  24    S.    E.    Rep.    608;    32    L.    R.    A. 

Pa.   St.   324:    27    Atl.   Rep.   714;    22  800. 
L.    R.    A.    141. 


LEASES. 


145 


tance  of  the  boundary  line  between  them ;  and  for  a  violation  of 
the  agreement,  a  court  of  equity  will  enjoin  the  one  in  fault. 
The  mutual  protection  is  a  sufficient  consideration  to  uphold  the 
contract.-^-  Where  a  lease  was  subject  to  a  reservation  as  fol- 
lows: "Land  surrounding  farm  buildings  and  marked  by 
stakes,  and  as  a  protection  against  fire,"  it  was  held  that  ihe 
landowner  had  no  right  to  drill  an  oil  well,  and  take  the  oil, 
upon  this  reservation.^^^* 

§  103.    Injunction. — Quieting  title. 

Injunction  lies  to  protect  the  rights  of  a  lessee  in  the  leased 
territory.  He  may  enjoin  any  one  sinking  a  well  in  them, 
even  the  lessor,  and  is  not  compelled  to  resort  to  an  action  for 

damages. *^^  A  person  holding  a  valid  executory  lease,  cxccnt<?d 
by  tlie  land  owner  or  by  several  of  a  number  of  co-teiuiuts,  has 
such  an  interest,  altliougli  inchoate  in  the  land,  as  will  enable 
him  to  maintain  an  injunction  to  prevent  a  wrong-doer  from 
committing  waste  by  tlie  extraction  of  oil  and  gas;  and  it  makes 
no  difference  tliat  he  has  not  yet  perfected  his  own  right  to  ex- 
plore.''**     A  lessee  in  possession  may  maintain  a  suit  in  equity 


218  Ware  v.  Langmade,  9  Ohio  C. 
'Ct.  Rep.  85;  6  Ohio  C.  Dec.  43;  2 
Ohio  Dec.  116. 

Pumping  gas  after  it  has  reached 
the  gas  mains,  wliere  the  flow  from 
the  well  is  not  rendered  greater 
than  it  would  be  if  the  well  was  left 
open,  is  not  such  a  violation  of  the 
rights  of  a  landowner  whose  land 
adjoins  such  well,  as  will  entitle  him 
to  an  injunction  or  to  damages. 
Richmond,  etc.,  Gas  Co.  v.  Enter- 
prise, etc..  Gas  Co.,  31  Ind.  App. 
222;  66  N.  E.  Rep.  782;  Consumers' 
Trust  Co.  V.  American  Plate  Glass 
Co.,  162  Ind.  393;  68  N.  E.  Rep. 
1020. 

218a  Lynch  v.  Burford,  201  Pa. 
52;  50  Atl.  Rep.  228. 

2i9Duffield  V.  Hue,  136  Pa.  St. 
602;  20  Atl.  Rep.  526;  Bettman  v. 
Harness,  42  W.  Va.  443;  26  S.  E. 
Rep.  271;  36  L.  R.  A.  566;  Citizens' 
Natural  Gas  Co.  v.  Shenango,  etc., 
Cfl.,  138  Pa.  St.  22;  20  Atl.  Rep. 
947;  Smith  v.  Root,  66  W.  Va.  633; 


66  S.  E.  Rep.  1005;  :\lidland  Oil  Co. 
V.  Turner,  179  Fed.  Rep.  74  (modi- 
fying Turner  v.  Seep,  167  Fed.  Rep. 
046)  ;  Seep  v.  Spade,  179  Fed.  Rep. 
77;  Gillespie  v.  Fulton  Oil  &  Gas 
Co.,  239  111.  326;  88  N.  E.  Rep. 
192. 

A  stipulation  in  a  lease  for 
five  years,  and  as  much  longer  as 
oil  shall  be  found  in  paying  quali- 
ties, which  gives  to  the  lessee,  on 
pajTnent  of  $1.00,  the  right  to  sur- 
render the  lease  for  cancellation 
thereafter  accruing  under  the  lease, 
deprives  the  lessee  of  the  right  to 
enjoin  a  violation  of  the  lease  by  the 
lessor.  Ulrey  v.  Keith,  237  111.  284; 
86  N.  E.  Rep.  696. 

2-'o  Trees  v.  Eclipse  Oil  Co..  47  W. 
Va.  107;  34  S.  E.  Rep.  933;  Allison's 
Appeal,  77  Pa.  St.  221  -.  Natural  Gas 
Co.  V.  Philadelphia  Co.,  15S  Pa.  St. 
317;  27  Atl.  Rep.  951;  Allegheny 
Oil  Co.  V.  .Snyder,  106  Fed.  Rep. 
764;  45  C.  C.  A.  004  (by  statute). 


146 


OIL   AND    GAS. 


against  persons  claiming  under  leases  from  the  lessor  to  other 
persons,  and  may  have  their  leases  declared  a  cloud  upon  his 
title. """^  A  preliminary  injunction  will  be  awarded  against  a 
lessor  where  ho  has  made  a  re-entry  under  a  claim  of  forfeiture 
and  the  claim  is  disputed  on  every  ground  on  which  he  puts 
it.^^"  The  court.,  in  such  an  instance  will  not  only  enjoin  the 
lessor,  but  it  will  compel  him  to  restore  the  premises  to  tho 
condition  he  found  them  in  when  he  re-entered  upon  them,  even 
to  the  extent  of  compelling  him  to  restore  gas  pipe  lines  he  has 
severed,  until  hearing.^"''  But  the  court  should  not  go  too  far 
in  the  preliminary  injunction  ;  it  being  sufficient,  as  a  rule,  to 
preserve  tlie  present  condition  until  final  hearing,  unless  gas  or 
oil  in  considerable  quantities  will  be  lost  if  further  steps  be  not 
taken.''*  The  owner  of  the  land  or  the  lessee  may  enjoin  a 
stranger  wdio  is  threatening  to  put  down  an  oil  or  gas  well. 
"  An  action  for  damages  would  have  been  inadequate,  since  the 
damages  could  not  be  measured.     .     .     .     How  much  the  flow 


321  Elk  Fork  Oil  and  Gas  Co.  v, 
Jennings,  84  Fed.  Rep.  839.  See 
Erskine  v.  Forest  Oil  Co.,  80  Fed. 
Rep.  583. 

A  lessee  under  an  oil  and  gas 
lease,  although  out  of  possession, 
may  maintain  a  suit  in  equity  in  a 
federal  court  to  protect  his  rights 
thereunder  by  enjoining  the  removal 
of  oil  or  gas  from  the  premises  by 
a  claimant  under  another  lease,  the 
effect  of  which  would  be  to  destroy 
his  estate,  and,  having  acquired 
jurisdiction  for  that  purpose,  the 
court  may  retain  it  to  settle  the 
question  of  title  as  between  the 
parties,  and  to  cancel  defendant's 
lease  as  a  cloud  on  complainant's 
title.  Logan  Natural  Gas  &  Fuel 
Co.  V.  Great  Southern  Gas  &  Oil 
Co.,  126  Fed.  623. 

A  bill  to  quiet  title  in  complain- 
ant to  an  oil  claim  under  the  placer 
mining  laws  which  alleges  that 
defendants  have  entered  upon  the 
ground,  and  have  extracted   mi  rs- 


moved  oil  therefrom,  and  are  en- 
gaged in  sinking  a  well  thereon,  and 
which  asks  an  injunction  to  restrain 
them  from  proceeding  with  such 
work,  and  from  taking  and  removing 
oil,  is,  in  effect,  a  bill  to  obtain  pos- 
session, and  admits  the  possession  of 
defendants;  hence  it  is  not  cogniz- 
able by  a  federal  court  of  equity,  the 
remedy  being  at  law.  California  Oil 
&  Gas  Co.  of  Arizona  v.  Miller,  96 
Fed.  12. 

222  Poterie  Gas  Co.  v.  Poterie,  153 
Pa.  St.  10;  2'5  Atl.  Eep.  1107;  Duf- 
field  V.  Rosenzweig,  144  Pa.  St.  520; 
23  Atl.  Rep.  4. 

223  Poterie  Gas  Co.  v.  Poterie,  179 
Pa.  St.  68;  36  Atl.  Rep.  232;  Bus- 
kirk  V.  King,  72  Fed.  Rep.  22.  See 
Black  Lick  Co.  v.  Saltsburg  Gas 
Co.,  139  Pa.  St.  4*8;  21  Atl.  Rep. 
432. 

224  Bettman  v.  Harness,  42  W. 
Va.  433:  26  S.  E.  Rep.  271;  36  L. 
R.  A.  566. 


.       LEASES.  147 

of  appellant's  well  would  have  been  diminished  could  not  be 
determined;  the  damages  could  not  l)i'  measured  in  money."--'* 
If  the  lease  has  expired,  the  lessor  may  maintain  an  action  to 
enjoin  the  lessee' operating  under  it.'--'"  If  the  lessee  has  made 
an  honest  attempt  to  complete  a  first  well  within  the  time 
specified  in  the  lease,  although  not  such  excusable  delay  as  to 
extend  the  lease  upon  the  whole  i)remises,  ecpiity  will  permit 
its  completion  for  the  purpose  of  ascertaining  the  results  of 
the  work,  and  apportion  the  costs  between  the  parties. --'^'^ 

§  104.     Damages. 

A  failure  to  develop  the  leased  premises  may  render  the 
lessee  liable  to  the  lessor  to  an  action  for  the  recovery  of  dam- 
ages; and  usually  the  lessee  cannot  set  up  as  a  defense  that  it 
was  purely  optional  with  him  to  develop  such  premises.  Thus 
where  a  lease  required  the  payment  of  a  royalty  and  a  sum  of 
money,  operations  to  begin  and  a  well  to  be  completed  within 
fixed  periods  of  time,  containing  a  clause  that  on  failure  to 
comply  the  lessee  should  pay  a  fixed  sum  per  annum  during 
such  delay,  and  another  clause  that  a  failure  to  comply  with  or 
make  the  annual  payment  within  the  time  mentioned  the  lease 
should  be  void ;  it  was  held  that  a  failure  to  botii  commence 
operations  and  to  make  the  payments  within  the  agreed  time 
did  not  render  the  lease  null  and  void,  but  it  only  became  such 
from  the  expiration  of  the  time  within  which  the  payment  was 
to  be  made,  and  therefore  the  lessee  was  liable  for  damages 
sustained  by  his  breach  of  the  covenants.--"  But  where  the 
lease  was  conditioned  to  be  void  unless  the  lessee  should  do 
something  in  the  way  of  development  by  putting  down  a  well 

225  Indianapolis  Natural  Gas  Co.  Rep.  474 ;  Kleppncr  v.  Lemon,  29 
V.  Kibbey,   135   Ind.   357;    35   N.   E.       Pittsb.  L.  J.    (N.   S.)    346. 

Rep.    3t)2.      See  Thomas   v.   jVIarble,  The  measure  of  damages  for  breach 

etc.,  Co.,  58  Fed.  Rep.  485 ;  and  Con-  of   a  gas    lease,   providing  that   the 

sumers'  Trust  Co.  v.  American  Plate  lessee    should    pay   $50    a   j^ear    for 

Glass  Co.,    162   Ind.   393;    68   N.   E.  eacli   gas  well   during  the  time  gas 

Rep.   1020;   Indiana  Nat.  Gas  &  Oil  should    be    marketed    from    them,    is 

Co.  V.   Wilhelm,    44  Ind.   App.    100;  .$50  for  each  wen   from  the  time   it 

86  N.  E.  Rep.  86.  ought  to  nave  been  drilled  to  prop- 

22fia  Meek  v.  Cooney,  26  Ohio  Cir.  erly    develop    the    leased    territory. 

Ct.    Rep.   553;    Hollister   v.    Vander-  Hovverton    v.    Kansas    Natural    Gas 

grift,   30  Ohio   Cir.   Ct.  Rep.   759.  Co.,  82  Kan.  367 :  108  Pae.  Rep.  813 ; 

225bHollister  V.  Vandergrift,  SM/)ra.  reversing    81    Kan.    553;     106    Pac. 

226  Galey   v.    Kellerman,    123    Pa.  Rep.  47,  on  rehearing. 
St.  491;   23  W.  N.  C.  139;   16  Atl. 


148  OIL   AND    GAS. 

within  a  certain  time,  or  pay  so  much  money  per  month,  yet 
contained  no  covenant  to  do  either;  it  was  held  that  such 
lessee  was  not  liable  in  damages  for  a  failure  to  perform  the 
conditions  named.--"  A  failure  to  sink  a  sufficient  number  of 
wells  to  develop  the  territory  will  render  the  lessee  liable  to  an 
action  for  damages.--"  Where  only  a  part  of  the  land  is  de- 
veloped, the  implied  covenant  to  develop  it  all  is  no  ground 
of  forfeiture,  but  the  lessee  is  liable  for  damages  for  a  failure 
to  comply  with  the  covenant.-^^ 

§105.     Damages  for  failure  to  keep  covenant. 

Instead  of  declaring  a  forfeiture,  the  lessor  may  elect  to 
bring  an  action  for  a  failure  to  keep  or  perform  the  covenant 
broken;  and  he  may  recover  cither  on  an  express  or  an  implied 
covenant.  For  the  breach  of  an  implied  covenant  to  reasonably 
operate  a  mine,  or  oil  or  gas  lease  he  has  a  cause  of  action.  If 
there  has  been  a  breach  of  an  express  covenant  in  part  only  he 
cannot  declare  a  forfeiture,  where  the  forfeiture  is  for  a  breach 
of  the  entire  covenant.  His  remedy  in  such  an  instance  is  an 
action  for  damages."^*'  If  the  lease  provide  the  amount  of 
recovery,  that  will  be  the  measure  of  damages;  and  the  lessee 
cannot  insist  that  the  amount  of  damages  is  more  in  amount 
than  the  value  of  the  lease.""^     Where  the  lease  was  to  the  effect 


22T  Glasgow  V.  Chartiers  Gas  Co.,  Blair  v.  Peck,  1  Penny   (Pa.)     247; 

152  Pa.  St.  48;  31  W.  N.  C.  207;  25  Janes   v.    Emery    Oil    Co.,    1    Penny 

Atl.  Rep.  232;  distinguishing  Ray  v.  (Pa.)    242;   Harness  v.  Eastern  Oil 

Gas   Co.,    138   Pa.   St.   576;    20   Atl.  Co.,  49  W.  Va.  232;   38   S.  E.  Rep. 

Rep.  1065.  662;   Sharp  v.  Behr,   117   Fed.  Rep. 

228  Harness  v.  Eastern  Oil  Cb.,  49  864 ;    Kellyville   Coal   Co.   v,   O'Con- 
W.  Va.  232;   38  S.  E.  Rep.  662.  nell,    134    III.    App.    311. 

The   remedy   is   not   by   a   suit   in  231  Galey    v.    Kellerman,    123    Pa. 

equity  for  a  forfeiture  of  the  lease,  St.   491;    16  Atl.   Rep.   474;    CrowTi 

but   by   an   action    for   damages   for  Oil  Co.  v.  Probert,  28  Ohio  Cir.  Ct. 

its    breach.      Kellar    v.    Craig,     126  Rep.    739. 

Fed.  Rep.  630;  Doddridge  County  Oil  Such   an   agreement   is   valid,   be- 

&  Gas  Co.  V.  Smith,   154   Fed.  Rep.  cause    the    damage    was    necessarily 

970.  indefinite,  uncertain  and  speculative. 

229  Harris    v.    Ohio    Coal    Co.,    57  Blodget  v.  Columbia  Live  Stock  Co., 
Ohio  St.   118;   48  N.  E.  Rep.  502.  164    Fed.    Rep.     305;     Davidson    v. 

230  Harris    v.    Ohio    Coal    Co.,    57  Hughes,  76  Kan.  247;   91  Pac.  Rep. 
Ohio   St.   118;    48  N.  E.   Rep.  502;  913,  915. 


LEASES.  149 

that  a  well  should  be  put  down  to  a  certain  deptli  by  a  certain 
time,  but  no  rent  was  reserved,  no  term  of  demise  was  stated, 
tlion2:li  a  riii'ht  of  entry  for  condition  broken  was  reserved ;  and 
the  lessee  failed  to  put  do\vn  the  well,  it  was  held  that  the 
lessor's  damages  were  only  nominal."^'  Ihit  where  the  royalty 
reserved  was  one-eighth  of  the  oil  })roduced,  and  tlie  lease  con- 
tained a  covenant,  "  to  continue,  with  due  diligence  and  witliout 
delay,  to  prosecute  the  business  to  success  or  abandonment,  and 
if  successful,  to  prosecute  the  same  witliout  iiit.orruption  for 
the  common  benefit  of  the  parties  " ;  it  was  held  that  this  re- 
quired the  lessee  to  prosecute  the  business  to  an  extent,  consider- 
ing the  knowledge,  skill  and  appliances  available  at  the  time, 
it  could  reasonably  be  done  and  leave  the  lessee  a  profit.  In 
determining  the  measure  of  the  damages  for  a  failure  to  work 
the  leased  premises,  the  coui^t.  laid  down  the  following  rule: 
From  the  amount  of  oil  the  lessor  ought  to  have  received,  take 
the  amount  he  actually  received,  and  take  the  value  of  this  dif- 
ference at  the  time  it  should  have  been  delivered  to  him.  From 
this  amount  deduct  the  cost  of  producing  what  ought  to  have 
been  produced  at  the  time  under  the  circumstances  with  the  ai> 
pliances  then  .known,  and  add  to  this  remainder  interest  on  it 
from  the  time  when  the  oil  should  have  been  produced  to  the 
time  of  trial."^^ 

§106.     Damages  for  neglect  to  develop  or  operate  leased  premises. 

The  lessor  has  a  right  of  action  against  the  lessee  for  failure 
to  develop  the  leased  premises,  as  he  had  contracted  to  do ;  and 
the  measure  of  damages  is  what  the  lessor  was  to  receive  under 
the  contract, —  the  royalty,  as  a  rule, —  where  the  lessee  leaves 
it  in  such  condition,  in  case  of  a  test  well,  that  it  cannot  be  testeil, 
and  the  failure  to  test  it  is  not  unavoidable,  or  the  lessee  left 

232  chamberlin   v.    Parker,    45    N.  to  be  developed ) .    See  Dailey  v.  Hel- 

Y.  569;  Dufr  V.  Bailey   (Ky.),  96  S.  ler,  41  Ind.  App.  379;  81  N.  E.  Rep. 

W.   Rep.  657;    29   Ky.   L.   Rep.  919  219. 

(holding  that  there  can  be  no  recov-  233  Bradford  Oil  Co.  v.  Blair,   113 

ery  of  damages  without  showing  that  Pa.  St.  83;   4  Atl.   Rep.  218. 
there  was  oil  and  gas  in  the  territory 


150  OIL   AND   GAS. 

it  in  a  condition  that  it  can  1x3  tested  and  the  lessor  does  not 
know  it. ■•'■''      Where  a   party   purcliased   oil   lands,   agreeing  to 
bore  for  oil  and  within  a  year  complete  a  well,  and  if  oil  were 
found  in  paying  quantities,  to  drill  other  wells,  and  deliver  as 
royalty  to  the  vendor  a  c^ertain  amount  realized  from  the  sale 
of  oil  and  gas  produced  from  all  the  wells,  it  was  hold  that  the 
remedy  of  the  vendor  for  a  failure  on  the  part  of  the  purchaser 
to  keep  the  agreement,  was  an  action  for  damages  and  not  by 
way   of   forfeiture.^^°     In   a   case   in   the   Federal   Court,    the 
following  language  was  used :     "  But  it  is  contended  by  the 
appellee  that  the  clause  providing  a  forfeit  of  fifty  dollars  for 
failure    to    bore    the   well    within    ninety    days    provides    full 
compensation  for  failure  to  perform  the  condition.      As  a  matter 
of  fact,  the  fifty  dollars  was  not  paid  or  legally  tendered;  but, 
inasmuch  as  the  grantor  had  declared  a  purpose  not  to  receive 
the  forfeit  money,  it  will  be  treated  as  if  it  had  been  tendered. 
The  question  whether  a  sum  of  money  stipulated  to  be  paid  is  a 
penalty  or  liquidated  damages  is  sometimes  difficult  of  deter- 
mination, tbere  being  no  criterion  of  universal  application.      It 
depends  upon  a  construction  of  the  whole  instrument,  the  inten- 
tion of  the  parties,  the  nature  of  the  act  to  be  performed,  and 
the  consequences  which  would  naturally  flow   from  its  non- 
performance.   In  many  of  the  cases  where  oil  leases  have  come 
before  the  courts,  the  doing  of  a  certain  thing,  or  the  payment 
of  rental  in  lieu  thereof,  is  stipulated  in  the  contract  in  a  way 
that  justifies  the  conclusion  that  the  parties  have  provided 
exact  and  just  compensation  by  way  of  liquidated  damages  for 
failure  of  performance  in  contracts,  where  parties  stipulated  in 
the  alternative,  and  are  free  to  those.    But  where  consequences 
likely  to  follow  non-performance  are  not  measurably  by  any 
exact  pecuniary  standard,  and  the  probable  damage  is  out  of 
all  proportion  to  the  amount  agreed  to  be  paid,  this  sum  should 
be  considered  a  penalty ;  and  such  we  hold  it  to  be  in  this  case, 
where  the  sum  of  fifty  dollars  is  stated  to  be  a  forfeiture.    It 

23nMcClay  v.  Western  Pennsylva-       etc.,   Co.    (W.   Va.),   43    S.   E.   Rep. 
nia    Gas    Co.,    201    Pa.    St.    107:    50       128. 

Ail.  Rep.  978.     See  Sharp  v.  Behr,  2.'!o  Ammons    v.    South    Penn.    Oil 

117   Fed.   Rep.   864;   Core   v.  N.  Y.,       Co.,  47  W.  Va.  GIG;   35  S.  B.   Rep. 

1004. 


LEASES.  151 

is  in  the  nature  of  a  security  for  the  performance,  and  cuuuot 
be  held  to  be  liquidated  damages  from  non-performance."-" 

§  107.    Damages  for  neglect  to  operate  and  develop  land. — Res 
judicata. 

If  a  lessor  bring  suit  to  recover  arrears  of  a  portion  of  the 
oil  due  him  as  royalty,  a  judgment  of  recovery  will  bar  his 
claim  in  a  subsequent  suit  for  damages  for  the  lessee's  failure 
to  operate  the  preraises.-^^  If  the  action  be  to  recover  damages 
for  failure  to  develop  land  leased,  in  order  to  recover  more 
than  nominal  damages,  the  lessor  must  show  that  oil  or  gas 
could  have  been  extracted  if  the  land  had  been  developed.-^**" 

§  108.    Damages  for  taking  oil  or  gas. 

If  the  lessee's  premises  be  invaded,  and  oil  or  gas  extracted 
from  them  by  sinking  wells  or  in  any  other  manner,  he  may 
recover  damages  from  the  wrong-doer.-''^  If  the  trespasser 
acted  in  good  faith,  the  measure  of  damages  when  the  suit  is 
by  the  owner  of  the  land  and  there  is  no  lease  involved,  is  the 
value  of  the  oil  (or  gas)  as  it  lay  in  the  earth,  when  the  value 
of  the  land  has  not  been  lessened  by  his  operations  or  has  been 
increased  by  valuable  erections  placed  upon  it.^^°  If  other 
wells  be  wrongfully  sunk  on  the  leased  premises,  the  lessee 
may  recover  the  difference  between  the  value  of  the  premises 
to  him  without  the  w^ells  and  their  value  to  him  with  siu'h 

237  Huggins  V.  Daley,  99  Fed.  Rep.  the  business  to  which   the  contract 

606;   40  C.  C.  A.   12;   4S,  L.   R.  A.  relates.     Crown  Oil  Co.  v.  Probert, 

320.    The  court  cited  French  v.  Ma-  28   Ohio  Cir.   Ct.   R.    739. 
cale,  2  Dru.  and  W.  274;  Dooley  v.  238  Hill  v.  Joy,   149  Pa.  St.  243; 

Watson,  1   Gray  414;   Foster  v.  Elk  24  Atl.  Rep.  293;  Shertzer  v.  Myers, 

Fork  Oil  and  Gas  Co.,  90  Fed.  Rep.  82  Kan.  275;   108  Pac.  Rep.  275. 
178;  61  U.  S.  App.  570;  32  C.  C.  A.  238a  DufT   v.   Bailey    (Ky.),   90    S. 

560;  and  Steelsmitli  v.  Gartlan,  45  W.  Rep.  557;   39  Ky.  L.  Rep.  919. 
W.  Va.  27 ;   29  S.  E.  Rep.  978 ;   44  2.-!9  Duffield  v.  Rosenzweig,  144  Pa. 

L.  R.  A.  107.  St.  520;   23  Atl.  Rep.  4;   Backer  v. 

In  construing  an  oil  and  gas  lease  Penn.  Lubricating  Co.,  102  Fed.  Rop. 

to   determine   whether  a   stipulation  027;  89  C.  C.  A.  419. 
to    pay    a    stated    amount    on    the  240  Dyke  v.  National   Transit  Co., 

breach  of  a  contract  is  a  stipulation  22  N.  Y.   App.  Div.   3G0 ;   49  X.   Y. 

for  a  penalty  or  to  pay  stipulated  Supp.  180;  Turner  v.  Seep,  107  Fed. 

damages,    the    court    may    consider  Rep.  646. 
what  is  universally  known  re.specting 


152  OIL   AND   GAS. 

wells.-"  If  oil  be  taken  by  a  lessee  who  believes  his  lease  is 
valid;  and  his  entry  thereunder  was  peaceable  and  made  in 
good  faith,  an  answer  to  that  effect  where  a  prior  lessee  sties 
the  second  lessee  is  not  demurrable,  since  such  good  faith  may 
at  least  affect  the  extent  of  the  second  lessee's  liability  for 
damages.-'*^* 

§  109.     Boundaries. — Location  of  wells. 

As  a  general  rule  the  lessee  has  the  right  to  take  all  the  oil 
and  gas  under  the  leased  premises.  But  usually  he  is  not 
entitled  to  the  possession  of  the  entire  surface  of  the  leased 
tract ;  for  the  lease  provides,  generally,  that  his  possession  shall 
be  limited  to  a  certain  portion  of  the  leased  tract,  though  he  is 
entitled  to  all  the  oil  or  gas  under  the  surface  of  the  entire 
tract,  if  he  can  draw  it  out  by  means  of  wells  sunk  in  those 
portions  of  the  tract  designated  for  his  use.  A  lease  of  eighty 
acres,  "reserving  sixty  acres  around  the  buildings  on  said 
premises,"  the  boundaries  to  be  designated  by  the  lessor,  is  not 
so  indefinite  as  to  defeat  an  action  for  the  rent  due  under  it, 
the  lessor  being  ready  at  all  times  to  locate  the  boundaries.^*- 
The  lessor  having  failed  to  locate  the  boundaries,  it  was  held 

241  DufReld  V.  Rosenzweig,  144  Pa.  be   within    the    prohibited    distance, 

St.  520 ;  23  Atl.  Eep.  4.  and  received  a  deed  conveying  twenty 

Plaintiff  sold  defendant  the  oil  acres.  It  was  held  that  plaintiff,  on 
and  mineral  rights  in  twenty  acres  procuring  a  waiver  three  months 
of  land  for  $6,000,  under  an  agree-  afterwards,  could  not  maintain  an 
ment  reciting  that,  as  plaintiff  had  action  against  the  defendant  to  re- 
agreed  in  a  prior  lease  of  other  lands  cover  the  three  acres.  Bracken  v. 
that  no  oil  wells  should  be  sunk  Sobra  Vista  Oil  Co.,  77  P.  GJ9; 
on  the  plaintiff's  land  within  a  cer-  143  Cal.  678.  In  ascertaining  the 
tain  distance  of  the  wells  of  said  damages,  no  deduction  can  be  made 
lessee,  a  survey  should  be  taken  for  the  cost  of  dry  holes  drilled, 
of  the  land  sold  to  defendant,  and  a  Backer  v.  Penn.  Lubricating  Co.,  162 
deduction  of  $300  per  acre  should  Fed.  627;  89  C.  C.  A.  419;  Dodd- 
be  made  for  all  lands  within  the  pro-  ridge  Co.  Oil  &  Gas  Co.  v.  Smith, 
hibited  distance,  unless  within  six  173  Fed.  386;  Doddridge  Co.  Oil  & 
months  plaintiff  had  secured  the  Gas  Co.  v.  Smith,  154  Fed.  970. 
written  waiver  of  his  former  lessee  24ia  Backer  v.  Penn.  Lubricating 
to  the  said  provision  of  tlie  lease.  Oil  Co.,  162  Fed.  Rep.  627;  89  C.  C. 
Plaintiff  did  not  procure  the  waiver,  A.   419. 

and    defendant    paid    the    purchase  242  Indianapolis,       etc.,       Co.      v. 

price,    less    a    deduction    for    about  Spaugh,  17  Ind.  App.  683;  46  N.  E. 

three  acres  found  by  the  survey  to  Rep.  091. 


LEASES.  153 

that  he  had  waived  his  right  to  declare  a  i'orl'eiture  of  llic 
lease  on  the  ground  that  the  lessee  had  not  begun  operations 
within  the  time  designated.  Adjoining  land  owners  may  agree 
that  they  will  not  drill  wells  within  a  certain  distance  of  the 
boundary  lines  of  their  respective  tracts;  and  the  promise  of 
the  one  will  be  sufficient  consideration  for  the  promise  of  the 
other,  for  the  reason  that  the  agreement  is  for  the  protection 
of  their  respective  lands.  This  agreement  will  be  protected  by 
an  injunction.-^-'  A  law  i)rohibiting  land  owners  taking  solid 
minerals  within  a  named  distance  from  their  boundary  lines  is 
valid,  being  only  a  restriction  on  the  land  owners  for  their 
common  benefit.-*^  In  a  suit  to  settle  and  adjust  boundary 
Hues  of  a  lease  and  tract  of  land,  all  persons  having  an  interest 
in  the  controversy  should  be  made  parties  to  the  action.-''''  If 
an  oil  lease  give  the  lessor  the  right  to  select  one  acre  on  which 
a  test  well  is  to  be  drilled,  and  he  select  it,  and  the  lessee  diill 
upon  it,  such  lessor  can  jiot  make  a  second  selection  and  insist 
that  the  lessee  put  down  another  well.-'*"  A  gas  and  oil  lease 
requiring  the  lessee  to  sink  seven  w^ells  and  giving  the  lessee 
the  right  to  retain  ten  acres  of  the  tract  for  each  well  sunk, 
when  two  are  completed,  and  giving  such  lessee  the  further 
right,  upon  the  completion  of  two  wells,  to  abandon  the  re- 
mainder of  the  tract,  does  not  authorize  the  institution  of  a  law 
suit  by  the  lessor,  to  quiet  his  title  to  the  remainder  of  the 
tract,  until  he  makes  a  demand  upon  such  lessee  to  make  a 

243  Ware  v.  Langmade,  9  Ohio  C.  ten-acre  tracts,  upon  each  of  which 

C.  Rep.  85;   6  Ohio  Cir.  Dec.  43;   2  was  an  oil  well,  is  insufficient  where 

Ohio  Dec.  116.  the    original    tract    did    not   specify 

Where  a  lessee  covenanted  to  put  any  metliod  of  ascertaining  the  houn- 

down  a  gas  or  oil  well  every  ninety  daries  of  such  ten-acre  tracts.    ]\Ion- 

days  on  a  certain  tract,   or  to   sur-  aghan   v.  Mount,  36  Ind.  App.   188; 

render  his  rights  under  a  grant  of  74  X.  E.  Rep.  579 ;   Jones  v.  ^Mount, 

the  gas  and  oil  thereunder,  and  he  30   Ind.   App.   59;    63   N.   E.    798. 
failed   to   do   either,   and   the   lessor  244  ]\j[iLp|i.  y.  John^  42  W.  Va.  30; 

had  been   accepting   the   benefits   of  24  S.  E.  Rep.  008;  32  L.  R.  A.  800. 
the  grant  as  to  the  wells  in  opera-  -'45  Stoelsmitli    v.    Fisher    Oil    Co., 

tion,  a  demand  for  a  decision,  it  was  47  W.   Va.  391;    35   S.   E.    Rep.    15; 

held,  should  have  been  made  upon  th(!  [Moore  v.  Jennings,  47   W.  Va.   181; 

lessee  as  to  which  course  he  would  34   S.   E.   Rep.   793. 
pursue,  before  a  suit  was  brought  to  246  Stahl    v.    Van   Vleck,    53    Oliio 

quiet    title.      And    a    complaint    to  St.    130;    41    X.    E.    Rep.    35.      See 

quiet   title  to   fifty   acres   out   of   a  ^Meeker    v.   Browning,   9   Ohio   C.   D. 

one-hundred-acre   tract,    leaving   five  108;   17  Ohio  C.  C.  548. 


154  OIL   AND    GAS. 

definite  reservation  for  each  of  such  completed  wells,  "In 
this  case,"  said  the  court,  "appellant  [the  lessor]  arbitrarily 
set  off  twenty  acres  as  a  reservation  for  the  two  active  wells, 
and  sought  to  quiet  his  title  against  the  lease  as  to  the  re- 
mainder of  the  land.  This  appellant  cannot  legally  do.  Tie 
made  no  demand  upon  the  original  lessee  or  its  assigns  that 
well  reservations  be  selected,  and  without  such  demand  and 
refusal  to  comply  therewith,  in  the  absence  of  an  agreement 
describing  the  premises  reserved  with  each  well,  the  court, 
because  of  an  indefinite  and  insufficient  description  of  the  land, 
would  have  no  basis  upon  which  to  render  a  decree  quieting 
title.-***"  And  where  the  lease  provided  that  no  well  should  be 
sunk  on  twenty  acres,  to  be  designated  by  the  landlord,  situate 
about  his  buildings,  and  he  afterwards  pointed  out  a  place 
where  the  first  well  might  be  sunk,  but  neither  the  lessee  nor 
its  assignees  ever  demanded  that  he  should  designate  the  lands 
reserved  more  definitely,  it  was  held  that  such  lessee  and  his 
assignees  were  not  discharged  from  their  obligations  under  the 
the  lease.-**''' 

§  110.     Selection  of  site. 

Not  infrequently  the  lessor,  or  the  lessor  and  lessee  jointly, 
is  to  select  the  site  for  the  well.  If  the  lessor  is  to  select  it,  and 
the  lessee  assents  to  the  selection,  the  former  will  be  bound.-*^ 
The  same  is  true  where  the  lessor  is  to  select  parts  of  a  large 
tract  leased  upon  which  operations  may  be  carried  on,  accord- 
ing to  the  provisions  of  the  lease. -*^  If  the  lessor  is  to  make 
the  selection  with  the  lessee  of  the  tract  out  of  a  larger  tract 
leased,  but  he  has  not  done  so,  he  may  recover  rent  for  the 

246a  Pittinger  v.  Ramage,  40  Ind.  bright,   18  Ind.  App.   151;   47  N.  B. 

App.  486;  82  N.  E.  Rep.  478;  Jones  Rep.  682;  Ramage  v.  Wilson,  37  Ind. 

V.   Mount,    166   Jnd.   570;    77   N.   E.  App.  532;   77  N.  E.  Rep.  368. 

Rep.  1089;  Jones  v.  Mount,  30  Ind.  =47  stahl    v.   Van   Vleck,    53    Ohio 

App.  59;   77  N.  E.  Rep.  1089;  Mon-  St.   136;   41  X.  E.  Rep.  35. 

aghan  v.  Mount,  36  Ind.  App.  1S8;  248  stahl  v.  Van  Vleck,  supra;  In- 

74  N.  E.  Rep.  579.  dianapolis,  etc.,  Gas  Co.  v.  Spaugh, 

246b  Indianapolis  Gas  Co.  V.  Pierce,  17    Ind.   App.   683;    46   N.    E.    Rep. 

36   Ind.    App.    573;    76   N.    E.    Rep.  691;    Diamond    Plate    Glass    Co.    v. 

173;  Indianapolis  Gas  Co.  v.  Rayle,  Tennell,  22  Ind.  App.  132;  52  N.  E. 

36    Ind.    App.    707;    76   N.    E.   Rep.  Rep.  168. 
176;    Kokomo,   etc.,   Oil   Co.   v.   Al- 


K 


LEASES. 


155 


demised  premises,  if  he  allege  and  prove  that  he  has  alw:.ys 
been  ready  to  make  it,  and  the  neglect  of  the  lessee  to  join 
with  him  in  making  the  selection  will  not  defeat  the  action  -'" 
If  a  dispute  arise  as  to  the  location  of  the  well,  whether  on  the 
lands  or  not,  the  jury  must  decide  the  question  as  one  of 
fact.-^" 

§  111.     Number  of  wells. 

If  the  number  of  wells  to  be  drilled  are  specified  in  the  lease, 
there  is  no  room  for  judicial  interpretation  of  the  duty  of  the 
lessee  in  that  respect.  If  the  number  of  producing  wells  are 
named,  then  that  number  must  be  drilled,  unless  it  be  clearly 
shown  that  the  number  fixed  cannot  be  obtained  on  the  prem- 
ises, by  showing  that  some  of  those  drilled  were  dry  wells,  and 
that  to  drill  others  would  not  be  a  benefit  to  the  lessor.  If  the 
number  of  wells  is  not  specified,  then  a  number  sufficient  to 
develop  the  premises  must  be  drilled ;  -'^  but  the  court  will  not 
undertake  to  direct  how  the  lessee  shall  work  the  premises,  or 


249  Indianapolis,  etc.,  Gas  Co.  v. 
Spaugh,  supra.  See  Balfour  v.  Rus- 
sell, 167  Pa.  St.  287;  31  All.  Rep. 
570;  Duffield  V.  Hue,  136  Pa.  St. 
602;  20  Atl.  Rep.  526;  Ramage  v. 
Wilson,  37  Ind.  App.  532;  77  X.  E. 
Rep.  368;  Pittinger  v.  Ramage,  40 
Ind.   App.   486;    82  X.   E.   Rep.  478. 

250  Hamilton  v.  Pittock,  158  Pa. 
St.  457;  27  Atl.  Rep.  1079. 

A  lessee  agreed,  in  consideration 
that  the  lessor  relinquish  all  money 
stipulated  for,  for  the  location  of 
additional  wells,  he  would  drill  ad- 
ditional wells  within  a  time  stated. 
This  was  held  to  be  an  executed  re- 
lease of  the  location  moneys  under 
the  former  contract,  and  not  merely 
a  conditional  one,  which  remained 
executory  until  the  new  wells  were 
drilled  within  the  time  limited. 
Meeker  v.  Browning,  9  Ohio  C.  D. 
108;    17   Ohio  C.   C.   Dec.  548. 

251  Kleppner  v.  Lemon,  176  Pa. 
St.  502;  38  W.  N.  C.  388;   35  Atl. 


Rep.  109;  27  Pittsb.  Leg.  J.  (N.  S.) 
21 ;  Aye  v.  Philadelphia  Co.,  193  Pa. 
St.  451;  44  Atl.  Rep.  555;  Kleppner 
V.  Lemon,  29  Pittsb.  L.  J.  (N.  S.) 
340;  Gadbury  v.  Ohio,  etc.,  Co.,  162 
Ind.  9;  67  X.  E.  Rep.  259;  Monag- 
han  V.  Mount,  30  Ind.  App.  188; 
74  X.  E.  Rep.  579. 

A  contract  to  put  down  a  test 
well  and  afterwards  others  "if  oil  or 
gas  is  found  in  paying  quantities" 
means  that  the  total  expense  and 
all  of  the  circumstances  and  pros- 
pects shall  be  considered  in  arriv- 
ing at  a  decision  as  to  whether  well.-* 
will  produce  "in  paying  quantities;" 
and  leaves  the  decision  to  the  opera- 
tor, acting  honestly  and  in  good 
faith,  whctlier  the  well  produces  "in 
paying  quantities,"  but  his  judgment 
must  not  be  arbitrary  nor  spring 
from  some  ulterior  purpose  to  get 
a  dishonest  advantage.  His  judg- 
ment cannot  be  attacked  except  on 
the  ground  of  fraud,  and  this  must 


156 


OIL   AND    GAS. 


how  many  wells  shall  be  sunk ;  and  the  lessor  cannot  claim  a 
forfeiture  simply  because  the  lessee  is  not  sufficiently  active  in 
developing  the  property.-^-  If  the  lessee  has  agreed  to  sink  a 
certain  number  of  wells,  he  cannot,  after  sinking  a  part  of  the 
number,  successfully  claim  that  it  would  be  useless  to  sink  the 
remainder,  on  the  ground  that  the  sinking  of  them  would  prob- 
ably reduce  the  flow  of  the  oil  or  gas  in  the  wells  already  sunk, 
and  his  profits  thereby  be  reduced  and  the  wells  probably  ren- 
dered valueless.-'^  A  lease  of  fifty-three  acres  in  1892  provided 
that  as  many  wells  should  be  drilled  "as  may  be  reasonably 
necessary  to  secure  the  oil  for  the  common  advantage  of  both 
the  lessor  and  lessee."  Between  1892  and  1896  the  lessee 
drilled  four  wells  on  the  west  side  of  the  leased  premises,  which 
were  paying  wells,  and  one  on  the  east,  which  did  not  pay.  The 
distance  from  the  eastern  well  to  the  western  well  was  from 
one  thousand  to  twelve  hundred  feet.  Eight  hundred  feet  on 
the  north  and  east  of  the  leased  premises  wells  had  been  drilled 


be  pleaded.  ^Manhattan  Oil  Co.  v. 
Carrell,  164  Ind.  526;  73  X.  E.  Rep. 
1084. 

A  gas  and  oil  lease  was  executed 
Dec.  20,  1902.  By  its  terras  the 
lessee  was  required  to  complete  three 
wells  within  one  year  from  the  date 
of  the  lease,  provided  each  was  a 
paying  gas  well;  and  also  to  com- 
plete a  well  every  sixty  days  untu 
the  ten  wells  were  drilled,  provided 
each  well  drilled  was  a  paying  well. 
The  lessee  put  dov\Ti  a  gas  well  by 
June,  1903,  and  after  using  it  a 
■short  while  he  plugged  it,  did  not 
use  it  thereafter,  and  put  down  any 
additional  wells.  It  was  held  that 
he  had  abandoned  the  lease.  Beatty- 
Kickle  Oil  Co.  v.  Smethers  (Ind. 
App.),  96  N.  E.  10. 

2-.2  Baldwin  v.  Ohio  Oil  Co.,  13 
Ohio  Cir.  Ct.  Rep.  519;  7  Ohio  Dec. 
50;  Ohio  Oil  Co.  v.  Kelley,  9  Ohio 
C.'C.  Rep.  511;  6  Ohio  Cir.  Dec. 
470;  40  Wkly.  L.  Bull.  3.38:  3  Ohio 
Dec.  186;  J.  M.  GuflFey  Petroleum  Co. 
V.  Jeff  Chaison  Townsite  Co.  (Tex. 
Civ.  App.),  107  S.  W.  Rep.  609.  See 
Pennsylvania  casn. 

-53  Younsr  v.  Equitnble  Gas  Co., 
6  Pa.  Super.  Ct.  Rep.  232;  28  Pittsb. 


L.  J.  (X.  S.)  75;  41  W.  N.  C.  24; 
Ahrns  v.  Chartiers  Valley  Ga/s  Co., 
188  Pa.  St.  249;  41  Atl.  Rep.  739; 
Crown  Oil  Co.  v.  Probert,  28  Ohio 
Cir.  Ct.  Rep.  739. 

Plaintiffs  made  a  contract  with 
defendant  granting  it  all  the  ga* 
and  oil  in  a  tract  of  land  of  seventy 
acres  with  the  right  to  drill  for  it, 
the  plaintiff  to  receive  one-sixth  of 
all  the  oil  and  gas  obtained.  It 
also  provided  that  "defendant  com- 
mence to  drill  the  first  well  in  twen- 
ty days,  that  each  well  be  due  in 
sixty  days  from  the  completion  of 
the  last  one,  or  a  monthly  rental  of 
$5  for  each  well  due,  that  each  loca- 
tion consist  of  ten  acres  more  or  less 
and  no  well  occupy  more  than  one 
acre."  Ihe  defendant  completed 
seven  of  the  wells  on  the  land  ac- 
cording to  the  terms  of  the  contract, 
and  later  completed  three  more,  but 
more  than  sixty  days  elapsed  be- 
tween the  completion  of  each  of 
these  last  three.  It  was  hold  that 
seven  wells  were  all  that  were  re- 
quired under  the  contract.  Stahl  v. 
Illinois  Oil  Co.,  45  Ind.  App.  211; 
90  N.  E.  Rep.  632. 


LEASES.  157 

which  were  producing  in  paying  quantities.  There  was  proof 
that  a  well  would  draw  oil  from  the  sand  a  distance  of  five  hun- 
dred feet.  An  action  was  brouglit  to  have  the  lease  declared 
forfeited,  on  the  ground  that  the  lessee  refused  to  drill  another 
well  on  the  eastern  side  of  the  premises.  The  court  required 
the  lessee  to  file  with  it  a  stipulation  to  commence  a  well  on  the 
eastern  portion  of  the  premises  within  twenty  days,  or  have  the 
lease  declared  forfeited.-'*  But  the  case  on  appeal  was  re- 
versed, on  the  ground  that  the  lessee  cannot  be  compelled, 
under  an  implied  covenant  to  develop  the  premises,  to  put 
down  a  well  on  the  other  half,  without  clearly  showing  that 
he  is  not  acting  in  good  faith  on  his  business  judgment,  but  is 
acting  fraudulently,  with  the  intent  to  obtain  a  dishonest 
advantage.-^'  Where  the  agreement  was  for  two  test  wells, 
and  the  first  one  drilled  demonstrated  that  the  premises  wtre 
unproductive,  it  was  held  that  the  lessee  was  not  bound  to 
drill  the  second  well  or  pay  the  cash  rental  provided  for  in 
the  lease ;  for  as  the  lands  were  unproductive,  there  was  noth- 
ing in  the  contract  to  compel  him  to  drill  a  second  well  or  pay 
the  rent.-^"  If  the  lessee  does  not  drill  the  requisite  number 
of  wells,  so  as  to  fully  develop  the  land,  where  the  number  of 
wells  is  not  designated  in  the  lease,  the  lessor  has  his  action 
against  him  for  damages.-^^  But  if  the  lease  provides  the 
number  of  wells  that  shall  be  drilled,  there  is  no  implication 
that  more  than  the  number  specified  shall  be  drilled  where  it 
should  turn  out  that  not  enough  was  provided  for  to  develop 

254  Young      V.      Vandergrift,      30  Wilson,  37  Ind.  App.  532 ;   77  X.  E. 

Pittsb.  Leg.  J.    (N.  S.)    30;    Colgan  Rep.  368;   Dailey  v.  Heller,  41   Ind. 

V.  Forest  Oil  Co.,  30  Pittsb.  Leg.  J.  App.  379;  81  X.'  E.  Rep.  219.     To  a 

(X.    S.)    68    (almost   identical  with  complaint  for  tne  enforcement  of  the 

preceding  case)  ;  Kleppner  v.  Lemon,  provisions  of  a  lease,  an  answer  that 

supra;    Ohio    Oil  v.   Harris,    1    Ohio  defendant  complied   with  such   lease 

N.  P.    132;    1    Ohio   Dec.   1.57.  as    to    the    drilling    of    two    wells; 

235  Colgan  V.   Forest   Oil   Co.,    194  that  he  cancelled  said  contract  as  to 

Pa.  St.   243;    75   Am.  St.  Rep.  695;  the  third  well   by  releasing  six  and 

30  Pittsb.  Leg.  J.  221;  45  Atl.  Rep.  two-thirds   acres  of  the   twenty-acre 

119;      reversing     30      Pittsb.      Leg.  tract;    that  the  lease  provided   that 

(N.  S.)    213.  lessee  should  have  the  right  to   "can- 

256  Kenton  Gas.  etc.,  Co.  v.  Or-  eel  and  annul  its  contract  or  any 
wick,  21  Ohio  Cir.  Ct.  Rep.  274;  11  part  thereof  at  any  time;"  that  it 
Ohio  C.  D.  786.     See  Sec.   112.  was  understood  by  the  parties  that 

257  Harness  v.  Eastern  Oil  Co.,  49  such  lease  would  be  cancelled  and 
W.  Va.  232;  38.  S.  E.  Rep.  662;  J.  annulled  as  to  such  part  of  the  tract 
M.  Guffey  Petroleum  Co.  V.  Jeff  Chai-  for  such  well  not  drilled,  is  bad, 
son  Townsite  Co.  (Tex.  Civ.  App.),  there  being  nothing  in  the  lease  to 
107    S.    W.    Rep.    609 ;    Ramage    v.  indicate  a  lease  of   a   part  only   of 


158 


OIL   AND    GAS. 


the  entire  premises. -^^  In  a  Pennsylvania  case  the  following 
language  was  used  with  reference  to  the  number  of  wells  that 
must  be  drilled:  "It  is  an  implied  condition  of  every  lease 
of  land  for  the  production  of  oil  therefrom  that  when  the 
existence  of  oil  in  paying  (luantities  is  made  apparent  the 
lessee  shall  put  down  as  many  wells  as  may  be  reasonably 
necessary  to  secure  the  oil  for  the  common  advantage  of  both 
lessor  and  lessee.  In  determining  when  and  where  such  wells 
shall  be  located,  regard  must  be  had  to  the  operation  on  ad- 
joining lands;  and  to  the  well  known  fact  that  a  well  will 
drain  a  territory  of  much  larger  extent  when  the  sand-rock  in 
which  the  oil  or  gas  is  found  is  of  coarse  and  loose  texture 
than  when  it  is  of  fine  grain  and  compact  character.  Whatever 
ordinary  knowledge  and  care  would  dictate  as  the  proper 
thing  to  be  done  for  the  interests  of  both  lessor  and  lessee 
under  any  given  circumstances  is  that  which  the  law  requires 
to  be  done  as  an  implied  stipulation  of  the  contract. " -''° 


the  tract  nor  anything  in  the  answer 
to  sliow  that  the  wells  were  put 
down  with  such  end  in  view,  or  how 
a  division  could  be  made.  Ramage 
V.  Wilson,  37  Ind.  App.  532;  77 
N.  E.  Rep.  308. 

259  Stoddard  v.  Emery,  128  Pa.  St. 
436;  18  Atl.  Rep.  339;  24  W.  N.  C. 
566;  Harris  v.  Ohio  Coal  Co.,  57 
Ohio  St.   118;   48  X.  E.  Rep.  502. 

260  Kleppner  v.   Lemon,   supra. 

A  contract  providing  that  the  les- 
see shall  drill  "at  the  rate  of  one 
well  every  sixty  days  after  date  un- 
til five  wells  are  completed,"  means 
one  well  should  be  drilled  within 
sixty  days,  a  second,  within  120 
days,  etc.,  from  the  date  of  the 
lease.  Where  the  first  well  is  drilled 
within  the  time  fixed  in  the  contract, 
a  provision  therein,  that  in  case  no 
well  is  completed  within  sixty  days 
from  the  date  the  grant  shall  be- 
come null  and  void  unless  a  penalty 
of  $1  per  day  is  paid  for  each  day 
completion  is  delayed,  does  not  apply 
in  determining  liability  for  delay 
in  sinking  subsequent  wells.  In  such 
an  instance  the  contract  calling  for 
the  sinking  of  five  wells,  the  $1  pay- 
ment attaches  to  each  of  these  al- 
leged delayed  wells  for  the  days  each 


of  the  wells  are  delayed.  Dailey  v. 
Heller,  41  Ind.  App. "379;  81  N.  E. 
Rep.   219. 

Neglect  to  use  diligence  and  good 
faith  in  the  development  of  the 
leased  premises  gives  a  cause  of 
action  to  the  lessor.  KJeppner  v. 
Lemon,  29  Pittsb.  L.  J.  (N.  S.)  346; 
affirmed  198  Pa.  St.  430;  48  Atl. 
Rep.  483 ;  Gadbury  v.  Ohio,  etc.,  Gas 
Co.,   1G2  Ind.  9;   07  N.  E.  Rep.  259. 

An  oil  and  gas  lease,  in  considera- 
tion of  $1,  gave  to  the  lessee  the  ex- 
clusive right  to  operate  for  oil  and 
gas  on  certain  land.  It  also  pro- 
vided for  forfeiture  if  a  well  was  not 
drilled  within  a  year,  without  the 
payment  of  rent  as  an  alternative, 
the  lessors  to  hatve  gas  for  domestic 
use,  if  found  in  quantities  sullicient 
to  justif}'  the  expense  of  marketing 
and  $50  a  year  during  the  time  gas 
was  marketed  from  each  producing 
well.  It  was  held  that  the  lease 
contemplated  that  a  well  put  down 
within  a  year,  and  from  which  gas 
in  sufficient  quantity  for  marketing 
was  obtained,  should  be  operated  and 
gas  marketed  therefrom  within  a 
reasonable  time,  and  that  other  wells 
should  be  drilled  and  operated  with 
reas(mal)le    diligence    to    utilize    the 


LEASES. 


159 


§  112.     Number  oi  wells. — Protecting  lines. 

Elsewhere  has  been  discussed  the  number  of  wells  the  lessee 
is  required  to  drill.-"'  Of  course,  if  the  number  is  specified, 
that  determines  the  rights  of  the  parties  in  this  connection. -"- 
But  if  the  number  is  not  specified,  then  the  lessee  must  drill 
and  operate  enough  as  is  ordinarily  required  for  the  produc- 
tion of  the  oil  contained  in  such  lands,  and  afford  ordinary 


rights  granted.  Howcrton  v.  Kansas 
Natural  Gas  Co.,  81  Kan.  553;  106 
P.  47. 

Where  an  oil  and  gas  company  takes 
a  lease  of  land  for  a  term  of  years 
"for  the  sole  and  only  purpose  of 
drilling  and  operating  for  petroleum 
oil  or  gas,"  and  covenants  to  pay  a 
royalty  on  oil  and  gas  produced,  and 
also,  as  additional  rental,  to  furnish 
the  lessor  with  natural  gas  for  heat 
and  light  for  his  house  during  the 
term  of  the  lease,  and  the  lease 
contains  no  forfeiture  clause,  or 
clause  as  to  the  number  or  depths 
of  the  wells  to  be  drilled,  or  as  to 
the  time  when  operations  are  to  be- 
gin, or  as  to  finding  oil  or  gas  in 
paying  quantities,  the  lessee  cannot 
discharge  itself  from  the  obligation 
of  the  covenant  to  furnish  natural 
gas  for  domestic  purposes  by  ceasing 
its  operations  when  the  production 
of  gas  ceased  from  the  single  well 
which  had  been  drilled.  Boal  v.  Cit- 
izens' Xatural  Gas  Co.,  23  Pa.  Super. 
Ct.  339. 

A  covenant  in  an  oil  lease  to  drill 
one  well  every  two  months  after  oil 
is  produced  until  the  land  is  weL 
developed  is  complied  with  where 
the  required  number  of  wells  have 
been  drilled,  altliough  not  at  regular 
intervals  of  two  months,  and  a  court 
of  equity  will  not  decree  a  forfeiture 
because  of  such  fact,  especially  where 
the  lessor  made  no  objection  on  that 
ground  when  they  were  being  drilled. 
Kellar  v.  Craig,"  126  F.  630;  Dodd- 
ridge County  Oil  &  Gas  Co.  v.  Smith, 
154  Fed.  Rep.  970. 

The  drilling  of  a  well  by  a  pros- 
pective lessee  while  the  lease  is  un- 
der consideration  by  the  prospective 
lessor,  is  not  a  compliance  with  the 


lease  to  drill  a  well  within  thirty 
daj's  from  the  date  of  the  lease. 
Cooke  v.  Gulf  Refining  Co.,  127  La. 
592;  53  So.  874. 

-«i  See  Inde.x. 

2G2Colgan  v.  Forest  Oil  Co.,  194 
Pa.  St.  234;  46  Atl.  Rep.  119;  30 
Pittsb.  L.  J.  (X.  S.)  213;  75  Am. 
St.  Rep.  695.  See  Stahl  v.  Van 
Vleck,  53  Ohio  St.  136;  41  X.  E. 
Rep.  35;  33  Wkly.  L.  Bull.  335; 
and  Parish  Fork  Oil  Co.  v.  Bridge- 
water  Gas  Co.,  51  W.  Va.  583;  42 
S.  E.  Rep.  655. 

A  requirement  in  an  oil  lease  that 
six  wells  are  to  be  put  down  on  the 
property  is  not  complied  with  by 
putting  down  five  wells  and  subse- 
quently deepening  one  of  the  five. 
Powers  v.  Bridgeport  Oil  Co.,  87  N. 
E.  381;   238  llf.  397. 

An  oil  and  gas  lease  on  three 
separate  tracts  gave  the  lessee  two 
years  within  which  to  drill  a  well 
on  the  premises,  and  provided  that 
the  time  mir^lit  be  enlarged  bjf  the 
payment  of  an  annual  rental  from 
the  expiration  of  the  second  year 
until  the  well  was  drilled,  and  that, 
if  no  well  should  be  drilled  on  ihe 
premises  within  five  years,  the  lease 
should  be  roiil.  It  was  held  that  the 
diligence  which  the  lessee  was  re- 
quired to  exercise  in  development 
during  the  first  five  years  was  ex- 
pressly defined,  and  that  a  well  hav- 
ing been  drilled  on  one  of  the  tracts 
during  the  fifth  year,  and  the  stipu- 
lated rental  paid  from  the  end  of 
the  second  year  until  the  well  was 
drilled,  the  lease  was  not  voidable 
because  other  wells  -were  not  drilled 
during  the  five-year  period.  Brew- 
ster V.  LanVon  Zinc  Co.,  140  F. 
801:    72    C.  "C.   A.   213. 


160  OIL    AND    GAS. 

protection  to  the  lines.-"^  If  a  single  well  demonstrates  the 
fact  that  there  is  no  oil,  in  case  of  an  oil  lease,  or  no  gas,  in 
case  of  a  gas  lease,  "the  contract  is  at  an  end  as  soon  as  such 
first  well  is  abandoned  as  unsuccessful.'"-"*  A  contract  be- 
tween the  owner  of  land  and  the  lessee  provided  that  the  owner 
granted  all  right  to  the  oil  and  gas  thereunder,  with  the  right 
to  enter  and  drill  for  oil;  the  lessee  to  drill  a  well  within  ten 
days  and,  when  the  first  well  was  completed,  if  it  was  a  paying 
well,  to  commence  a  second  well  within  ten  days,  and,  on  its 
completion,  if  paying,  to  commence  a  third  well  within  a  cer- 
tain time.  The  lease  further  provided  that  the  lessee  might 
release  all  or  any  part  of  the  tract  after  completing  the  first 
well,  thereby  relieving  itself  from  all  obligations  as  to  the 
part  released,  and,  on  releasing  any  part  of  the  tract,  eouW 
continue  operations  on  the  part  on  which  it  may  have  drilled 
any  wells,  retaining  such  part  of  the  tract  as  might  be  neces- 
sary for  operating  wells  drilling  or  then  drilled ;  the  amount 
to  be  retained  to  be  based  on  one-third  of  the  whole  tract 
leased  for  each  well  already  drilled  or  drilling.  It  also  pro- 
vided that  the  discharge  of  the  lessee's  obligation  to  drill  the 
first  well  should  be  a  sufficient  consideration  to  support  the 
options  contained  therein.  The  lease  was  to  continue  in  force 
for  one  year,  and  as  long  thereafter  as  oil  was  found  in  paying 
quantities,  and  the  lessor  was  to  receive  one-sixth  of  the  oil 
produced.  It  was  held  that  while  the  lessee  had  the  exclusive 
right  to  sink  any  number  of  additional  wells  on  unreleased 
parts  of  the  tract  during  the  year,  if  the  first  well  was  non- 
paying,  he  was  not  bound  to  do  so,  and  need  not  drill  more 
than  three  in  any  event,  either  of  which  could  be  drilled  on 
any  unreleased  part  of  the  tract,  without  regard  to  the  location 
of  wells  on  adjoining  tracts,  so  that  where  the  lessor,  to  protect 
the  oil  under  the  tract  from  exhaustion  by  a  well  on  adjoining 
tract,  drilled  a  well  on  an  unreleased  part  without  the  lessee's 
consent,  the  oil  therefrom  belonged  to  the  lessee  to  be  appor- 
tioned under  the  terms  of  the  lease.-''*'^ 

263  Harris  v.  Ohio  Oil  Co.,  .57  Ohio  264  Venture  Oil   Co.  v.  Fretts,  152 

St.  118;  48  N.  E.   Rep.  502;    Klepp-  Pa.     St.     4v31;     25     Atl.    Rep.    732; 

ner  v.  Lemon,    170    Pa.   St.   502;    .35  Steelsniith    v.    Gartlan,    45    VV.    Va. 

Atl.  Rep.  109;  Ohio  Oil  Co.  v.  Kelly,  27;  29  S.  E.  Rep.  978;  44  L.  R.  A. 

9  Ohio  C.  Ct.  Rep.  511;  6  Ohio  Cir.  107;  McConneil  v.  Lawrence  Natural 

Ct.  Dec.  470;  40  Wkly.  L.  Bull.  338;  Oas  Co.,  30  Rittsb.  Leg.  J.    (N.  S.) 

3    Ohio   Dec.    186;    Kellar   v.    Craig,  346. 

126    Fed.    Rep.    630;    J.    M.    Gufley  264a  CNeil  v.  Sun  Co.    (Tex.   Civ 

Petroleum  Co.  v.  .Jeff  Chaison  Town-  App.),   123  S.  W.  Rep.  172. 
site  Co.  (Tex.  Civ.  App.),  107  S.  W. 
Rep.   609. 


LEASES.  ICl 

§113.     Test  Wells. —  Excuse  for  not  drilling. 

The  name  ''  test  well  "  is  practically  its  own  (Ictiiiition,  or  at 
least  suggests  its  meaning.  Jt  is  a  well  ])ut  down  on  the  leased 
premises  to  determine  wliotlier  or  not  oil  or  gas  exists  tliere()n, 
and  nsually  whether  it  exists  in  paying  qnanti ties. '"''■'''  Not  in- 
freqnently  a  lease  provides  that  a  test  well  shall  he  drilled 
within  a  certain  length  of  time  after  it  is  granted;  and  when 
snch  requirement  is  inserted  it  must  be  complied  with,  or  the 
lessee  will  forfeit  his  right  to  operate  on  the  premises.  In 
leases  for  mining  solid  minerals  it  is  permissihlo  to  show  as  a 
defense  in  an  action  to  recover  damages  for  not  o^x-ning  a  mine, 
that  there  is  no  mineral  beneath  the  surface,  and  the  lessee  may 
avail  himself  of  that  defense  and  show  that  snch  is  the  fact,  he 
having  the  burden  to  show  there  is  no  mineral."""  But  in  the 
case  of  a  gas  or  oil  lease  a  defense  that  there  is  no  gas  or  oil 
beneath  the  surface  cannot  be  shown  in  any  other  way  than  by 
sinking  a  well,  nnless,  of  course,  the  plaintiff  admits  that  such 
is  tlie  case,  thereby  waiving  his  right  to  insist  u])on  the  well  as 
a  test.  It  cannot  be  shown  that  the  adjacent  territory,  or  even 
the  entire  adjacent  surrounding  territory  has  been  drilled  for 
gas  or  oil,  in  the  most  thorough  manner  and  none  found.  In  a 
Pennsylvania  case  the  following  language  was  used : 

"  The  averment  in  the  affidavit  of  defense  tliat  it  had  been 
'  ascertained  by  methods  practiced  and  approved  by  men  skilled 
in  the  business,  that  neither  carbon  oil  nor  gas  existed  in  the 
land  leased,'  and  the  view,  based  thereon,  urged  with  so  much 
force  by  the  distinguished  counsel,  that  it  must  now  be  ac- 
cepted as  a  demonstration  of  science  that  putting  down  a  well 
on  land  shown  by  exploration  of  neighboring  territory  to  be 
dry,  is  a  useless  expense  and  damage,  and  that  parties  in  con- 
tracting on  the  subject  must  be  considered  to  have  had  this  fact 
in  mind,  would  be  a  strong  argument  to  the  jury,  if  the  case 
was  one  for  them,  that  the  plaintiff  had  suffered  no  actual  dain- 

205  Petroleum    Co.    v.    Coal,    etc.,  was  held  (liat  the  lessee  is  not  lia- 

Cc,  89  Tenn.  381;  18  S.  W.  Rep.  65.  ble    unless    there   was   a    reasonable 

2C6  Cook  V.  Andrews,  36  Ohio  Si.  prolialiility    thai    the    lessor    would 

174.  be  benefited   by   drillini.^  the   well. 

In  Bell  V.  Truit,  9   Bush.   257,   it 


162  OIL   AND   GAS. 

ages  by  the  defendant's  default.  But  the  conclusive  answer  in 
the  present  case  is  tJiat  the  parties  have  clearly  stipulated  for 
the  mode  in  which  the  trial  shall  be  made,  and  it  is  to  be  by  a 
well  on  this  land.  There  is  no  room  for  science,  any  more 
than  there  is  for  a  jury,  to  say  that  it  will  be  of  no  use  to  dp  it; 
the  parties  have  explicitly  agreed  on  the  exact  tiling  to  be  done, 
and  the  exact  amount  to  be  paid  for  failure  to  do  it.  The 
scientific  nature  of  mining  in  the  y) resent  day,  and  the  certainty 
of  scientific  conclusions  from  exploration  of  neighboring  terri- 
tory, may  be  fully  recognized  and  admitted,  but  nevertheless, 
hopeful  parties  may  desire  an  actual  test,  and  if  we  are  to  take 
notice  as  counsel  suggest,  of  facts  in  the  history  of  oil  mining 
we  know  that  some  of  the  most  extraordinary  and  profitable 
productions  have  been  the  result  of  '  wild-catting  '  in  unpromis- 
ing fields.  But  it  is  enough  for  us  that  the  parties  have  con- 
tracted for  one  thing  to  be  done  and  the  damages  for  not  doing 
it.  Under  such  circumstances  it  is  never  open  to  tJie  covenantor 
to  say  that  the  thing  would  be  of  no  value  to  tbe  covenantee  if 
it  were  done."  '^"^ 

Where  the  agreement  was  that  a  well  should  be  completed 
within  a  year,  and  if  not,  an  annual  rental  paid ;  if  the  rental 
was  not  paid,  the  lease  to  be  null  and  void ;  and  a  second  well 
to  be  completed  within  two  years,  and  on  failure  to  drill  it,  a 
certain  sum  to  be  paid  or  the  lease  forfeited,  it  was  held  to  be 
no  defense,  in  an  action  to  recover  their  several  sums  that  tliere 
was  no  oil  or  gas  on  the  leased  premise,  and  for  that  reason  the 
lease  became  void  and  of  no  effect.  The  basis  for  the  decision 
was  that  the  lessor  and  lessee  had  fixed  upon  a  test,  which  was 
the  drilling  of  two  wells;  and  that  no  other  could  be  substituted 
by  the  lessee  without  the  lessor's  consent.  It  was  admitted, 
however,  that  the  lease  could  have  been  so  drawn  as  to  admit 
the  defense  attempted  to  be  set  up  by  the  lessee,  namely,  by 
showing  otherwise  than  by  test  avcIIs  that  there  was  no  oil  or 
gas  in  the  leased  premises. ^^^     If  the  lease  provides  for  a  test 

2C7  Cochran    v.    Pew,    159    Pa.    St.  ses  Gibson   v.   Oliver,    158   Pa.   St. 

184;  26  All.  Kep.  219.  See  Springer  277;    27    Atl.   Rep.    961;    Johnston, 

V.   Citizens'   National    Gas   Co.,    145  etc.,   R.   R.   Co.   v.   Egbert,    152   Pa. 

Pa.  St.  430;  22  Atl.  Rep.  986.  St.  53;  25  Atl.  Rep.  151. 


LEASES.  16;} 

well,  and  one  is  drilled  which  proves  to  be  a  dry  well,  yet  the 
lessee  is  bound  to  lx)re  other  wells  until  he  has  fully  developed 
tlie  territory. ""**  Tf  two  wells  were  to  be  put  down  by  a  certain 
time,  the  putting  down  one  well,  which  proved  to  be  a  dry  well, 
will  not  relieve  the  lessee  from  the  payment  of  rent,  when  two 
wells  were  to  be  put  do\\Ti  by  a  certain  time  or  rent  to  be  paid."^" 
If  there  be  several  tracts  of  land  leased,  with  a  royalty  for  each 
well,  each  tract  will  be  treated  as  a  separate  tract,  and  a  well 
must  be  put  down  for  each  of  them  or  rent  bo  paid.'^^  If  tlie 
lease  bind  tlie  lessee  to  test  the  land  within  throe  years,  and  to 
work  it  within  a  reasonable  time,  both  provisions  are  conditions 
on  which  the  lease  depends."'"  The  test  well  cannot  be  put 
do\vn  on  an  adjoining  premises,  especially  if  some  distance 
from  the  line  of  the  leased  territory ;  but  it  must  be  put  down 
on  the  premises  leased.'"  An  instrument  conveyed  the  oil  and 
gas  under  forty  acres  of  land,  with  the  right  to  enter  and  drill 
and  operate  for  oil  or  gas,  and  maintain  all  structures  and  lay 
all  pipes  necessary  for  its  production  and  transportation,  and 
leasing  one  acre  for  a  test  well,  with  a  provision  that  the  lessee 
should  commence  operations  within  thirty  days,  and  complete 
a  well  in  thirty  days  after  drilling  was  commenced,  and  if  he 
failed  to  do  so,  he  should  pay  annually  a  specified  price  "  per 
acre  "  until  the  well  was  completed ;  it  was  held  that  if  no  well 
was  completed,  the  lessee  must  pay  the  price  fixed  "  per  acre  " 
for  forty  acres,  instead  of  only  one  acre.^^* 

§114.     Test  well,  when  need  not  be  drilled. 

Notwithstanding  from  what  has  been   said  concerning  the 
duty  to  drill  a  "  test  well,"  it  has  been  held  that  the  circum.- 

269  Aye  v.    Philadelphia   Co.,   193  80  Tenn.  181:    18  S.  W.  Rep.  65. 
Pa.  St.  451;  44  Atl.  Hep.  555;  Pow-  273  Carncfric    Natural    Gas    Co.    v. 

ers    V.    Bridgeport   Oil    Co.,    238    111.  Philadelphia  Co.,    158   Pa.    St.    317; 

397;  87  N.  E.  Rep.  381.  27  Atl.  Rep.  951. 

2T0  Ahrns  v.  Chartiers  Valley  Gas  274  Columbian  Oil  Co.  v.  Blake,  13 

Co.,    188    Pa.  St.   249;    41   Atl.'  Rep.  Ind.  App.  680;  42  N.  E.  Rep.  234. 
739.  As   to   time   to    return    and    make 

2'i  Johnston,    etc.,    R.    R.    Co.    v.  further    developments,    under    pecu- 

Egbert,  152  Pa.  St.  53;  25  Atl.  Rep.  liar     circumstances,     see     Ilenne     v. 

151.  South  Pcnn.  Oil  Co.,  52  W.  Va.  192; 

-~-  Petroleum    v.    Coal,    etc.,    Co.,  43  S.  E.  Rep.  147. 


164  OIL   AND    GAS. 

stances  may  be  such  as  to  excuse  the  drilling  of  such  a  well. 
Thus,  several  owners  of  leases  divided  them.  Several  of  these 
owners,  who  became  defendants  in  a  suit,  gave  the  other  own- 
ers, wlio  l)ecame  the  plaintiffs,  an  agreement  l)inding  themselves 
to  pay  one  thousand  dollars  if  the  oil  wells  on  the  premises 
transferred  to  them  should  be  unproductive;  and  an  unpro- 
ductive well  was  defined  as  one  in  which  oil  was  not  produced 
in  paying  (juantitics.  Without  drilling  any  well,  the  plaintiffs 
sued  the  defendants  on  the  contract,  alleging  that  the  territory 
was  unproductive;  and  to  prove  that  assertion,  offered  evidence 
that  the  wells  drilled  through  the  stratum  in  which  oil,  when 
found  in  that  county  (and  it  seldom  was  found),  cost  about 
three  thousand  dollars,  and  even  then  only  a  trace  of  oil  had 
been  discovered.  ]t  was  held  that  this  was  sufficient  to  show 
that  the  wells  would  l:>e  unproductive  and  dry,  and  to  excuse 
the  plaintiffs  from  digging  a  well  in  order  to  demonstrate  the 
barrenness  of  the  p'remises  in  the  production  of  oil.  In  passing 
on  the  case  the  following  lang-uage  was  used : 

''  If  the  testimony  establishes  the  proposition  that  the  plain- 
tiffs pushed  their  investigations  sufficiently  to  show  that  neither 
the  iSTelson  nor  Dodson  well  was  one  in  which  oil  could  be  pro- 
duced in  paying  quantities,  they  are  entitled  to  recover.  Their 
right  cannot  be  defeated  by  proof  that  a  trace  of  oil  was  discov- 
ered or  even  by  proof  that  one  of  the  wells  might  be  made  to 
produce  a  few  barrels,  for  such  production  was  not  sufficient  to 
make  it  a  paying  well.  The  Nelson  well  was  put  down  1,600 
feet.  The  Dodson  well  1,377  feet.  Oil  in  Allegheny  County 
is  found,  if  at  all,  in  the  third  sand.  Both  of  these  wells  were 
drilled  through  tlie  third  sand,  and  little,  if  any,  oil  was  discov- 
ered. Subsequent  developments  still  further  demonstrated  their 
unproductiveness.  They  are  surrounded  by  a  circle  of  dry 
holes.  No  oil  has  been  found  in  their  vicinity.  The  plaintiffs 
are  criticised  because  the  wells  '  were  not  shot,  torpedoed  or 
tu1>ed,'  l)ut  it  would  seem  that  it  is  not  necessary  to  do  this  unless 
the  drilling  shows  some  promise  of  oil.  A  torpedo  may  make 
oil  flow  more  freely,  but  it  will  not  produce  oil  from  barren 
sand.  There  was  no  possible  motive  for  the  plaintiffs  to  omit 
anything  required  to  make  the  wells  a  success.    It  was  manifestly 


LEASES. 


165 


for  their  interest  tJiat  the  wells  shonlJ  \x\y.  There  is  no  direct 
j)roof  as  to  the  amount  to  be  paid  for  drilling  the  two  wells,  hut 
if  it  were  at  the  rate  which  the  evidence  bhows  was  paid  for 
similar  wells  in  Allegheny  County,  the  plaintiffs  were  obligated 
to  pay  nearly  $3,000.  The  comparatively  small  sum  which 
they  were  to  receive  from  the  defendants  in  case  the  wells 
proved  unproductive  was  no  inducement  to  them  to  stop  the 
work  until  every  reasonable  test  had  been  made.  Every  in- 
centive w-as  in  this  direction.  If  the  wells  proved  successful, 
it  meant  a  fortune  to  the  plaintiffs.  If  they  failed,  it  meant  a 
large  loss  even  after  the  $1,000  had  been  paid  by  the  defend- 
ants. I  am  satisfied  that  the  plaintiffs  did  all  that  the  agree- 
ment required,  and  that  nothing  which  they  could  have  done 
would  have  developed  oil  in  paying  quantities  in  either  of  the 
wells  in  question."  "'^ 

§115.     Test  well.— Depth. 

"  Can  it  be, said  that,  in  order  to  commence  operations  for  a 
test  well,  the  drill  must  actually  commence  to  ]x^netratc  the 
rock?  I  do  not  so  understand  the  meaning  of  the  expression 
construed  in  connection  with  the  facts  presented  by  the  record. 
In  many  places,  in  order  to  sink  a  well  it  is  necessary  tliat  some 
sort  of  wooden  or  metallic  casing  be  provided  for  the  purpose  of 
excluding  the  soil  and  clay  which  must  be  passed  through  before 
the  rock  is  reached ;  and  it  would  hardly  be  contended  that  the 
purchase  and  provision  of  tlie  necessary  material  for  such  casing 
or  cribbing  was  not  an  important  step  in  putting  down  the  well. 
Webster  defines  the  word  '  operation  '  as  '  an  effect  brought 
about  in  connection  with  a  definite  plan  ' ;  and,  in  giving  the 
interpretation  ordinarily  ascribed  to  the  words  '  to  commence 
operations' — that  is,  applying  to  the  words  th'ur  common  ac- 
ceptation —  T  would  understand  the  expression  to  mean  the 
performance  of  some  act  which  has  a  tendency  to  produce  an 
intended  residt.  For  instance,  if  a  man  had  determined  to  erect 
a  brick  house,  and,  in  ]iursuance  of  that  design,  hail  (piarried 
the  rock  on  liis  own  land  to  be  uscrl  in  the  cellar  walls  and 
loundation,  and  had  burned  a  kiln  of  brick  on  the  same  prem- 
ises for  the  purposes  of  constructing  the  walls  and  chimneys,  it 

275  Rice  V.  Ege,  42  Fed.  Rep.  GOl. 


166  OIL   AND   GAS. 

surely  could  not  be  said  that  he  had  not  commenced  operations, 
although  the  roads  might  tJien  he  in  such  a  condition  as  to  pre- 
vent him  from  hauling  the  stone  and  bridv  to  the  place  he  had 
selected  for  its  location.  Another  familiar  instance  that  may 
serve  the  purpose  of  illustration  is  the  erection  of  locks  and 
dams  for  the  purjx)se  of  im])roving  navigation,  by  increasing  tlie 
depth  of  the  water.  .  .  .  When  the  location  of  the  lock 
has  been  selected  and  stone  has  been  quarried  and  prepared, 
although  it  has  not  been  hauled  to  the  location  and  no  excava- 
tions have  been  made  to  receive  it,  we  would  not  be  warranted 
in  saying  that  operations  had  not  been  commenced  for  tlie  con- 
struction of  the  lock.  And  again,  where  a  building  has  been 
destroyed  by  fire,  how  frequently  do  we  bear  it  remarked  that 
the  owner  commenced  operations  at  once  for  the  construction  of 
another  by  clearing  away  the  debris  and  contracting  for  the 
material  with  which  to  rebuild  tlie  structure  ?  The  terms  of 
the  covenant  contained  in  said  lease  must  be  regarded  as  hav- 
ing been  complied  with,  no  matter  how  slightly  may  have  been 
the  commencement  of  any  portion  of  the  work  which  was  a 
necessary  and  indispensable  part  of  tlie  work  required  in  put- 
ting down  the  test  well."  ^""^ 

§116.     Lessor  and  lessee  by  mistake  locating  well  on  stranger's 
land. 

If  the  lessee  and  lessor  by  mutual  mistake  locate  a  well  out- 
side of  the  leased  premises  and  on  a  stranger's  land,  the  lessor 
cannot  claim  any  part  of  the  oil  or  gas  as  royalty,  or  rent  for 
the  well.-'" 

276  Fleming   Oil    and    Gas    Oo.   v.  should  be."     Consumers'  Gas  Trust 

South  Penn.  Oil  Co.,  37  W.  Va.  64,'5;  Co.  v.  Littler,  162  Ind.  320;   102  N. 

17   S.  E.   Rep.  203;   Federal   Better-  E.  Rep.  320. 

ment   Co.   v.   Blaes,   7'5  Kan.  G9 ;    88  Where  a  contract  for  an  oil   and 

Pac.  Rep.  555.  gas   lease  is  amhiffuous   as   to  what 

"The  company's  undertaking  to  shall  constitute  a  completed  well, 
pay  the  landlord  until,  in  the  judg-  the  conduct  of  the  parties,  in  treat- 
ment of  the  company,  'oil  or  gas  ing  the  completion  of  an  unproduc- 
cannot  be  found  on  the  premises,  or,  tive  well  as  an  act  siifTicient  to  vest 
having  been  found,  has  ceased  to  in  the  lessee  the  risht  to  make  fur- 
exist,'  clearly  implies  an  engagement  ther  exploration,  without  additional 
to  explore  and  develop  the  premises.  payment,  is  conclusive  upon  the  par- 
The  stipulation  does  not  contemplate  ties.  Smitv  v.  South  Penn.  Oil  Co., 
an  arbitrary  judgment,  but  an  hon-  53  S.  E.  152. 

est  one;    a   judgment   that  is  justi-  277  Mays  v.  Dwight,  82  Pa.  St.  462. 

fiable  bv  the   results  of  a    bona  fitJe  See   Marshall    v.   Mellon,   26   Pittsh. 

invest i<T-it ion;   such  as  could  only  be  L.   .T.    (N.   S.)    290;    17   Pa.  Co.   Ct. 

be  arrived  at  bv  sending  down  the  Rep.  3'66. 
drill   to   where  the   oil   or  eras  is  or 


LEASES.  167 

§117.     "Shooting"  well. 

Unless  some  statute  prevent  it;  there  is  nothing  to  prevent  a 
well  owner  from  "shooting"  it,  in  order  to  increase  the  flow  of 
gas  or  oil,  and  even  though  it  has  the  effect  to  drain  the  oil  or 
gas  from  his  adjoining  neighbor's  premises.-^*  But  the  owner 
may  "not  "  shoot"  his  well  if  it  is  situated  in  tlie  center  of  a 
thickly  populated  city  where  he  cannot  collect  the  necessary 
quantity  of  explosives  to  "  shoot "  it,  without  endangering  the 
lives  and  property  of  those  who  have  no  connection  witli  his 
operations.  In  such  an  instance  he  must  be  content  with  such 
flow  of  gas  or  oil  as  can  be  obtained  without  such  "  shooting" ; 
and  an  injunction  will  lie  against  him  to  prevent  the  accumu- 
lation or  use  of  the  explosives."^®  So  if  a  well  is  situated  so 
close  to  a  dwelling  house  as  to  endanger  the  house  or  its  occu- 
pants, or  even  any  building  of  value,  if  it  be  "  shot,"  the  owner 
of  such  well  may  not  "  shoot "  it ;  and  if  he  attempt  or  threaten 
to  do  so,  he  may  be  enjoined."^" 

§118.     Oil  lease,  who  entitled  to  gas. 

Under  a  lease  giving  the  right  to  drill  and  "  gather  "  "  all 
oil  or  gases  "  on  the  leased  premises,  in  consideration  of  a  part 
of  the  oil  found,  the  lessee  is  entitled  to  all  the  gas  found.^" 
In  passing  on  this  question,  the  West  Virginia  Supreme  Court 
used  the  following  language: 

"  While  the  grant  is  for  specific  purpose  of  mining  for  and 
removing  carbon  oil  and  for  none  other,  still  there  is  neces- 
sarily included  in  this  gi*ant,  all  the  incidents  essentially  or 
naturally  pertaining  to  its  enjoyment.     Included  in  these  are 

278  People's  Gas  Co.  v.  Tyner,  131  28 1  Eaton  v.  Wilcox,  42  Hun  61; 
Ind.  277;  31  N.  E.  Rep.  59;  16  L.  Wood  «Jounty,  etc.,  Co.  v.  West  Vir- 
R.  A.  443;  Tyner  v.  People's  Gas  ginia,  etc.,  Co.,  28  W.  Va.  210;  57 
Co.,  131  Ind.  408;  31  N.  E.  Eep.  61.  Am.   Rep.  659.     But  see  Kitchen  v. 

279  People's  Gas  Co.  v.  Tyner,  Smith,  101  Pa.  St.  452;  Kier  v. 
supra.  Tyner  v.  People's  Gas  Co.,  Peterson,  41  Pa.  St.  357;  Truhy  v. 
supra.  Palmer,  4  Cent.   Rep.    (Pa.)    925;   6 

280  People's  Gas  Co.  v.  Tyner,  Atl.  Rep.  74;  Palmer  v.  Truby,  136 
supra.  Windfall  Mfg.  Co.  v.  Patter-  Pa.  St.  556;  20  Atl.  Rep.  516*.  See 
son,  148  Ind.  414;  47  N.  E.  Rep.  Burton  v.  Forest  Oil  Co.,  204  Pa. 
2;  37  L.  R.  A.  381.  349;   54  Atl.   Rep.   266. 


168  OIL    AND    GAS. 

the  elements  such  as  light,  air  and  Avater.     And  having  the 
legal  right  to  enter  upon  and  occupy  any  portion  of  the  prem- 
ises,   the    appellant   could,   without  becoming  a  trespasser  or 
incurring  any  liability  to  tlie  lessors,  use  and  appropriate  any- 
thing it  might  find  thereon,  whicli  is  not  the  property  of  an- 
other,   such  as   animals   ferae    naturae,   or   waters   percolating 
through  the  land,  even  though  by  such  use  and  appropriation 
it  may  deprive  another,  having  an  equal  right,  of  the  power  to 
do  so.     These  are  not  the  subjects  of  absolute  property,  and 
being  therefore  jure   naturae   capable  of  qualified   ownership 
only,  they  belong  to  him  who  first  appropriates  them.     If  the 
hydrocarlxDu  or  natural  gas  now  in  controversy  belongs  to  the 
class  of.  things  which  are  incapable  of  being  absolute  property, 
but  are  the  subject  of  qualified  property  only,  such  as  those 
above  mentioned,  then  it  is  clear  this  gas  was  not  the  property 
of  the  plaintiff,  and  the  appellant  was  not  liable  for  its  use  and 
appropriation  ;  but  if,  on  the  other  hand,  said  gas  is  susceptible 
of  absolute  ownership,  then  it  is  a  part  of  the  realty  of  the 
plaintiff,  to  which  the  appellant  has  no  right  under  said  lease, 
and  is,  therefore,  liable  to  the  plaintiff  for  tlie  value  of  the 
same.      The   important  and  decisive   inquiry  in  this  cause  is, 
therefore :     To  which   category  docs  hydrocarbon  gas  belong  ? 
In  the  article  on  '  Gas  and  Gas  Lighting,'  in  the  Encyclopedia 
Britannica,  it  is  stated  that  inflammable  gas  is  formed  in  great 
abundance  within   the  earth   in   connection   with   carbonaceous 
deposits,  such   as  coal   and  petroleum;   and   similar  accumula- 
tions  not  imfrequently   occur  in   connection   with   deposits   of 
rock-salt;    the   gases   from   any   of   these   sources,   escaping   by 
means  of  fissures  or  seams  to  the  open  air,  may  be  collected  and 
burned  in  suitable  arrangements.     Thus  the  '  eternal  fires  '  of 
Baku,  on  the  shores  of  the  Caspian  Sea,  which  have  been  known 
as  burning  from  remote  ages,  are  due  to  gaseous  hydrocarbons 
issuing  from  and  tlirough  petroleum  deposits.      In  the  province 
of  Szechuen,  in  China,  gas  is  obtained  from  beds  of  rock-salt  at 
a  depth  of  1,500  or  1,600  feet;  being  brought  to  the  surface,  it 
is  conveyed  in  bamboo  tubes  and  used  for  lighting  as  well  as 
for  evaporating  brine ;  and  it  is  asserted  that  the  Chinese  used 
this  naturally  evolved  gas  as  an  illuminant  long  before  gas  light- 
ing was  introduced  among  European  nations.      .      .      .      It  is 
apparent  from  this  history  of  the  nature  and  properties  of  nat- 
ural gas  that  it  partakes  more  nearly  of  the  cliaracter  of  the 


LEASES.  1  GO 

apparent  from  this  history  of  the  nature  and  properties  of  nat- 
ural gas  that  it  partakes  more  nearly  of  the  character  of  the 
elements,  air  and  water,  than  it  does  of  those  tilings  which  arc 
the  subject  of  absolute  property.  .  .  .  The  right  of  appro- 
priation is  so  absolute  in  the  case  of  water  flowing  under  ground 
that  if  the  owner  of  land  in  digging  a  well  or  cellar  or  woi'king 
a  mine  on  his  own  promises  cuts  off  the  water,  which  by  \)vv- 
colation  supplies  his  neighbor's  well  and  tliereby  diverts  it 
into  his  own  or  drains  the  well  of  his  neighbor,  the  latter  is 
without  remedy;  it  is  damnum  absque  injiiria,  if  not  negli- 
gently or  maliciously  done.  If  this  were  an  ojjcn  spring  pro- 
ducing oil  and  gas  or  such  a  natural  emission  of  gas  as  that  at 
Bloomfield,  in  New  York,  or  that  at  the  Burning  Spring,  in 
Wirt  County,  West  Virginia,  instead  of  a  well  1,000  feet  deep, 
there  could  be  no  more  question,  it  seems  to  me,  as  to  the  right 
of  the  lessee  to  appropriate  the  gas  under  the  provisions  of  this 
lease  than  there  is  of  his  right  to  consume  the  air  and  water 
upon  the  premises.  What  differen(?e,  then,  is  there  between 
these  cases  and  the  well  in  question,  which  was  opened  in  ex- 
press conformity  with  the  written  terms  of  the  lease?  It  is 
the  same  as  if  the  well  had  been  there  before  the  lease  was 
made."  ''^" 

Where  a  lease  provided  tliat  the  lessor  should  receive  a  cer- 
tain portion  of  the  oil  produced ;  and  also  provided  that  "  should 
any  well  produce  gas  in  sufficient  (piantities  to  justify  market- 
ing, the  lessor  shall  be  paid  at  the  rate  of  one  hundred  dollars 
per  year  for  such  well  so  long  as  gas  therefrom  is  sold  " ;  and 
the  lessor  brought  suit  to  recover  the  gas  rental,  alleging  that 
the  lessee  had  marketed  and  sold  gas  from  a  well,  it  was  held 
that  an  expert  might  testify  to  the  necessity  of  removing  the 
gas  in  order  to  successfully  o]x?rate  the  well  for  the  production 
of  oil,  as  showing  that  the  removal  of  the  gas  was  consistent 
with  the  denial  of  the  lessor's  right  to  collect  a  rental  there- 
for.^*^' 

2S2Wood  County,  etc.,  Co.  v.  West  28.t  Shewaltcr  v.  Hamilton  Oil  Co., 

Virginia,  etc.,  Co.,  28  W.  Va.  210;       28  Ind.  App.  312;  62  N.  11.  Rep.  708. 
57   Am.  Rep.  659.     Contra,  Kitchen 
V.  Sriith,  101  Pa.  St.  452. 


170  OIL   AND    GAS. 

§119.     Oil  lease  gives  no  right  to  gas  if  oil  be  not  found. 

If  a  lease  bo  executed  fur  the  purpose  alone  of  drilling  for 
oil,  and  oil  be  not  found,  though  gas  be  found,  the  lessee  cannot 
insist  tliat  the  lease  has  not  terminated,  on  the  ground  that  he 
had  succeeded  in  developing  a  paying  gas  well  or  wells ;  and 
the  lessee  is  not  even  entitled  in  equity  to  reimbursement,  for 
the  expense  of  his  operations,  out  of  tlie  proceeds  of  the  gas  ob- 
tained. In  passing  on  this  question  the  court  said :  The  lease 
"  expressly  declares  the  property  shall  be  occupied  and  worked 
for  petroleum,  rock  or  carbon  oil,  and  shall  not  be  occupied  or 
used  for  any  purpose  whatever ;  and  if  no  oil  is  found  in  pay- 
ing quantities  within  four  years  from  tliis  date  ^^*  the  lease 
shall  be  null  and  void.  Oil  was  not  found.  It  would  be  a 
clear  perversion  of  language  to  hold  that  oil  and  gas  are  syn- 
onymous terms.  The  evidence  ife  insufficient  to  prove  that  the 
word  gas  was  omitted  from  the  lease  through  fraud,  accident 
or  mistake.  The  doctrine  of  equitable  estoppel  is  not  applica- 
ble to  the  facts."  '^^  On  the  second  branch  of  the  proposition 
above  stated,  this  same  court  used  the  following  language : 

"  The  riglits  of  the  parties  are  determined  by  their  contract, 
which  is  a  law  of  their  own  making.  It  is  a  speculative  eon- 
tract,  wholly  at  the  risk  of  the  lessees.  If  they  obtain  oil  they 
make  a  profit,  in  some  instances  a  very  large  one ;  while  if  they 
fail,  the  loss  is  wholly  their  own.  They  have  no  right  to  be 
reimbursed  by  the  lessor,  or  out  of  their  property,  under  any 
circumstances  whatever.  As  before  observed,  it  was  a  specula- 
tion pure  and  simple,  in  which  the  lessees  assumed  all  the  risk. 
They  did  so  for  the  chance  of  getting  seven-eighths  of  the  oil. 
Upon  what  principle  of  equity  can  this  risk  be  shifted  upon  the 
lessors,  and  they  be  required  to  pay  for  the  expenditures  which 
the  lessees  agreed  to  make  at  their  own  risk  ?  It  will  be  seen 
at  a  glance  that  there  is  no  analogy  between  such  case  and  that 
of  a  person  who  is  in  possession  of  land,  under  color  of  title,  and 
innocently  builds  a  house  or  bam,  or  makes  other  valuable  and 


284  The  date  of  the  lease.  286  Truby  v.  Palmer,  4  Cent.  Rep. 

(Pa.)   925;  6  Atl.  Rep.   74. 


LEASES. 


171 


permanent  improvements  upon  it.  In  such  case,  in  an  action 
for  the  mesne  profits,  he  may  justly  be  allowed  for  the  value  of 
such  improvements  to  the  extent  they  have  increased  the  value 
of  the  property.  But  here,  the  lessees  did  nothing  but  what 
they  agreed  to  do  at  their  own  risk. ' '  ^^^ 

§  120.     Eviction. — Ejectment. 

If  the  lessor  convey  the  leased  premises  to  a  third  person, 
and  the  deed  of  conveyance  is  not  made  subject  to  the  lease, 
there  is  a  technical  eviction  of  the  lessee ;  -^'^  but  if  the  grantee 
had  knowledge  of  the  lease,  the  lessee's  rights  are  not  lof.t, 
and  there  is  no  breach  of  a  covenant  of  warranty. ^^^  The 
erection  by  the  lessor  of  a  building  on  the  part  of  the  land  to 
be  occupied  by  the  lessee,  but  which  does  not  interfere  with 
his  operations,  is  not  an  eviction.-*^  If  the  lease  be  made  of  a 
large  tract,  but  the  lessee  is  to  occupy  only  a  certain  portion 
of  it  for  his  operations,  he  cannot  maintain  ejectment  for  such 
portions  as  he  does  not  occupy.-'*"  And  the  assignee  of  a  lease, 
with  a  right  to  enter  on  the  premises  leased  to  mine  for  cil 
and  gas,  cannot  maintain  ejectment  against  the  lessee  in  a 
subsequent  lease.-°°''     Ejectment,  however,  lies  in  favor  of  a 


286  Palmer  v.  Truby,  136  Pa.  St. 
556;  20  Atl.  Rep.  516.  See  also 
Beatty-Nickle  Oil  Co.  v.  Smethers 
(Ind.'App.),  96  N.  E.   19. 

A  lease  gave  the  right  to  drill  for 
oil  and  gas,  and  contained  a  provi- 
sion for  a  certain  rental  if  gas 
was  obtained^  without  any  distinc- 
tion as  to  whether  the  gas  was  de- 
rived from  gas  or  oil  wells.  It  was 
held  that  evidence  was  not  admis- 
sible to  show  that  the  word  '"gas," 
as  used  in  the  lease,  in  trade  meant 
gas  derived  from  a  gas  well,  and 
not  gas  derived  from  an  oil  well. 
Burton  v.  Forest  Oil  Co.,  204  Pa. 
349;     54     Atl.    Rep.     266. 

A  stipulation  in  an  oil  lease  that 
if  tlie  lessee  brings  in  an  oil  well  he 
shall  have  the  right  to  exploit  tlie 
land,  docs  not  give  him  tlie  riglit  to 
exploit  it  where  he  only  brings  in 
a  gas  well.  Cooke  v.  (hilf  Kefining 
Co.,   127  La.  592;   53  So.  874. 


287  Matthews  v.  People's  Natural 
Gas  Co.,  179  Pa.  St.  165;  36  Atl. 
Rep.  216. 

288  Sanders  v  Rowe  (  Ky. ) ,  48  S. 
W.  Rep.  1083;  20  Ky.  L.  Rep.  1082; 
Ream  v.  (Joslee,  21  Ind.  App.  241; 
52  X.  E.  Rep.  93;  Lake  v.  Dean, 
28  Beav.  607;  Demars  v.  Koehler, 
60  N.  J.   L.   314;    38   Atl.   Rep.  808. 

289  Matthews  v.  People's  Natural 
Gas  Co.,  179  Pa.  St.  165;  36  Atl. 
Rep.  216. 

200  Dufficld  V.  Hue,  129  Pa.  St. 
94;  18  Atl.  Rep.  566;  Jones  v. 
Mount,  3,1  Ind.  App.  59;  77  N.  D. 
Rep.    1089. 

Solid  mineral  under  the  soil  may 
be  the  subject  of  an  action  of  eject- 
ment. Kirck  V.  Mattier,  140  Mo. 
23;   41    S.  W.  Rep.  252. 

29oa(iill,.spio  V.  Fulton  Oil  &  Gas 
Co.,  236  111.  188;  86  N.  E.  Rep.  219. 


172 


OIL   AND    GAS. 


lessee  to  recover  possession  from  which  lie  has  been  unlawfully 
deprived  of  the  possession. -^^  If  a  lessee  goes  into  possession 
of  premises  already  leased  for  the  same  purpose  but  accepts 
from  the  first  lessee  a  sum  of  money  on  account  of  damages, 
and  contracts  with  him  as  to  damages  in  the  future,  he  cannot 
defend  against  the  payment  of  rent  on  the  ground  that  he 
has  been  evicted  by  his  landlord. '-"- 

8121.     Failure  of  title,  reimbursement  of  operator. 

If  a  person  in  iwssession  of  oil  land,  in  good  faith  believe  he 
has  good  title  thereto,  either  by  way  of  ownership  or  as  lessee, 
and  under  that  belief  drill  a  well  or  wells ;  and  afterwards  he 
lose  iX)Ssession,  in  an  action  of  ejectment;  he  may  retain  out 
of  the  proceeds  of  the  oil  or  gas  produced  during  his  occupancy 
a  sufficient  amount  to  reimburse  himself  for  the  cost  of  drilling 


291  Erskine  v.  Forest  Oil  Co.,  80 
Fed.  Pvep.  .583;  California  Oil  Gas 
Co.  V.  Miller,  06  Fed.  Rep.  12;  INIes- 
simer's  Appeal,  92  Pa.  St.  168; 
Long's  Appeal,  '92  Pa.  St.  171; 
Barnsdall  v.  Bradford  Gas  Co.,  225 
Pa.  338;  74  All.  Rep.  207.  If  the 
lessor  terminates  the  lease  and  takes 
possession  of  the  premises  and  the 
lessee's  personal  property  thereon, 
the  latter  cannot  maintain  an  action 
of  ejectment  in  order  to  recover 
his  property,  but  the  court  will  di- 
rect judgment  in  favor  of  the  lessee 
without  prejudice  to  the  lessor's 
right  to'  maintain  an  action  against 
the  lessor  for  taking  the  personal 
property.  Cassell  v.  Crothers,  193 
Pa.  359;   44  Atl.  44G. 

2fl2Horberg  v.  May,  153  Pa.  St. 
216;   25  Atl.  Rep.  750. 

Where  the  purchaser  of  an  oil 
lease  has  sold  half  of  the  property 
and  is  gradually  disposing  of  the 
remainder,  he  has  elected  not  to 
ask  for  a  rescission  of  the  sale,  and, 
where    there   is   danger    of   eviction, 


can  require  a  bond  from  the  seller 
only  for  that  part  of  the  property 
as  to  which  there  is  danger  of  evic- 
tion; and  where  the  seller  of  an 
oil  lease  sues  for  absolute  judg- 
ment, and  the  purchaser  pleads  dan- 
ger of  eviction,  and  the  seller  does 
not  ask  to  give  bond,  and  tlie  pur- 
chaser does  not  ask  that  he  do  so, 
the  prayer  for  an  absolute  judgment 
includes  a  prayer  for  a  judgment 
conditioned  on  the  stay  of  execution 
until  danger  of  eviction  has  ceased 
or  a  bond  has  been  furnished.  Jen- 
nings-Heywood  Oil  Syndicate  v. 
Home  Oil  &  Development  Co.,  113 
La.  383;   37  So.   1. 

In  an  adA'erse  suit  to  determine 
the  ownership  of  an  oil  placer  min- 
ing claim,  the  parties  stand  upon 
their  own  rights,  and  must  recover 
on  the  strength  of  their  own  claims; 
and  if  neither  party  establishes  a 
right  to  possession,  a  judgment  to 
that  effect  must  be  made.  Phillips 
v.  Brill,  17  Wyo.  26;  95  P.  856. 


LEASES.  173 

the  well.     In  discussing  tliis  ease,  the  Supreme  Court  of  Penn- 
sylvania said : 

"  If  this  is  a  kind  of  improvement  of  an  unusual  eharacter 
and  one  which  particularly  commended  itself  to  tlie  favorahle 
opinion  of  the  courts.  It  was  an  oil  well  with  all  the  machinery 
and  appliances  necessary  to  its  operation.  Now,  without  this 
well  and  machinery,  the  oil  could  not  possibly  be  obtained. 
After  it  was  completed  its  operations  were  all  for  the  benefit  of 
the  plaintiffs.  They  have  actually  received  the  entire  advan- 
tage of  its  structure  and  maintenance  without  a  ])Oiiny  cost  to 
themselves  and  without  any  risk.  All  the  cost  and  all  the  risk 
were  borne  by  the  defendants.  .  .  .  Obtaining  oil  from 
the  bowels  of  the  earth  is  a  veiw  different  thing  from  obtaining 
crops  from  the  surface  of  the  ground.  The  oil  exists  only  at  a 
distance  of  hundreds  of  feet  below  the  surface.  If  it  is  not 
developed  by  means  of  wells  it  is  the  same  as  if  it  had  no  exist- 
ence at  all.  It  is  in  a  state  of  nature,  of  no  use  or  value  to  the 
OAVTier  of  the  land.  .  .  .  Therefore,  it  is  no  hardship  to 
them  to  repay  to  the  defendants  the  bare  cost  of  the  well  and 
appliances  which  belong  to  the  plaintiffs  now,  and  the  whole 
l>enefits  of  which  accrue  to  them  alone.  ...  It  has  cost 
the  plaintiffs  nothing,  and  we  know  of  no  good  reason,  in  law  or 
morals,  why  the  reasonable  claim  of  the  defendants  shonld  not 
be  allowed.  .  .  .  It  is  not  a  qnestion  of  staying  waste,  bnt 
of  allowance  for  the  cost  of  valuable  improvements  acttially 
necessary  and  made  in  good  faith.  For  such  improvements 
compensation  is  allowed,  whether  that  which  is  taken  be  min- 
eral, oil  or  other  substances  of  the  land  or  not."  "'"'^ 

293  Phillips   V.   Coast,   130  Pa.  St.  where  payment  is  refused,  the  seller 

572;    18  Atl.   Rep.   998.  is  entitled    to   judgment,   subject   to 

In   Louisiana  a   purchaser  cannot  stay    until    the    danger    of    eviction 

suspend   the   pajTcent    of    the   price  has    passed    or    the    bond    has   been 

of  oil  because  of  a   danger  of  evic-  furnished.       Jennings-IIej^vood     Cll 

tion,  of   which   he   was  informed  at  Syndicate   v.   Home   Oil   &   Devclop- 

thc  time  of  the  purchase.     Kut  dan-  ment  Co.,  113  La.  383;   37  So.   1. 
gcr  of  eviction  justifus  the  oU^pen-  A  defect  in  the  title   may  excuse 

sion  of  payment  of  the  price  of  an  lixck  of  diligence  in  the  development 

oil   lease   only   until    tlie   seller   has  of  the  leased  premises.    Pyle  v.  Ilcn- 

furnished   bond.    In  all    other   cases  derson,  65  W.  Va.  39;  63  S.  E.  762. 


17-1  OIL   AND    GAS. 

§122.     Lessee  denying  tenancy. 

The  rule  that  a  tenant  cannot  deny  his  landlord's  title  does 
not  embrace  an  oil  or  gas  lease  which  the  lessor  had  no  right  tx) 
give,  if  neither  the  lessee  nor  his  assignee  ever  txjok  possession 
or  executed  any  powers  or  rights  under  it,^"*  Where  a  sen 
joined  in  a  lease  with  his  father  of  the  latter's  farm,  he  being 
of  full  age  and  living  on  tlie  farm  with  his  father,  and  the 
royalty  reserved  to  both  of  them  was  delivered  to  the  father 
and  his  vendee,  it  -was  held,  in  an  action  brought  by  the  son 
against  tlie  lessee  to  recover  one-half  of  the  royalty,  that  the 
lessee  could  show  the  circumstances  under  which  the  son  signed 
the  lease,  not  to  deny  the  landlord's  title,  but  to  deny,  as  to  the 
son,  tliat  the  lease  created  the  relation  of  landlord  and  tenant."'*^ 
If  a  lessee  take  a  second  lease  of  the  premises  from  a  person 
claiming  adversely  to  the  first  lessor,  he  cannot  refuse  to  pay 
rent  imder  the  second  lease  on  the  ground  that  the  first  lessor 
had  the  better  title. ^^"^ 

§123.     Uncertainty  on  lease. —  Unconscionable. 

If  a  lease  be  uncertain  in  its  terms,  and  tliose  parts  in  which 
it  is  not  uncertain  is  unconscionable  towards  the  party  seeking 
to  escape  from  its  obligations,  the  court  will  seize  upon  such 
uncertainty  in  order  to  declare  it  void."**^ 

§  124.    Diameter  of  wells. 

A  contract  by  a  well  driller  to  drill  a  well  of  a  certain  diame- 
ter is  not  substantially  performed  by  boring  one  of  less  diame- 
ter, without  any  other  excuse  except  to  save  time  and  expense, 

294  Marshall  v.  Mellon,  26  Pittsb.  Smith,  183  Pa.  St.  122;  38  Atl.  Rep. 
L.  J.    (N.   S..)    290;    17   Pa.   Co.   Ct.       522. 

Rep.  366;  affirmed  179  Pa.  St.  371;  296  Hamilton   v.   Pittock,    158   Pa. 

36    Atl.    Rep.    201.      See    Mays    v.  St.  457;   27  Atl.  Rep.  1079. 

Dwight,  82   Pa.    St.  462.  29t  Eaton  v.  Wilcox,   42  Hun  61; 

295  Swint  V.  McCalmont  Oil  Co.,  Stahl  v.  Van  Vleck,  53  Ohio  St.  136; 
184  Pa.  St.  202;  38  Atl.  Rep.  1020.  41    N.    E.    Rep.    35;    33    Wkly.    L. 

A   lessee  cannot  compromise  with  Bull.  335.     See  also  Federal  Oil  Co. 

an  assailant  of  the  lessor's  title,  and  v.    Western   Oil    Co.,    121    Fed.   674; 

use  that  as   a   defense  to  an  action  57  C.  C.  A.  428. 
to    recover    royalty.      Chambers    v. 


LEASES.  175 

altliough  for  tlie  purpose  of  testing  the  territory,  a  smaller  well 
may  be  as  effectual  as  a  larger  one  would  bo.""^  Unless  the  lease 
require  the  lessee  to  drill  a  woll  of  a  specified  diameter,  ho  has 
the  right  to  determine  tlie  diameter  of  the  well,  limited,  how- 
ever, by  the  general  rule  tluit  the  diameter  must  be  one  that  i.s 
great  enough  to  furnish  oil  or  gas  in  paying  quantities,  if  that 
amount  should  be  discovered.  Or  in  other  words,  the  diameter 
must  be  such  as  is  in  common  use  in  oil  or  gas  regions,  and 
which  common  experience  has  shown  to  be  necessary  to  produce 
good  results. 

§125.     Contract  to  drill  wells  "  in  the  vicinity." 

A  well  driller  offered  to  drill  an  oil  well  upon  any  one  of  the 
lessee's  several  leases  that  it  should  select.  He  also  proposed, 
"  If  you  decide  to  drill  any  more  wells  upon  said  leases  or  in 
the  vicinity,  ...  I  am  to  have  the  contract."  At  the  end 
of  this  written  offer  was  written,  "  Accepted,  contract  to  be 
dra\\ai  in  accordance  with  the  above  proposition  ov  bid,"  and 
after  these  words  were  written,  "  This  is  about  right,  and  will 
be  satisfactory  to  the  Pittsburgh  Company."  A  well  was  dug 
by  the  driller,  without  any  contract  being  executed  whicli  proved 
to  be  a  dry  one.  The  lessee  tJien  abandoned  the  enterprise  of 
sinking  wells  on  about  one  thousand  acres  of  contiguous  lands 
held  by  it  by  lease,  and  on  which  the  dry  well  had  been  sunk,  but 
began  sinking  wells  two  miles  away  from  the  territory  aban- 
doned. It  was  held  that  the  contract  to  drill  wells  did  not 
cover  the  territory  two  miles  away,  for  it  applied  only  to  lands 
"  in  tlie  vicinity,"  and  the  lands  two  miles  away  was  not  "  in 
the  vicinity."  ^®*  In  an  action  to  recover  damages  for  a  breach 
of  a  contract  to  drill  an  oil  well  to  a  greater  depth  than  that 
required  by  a  prior  contract,  the  measure  of  damages  was  held 
to  be  the  expense  or  disbursement  incurred  under  the  second 
contract,  and  for  any  loss  suffered  as  a  direct  result  of  the 
breach,   which   was   not   speculative   nor   contingent   and   was 

298  Gillispie   Tool    Co.    v.    Wilson,  299  Sparks    v.    Pittsburg   Co.,    159 

123  Pa.  St.  19;   16  AtJ.  Rep.  36.  Pa.   St.   295;    28   Atl.   Rep.    152. 


176  OIL   AND    GAS. 

capable  of  definite  ascertainment ;  and  in  the  absence  of  such 
disbursements  or  loss,  nominal  damages  only  could  be  recov- 
ered. It  was  also  held  error  for  the  court  to  leave  the  question 
of  damages  to  the  jury  as  a  mixed  question  of  law  and  fact, 
without  any  instruction  by  which  they  should  measure  the 
damages. •'"'°  If  a  contract  require  a  well  to  be  drilled  in  a 
good  and  workmanlike  manner,  the  contractor  is  not  required 
to  put  it  in  a  complete  condition  for  permanent  preservation 
by  placing  therein  a  packer  and  tubing  and  removing  salt 
water  from  it.  And  if  the  contract  recjuires  it  to  be 
sunk  to  the  Mississippi  limestone,  in  Kansas,  unless  a  good 
quantity  of  oil  or  gas  be  struck  or  otherwise  at  the  option  of 
the  employer,  the  contractor  agreeing  to  do  the  drilling  in  a 
good  and  workmanlike  manner,  and  the  employer  agreeing  to 
pay  one  dollar  per  foot  for  the  drilling,  the  contractor  is  enti- 
tled to  the  contract  price  for  drilling  the  well  when  he  reaches 
the  Mississippi  limestone,  if  he  has  done  the  work  in  good  and 
workmanlike  manner.^"^  So  where  the  contractor  agreed  to 
furnish  to  his  employer  statements  of  the  strata  through  which 
the  drills  passed,  it  was  held  not  to  be  error  to  instruct  the 
jury  that  substantially  correct  information  would  be  sufficient, 
if  there  was  no  evidence  that  he  did  not  furnish  correct  re- 
ports.^°-  A  contract,  whereby  plaintiff  was  to  bore  an  oil  well 
for  defendant,  provided  that  in  the  event  that  plaintiff  should 
have  expended  the  amount  received  by  him  from  defendant  in 
drilling  the  well,  and  the  required  depth  had  not  been  reached, 
plaintiff  should  not  be  obligated  to  spend  any  more  money,  and 
that  it  should  be  optional  with  defendant  whether  he  should 
continue  the  drilling  or  abandon  the  same,  and  that  if  the 
well  should  be  taken  over  by  defendant,  and  the  drilling  con- 
tinued, defendant  should  not  be  required  to  pay  any  more  than 
the  actual  cost  and  have  free  use  of  plaintiff's  drilling  outfit. 
It  was  held  that  the  contract  meant  that,  if  the  well  was  taken 
over  by  defendant  on  the  contingency  referred  to,  and  any 
further  boring  was  done,  it  should  be  done  by  plaintiff,  with 
no  charge  for  the  use  of  his  machinery  and  did  not  give  de- 

300  Gayton  v.  Day,   178  Fed.  Rep.           3^*-  Runyan     v.     Punx     Sutawney, 
249.  etc.,  Co.   (Ky.),  102  S.  W.  Rep.  854; 

301  Collier    v.    Mnn'rer,  75    Kan.       31  Ky.  L.   Rep.  588. 
650;   89  Pac.  Rep.   mil. 


LEASES.  177 

fendant  the  right  to  take  possession  of  plaintiff's  outfit  and 
continue  the  drilling.^''^'  A  contract  required  the  contractor 
to  drill  not  less  than  2,000  feet  of  oil  wells  at  so  much  "per 
foot  sunk,"  and  that  he  should  receive  the  amount  earned  for 
each  foot  of  hole  sunk  in  accordance  with  "the  said  scale  of 
prices."  It  also  required  that  if  the  drilling  should  be  stopped 
by  his  employer  before  400  feet  had  been  sunk  in  any  hole, 
such  employer  would  pay  the  cost  of  moving  the  drilling  outfit 
to  another  place,  in  addition  to  the  amount  earned  for  the 
number  of  feet  sunk,  and  that,  should  the  work  be  stopped  on 
any  well  for  any  cause  after  a  depth  of  400  feet  had  been  sunk, 
then  the  contractor  should  remove  his  rig  at  his  own  cost  to 
the  place  designated  by  his  emploj^er.  The  contractor  in  good 
faith  drilled  a  hole  to  a  depth  of  580  feet,  when,  by  reason  of 
the  breaking  of  the  stem  of  a  bit  attached  to  the  drill,  without 
the  contractor's  fault  or  negligence,  the  well  could  not  be 
drilled  deeper,  and  it  was  thereupon  abandoned.  It  was  held 
that  the  contractor  was  entitled  to  recover  the  contract  price 
for  each  foot  of  the  well.^°*  Where  a  contract  required  the 
employer  to  furnish  casing  pipes  and  shoes,  to  be  delivered  on 
the  ground  of  such  sizes  as  he  might  select,  and  that  they 
should  be  properly  inserted  and  used  in  the  wells  by  the  con- 
tractor, and  carried  to  the  bottom,  if  possible,  without  dimin- 
ishing the  size,  except  in  cases  where  it  was  found  absolutely 
unavoidable  after  the  use  of  under-reamers  and  other  appli- 
ances; and  the  contractor  drilled  a  hole  1,420  feet  deep,  and, 
being  of  the  opinion  that  it  was  impossible  to  put  eight-inch 
casing,  which  he  had  been  using,  to  a  greater  depth,  and  so 
informed  this  employer  and  requested  that  he  furnish  six- 
inch  drain  pipe  for  further  use,^  with  which  report  his  em- 
ployer did  not  comply,  and  therefore  he  abandoned  the  work, 
it  was  held  that  the  employer's  failure  to  furnish  such  pipe 
constituted  a  breach  of  the  contract  entitling  the  contractor 
to  recover  for  the  work.^*"'  Where  a  landowner  hired  eon- 
tractors  to  drill  oil  and  gas  wells,  and  induced  them  to  pur- 
chase an  additional  string  of  tools  and  furnish  repairs  for 
tools  they  then  had,  upon  the  promise  to  give  them  plenty  of 

303  Hammond   v.    Decker,    46    Tex.       Co.,     144    Cal.    €70;     78    Pac.    Rep. 
Civ.  App.  232;    102  S.  W.  Rep.  453.       287. 

304  Cook    V.    Columbian    Oil,    etc.,  ^or.  Cook    v.    Columbian    Oil,    etc., 

Co.,  144  Cal.  670;  78  Pac.  Rep.  287. 


178  OIL   AND   GAS. 

work,  it  was  held  that  they  could  recover  in  damages  the 
expense  of  moving  the  extra  string  of  tools  from  the  place  of 
purchase  to  the  landowner's  field,  and  the  difference  be- 
tween the  purchase  price  and  its  reasonable  value  at  the 
place  where  it  was  situated  when  such  landowner  broke  its 
agreement,  together  with  the  necessary  expense  of  the  re- 
pairs, provided  they  were  unable  to  get  other  wells  to  drill 
with  their  tools  after  the  landowner  failed  to  furnish  work.^"" 
Where  a  landowner  agreed  to  make  a  conveyance  to  drillers 
in  consideration  of  their  drilling  an  oil  well,  it  was  held  that 
they  were  entitled  to  the  conveyance,  although  water  was  not 
kept  out  of  the  well,  there  being  no  provision  in  the  contract 
that  it  should  be,  but  merely  that  they  should  drill  the  well 
"with  proper  and  necessary  casing,  perforated  at  proper 
places,  tubing,  pump  and  all  necessary  connections  thereof 
put  therein  to  the  proper  depth  to  properly  pump  the  said 
well,  and  everything  completed  ready  for  pumping,"  and  they 
having  complied  therewith,  and  it  still  being  impossible  to 
keep  the  water  out.^"^  In  an  action  brought  by  a  contractor 
to  recover  damages  for  a  breach  of  a  contract  to  dig  gas 
wells,  the  testimony  of  witnesses  who  have  had  experience  in 
drilling  wells  on  the  same  tract  of  land  and  other  wells  in  the 
vicinity,  where  the  strata  appears  to  be  the  same,  and  the 
conditions  similar,  is  competent  to  show  the  cost  of  the  work 

306  New  Domain  OiJ  &  Gas  Oo.  v.  agrees  to  db  so;  so  that  he,  not 
Feeley  (Ky. ),  107  S.  W.  Rep.  1185;  having  done  so,  and.  not  having 
32   Ky.  L.   Rep.   1181.  reached  water,  is  entitled  to  no  re- 

307  Vail  V.  Freeman,  144  Cal.  356 ;  covery. 

77  Pac.  Rep.  974.  Where  one  contracts  to  bore  a  well 
A  contract  merely  to  tore  a  well  for  a  certain  amount,  there  being  no 
for  a  certain  amount,  though  not  provision  exempting  him  from  per- 
guarantecing  the  procuring  of  water,  formance  in  any  case,  .and  no  war- 
contemplates  such  procurement,  and  ranty  by  the  owner,  and  before 
implies  that  the  contractor  agrees  reaching  water,  or  a  depth  which 
to  bore  at  least  a  reasonable  depth  could  be  considered  an  unreasonable 
therefor;  and  what  such  depth  shall  depth  to  bore  therefor,  he,  without 
be,  in  case  water  is  not  sooner  se-  direction  or  knowledge  of  the  owner, 
cured,  is  made  certain,  as  though  uses  dynamite  on  the  rock,  dfestroy- 
originally  specified  in  the  contract,  ing  the  work  already  done,  and  ruin- 
where,  on  the  contractor  having  ing  the  well,  the  loss  falls  on  him, 
bored  300  feet  without  getting  water,  and  he  is  entitled  to  no  recovery  for 
the  owner  of  the  property  insists  on  work  done.  Chapman  v.  Warden, 
his   boring  50  feet   further,   and   he  50  Tex.   Civ.  App.  282;    110   S.  W. 

533. 


LEASES,  179 

contracted  for  and  which  has  been  prevented  by  the  owner.^"' 
In  a  contract  for  the  boring  of  oil  wells  it  was  provided  that 

the  lessee  should  provide  at  its  cost  all  materials  of  every  kind 
to  do  the  work,  and  all  laborers,  including  lal)orers  and  mate- 
rial in  erecting  and  maintaining  fixtures,  and  the  lessor  agreed 
to  pay  one-half  of  the  cost  of  drilling,  casing,  and  pumping  all 
wells  which  did  not  produce  a  certain  amount  of  oil  per  day 
for  the  first  thirty  days.  It  was  held  that  the  lessor  was 
chargeable  with  one-half  of  the  expense  of  all  the  preliminary 
work  of  preparing  the  ground,  erecting  the  derrick,  placing 
and  connecting  the  engine  and  drilling  rig,  and  the  like,  includ- 
ing one-half  the  reasonable  value  of  the  use  of  the  machinery 
owned  and  furnished  by  the  lessee.^"'' 

308  Fredonia  Gas  Co.  v.  Bailey,  77  '"^  Far   West   Oil   Co.    v.   Witmer 

Kan.  296;  94  Pac.  Rep.  256.  Bros.  Co.,  143  Gal.  306;  77  Pac.  Rep. 

61. 


CHAPTER  IV. 

DURATION    OF    LEASE. 

§1-26.     Ordinary  leasos. 

§127.     Diligent  search. — Implied  covenant. 

§128.     Holding  for   speculation  purtioses. 

§129.  Non-development  of  leased  premises  where  no  limit  fixed. — Forfeit- 
ure. 

§129a.  Time  for   termination  of  lease   fixed  therein. 

§130.     Greater  diligence  required  in  developing  oil   than  coal   lands. 

§130a.  What  is  a  reasonable  time. — Question  of   fact. 

§131.     Acquiescence  in   delay. — Unavoidable  accident. 

§132.     Acquiescence    in    abandonment. — Damages. 

§133.     Actual  mining  operations  mutt  be  commenced. 

§134.     In  paying  quantities. 

§135.     Paying  quantities,  continued. 

§136.     Gas  in  paying  quantities. 

§136a.  Gas  used  for  manufacturing  purposes. 

§136b.  Payment  as  a  renewal  of  term. 

§136c.  Nonpaying  well  is  a  termination  of  the  lease. — -Abandonment. — 
Drilling  oi  completing  a  well. 

§137.     Abandonment. 

§138.     Lessee  may  abandon  non-productive  premises. 

§138a.  No   express  forfeiture  clause  necessary   for  an  abandonment. 

§13Sb.  Abandonment  under  mutual  mistake  of  law  concerning  rights  to 
hold   leased   premises. 

§139.     Completion  of  non-productive  well. — Title. 

§140.     Instances  of  abandonment. 

§141.     Cessure  of  work  after  operations  begun. 

§142.     Surrender. 

§142a.  Surrender  of  premises  which  are  not  definitely  described. — Selection 
by  lessee. 

§143.     Surrender  by  substitution  of  tenants    or   assignment   of  lease. 

§144.     Parol   surrender. 

§144a.  Reservation  of  right  to  surrender  lease.— Completion   of   surrender. 

§145.     Payment  of  rental  instead  of  developing  premises. 

§146.     Recision  for  fraud. 

§  126.     Ordinary  leases. 

In  an  ordinary  lease  the  time  of  its  duration  is  usually- 
specified,  so  that  no  trouble  arises  over  the  length  of  time  it  is 
to  run;  but  even  it  may  contain  so  many  conditions,  "ifs  and 
ands,"  that  it  is  difficult  to  determine  its  life.  But  in  the  case 
of  gas  and  oil  leases,  there  is  scarcely  a  lease  in  existence  that 

180 


I 


DURATION    OP    LEASE. 


181 


does  not  contain  conditional  clauses  which  are  determinative  of 
its  duration.  Oil  and  gas  leases  are  almost  universally  grant;?d 
upon  the  condition  that  they  are  to  terminate  when  all  the  jil 
or  gas  has  been  taken  out  of  the  leased  premises.  And  almost 
every  oil  or  gas  lease  contains  a  clause  requiring  the  premises 
leased  to  be  developed,  or  partially  developed,  within  a  speci- 
fied time,  or  the  demise  to  terminate ;  and  whether  such  a 
clause  is  inserted  or  not,  the  courts  hold  that  the  lease  is 
granted  upon  an  implied  condition  that  the  premises  shall 
be  developed  with  reasonable  diligence,"  and  will  seek  an 
opportunity  to  hold  that  they  have  been  abandoned  (though 
usually  not  forfeited),  if  not  developed  with  reasonable 
celerity.^ 

§  127.     Diligent  search. — Implied  covenant. 

It  is  the  duty  of  the  lessee  to  make  diligent  search  and  opera- 
tion of  the  leased  premises ;  and  it  is  not  necessary  that  a 
provision  for  such  search  or  operation  be  inserted  in  the  lease ; 
for  it  is  an  implied  covenant  in  every  oil  and  gas  lease  that  a 
diligent  search  and  operation  will  be  prosecuted.-  And  where 
the  only  consideration  was  the  royalty,  a  failure  on  the  part 


a  What  is  reasonable  diligence  is 
a  question  of  fact,  and  not  of  law. 
Indiana  Natural  Gas  Co.  v.  Gainard, 
45  Ind.  App.  613;  91  N.  E.  Rep.  362; 
Brewster  v.  Lanyon  Zinc  Co.,  140 
Fed.  Rep.  801;  72  C.  C.  A.  213. 

1  Parish  Fork  Oil  Co.  v.  Bridge- 
water  Gas  Co.,  51  W.  Va.  583;  42  S. 
E.  Rep.  G55;  Gadbury  v.  Ohio,  etc., 
Gas  Co.,  162  Ind.  0;  67  N.  E.  Rep. 
259;  McKnight  v.  Natural  Gas  Co., 
146  Pa.  St.,  185;  23  Atl.  Rep.  164; 
28  Am.  St.  Rep.  790. 

A  provision  in  an  oil  lease,  giving 
the  lessee  the  exclusive  right  not 
only  to  drill  for,  but  to  produce, 
oil  on  the  leased  premises,  is  con- 
strued to  apply  only  to  wells  drilled 
in  the  future.  Doddridge  County 
Oil  &  Gas  Co.  V.  Smity,  154  Fed. 
Rep.  970. 


-  Huggins  V.  Daley,  99  Fed.  Rep. 
606;  40  C.  C.  A.  12;  48  L.  R.  A. 
320;  Allegheny  Oil  Co.  v.  Snyder, 
106  Fed.  Rep.  764;  45  C.  C.  A.  604; 
Hewitt  Iron  Mining  Co.  v.  Dessau 
Co.,  129  Mich.  590;  89  N.  ^Y.  Rep. 
365;  Tennessee  Oil,  etc.,  Co.  v. 
Brown,  131  Fed.  Rep.  696;  65  C.  C. 
A.  524;  Indiana  Natural  Gas  &  Oil 
Co.  v.  Ganiard,  45  Ind.  App.  613; 
91   N.   E.   Rep.  362. 

Where  the  object  of  the  operations 
is  to  obtain  a  benefit  for  both  lessor 
and  lesscCj  neither,  in  the  absence 
of  a  stipulation,  is  the  arbiter  of 
the  extent  of  diligence  required;  both 
are  bound  by  what  would  be  rea- 
sonably expected  of  operations  of 
ordinary  prudence,  having  regard 
to  the  interests  of  both.  Brewster 
v.  Lanyon  Zinc  Co.,  140  Fed.  Rop. 
801;  72  C.  C.  A.  213. 


182 


OIL   AND    GAS. 


of  the  lessee  to  commence  operations  for  eight  months  was 
held  to  be  an  abandonment.^  So  where  there  was  a  year's 
delay  a  like  decision  was  rendered.^* 

§  128.     Holding  for  speculative  purposes. 

An  oil  or  gas  lease  cannot  be  held  for  merely  speculative 
purposes.*  "No  lease  of  land  for  a  rent  for  a  return  to  the 
landlord  out  of  the  land  which  passes  can  be  construed  to  be 
intended  to  enable  the  tenant  merely  to  hold  the  lease  for 
purposes  of  speculation,  without  doing  and  performing  there- 
with what  the  lease  contemplated.  Such  a  construction  would, 
indeed,  make  all  such  contracts  a  snare  for  the  entrapment 
and  injury  of  the  unwary  landlord.  A  man  buying  and  paying 
for  land  may  do  with  it  as  he  likes — work  it  or  let  it  lie  idle. 
But  a  tenant  to  whom  land  passes  for  a  specified  purpose  has 
no  such  discretion ;  he  must  perform  what  he  stipulated  to 
do."  = 


3  Federal  Oil  Co.  v.  Western  Oil 
Co.,    112   Fed.   Rep.  373. 

3a  Hodges  V.  Brice,  32  Tex.  Civ. 
App.  358;  74  S.  W.  Rep.  590; 
Mills  V  Hartz,  77  Kan.  218;  94  Pac. 
Rep.  142  (seven  years'  delay)  ;  Mur- 
ray V.  Barnhart,  117  La.  1023;  42 
So.  Rep.  489  (three  years'  delay)  ; 
Cherokee  Const.  Co.  v.  Bishop,  86 
Ark.  489;  112  S.  W.  Rep.  189; 
Brewster  v.  Lanyon  Zinc  Co.,  140 
Fed.  Rep.  801;  72  C.  C.  A.  213 
(fourteen  months)  ;  Tennessee  Oil, 
etc.,  Co.  V.  Brown,  131  Fed.  Rep. 
696;  65  C.  C.  A.  524  (fifteen  years)  ; 
BufTalo  Valley  Oil  &  Gas  Co.  v. 
Jones,  75  Kan.  18;  88  Pac.  Rep. 
537;  Howerton  v.  Kansas  Natural 
Gas  Co.,  81  Kan.  553;  106  Pac.  Rep. 
47. 

Failure  of  the  lessee  for  two  years 
to  develop  tl.e  premises,  after  drill- 
ing a  well,  finding  gas,  and  then 
closing  it,  was  held  prima  facie  to 
authorize  the  grantor,  who  was  to 
be  paid  $100  per  annum  for  each 
well  while  rras  wns  being  used  off  the 
premises,  without   demand,  to  treat 


the  grant  as  abandoned.  Gadbury 
v.  Oliio,  etc..  Gas  Co.,  162  Ind.  9; 
67   N.   E.   Rep.   259. 

An  agreement  to  "protect  lines" 
and  "well  develop"  the  premises  adds 
nothing  to  the  lessee's  implied  cove- 
nant to  develop  the  premises  in  good 
faith.  Kellar  v.  Craig,  126  Fed. 
630;   61   C.  C.  A.   366. 

4  Huggins  V.  Daley,  99  Fed.  Rep, 
606;  40  C.  C.  A.  12;  48  L.  R.  A. 
320;  Twin-Lick  Oil  Co.  v.  INfarbury, 
91  U.  S.  587;  Guffey  v.  Hukill,  34 
W.  Va.  49;  11  S.  E.  Rep.  754;  8  L. 
R.  A.  759;  Steelsmith  v.  Gartlan, 
45  W.  Va.  27;  29  S.  E.  Rep.  978; 
44  L.  R.  A.  107;  American  Window 
Glass  Co.  V.  W.xliams,  30  Ind.  App. 
685;   66  N.  E.  Rep.  912. 

5  Rorer  Iron  Co.  v.  Trout,  83  Va. 
397;  2  S.  E.  Rep.  713;  Munroe  v. 
Armstrong,  96  Pa.  St.  307;  Baker 
V.  Stow,  30  Ohio  Cir.  Ct.  Rep.  724; 
New  American  Oil  &  M.  Co.  v. 
Troyer,  166  Ind.  402 ;  76  N.  E.  Rep. 
37;  77  N.  E.  Rep.  739;  New  Ameri- 
can Oil  &  M.  Co.  V.  Wolff,  166  Ind. 
402;    76  N.   E.   Rep.  255. 


DURATION    OF    LE.VSE. 


183 


limit 


§  129.     Non-development  of  leased  premises  where  no 
fixed. — Forfeiture. 

In  many  early  oil  or  gas  leases  no  time  was  fixed  when  the 
premises  should  be  developed.  It  was  assumed  that  the  lessee 
had  interest  enough  in  the  lease  to  develop  the  premises.  It 
seldom  occurred  to  a  land  owner  that  a  lessee  had  a  lease  on 
adjoining  premises  by  which  he  could  drain  the  oil  or  gas 
from  beneath  such  owner's  premises;  or  that  he  desired  to 
keep  the  premises  for  future  use.  Forfeiture  clauses  in  such 
leases  were  seldom  inserted  for  failure  to  develop  the  prem- 
ises leased.  In  time  the  land  owner  realized  that  he  was 
getting  no  benefit  out  of  his  land  by  reason  of  the  oil  or  gas 
that  he  believed  or  even  was  morally  certain  was  lying  beneath 
its  surface,  and  he  sought  a  Avay  to  avoid  the  lease.  Courts 
found  it  essential  to  the  administration  of  justice  to  give  him 
relief,  and  lent  their  powerful  aid  to  him."  It  is  the  dutj^  of 
the  lessee  to  develop  the  premises  within  a  reasonable  time ; 
and  he  can  not  hold  the  land  for  speculative  purposes  indefi- 
nitely, or  even  for  a  stated  period,  for  a  nominal  rent,  when  a 
royalty  is  the  chief  object  for  the  execution  of  the  lease. '^ 
''The  fluctuating  character  and  value  of  this  class  of  prop- 


A  lease  of  land  to  search  for  min- 
erals means  a  search  for  all  miner- 
als named  in  the  lease  which  may 
reasonably  be  expected  to  be  found 
in  the  land,  considering  known  geo- 
logical conditions,  to  such  an  extent 
as  would  not  only  determine  the 
presence  or  absence  of  minerals,  but 
their  commercial  value,  considering 
their  abundance  and  accessibility. 
Tennessee  Oil,  etc.,  Co.  v.  Crown, 
131  Fed.  Rep.  696;  65  C.  C.  A. 
524. 

Enough  wells  must  be  sunk  to  de- 
velop the  land  fully.  J.  M.  GufTcy 
Petroleum  Co.  v.  Jeff  Chaison  Town- 
site  Co.,  48  Tex.  Civ.  App.  555; 
107  S.  W.  Rep.  609 ;  Kellar  v.  Craig, 
126  Fed.  Rep.  63 J;  61  C.  C.  A.  3G6. 

6  Brown  v.  Vandergrift,  80  Pa. 
St.  142;  Island  Coal  Co.  v.  Combs, 
'l52  Ind.   379;    53   N.   E.   Rep.   452; 


Maxwell  v.  Todd  (N.  C),  16  S.  E. 
Rep.  926;  Ohio  Oil  Co.  v.  Ilurlburt, 
14  Ohio  C.  C.  144;  7  Ohio  Dec.  321, 
reversing  6  Ohio  Dec.  305 ;  ColTm- 
berry  v.  Sun  Oil  Co.,  68  Ohio  488; 
67  N.  E.  Rep.   1069. 

7  Twin-Lick  Oil  Co.  v.  Jlarbury, 
91  U.  S.  587;  Huggins  v.  Daley,  99 
Fed.  Rep.  606-  40  vJ.  C.  A.  12;  ^8 
L.  R.  A.  320;  Rorer  Iron  Co.  v. 
Trout,  S3  Va.  397;  2  S.  E.  Rep.  713; 
Allegheny  Oil  Co.  v.  Snyder,  lOG 
Fed.  Rep.  764;  45  C.  C.  A.  604; 
Delhi  V.  Ohio  Oil  Co.,  30  Ohio  Cir. 
Ct.  Rep.  750;  New  American  Oil, 
etc.,  Co.  V.  Troyer,  166  Ind.  402; 
76  N.  E.  Rep.  253;  77  X.  E.  Rep. 
739;  New  American  Oil,  etc.,  Co.  v. 
Wolff,  166  Ind.  402;  76  X.  E.  Rep. 
255;  Logan  Xat.  Gas  &  Fuel  Co. 
V.  Great  Southern  Gas  &  Oil  Co., 
126  Fed.  Rep.  6213. 


184  ^  OIL   AND    GAS. 

erty, "  said  the  Supreme  Court  of  the  United  States,  "is  re- 
markably illustrated  in  the  history  of  the  production  of 
mineral  oil  from  wells.  Property  worth  thousands  today  is 
worth  nothing  tomorrow ;  and  that  which  we  today  sell  for  a 
thousand  dollars  as  its  fair  value,  may  by  the  natural  changes 
of  a  week,  or  the  energy  or  courage  of  desperate  enterprise, 
in  the  same  time,  be  made  to  yield  that  much  every  day.  The 
injustice,  therefore,  is  obvious  of  permitting  one  holding  the 
right  to  assert  an  ownership  in  such  property  to  voluntarily 
await  the  event,  and  then  decide,  Avlien  the  danger  which  is 
over  has  been  at  the  risk  of  another,  to  come  in  and  share  the 
profit.  While  a  much  longer  time  might  be  allowed  to  assert 
this  right  in  regard  to  real  estate  whose  value  is  fixed,  on 
which  no  outlay  is  made  for  improvement,  and  but  little 
change  in  value,  the  class  of  property  here  considered,  subject 
to  the  most  rapid,  frequent  and  violent  fluctuations  in  value 
of  anything  known  as  property,  requires  prompt  action  in  all 
who  hold  an  option,  whether  they  will  share  its  risks  or  stand 
clear  of  them.  "^  Where  a  gas  or  oil  lease  was  given  for  ten 
years,  a  certain  portion  of  the  oil  obtained  to  be  given  as 
royalty,  a  fixed  sum  paid  annually,  and  a  test  well  to  be 
completed  within  one  year  from  the  date  of  the  lease,  it  was 
held  that  the  lessee  could  not  dig  a  test  well  within  the  year, 
and  thus  vest  in  himself  the  privilege  to  take  out  oil  and  gas 
for  ten  years  in  the  whole  territory ;  but  he  was  bound,  within 
a  reasonable  time  thereafter,  to  sink  other  wells  so  as  to 
develop  the  whole  territory;  and  if  he  did  not,  he  had  aban- 
doned or  forfeited  his  right  to  the  whole  territory  premises. 
The  premises  were  covered  by  several  separate  leases  on  its 
several  parts,  and,  of  course,  the  test  well  was  drilled  under 
only  one  lease.  The  court  held  that  the  other  leases  were 
abandoned.^  So  where  the  land  embraced  in  a  lease  consisted 
of  two  tracts,  and  a  well  was  put  down  on  one  of  the  tracts 
within  time,  and  paying  gas  found ;  but  no  well  was  put  down 
on  the  other  tract,  it  was  held  that  there  was  such  a  breach 

8  Twinlick  Oil  Co.  v.  Marbury,  1  Ohio  Dec.  157;  Foster  v.  Elk  Fork 
supra.  See  Coffinberry  v.  Sun  Oil  Oil  and  Gas  Co.,  90  Fed.  Rep.  178; 
Co.    (Ohio),   67   X.  E.  Rep.   1069.  32  C.  C.  A.  560;  Logan  Natural  Gas 

9  Elk  Fork  Oil  and  Gas  Co.  v.  &  Fuel  Co.  v.  Great  Southern  Gas  & 
Jennings,  84  Fed.  Rep.  839;  Ohio  Oil  Co.,  126  Fed.  Rep.  623  (four 
Oil  Co.  V.  Harris,  1  Ohio  N.  P.  132;  years'  delay). 


DURATION    OP    LEASE. 


185 


of  the  covenant  as  entitled  the  lessor  to  terminate  the  lease  ®* 
A  failure  for  seven  years  to  put  down  a  test  well  was  con- 
sidered such  laches  as  to  show  an  abandonment,  and  the  lease 
was  cancelled.^"  A  lessor  will  not  be  permitted  to  retain 
possession  of  the  leased  premises  for  the  purpose  of  exhaust- 
ing the  oil  or  gas  under  the  surface  thereof  by  means  of  wells 
on  adjoining  laud  controlled  by  him,  which  would  drain  the 
oil  from  the  leased  premises."  An  owner  of  land  leased  his 
premises  to  a  gas  company  for  ten  years,  and  as  much  longer 
as  gas  was  found  in  paying  quantities,  or  the  "rental"  was 
paid  as  provided.  If  gas  was  found  in  (juantities  sufficient  for 
manufacturing  purposes,  the  gas  company  was  to  pay  one 
hundred  dollars  per  annum  for  each  well  from  the  time  gas 
was  used  therefrom  for  such  purposes.  Until  a  well  was 
drilled  and  gas  used  therefrom  by  the  gas  company,  it  was  to 
pay  fifty  dollars  a  year  "rent."  It  was  held  that  the  lease 
did  not  continue  in  force  beyond  the  ten  years,  by  reason  of 
the  fact  that  the  lessee  completed  a  paying  well,  which  he 
closed  and  anchored,  and  yet  continued  to  pay  the  rent.'- 


"n  Brewster  v.  Lanyon  Zinc  Co., 
140  Fed.  Rep.  801;  72  C.  C.  A. 
213. 

10  Crawford  v.  rvitchoy,  43  W.  Va. 
252;  27  S.  E.  Rep.  220;  Barnhart 
V.  Lockwood,  152  Va.  St.  82;  25 
Atl.  Rep.  237 ;  Ohio  Oil  Co.  v.  Hurl- 
burt,  14  Ohio  Cir.  Ct.  Rep.  144;  7 
Ohio  Dec.  321,  reversing  6  Ohio  Dec. 
30'5;  Hawkins  v.  Pepper,  117  N.  C. 
407;  23  S.  E.  Rep.  434;  Welty  v. 
Wise,  5  Ohio  X.  P.  50. 

11  Kleppner  v.  Lemon,  17G  Pa.  St. 
502;  27  Pittsb.  L.  J.  (X.  S.)  21;  3S 
W.  X.  C.  388;   35  Atl.  Rep.  109. 

12  American  Window  Glass  Co.  v. 
Williams,  30  Ind.  App.  GS5;  6G  X. 
E.  Rep.  912.  See  also  Gadbury  v. 
Ohio,  etc.,  Gas  Co.  (Ind.),  G7  X.  E. 
Rep.  259. 

A  lease  granting  all  the  oil  and 
gas  under  the  leased  land  with  the 
right  to  enter  at  all  times  for  drill- 
ing and  operation,  to  erect  struc- 
tures, pipe  lines,  and  machinery  for 


the  production  and  transportation 
of  oil  and  gas,  and  to  use  sufficient 
oil  and  gas  to  run  the  necessary  en- 
gines, reserving  to  the  lessor  royal- 
ties in  kind  and  in  money  on  the 
oil  saved  and  the  gas  used  o(T  the 
premises,  which  shows  lliat  tlie 
promise  of  these  royalties  was  the 
inducement  to  the  grant,  and  which, 
while  requiring  the  drilling  of  one 
well  during  tlie  first  five  years,  does 
not  define  the  diligence  to  be  exer- 
cised in  the  development  after  that 
period,  contains  a  covenant  by  the 
Ic'ssco,  by  implication,  that  if,  dur- 
ing the  five  allowed  for  development 
of  oil  and  gas,  one  or  botli  are  found 
in  paying  quantities,  the  work  of 
development  shall  be  continued  with 
reasonable  diligence  along  such  lines 
as  will  make  the  extraction  of  oil 
and  gas  from  the  leased  land  of 
mutual  advantage  to  the  lessor  and 
lessee.  Brewster  v.  Lanyon  Zinc  Co., 
140   F.   801;   72  C.  C.  A.  213. 


186  OIL    AND   GAS. 

§  129a.     Time  for  termination  of  lease  fixed  therein. 

If  the  time  for  the  termination  of  h>ase  he  fixed  hy  the 
language  used  therein,  then  the  term  will  not  be  extended 
beyond  the  time  thus  fixed.^-"  Thus  where  a  lease  recited 
that  "the  term  of  this  grant  shall  not  exceed  twelve  years," 
among  other  conditions,  it  was  held  the  whole  lease  terminated 
at  the  end  of  such  period/-''  So  the  parties  may  contract 
when  the  operations  for  oil  shall  commence;  and  in  the  ab- 
sence of  fraud  or  mistake,  it  is  binding  upon  them.^-"^  Where 
the  lessee  was  to  commence  operations  within  six  months,  but 
the  only  express  stipulation  for  forfeiture  was  in  case  a  test 
well  was  not  completed  within  three  years,  it  was  held  that  a 
suit  to  cancel  the  lease,  brought  several  months  before  the 
three  years  had  expired,  could  not  be  maintained,  unless  it 
was  averred  and  shown  that  a  well  cannot  be  completed  within 
the  limit  of  the  three  years.^-'^  So  if  the  lessee  has  put  down 
the  number  of  wells  specified  in  the  lease,  it  will  not  be  held 
that  there  has  been  a  forfeiture  of  the  lease  although  that 
number  of  wells  was  not  sufficient  to  fully  develop  the  land.'-* 
And  where  the  lessee  agreed  to  drill  a  test  well  upon  the 
premises  within  twelve  months  from  the  date  of  the  lease ;  and 
"in  case  no  well  was  completed  on  the  premises  within  twelve 
months"  from  the  date  of  the  lease,  he  was  to  pay  the  lessor 
"a  rental  of  twenty-five  cents  per  acre  per  year,  to  be  paid 
annually,   counting   from   the   expiration   of   the   said   twelve 

A  gas  lease  provided  that  the  les-  4-0  Ind.  App.  156  81  N.  E.  Rep.  518; 

sor    should    have,    free    of    expense,  Gillespie    v.    Fulton,    236    111.    188; 

gas  from  the  wells  to  light  and  heat  86    N.    E.    Rep.    219;    Indiana   Nat. 

his  dwellings,  and  the  lessees  agreed  Gas  &   Oil   Co.   v.   Granger,  33   Ind. 

to  furnish  the  gas  on  or  before  No-  App.  550;   70  N.  E.  Rep.  395. 

vember     15th,    and    the    lease    also  12b  Griner  v.  Ohio  Oil  Co.,  26  Ohio 

provided  that  the  lessee  should  have  Cir.  Ct.  Rep.  521. 

twelve    months    to    drill    a    well    or  i2e  Rjngle  v.  Quigg,  74  Kan.  581; 

thereafter    pay    a    yearly    rental    of  87   Pac.   Rep.  724. 

$56  until  a  well  .was  drilled.     Held,  i2d  Arjmitage  v.  Mt.  Sterling  Oil  & 

that    the    covenant    as    to    free    gas  Gas  Co.    (Ky.),  80  S.  W.  Rep.  177; 

was  independent  of  tlie  covenant  as  215  Ky.  L.  Rep.   2262.     In   this  case 

to    the    time    of    drilling    the    well.  it  was  also  held  that  the  lease  would 

Indiana   Natural   Gas   &   Oil    Co.   v.  not  be  extended   upon   a   mere  offer 

Ganiard,  45  Ind.  App.  613;  91  N.  E.  to  pay  the  rental  specified. 

362.  i2eKeIlar  v.  Craig,  126  Fed.  Rep. 

i2aEr;p  Cnwfonl  Oil  Co.  v.  :iceks  rsO;    61    C.   C.   A.   366. 


DURATION    OF    CEASE.  187 

months,"  it  was  held  that  a  failure  to  put  down  the  test  well 
did  not  terminate  the  lease ;  that  the  rental  of  the  second  year 
was  not  payable  in  advance,  and  that  the  lessee  had  the  entire 
second  year  in  which  to  make  his  first  payment  of  rent.'-' 
But  if  the  lease  be  granted  for  three  years,  "and  as  much 
longer  as  gas  and  oil  are  i'ound  in  paying  quantities,"  in 
consideration  for  which  the  lessees  are  to  pay  a  royalty  on  oil 
produced  and  so  much  per  well  for  gas,  and,  in  case  no  well 
be  drilled  within  the  first  six  months,  a  stipulated  rental  per 
year  is  to  be  paid,  it  terminates  upon  the  expiration  of  the 
three  years  unless  oil  or  gas  is  produced  in  paying  quantities. 
The  payment  of  a  yearly  rental  and  tender  of  the  sum  for  a 
non-producing  well  that  was  to  be  paid  for  a  producing  well 
was  held  not  to  extend  the  term  of  the  lease.  Nor,  it  was 
held,  did  a  separate  agreement,  upon  a  consideration  entered 
into  three  years  and  eight  months  after  the  date  of  the  con- 
tract, granting  an  extension  to  a  fixed  date  more  than  a  year 
in  the  future,  the  terms  of  which  were  endorsed  on  the  original 
agreement,  continue  such  original  agreement  in  force  beyond 
such  fixed  date,  especially  where  no  new  or  further  efforts 
were  made  to  develop  oil  or  gas  on  the  premises.^-"  So  where 
the  lease  was  "for  a  term  of  twelve  years,  and  so  long  there- 
after as  petroleum,  gas,  and  mineral  substance  can  be  procured 
in  paying  quantities  or  the  payments  hereinafter  provided  for 
are  made,"  it  was  held  that  the  word  "or"  should  be  read 
"and,"  in  order  to  limit  the  term  to  twelve  years,  unless  gas 
or  oil  was  procured.^-*"  In  this  case  the  thirteenth  payment 
was  made  and  a  receipt  executed  containing  the  statement 
"which  payment  continues  said  lease  in  force  for  another 
term."  It  was  held  that  this  did  not  have  the  effect  to  con- 
tinue the  term  for  another  twelve  years. 

i2f  Gillespie  v.   Fulton   Oil  &   Gas  they  would   be   so  careful   in   fixing 

Co.,    236    111.    188;    86    N.    E.    Rep.  the   time   when    the    leases   were    to 

219.  expire    and    in    the    next    undo    all 

i2g  Northwestern    Ohio    Nat.    Gas  by  stipulating  for  a  nominal  annual 

Co.   V.   Whitacre,    30   Ohio    Cir.    Ct.  payment    to    run    indefinitely.      The 

Rep.  737.  twelve-year  clause  was  incorporated 

i2h  American  Window  Glass  Co.  v.  into  tlie  lease  for  a  purpose,  and  it 

Indiana  Nat.  Gas  &  Oil  Co.,  37  Ind.  is  the  duty  of  the  court  so  to  con- 

App.  439;  76  N.  E.  Rep.  lOOG.     "It  strue  the  contracts  as  to  give  them 

would  be  unreasonable  to  suppose,"  efTect,  if  it  can  be  done  consistently 

said  the  court,  "that  in  one  breath  with   the   rules  of   law,   to   the   end, 


188  OIL   AND    GAS. 

§  130.     Greater  diligence  required  in  developing  oil  than  coal 
lands. 

In  the  development  of  oil  lands  greater  diligence  is  required 
than  in  the  development  of  coal  lands,  to  prevent  a  forfeiture 
or  raise  a  presumption  of  abandonment.  The  Supreme  Court 
of  Pennsylvania  thus  speaks  of  the  difference:  "The  appellant 
cites  Venture  Oil  Co.  v.  Fretts,'"'  and  IMcNish  v.  Stone/-*  and 
other  cases  in  which  oil  leases  were  considered  and  the  rights 
of  the  lessors  and  lessees  defined.  A  lease  granting  to  the  lessee 
the  right  to  explore  for  oil  and,  in  case  oil  is  found  in  paying 
quantities  on  the  leased  premises,  to  drill  wells  and  raise  the 
oil,  paying  an  agreed  royalty  tlierefor,  has  been  held  to  convey 
no  interest  in  the  land  beyond  tlio  right  to  enter  and  explore, 
unless  tlie  searcli  for  oil  proves  successful.  If  it  proves  unsuc- 
cessful and  the  lessee  abandons  its  future  prosecution,  his  rights 
under  the  lease  are  gone.  So  it  might  be  with  a  similar  lease 
of  lands  supposed  to  contain  coal.  If  the  lessee  entered,  ex- 
plored the  leased  premises,  and  finding  nothing  gave  up  the 
searcli,  he  would  no  doubt  be  held  to  tlie  same  iiiles,  upon  the 
san^.e  provisions  in  the  lease,  as  were  applied  in  the  cases  cited. 
The  difference  in  the  nature  of  tlie  two  minerals,  and  the  man- 
that  the  intentions  and  purposes  of  veloped,  and  the  lessee,  by  the 
tlie  parties  may  be  effectuated.  To  twelve-year  stipulation  in  the  lease, 
our  minds,  the  language  of  the  leases  is  given  an  agreetl  fixed  time  within 
last  above  quoted  evidences  an  in-  which  to  develop  the  land  and  pro- 
tention  on  the  part  of  the  lessor  vide  a  way  of  utilizing  the  mineral 
to  grant  to  lessee  the  exclusive  right  substances  there  obtained.  There- 
for the  term  of  twelve  years  to  oper-  fore,  had  the  landowner,  at  the  end 
ate  upon  the  land  for  petroleum,  gas,  of  the  twelve-year  term,  notified  said 
etc.,  or  the  right  to  delay  such  opera-  appellee  that  they  would  not  receive 
tion  for  such  term  by  paying  a  any  further  payments,  and  refused 
certain  stipulated  annual  sum  as  to  accept  the  same,  and  before  pay- 
compensation  for  such  delay ;  but,  mcnt  to  the  bank  gives  it  notice  not 
in  case  lessee  should  in  the  mean-  to  receive  any  paj'ments  for  the  oil 
time  explore  such  land  and  procure  and  benefit  on  account  of  these 
the  granted  product  in  paying  quan-  leases,  the  rights  of  said  ajipellee 
titles,  while  this  condition  existed,  would  have  terminated." 
the  lease   would   continue,   althougli  "152   Pa.   St.   451;    25   Atl.    Rep. 

it    may    go    beyond    the    twelve-year       732;    .31   W.  N.   C.   432. 
period.    The  evident  intention  of  the  i*  152  Pa.  St.  457,  note, 

landowner  was  to  have  his  land  de- 


DURATION    OF    LEASE.  189 

nor  of  their  prodnctioii,  has,  however,  resnUed  in  cmisickM-aljle 
differences  in  the  fonns  of  tlie  contracts  oi*  k'ases  made  nse  of. 
When  oil  is  disco^'ered  in  any  ii,iven  region,  the  devcloj^nient  of 
the  region  becomes  immediately  necessary.  The  fngitive  char- 
acter of  oil  and  gas,  and  the  fact  that  a  single  well  may  drain 
a  considerable  territory  and  hring  to  tlie  snrface  oil  that,  when  in 
place  in  the  sand-rock,  was  nnder  the  lands  of  adjoining  own- 
ers, makes  it  imjxvrtant  for  each  land  owner  to  test  his  own  land 
as  s}>eedily  as  possible.  Such  leases  generally  require,  for  this 
reason,  tkat  oiDerations  should  begin  mthin  a  fixed  number  of 
days  or  montJis,  andbe  prosecuted  to  a  successful  end  or  to  a]:)an- 
donment.  Coal,  on  tke  otlier  hand,  is  fixed  in  location.  The 
owaier  may  mine  when  he  pleases  regardless  of  operations, 
around  him.  Its  amount  and  probable  value  can  be  calculated 
with  a  fair  degree  of  business  certainty.  There  is  no  necessity 
for  haste,  nor  moving  pari  passu,  with  adjoining  owners.  The 
consequence  is  that  coal  leases  are  for  a  certain  fixed  tenn,  or 
for  all  the  coal  upon  the  land  leased,  as  the  case  may  be.  The 
rule  of  Venture  Oil  Co.  v.  Fretts,  sup^a,  is  not  capable  of  ai> 
plication  to  the  lease  made  by  Callender  to  Meredith  in  1828, 
for  several  reasons:  (1)  The  Callender  lease  is  in  effect  a 
sale  of  all  the  coal  in  tke  leased  premises,  and  conse(]uently  a 
severance  of  the  surface  therefrom.  (2)  It  is  for  one  hundred 
years.  All  idea  of  haste  in  development  or  operating  is  ex- 
cluded by  the  tonus  of  the  instrument,  and  the  time  for  com- 
mencing the  work  of  mining  is  left  to  the  discretion  of  the  les- 
see. (3)  The  consideration  of  the  grant  was  not  the  develop- 
ment of  the  mineral  value  of  the  land,  but  the  price  fixed  by 
the  agreement  and  actually  paid  to  the  lessor  in  money."  ^^ 

§  130a.     What  is  a  reasonable  time. — Question  of  fact. 

What  is  a  reasonable  time  is  a  question  of  fact  and  not  one 
of  law;  "for  its  determination  largely  depends  upon  liie  cir- 
cumstances surrounding  the  particular  case  and  the  means  and 
ability  of  the   person   by   whom   the   contract   is   to   be   per- 
is piummer  V.   Hillside,  etc.,  Co.,       160  Pa.  St.  483;  28  Atl.  Rep.  853. 


190  OIL    AND    GAS. 

formed.^'*  Where  the  facts  are  undisputed  or  admitted,  or 
are  clearly  established,  'reasonable  time'  has  been  held  to  be 
a  question  of  law ;  but  should  the  question  of  reasonable  time 
depend  upon  controverted  facts,  or  'where  the  motives  of  the 
party  enter  into  the  ([ucstion,  the  whole  is  necessary  to  be 
submitted  to  the  jury  before  any  judgment  can  be  formed  as 
to  whether  the  time  was  or  was  not  reasonable.'  "  ^•"''  Where 
the  object  of  an  oil  lease  is  to  obtain  a  benefit  for  both  lessor 
and  lessee,  neither,  in  the  absence  of  a  stipulation,  is  the 
arbiter  of  the  extent  of  the  diligence  required ;  but  both  are 
bound  by  what  would  be  reasonably  expected  of  operators  of 
ordinary  prudence,  having  regard  to  the  interests  of  both.^^<= 

§  131.     Acquiescence  in  delay. — Unavoidable  accident. 

The  time  of  the  lease,  at  least  for  development  of  the  j)rem- 
ises,  may  be  prolonged  by  the  acquiescence  of  the  lessor  in 
the  delay.  And  w^iere  the  lease  provided  that  a  test  well 
should  be  completed  by  a  given  time,  "unavoidable  accident" 
excepted,  it  was  held  that  a  recognition  by  the  lessors  of  the 
unavoidable  character  of  certain  accidents  delaying  operations, 
coupled  with  acquiescence  in  such  delay,  was  a  waiver  of  the 
right  to  enforce  the  forfeiture  clause  of  the  lease. ^^  Ac- 
quiescence, however,  with  regard  to  the  time  within  wdiich  a 
well  is  to  be  begun,  is  not  a  waiver  of  the  time,  within  which 

15a  Citing   Consumers'    Gas   Trust  isc  Brewster   v.   Lanyon   Zinc  Co., 

Co.  V.  Littler,   1G2  Ind.  320;   70  N.  140    Fed.    Rep.    801;    72    C.    C.    A. 

E.    Rep.    3G3;    Island    Coal    Co.    v.  213. 

Combs,  1.52  Ind.  379;  53  N.  E.  Rep.  lo  Elk    Fork    Oil    and   Gas   Co.    v. 

455,  and  Randolph  v.  Friek,  57  Mo.  Jennings,    84    Fed.    Rep.    839.      See 

App.  400.  Dufllcldl  V.  ]\Iieliaels,   102   Fed.   Rep. 

15b  American  Window  Glass  Co.  v.  820;  42  C.  C.  A.  649;  New  American 

Indiana  Natural  Gas  &  Oil  Co.,  37  Oil    Co.    v.    Trover,    160    Ind.    402; 

Ind.  App.  439;   76  K.  E.  Rep.  1006,  76  X.  E.  353;    Duffield  v.  Hue,   129 

quoting  7  Words  and  Phrases,  5977.  Pa.    94;     18    Atl.    566;     Steiner    v. 

See  also  Scannell  v.  American  Soda  Marks,    172   Pa.   400;    38   Atl.   695; 

Fountain  Co.,  161  Mo.  GOG;  61  S.  W.  Campbell  v.  Rock  Oil  Co.,  151   Fed. 

Rep.  889;  Bowen  v.  Detroit  City  R.  191;    80   C.   C.   A.   467:    Duntley   v. 

Co.,   54  Mich.   496;    20  N.  W.   Rep.  Anderson,  169  Fed.  391;  94  C.  C.  A. 

559;    52    Am.    Rep.    822;     Cameron  647;    Monarch    Oil    Co.    v.    Richard- 

V.    Wills,    30    Vt.    633;    Graham    v.  son,  30  Ky.  L.  Rep.  824;   99  S.  W. 

Van    Drinen's    Land    Co.,    11    Exch.  668. 
101. 


DURATION   OF    LEASE.  191 

it  is  to  complete  it.'^  An  agreement  tliat  the  lessee  should 
have  further  time  within  which  to  complete  the  development 
of  the  premises,  even  if  made  after  the  lease  has  expired,  is 
binding  on  the  lessor.^^^  If  the  lessor  is  to  locate  the  wells, 
and  he  fails  to  do  so,  he  cannot  complain  of  the  lessee's  delay 
in  development  of  the  premises.^*"  So  if  the  lessor  drive  away 
the  lessee's  workmen,  he  cannot  complain  of  delay/^'' 

§  132.     Acquiescence  in  abandonment. — Damages. 

If  a  lessor  acquiesce  in  the  action  of  the  lessee  in  abandon- 
ing the  leased  premises,  he  will  thereby  terminate  his  lease  and 
waive  his  right  to  damages  accruing  after  the  time  of  the 
abandonment.  Especially  is  this  true  if  the  acquiescence  is 
evidenced  by  the  lessor  taking  possession  and  leasing  the 
premises  to  third  parties,  even  if  the  second  lease  is  for  an- 
other mining  purpose. ^'^ 

§  133.     Actual  mining-  operations  must  be  commenced. 

A  lease  requiring  the  work  of  development  to  be  commenced 
within  a  certain  time,  by  drilling  wells,  recjuires  actual  drilling 
operations  to  be  commenced  within  the  time  specified ;  and  the 
mere  erection  of  drilling  apparatus  will  not  be  a  compliance 

17  Cleminger  v.  Baden  Gas  Co.,  to  operate  either  for  oil  or  gas, 
159  Pa.  St.  16;  33  W.  N.  C.  480;  28  neither  extends  the  terms  of  the 
Atl.    Rep.   293.  lease  nor   waives  conditions   of   for- 

As  to  endorsement  on  lease  for  an  feiture  for  non-compliance  therewith, 
extension  of  an  Ohio  lease  and  its  This  is  especially  true  after  the  ex- 
recording,  see  Northwestern  Ohio,  piration  of  the  term  contracted  for, 
etc.,  Co.  V.  iJrowning,  15  Ohio  Cir.  and  in  the  absence  of  a  well  profit- 
Ct.  Rep.  84;  8  Ohio  C.  D.  188.  ably  producing  neither  oil   nor  gas. 

18  Riddle  v.  Mellon,  147  Pa.  St.  Nor  is  a  failure  to  notify  the  les- 
30;  23  Atl.  Rep.  241  Kansas  City  see  to  shut  oflf  the  gas  a  waiver 
Nat.  Gas  Co.  v.  Harris,  79  Kan.  of  the  forfeiture  after  giving  notice 
167;  100  Pac.  7.  that  the  lease  has  expired.     Miller 

The  acceptance  and  use  of  gas  by  v.  Vandergrift,  30  Ohio  Cir.  Ct.  Rop. 

the  lessor  supplied  by  the  gas  com-  730. 

pany  and  paid  for  by  it,  in  consid-  i^a  McKnight     v.     ^lanufacturors' 

eration    for    which    the    lessees    are  Nat.  Gas  Co.,   146  Pa.   185;   23  Atl. 

granted  an  extension  of  time  to  open  104;   28  Am.  St.  790. 

a  well  producing  oil  and  gas,  which  i^b  Henderson   v.   Ferrell,    183   Pa. 

by  reason  of  the  intermingling  of  the  547;    38  Atl.   1018. 

oil,    and    for    want    of    marketable  is  May  v.  Hazlewood  Oil  Co.,   152 

facilities  of  the  oil,  was  unprofitable  Pa.  St.  518;   25  Atl.  Rep.  564. 


192 


OIL    AND    GAS. 


■\vith  its  terms. -°  But  the  coinraencement  of  operation  on  the 
last  day  within  which  the  h-ase  required  them  to  be  begun 
prevents  a   forfeiture.'-"" 

§  134.     In  paying  quantities. 

A  very  common  expression  in  oil  and  gas  leases  is  that  they 
are  to  continue  so  long  as  oil  or  gas  is  or  can  be  produced  in 
"paying  quantities."  This  is  a  clause  for  the  benefit  of  the 
lessee ;  for  it  is  obvious  that  a  prudent  man  would  not  want  to 
pay  rent  for  premises  after  they  had  ceased  to  be  productive ; 
nor  would  he  care  to  operate  them,  on  even  a  royalty,  where 
the  operating  expenses  were  more  than  the  income.  Occasion- 
ally the  phrase  might  be  of  value  to  the  lessor;  for  should 
the  lessee  occupy  considerable  surface  of  the  ground  leased,  it 
might  be  of  more  value  to  him  for  other  purposes  than  to  have 
it  continued  for  oil  or  gas  purposes.  If  a  lease  is  conditioned 
that  it  is  to  continue  "so  long  as  oil  is  produced  in  paying 
quantities,"  its  duration  depends  upon  the  intention  of  the  par- 
ties, as  ascertained  from  the  circumstances  of  the  case.-^  If 
the  lease  is  for  a  specified  period,  as  for  "three  years,"  or  as 


20  Island  Coal  Co.  v.  Combs,  152 
Ind.  379;  53  N.  E.  Kep.  452.  In 
this  case  the  lease  was  of  coal  lands, 
reserving  a  royalty  on  the  output, 
requiring  the  lessee  within  a  speci- 
fied time  to  commence  the  work  of 
development  of  the  coal  by  opening 
shafts  to  remove  it,  and  by  open- 
ing mines  so  asi  to  enable  the  coal 
to  be  mined  and  remo^'ed  to  mar- 
ket. It  was  held  that  this  required 
actual  mining  operations  to  be  com- 
menced within  the  time  named,  and 
that  tne  mere  erection  and  equip- 
ment of  shalts  and  mines  by  which 
coal  might  be  mined  was  not  suffi- 
cient. See  Duffield  v.  Russell,  19 
Ohio  Cir.  Ct.  Rep.  2GG;  10  Ohio 
C.  D.  472. 

Neglect  for  forty  years  to  develop 
premises  on  which  a  mining  lease 
was  given  for  ninety-nine  years  was 
held  to  be  an  abandonment.   Shenan- 


doah Land,  etc.,  Co.  v.  Hise,  92  Va. 
238;  28  S.  E.  Rep.  303. 

20a  Henderson  v.  Ferrell,  183  Pa. 
547;  38  Atl.  1018.  In  this  case  the 
lessee  drove  a  stake  and  began  un- 
loading lumber  on  the  land  on  the 
last  day,  with  bona  fide  intention 
of  staking  a  well ;  and  this  was  held 
to  prevent  a  forfeiture. 

21  Herrington  v.  Wood,  G  Ohio 
Cir.  Ct.  Rep.  326;  3  Ohio  Cir.  Dec. 
475;  Indiana  Nat.  Gas  &  Oil  Co. 
v.  Granger,  33  Ind.  App.  559;  70 
N.  E.  Rep.  395;  Chaney  v.  Ohio 
&  I.  Oil  Co.,  32  Ind.  App.  193; 
G9  N.  E.  Rep.  477.  In  paying  quan- 
tity "means  paj-ing  quantity  to  the 
lessee,"  even  a  small  profit  is  a 
"paying  quantity."  Lowther  Oil  Co. 
v.  Miller,  etc.,  Co.  (W.  Va.),  44 
S.  E.  Rep.  433;  citing  Young  v.  Oil 
Co.,  194  P.  St.  243;  45  Atl.  Rep. 
121. 


DURATION    OF    LEASE. 


192il 


much  longer  thereafter  as  oil  or  gas  might  he  found  in  "paying 
quantities,"  tlion  it  extends  only  for  three  years,  iink'ss  oil 
or  gas  he  found  in  paying  (|uanli(ies  hefore  the  expiration  of 
tlie  period  named,  or,  in  the  illustration  given,  ])i'for('  the  expi- 
lalion  of  the  three  years.--  The  use  of  the  word  "and"  for 
"or"  does  not  change  the  rule.--'  The  interpretation  of  this 
clause  has  not  hy  any  means  heen  uniform.  Thus  in  New  York 
a  lease  for  a  term  of  '^  twelve  years  from  this  date,  or  so  hmi^ 
as  oil  is  found  in  payiui!^  quantities,"  was  heltl  to  he  a  lease  for 
tlic  lengtli  of  time  during  which  oil  is  found  in  ]>nying  quan- 
tities, and  that  fixed  the  duration  of  the  tenn."^  The  reason- 
able interpretation  of  such  a  clause  is  that  tli(>  lessee  has  ihat 
period  of  time  fixed  in  the  lease  within  which  to  develop  the 
premises,  and  he  is  not  hound  to  proceed  to  develop  thom  as  soon 
as  the  lease  is  granted,  esix-cially  if  he  is  to  pay  a  fixed  rent  per 
acre  or  per  year  or  otherwise,  nor  witliin  what  might  bo  termed  a 


Such  a  lease  is  not  void  for  uncer- 
tainty. Dickey  v.  Coffeyville,  etc., 
Tile  Co.,  69  Kan.  lOG;  70  Pac.  Rep. 
398;  Tucker  v.  Watts,  25  Ohio  Cir. 
Ct.  Rep.  320;  Keller  v.  Bock,  28  Ohio 
Cir.  Ct.  Rep.  119. 

22  Shellar  v.  Shivers,  171  Pa.  St. 
569;  33  Atl.  Rep.  95;  Cole  v.  Taylor, 
8  Pa.  Super.  Ct.  Rep.  19;  Florence 
Oil,  etc.,  Co.  V.  Orman,  19  Colo. 
App.  79;  73  Pac.  Rep.  628  (no  well 
put  down  within  tlie  three  years' 
limit — abandoned)  ;  Indiana  Natural 
Gas  &  Oil  Co.  V.  Granger,  33  Ind. 
App.  559;  70  X.  E.  Rep.  395;  Mur- 
dock-West  Co.  v.  Logan,  69  Ohio 
St.  514;  69  N.  E.  Rep.  984. 

If  gas  in  paying  quantifies  be  dis- 
covered during  the  period  fixed  in 
the  lease  for  the  development  of  the 
land,  the  effect  will  be  that  the 
term  of  the  lease  is  extended  so  long 
as  gas  in  paying  quantities  can  be 
secured,  although  it  may  go  beyond 
the  number  of  years  fixed  for  the 
term.  American  Window  Glass  Co. 
V.  Indiana  Nat.  Gas  &  Oil  Co.,  37 
Ind.  App.  439;   76  N.  E.  Rep.  1006. 


23  Northwestern  Oil,  etc.,  Gas  Co. 
V.  City  of  Tifiin,  59  Ohio  St.  420; 
54  N.  E.  Rep.  77;  Cassell  v. 
Crothers,  193  Pa.  St.  359;  44  Atl. 
Rep.  446;  Brown  v.  Fowler,  65  Oliio 
St.  507;  '63  N.  E.  Rep.  76;  Balfour 
V.  Russell,  167  Pa.  St.  287;  36  W. 
N.  C.  225;  31  Atl.  Rep.  570;  Blair 
V.  Northwestern,  etc.,  Co.,  12  Ohio 
Cir.  Ct.  Rep.  78;  5  Ohio  Cir.  Dec. 
620;  American  Window  Glass  Co.  v. 
Indiana  Natural  Gas  &  Oil  Co.,  37 
Ind.  App.  439;   76  N.  E.  Rep.   1006. 

24  Eaton  V.  Allegheny  Gas  Co.,  122 
N.  Y.  416;  25  N.  E.  Rep.  981,  re- 
versing 42  Hun  61.  See  Men  fort  v. 
Lanyon  Zinc  Co.,  67  Kan.  310;  72 
Pac.   Rep.   784. 

A  lease  which  provides  that  it  is 
to  continue  while  gas  and  oil  are 
found  in  paying  quantities,  ends 
when  tlie  time  within  which  the  les- 
see has  the  right  to  explore  the  land 
has  expired,  and  no  gas  or  oil  has 
been  found.  Cooke  v.  Gulf  Refining 
Co.,  127  La.  592;  53  So.  874. 


192b  OIL    AN  J    (1X6. 

reasonable  time,  so  that  he  develops  them  before  the  period  be  de- 
tonuiiied.*"  But  if  he  should  fully  dcvclo])  thorn  before  the 
cud  of  the  fixed  period,  however  long  before,  and  clearly  demon- 
strated that  there  is  no  oil  or  gas  beneath  the  surface,  then  as 
sodu  ;is  tliiit  fact  is  ascertaiiic(l  tlio  lease  is  at  an  oiid.  If  a 
lessor  has  given  a  long  period  of  time  within  which  to  develop 
tlie  leased  premises,  that  is  his  act  aiul  he  cannot  appeal  to  the 
courts  to  relieve  him  from  the  condition  in  which  his  own  error 
has  placed  him.  If  the  lease  be  for  a  certain  period  "  and  as 
long  thereafter  as  oil  is  found  in  paying  quantities,"  and  the 
lessee  fail  after  the  fixed  period  to  produce  oil  in  paying  quan- 
tities, the  tenancy  becomes  one  at  will,  not  from  year  to  year, 
and  may  be  ended  at  any  time  by  either  party;  and  if  oil,  after 
the  termination  of  the  lease,  be  found  in  paying  quantities,  the 
lessee  can  not  insist  that  his  lease  is  still  in  force,  nor  claim  any 
part  of  the  oil."  A  lease  for  two  years  "  and  as  much  longer 
as  oil  or  gas  would  be  found  in  paying  quantities,"  requiring 
the  lessee  to  commence  a  well  within  thirty  and  complete  it 
within  ninety  days,  and  if  no  well  was  completed  within  the 
latter  period,  rccjuiring  the  lessee  to  ])ay  sixty  dollars  per  year, 
the  lessor  to  receive  a  certain  part  of  the  product  as  royalty, 
is  terminated  at  die  end  of  the  two  years,  if  oil  or  gas  be  not 
found  in  such  quantities,  and  its  life  cannot  be  prolonged  by  the 
payment  of  the  sixty  dollars  a  year  thereafter ;  for  the  life  of  the 
lease  beyond  the  two  years  is  dependent  on  the  fact  that  oil  or 
gas  be  found  in  paj'ing  quantities. ''*  If  the  lease  be  for  both  gas 
and  oil  purposes  and  gas  only  is  found  the  lessee  is  to  pay  a 
certain  annual  sum  for  each  well,  and  if  oil,  pay  a  royalty ;  the 
production  in  paying  quantities  of  either  gas  or  oil,  and  the 
payment  of  gas  rental,  or  the  delivery  of  the  oil  royalty  will 

26  See  Blair  v.  Northwestern,  etc.,  76  N.  E.  Rep.  819;  Brewster  v.  Lan- 
Co.,  12  Ohio  Cir.  Ct.  Rep.  78;  5  Ohio      yon  Zinc  Co.,  140  Fed.  801. 

Cir.   Dec.   620.  -s  Western   Pennsylvania  Gas   Co. 

27  Cassell  V.  Crothers,  10.3  Pa.  St.  v.  George,  161  Pa.  St.  47;  28  Atl. 
359;  44  Atl.  Rep.  446;  Williams  v.  Rep.  1004;  American  Window  Glass 
Ladew,  171  Pa.  St.  369;  33  Atl.  Rep.  Co.  v.  Indiana  Natural  Gas  &  Oil 
329;  Ohio  Oil  Co.  v.  Delaware,  165  Co.,  37  Ind.  App.  439;  7'6  N.  E.  Rep. 
Ind.  243;  73  N.  E.  Rep.  006;  Zeig-  1000;  Indiana  Natural  Gas  Co.  v. 
ler    V.    Dailey,    37    Ind.    App.    240;  Grainger,  33   Ind.  App.   559;    70  N. 

E.  Rep.  395. 


DURATION    OF    LEASE.  102c 

prolonc;  the  lease  dnriinr  the  time,  (if  such  jinKliictioii.""  Wlicro 
ii  lease  recinired  the  lessee,  if  oil  be  found  in  jKiyini;  (piautities, 
to  pav  the  lessor,  in  addition  t-o  hind  money  six  hundred  dollars 
A'ithin  thirty  days,  the  court  considered  it  Ciii)able  of  enforco- 
.«Ment.  "  The  obvious  intention  was,"  said  the  court,  "  that  if, 
for  the  period  of  thirty  days  after  its  completion,  tJie  well  con- 
tinued to  produce  oil  in  such  quantities  as  to  make  it  profitable 
to  operate  it  during  that  period,  the  six  hundred  dollars  should 
be  demandable."  The  court  continucMl  its  observations  upon 
tlie  phrase  "  paying  quantities,"  by  saying:  "  There  is  a  great 
difference  between  a  paying  well,  i.  e.,  a  well  producing  oil  in 
paying  quantities,  and  one  that  pays  for  itself.  A  mine  for 
years  may  produce  ore  in  paying  quantities  and  be  ver\'  profit- 
able during  that  time,  and  yet,  through  a  later  depreciation  in 
the  value  of  the  mineral  extracted  from  tlie  ore,  or  from  acci- 
dent or  failure  to  yield  enough  ore,  it  may  never  repay  its  first 
cost."  ^°  It  is  for  the  operator,  acting  in  good  faith,  to  deter- 
mine when  the  lease  is  no  longer  profitable;  and  the  lessor  can- 
not temiinate  it  because  it  is  not  profitable  to  him  to  have  it 
continue.^^  It  is  for  tlie  lessee,  or  some  one  for  him  acting 
under  the  lease,  to  find  oil  in  paying  quantities  on  tlie  prsnuses ; 
and  if  another  find  it  in  such  quantities,  not  acting  ufider  the 

29  Harness  v.  Eastern  Oil  Co.,  49  3i  Young  v.  Forest  Oil  Co.,  194 
W.  Va.  232;  38  S.  E.  Rep.  662;  Pa.  St.  243;  30  Pittsb.  L.  J.  (X.  S.) 
Murdock-West  Co.  V.  Logan,  69  Ohio  221;  45  All.  Rep.  121,  reversing 
St.  514;  GO  X.  E.  Rep.  984.  Young  v.  Vandergrift,  30  Pittsb.  L. 
One  of  the  conditions  of  an  oil  J.  (X".  S.)  39;  Lovvther  Oil  Co.  v. 
and  gas  lease  was  that  the  lessee  Miller-Sibley  Co.,  53  W.  Va.  501 ; 
should  complete  three  wells  within  44  S.  E.  433;  47  Am.  St.  1027; 
one  year,  if  each  well  was  a  paying  Manhattan  Oil  Co.  v.  Carrel!,  164 
gas  well,  and  complete  a  well  every  Ind.  520;  73  N.  E.  1084;  Bay  State 
■sixty  days  until  ten  wells  were  Petroleum  Co.  v.  Penn.  Lubricating 
drilled,  if  each  well  drilled  was  a  Co.  (Ky.),  87  S.  W.  Rep.  1102;  2fr 
paying  well.  It  was  held  tliat  this  Ky.  L.  Rep.  1133;  Brown  v.  Fowler, 
contemplated  the  development  of  the  65  Ohio  St.  507;  63  X.  E.  76;  Cas- 
territory  for  oil  as  well  as  gas,  and  sell  v.  Crothers,  193  Pa.  359;  44 
the  abandonment  of  the  development  Atl.  446;  ^IcCraw  Oil  &  Gas  Co.  v. 
for  oil  would  thwart  the  manifest  Kennedy,  65  W.  Va.  595;  64  S.  R. 
purpose  of  the  lease  and  work  an  Rep.  1027;  Keller  v.  Book,  28  Oliio 
abandonmeni.  Bcatty-Xickle  Oil  Co.  Cir.  Ct.  Rep.  119. 
V.  Smethers  {Ind.  App.),  96  X.  E.  A  leaso  for  five  years,  or  so  long 
19.  as  nil  or  gas  shall  be  found  in  pay- 
so  Collins  V.  Mechling,  1  Pa.  Super.  ing  quantities,  will  not  l)e  vacated 
Ct.  Rep.  594;  38  W.  X.  C.  235;  by  a  court  o.  equity  on  the  ground 
26   Pittsb.   L.  J.    (X.   S.)    459.  that  the  territory  is  so  light  as  not 


192d  OIL   AND    GAS. 

lease,  that  will  not  ])re\'ciit.  a  tcriniiiali(ni  uf  the  loase.^'  Wiicro 
the  lessor  reserved  tjic  I'iiilit  to  select  lour  acres  out  of  a  seventy- 
acre  tract  leased,  and  after  the  selection  of  the  four  acres  llio 
lessee  drillpd  a  well  <in  the  remaining  part,  l)ut  did  not  find  oil; 
and,  with  the  assent  ol"  the  lessor,  a  well  was  drilled  by  tho 
assig'nee  of  tlie  lessee  on  the  four-acre  tract,  which  pnjduccd 
oil  in  j>aying  quantities,  it  "was  held  that  the  assignee  was  en- 
titled to  a  continuance  of  tlie  lease,  for  the  reason  that  the 
leased  property  was  producing  oil  in  paying  quantities."''  A 
mere  cessation  of  the  use  of  gas  from  a  well  will  not  tenninate 
the  lease  nor  relieve  the  lessee  from  a  liability  to  pay  a  rental 
so  long  as  gas  is  produced  in  paying  quantities,  but  tlie  lessee 
must  notify  the  lessor  that  the  well  lias  ceased  to  produce  gas  in 
such  quantities,  and  for  that  reason  he  terminates  and  surren- 
ders the  lease.'*  Where  a  lease  provided  that  if  gas  be  "  found 
in  sufficient  quantities  to  justify  marketing  "  it  an  annual  rent 
of  five  hundred  dollars  per  annum  for  each  well  should  be 
paid  "  so  long  as  it  shall  l>e  sold  therefrom,"  and  gas  being  ob- 
tained in  such  quantities  to  justify  its  marketing,  it  was  held 
that  the  relation  of  landlord  and  tenant  was  established,  and  no 
good  reason  being  shown  why  he  should  not,  the  lessee  must 
market  the  gas  and  pay  the  rent.'^ 

§135.     Paying  quantities,  continued. 

Where  the  lessee  was  to  commence  a  test  well  within  ninety 
days   from   the   date   of  the   lease,   and    prosecute   the   drilling 

to    warrant    the    sinking    of    more  is  not  terminable  at  his  option,  after 

wells.     Zeller  v.  Book,  28  Ohio  Cir.  the  production  of  gas,  on  his  asser- 

Ct.  Rep.   119.  tion  that  a  well  is  unprofitable,  when 

A  stipulation  in  a  lease  that,  if  the  contrary  is  true.  Dickey  v. 
wells  are  put  in  and  the  lessee  be-  ColTeyville  Vitrified  Brick  &  Tile 
comes  satisfied  that  they  do  not  pay,  Co.,  09  Kan.  100;  70  P.  398. 
he  may  surrender  the  lease  and  re-  ^-  Thomas  v.  llukill,  34  W.  Va. 
move  the  property,  means  that  if  the  385;  12  S.  E.  Rep.  522.  See  Gar- 
lessee  becomes  satisfied  that  a  par-  man  v.  Potts,  V6o  Pa.  St.  506;  26 
ticular  well  is  not  paying,  and  such  W.  X.  €.  305;  19  Atl.  Rep.  1071. 
fact  e.xists,  the  lease  is  terminated.  33  Balfour  v.  Russell,   107  Pa.  St. 

And  such  a  stipulation   in  a  gas  287;  30  W.  N.  C.  225;  31  Atl.  Rep. 

lease  that  if  wells  are  put  in  opera-  570. 

tion,  and  at  any  time  the  lessee  is  34  Double  v.  Union  Heat,  etc.,  Co., 

satisfied   that   it   is   not    paying,   he  172  Pa.  St.  388;   37  W.  N.  C.  389; 

shall  surrender  the  lease  and  remove  33  Atl.  Rep.  094. 

the   machinery,   does   not    make   the  3r.  lams   v.   Carnegie  Natural   Gas 

lessee  a  tenant  at  will,  and  the  lease  Co.,  194  Pa.  Hi.  72;  45  Atl.  Rep.  54. 


DUUATION    OF    l.KASE. 


VXi 


'*  with  due  cliIi£!:oiicc  to  success  or  iibaiulounient,  aud  sli<>ul<l  nil 
l>o  })uuii)ed  or  excavated  in  paviiiij  ([uautities  ori  or  l(ef<ire  "'  the 
end  of  one  vear  frmn  the  date  of  the  h'nse,  then  the  lease  "  to 
be  null  and  void,"  and  the  lessee  bcijan  the  prosecution  of  the 
work  on  time  and  prosecuted  it  until  the  middle  of  the  year 
when  he  withdrew  the  casino;  and  left  the  premises  for  over  three 
months;  and  [ho  \c^sco  elainied  he  had  found  oil  in  jj^ivini; 
quantities,  but  admitted  he  had  never  j)umped  any  from  the 
well,  it  was  held  that  the  prosecution  to  success  required  the 
production  of  oil  or  gas  in  quantities  capable  of  division  be- 
tween the  parties,  accordiui^  to  the  terms  of  the  lease. ^^  A 
lease  to«run  for  a  term  of  years,  ''or  so  long  as  oil  or  gas  is 
found  on  the  premises,"  providing  for  the  payment  of  a  certain 
rental  "  each  year  in  advance  for  every  well  from  which  gas  is 
used  off  the  jn-emises,"  renders  tlie  lessee  liable  only  so  long  as 
he  uses  the  gas;  and  upon  the  failure  of  the  well,  or  if  it  be- 
comes impracticable  to  use  the  gas  therefrom,  he  is  released  from 
all  liability.^^  Where  the  term  was  for  years,  and  as  much 
longer  as  gas  or  oil  should  be  found  in  paying  quantities; 
and  one  well  was  drilled  which  produced  gas  in  ])aying  qmm- 
tities,  and  then  failed;  it  was  held,  upon  failure  of  the  well, 
that  the  lessee  was  entitled  to  a  reasonable  length  of  time  to 
drill  at  another  location  on  the  premises',  for  the  purjwse  of 
finding  oil  or  gas.  "  Does  tlie  language  mean,"  asked  the  court, 
"  tliat  it  is  only  so  long  as  gas  or  oil  is  found  in  paying  qmin- 
tities  in  the  first  well  drilled,  and  that,  when  it  fails,  the  lease 
expires  as  to  the  entire  premises  t  The  whole  premises  was  held 
by  this  lease  for  five  years,  and  as  much  longer  as  gas  or  oil 
is  found  in  paying  quantities;  not  found  in  paying  quantities 


86  Kennedy   v.   Crawford,    13S   Pa.  was  known  to  tlie  lessor  and  lessee 

St.  561;    27"  W.  N.  C.  300;    21    Atl.  at   that   time.      Collins  v.    Meclilinfr, 

Rep.    li)I.  1    Super.   Ct.    (Pa.)    594;    38   W.   X. 

An  oiler  to  prove  that  the  jjlirase  C.    235;    20    Pittsb.    L.    J.     (X.    S.) 

"paying    (juantities"    has    a    known  459. 

significance    in    oil    regions   must   be  ■'•"  In(!iana|)olis  (las  Co.   v.  Teters, 

accompanied    by    an    olFer    to    show  15    Ind.    Ai>p.   475;    44    X'.    E.    Rep. 

that  such   significance  existed   when  549.      See    Monfort   v.    Lanyon    Zinc 

the  lease  was  executed  in  the  neigh-  Co.,    07    Kan.     310;     72    Pac.     Rep. 

borhood   in   which    the   leased    prem-  784. 
ises  were  situated,  or  that  the  usage 


19-4  OIL    AND    GAS. 

in  one  well,  l)iit,  found  in  such  (luniit  it  ics  wliou  proper  and 
reasonable  searcJi  is  nuule  for  it."  •"*  Where  on  the  first  of  Sep- 
tember an  annual  rental  from  the  date  of  drilling  a  gas  well 
was  payable,  and  the  well  was  drilled  ^November  1,  1893,  and 
the  rent  for  the  two  succeeding  years  was  paid,  but  on  Septem- 
ber 1,  189G,  the  well  was  abandoned  as  un])r()Htable,  it  was  held 
that  the  lessor  was  entitled  to  recover  a  ratable  part  of  the  an- 
nual rental  for  tlie  year  in  which  the  well  was  abandoned,  but 
could  not  recover  rent  for  the  time  after  such  abandonment."''" 
If  a  rental  is  to  be  paid  for  a  gas  well  and  a  royalty  for  the  oil 
produced,  the  lessee  is  not  liable  for  rental  for  a  gas  well  which 
produces  a  little  gas,  although  the  gas  from  it  is  used  for  run- 
ning the  boilers  on  the  premises.*"  An  agreement  to  prospect, 
and  if  oil  be  found  in  a  certain  amount  the  royalty  to  Iw  not  less 
than  a  designated  amount  of  money,  and  that  a  failure  to  sur- 
render the  lease  by  a  certain  day  shall  be  an  agi'eement  that 
there  is  sutfieient  oil  to  pay  the  royalty  named,  will  not  render 
a  failure  to  surrender  conclusive  of  the  amount  of  the  oil  found, 
but  it  will  cast  upon  the  lessee  the  burden  to  show  that  tho 
amount  found  was  less  than  the  amount  specified  in  the  lease.*^ 
A  lease  for  three  years,  or  so  long  as  oil  or  gas  should  be  found 
in  paying  quantities,  provided  that  the  lessor  w^as  to  receive  a 
share  of  the  oil  produced ;  and  if  gas  ,was  found  producing  one 
hundred  pounds  pressure  to  the  square  inch  in  tliirty  seconds, 
the  lessee  had  the  right  to  consume  enough,  free  of  cost,  to  light 
and  heat  his  dwelling;  but  if  it  exceeded  two  hundred  pounds, 
he  was  to  pay  a  certain  rental  per  well ;  it  was  held  that  he  wa? 
not  bound  to  pay  any  rental,  or  compensation  or  damage  for 
occupation  or  use  of  the  premises  before  or  after  the  expiration 
of  the  three  years,  where,  during  such  three  years,  he  had  drillecl. 
only  one  well  which  produced  a  pressure  of  less  than  two  hun- 
dred   ]X)unds,   but   which   had   furnished   gas   for   lighting  and 

88  Blair     v.     Northwestern     Ohio,  Co.,  24  Ind.  App.  34;  56  N.  E.  Rep. 

etc.,  Co.,   12  Ohio  Cir.  Ct.  Rep.  78;  108. 

5    Ohio   C.   D.   C19;    American    Win-  40  Taylor   v.   Peerless,   etc.,   Co.,   7 

dew   Glass   Co.   v.   Indiana   Natural  Ohio  Cir.  Dec.  368;   14  Ohio  Cir.  Ct. 

Gas   &    Oil   Co.,   37    Ind.   App.   439;  Rep.   31.'5. 

76  N.   E.  Rep.   1006.  4i  McCahan    v.    Wharton,    121    Pa. 

39  Moon  V.  Pittsburg  Plate  Glass  St.  424;    15  All.   Rep.  615. 


DURATION    OF    LEASE.  105 

heating  his  residence/-  A  lease  containing  a  i)rovision  tliat 
the  premises  shall  be  worked  so  long  as  it  can  be  "advan- 
tageously" done  means  so  long  as  it  can  be  "ben('ficially"  or 
"profitably"  done."  Where  the  condition  was  tiiat  the  lessee 
should  complete  an  oil  well  in  every  period  of  ninety  days 
from  the  completion  of  the  first  paying  well,  or  surrender  the 
lease,  excepting  ten  acres  for  each  paying  well,  the  lessee's 
obligation  was  held  to  continue  to  drill  wells  on  tlie  land 
and  was  also  fixed  when  the  first  well  proved  to  be  a  paying 
one,*^*  But  when  a  producing  well  is  developed,  and  its 
product  is  not  marketed,  that  fact  does  not  authorize  the  lessor 
to  forfeit  the  lease,  if  the  lessee  is  willing  to  pay  the  sum 
agreed  upon.*^*^  A  provision  in  an  oil  lease  that  after  the  com- 
pletion of  the  first  well  the  lessee  should  drill  a  specified  num- 
ber of  wells,  in  case  oil  should  be  found  in  paying  quantities, 
does  not  mean  that,  if  oil  was  found  in  the  test  or  first  well 
in  a  sufficient  quantity  to  pay  a  profit,  however  small,  in 
excess  of  the  cost  of  producing  it,  excluding  the  cost  of  drilling 
the  well  and  of  equipment,  then  oil  was  found  in  paying  (juan- 
tities,  within  the  meaning  of  the  contract,  but  means  that 
additional  wells  are  to  be  drilled  only  in  case  oil  be  found 
in  such  quantities  as  would,  taken  in  connection  with  other 
conditions,  induce  ordinarily  prudent  persons  in  a  like  business 
to  expect  a  reasonable  profit  on  the  whole  sum  required  to  be 
expended ;  and  whether  oil  was  found  in  paying  quantities 
is  to  be  exclusively  determined  by  the  operator,  acting  in 
good  faith."<= 

42  Oak  Harbor  Gas  Co.  v.  Murphy,  Shellar  v.  Shivers,   171  Pa.  5G9;   33 
7  Ohio  Dec.  700.  A.   95. 

43  Carman   v.   Potts,    135    Pa.   St.  43a  Monaghan   v.   Mount,    36    Ind. 
506;  26  W.  N.  C.  305;   19  Atl.  Rep.  App.    188;    71    N.    B.    Rep.   579. 
1071.  libMcGraw  Oil  &  Gas  Co.,  65  W. 

Where   a   gas   and    oil    lease    pro-  Va.  595;    04   S.  E.   Rep.   1027. 

vides  that  the  lessee  shall  hold  tlie  ^.-sc  ;Manhattan   Oil   Co.   v.  Carrell, 

premises  for  one  year,   and   so  long  164   Ind.  526;    73   N.   E.   Rep.   1084. 

thereafter    as   oil    and   gas   shall   be  In  one  case  five  wells  were  sunk 

produced   in    paying   quantities,   the  and    oil    discovered;    but   the   lessee 

lease    expires    at    the    expiration    of  claimed    that    oil    was    too    low    in 

one  year,  unless  gas  has  been  found  price  to  market  it.     The  wells  were 

in    paying    quantities.       Chaney    v.  closed  for  five  years,  when  the  court 

Ohio   &   I.   Oil   Co.,    69   N.    E.   477;  cancelled  the  lease  because  of  aban- 

32  Ind.  App.   193.  donmcnt.      Collins    v.    Mt.    Pleasant 

See  also  Eaton  v.  Allegheny  Gas  Oil  &  Gas  Co.   (Kan.),   118  Pac.  54. 
Co.,   122  N.  Y.  416;   25  N.  E.  981; 


196  OIL    AND    GAS. 

§  136.     Gas  in  paying  quantities. 

A  somewhat  different  rule  from  that  followed  in  oil  wells 
must  be  adopted  when  the  phrase  paying  ({uantities  is  applied 
to  a  gas  well,  or  perhaps,  to  speak  more  accurately,  the  phrase 
"paying  quantities"  as  applied  to  a  gas  well  requires  different 
conditions  to  render  the  lessee  liable  than  it  does  to  render  him 
liable  when  applied  to  an  oil  well.  In  the  early  operation  of 
oil  wells  the  oil  flowed  from  the  well;  but  as  the  supply  les- 
sened, or  the  pressure  of  gas  beneath  it  decreased,  pumping 
was  introduced.  It  was  found  that  oil  wells  could  be  pumped 
at  little  expense,  and  their  operation  remain  profitable.  Many 
wells,  hundreds  of  feet  apart,  could  be  operated  with  a  single 
power  plant  of  no  great  powder.  But  in  the  case  of  gas  it  was 
different.  The  pressume  at  the  mouth  of  the  well  was  the 
force  first  used  to  carry  the  gas  through  the  pipes  to  the  con- 
sumer, who  was  often  many  miles  away.  Gradually  pumps 
were  introduced,  when  the  pressure  of  the  gas  declined,  or  it 
was  desired  to  carry  it  to  a  longer  distance  than  the  ordinary 
pressure  would  carry  it.  A  gas  pump  is  a  costly  instrument; 
and  to  operate  it  requires  experts  and  costly  machinery  and  a 
large  amount  of  capital.  Even  today  it  may  be  said  to  be  an 
unusual  thing  to  pump  gas;  while  it  is  a  universal  thing  to 
pump  oil.  These  phases  of  the  subject  have  been  ably  dis- 
cussed by  the  Supreme  Court  of  Pennsylvania,  in  the  following 
language : 

"A  lease  of  a  mine  or  a  quarry,  at  a  rental  to  be  fixed  by 
reference  to  the  quantity  of  material  removed  therefrom,  im- 
plies an  agreement  on  the  part  of  the  lesse  to  work  the  mine 
or  quarry.  The  reason  is  that,  while  the  lessor  does  not  lose  his 
material  out  of  the  mine  or  quarry,  he  loses  his  income  there- 
from. A  lease  of  land  for  oil  purposes  imposes  a  somewhat  dit- 
ferent  obligation  upcm  tlie  lessee.  The  oil  is  of  such  a  nature 
that,  if  not  renioved  tlirciiiih  wells  upon  the  surface  of  the 
leasehold,  it  may  be  wholly  lost  to  the  owner  of  the  land  by  rea- 
son of  operations  on  lands  adjoining.  The  duty  to  develop  tlie 
land,  that  is,  to  test  thoronghly  the  existence  of  oil  in  the  rocko 
that  should  bear  it,  and  if  oil  be  found,  to  sink  so  many  wells 
as  may  he  reasonably  necessary  in  view  of  surrounding  opera- 
tions to  secure  so  much  of  the  oil  underlying  the  land  as  may 
be  obtiiinetl  with  profit,  grows  out  of  the  nature  of  oil,  and  the 


DURATION    OK    LEASE.  IfJGa 

methods  l),v  whicli  tlio  oil  is  roaclicd  and  brouirlif  to  llio  surface. 
An  oil  lease  must  be  eonstrned,  therefore,  Avitli  a  diif  iciraid  to 
the  known  characteristics  of  the  business.  Oil  and  pis  leases 
are  ordinarily  combined  in  the  same  instrument,  and  are  classed 
together.  For  many  purjwses  such  classification  is  natural  and 
appropriate,  but  this  case  briniis  us  to  consider  an  iiii]><rrtaiit 
difference  between  uil  and  g'as,  which  makes  it  necessary  t^)  dis- 
tinguish for  some  ]>urposes  b(>twcen  an  oil  and  a  gas  lease. 
Oil,  when  brought  to  the  sui'i'ace,  is  gathered  into  a  receiving- 
tank  or  tanks  at  or  near  the  well.  When  necessary  or  desirable, 
it  is  removed  by  gravity  or  by  ])ump'ing  into  the  pipe  lines  that 
serve  the  district  in  M-hich  the  well  is  located,  and  conveyed  to 
storage  tanks,  where  it  remains  until  (leliv(>rcd  to  a  purchaser. 
It  is  a  matter  of  no  consequence  what  the  pressure  may  l>e  at 
the  well,  for  there  can  be  none  in  the  tanks  except  that  of  grav- 
ity. The  well  that  throws  off  violently  its  five  thousand  b.viTels 
per  day  and  that  which  reluctantly  gives  u])  four  or  five  barrels 
under  the  persuasive  power  of  the  pump  will  have  their  product 
gathered  into  the  same  lines  of  transportation,  or  resting  in  the 
same  storage  tanks.  Gas  cannot  be  gathered,  stored,  or  trans- 
ported in  this  manner.  If  found  in  sufficient  quantity,  it  is 
turned  from  well  into  the  line,  and  the  press\ire  at  the  moiith 
of  the  well  is  the  motive  power  by  which  it  is  driven  through 
the  line  to  the  consumers'  line.  Tf  the  pressure  at  a  given  well 
is  much  below  that  in  the  line  M'ith  which  it  is  connected,  tht^ 
gas  from  that  well  cannot  enter  the  line,  l)ut  will  Ix^  driven  back 
by  the  superior  force  it  encounters  at  the  point  of  connection. 
For  this  reason,  a  well  producing  gas  in  sufficient  quantity  to  be 
profitably  utilized  if  theae  was  a  market  for  it  near  at  hand, 
may  be  entirely  valueless  if  its  product  must  find  a  nuirkct  at  a 
distance  too  great  to  justify  its  transportation  by  a  line  of  its 
own.  In  an  oil  district,  each  well,  no  matter  how  large  or  how 
small  its  product  umy  be,  is  separately  oi^rated,  and  a  well  may 
be  profitably  operated  so  long  as  its  yield  pays  more  than  the 
cost  of  producing  the  oil.  rVi  a  gas  district  this  is  impracticable. 
The  product  of  many  wells  is  g;ithere(l  into  one  line  so  long  as 
the  pressure  is  sufficient.      When  the  pressure  in  any  one  falls 


196b  OIL    AND    GAS. 

Lclow  tlic  stniidard  necessary  for  purposes  of  transportation, 
that  well  must  be  turned  off.  Its  product  cannot  be  transported 
separately,  and,  unless,  it  can  be  used  near  by,  it  is  valueless. 
These  well  known  facts  ]x>culiar  to  the  pnjduction  of  gas  must 
be  tiiken  into  account  in  the  construction  of  leases  for  gas  pur- 
poses." "  As  we  have  already  seen,  every  barrel  of  oil  brought 
to  the  surface  may  be  utilized  in  the  same  manner.  Whether 
the  well  that  produces  it  is  a  strong  one,  yielding  many  barrels 
per  day,  or  a  weak  one,  yielding  but  few,  is  a  matter  that  in  no 
way  affects  the  ability  of  the  producer  to  market  his  oil,  or  the 
prices  to  be  obtained  for  it.  In  gas  territory,  the  lessee  may 
sink  many  wells  and  find  gas  in  them  all,  but  he  can  only  utilize 
such  of  them  as  have  a  volrmie  and  pressure  sufficient  to  enable 
him  to  transport  the  gas  through  his  line  and  deliver  it  to  the 
purchaser.  If  no  one  of  them  has  the  requisite  pressure,  then 
no  one  of  them  can  be  utilized ;  the  gas  must  be  wasted,  the  cost 
of  the  wells  will  be  lost,  and  the  lessor  entitled  to  no  royalty. 
What  is  the  proper  way  to  develop  and  operate  a  gas  lease  is, 
therefore,  a  question  beset  with  some  difficulty.  Its  settlement 
requires  some  general  knowledge  of  the  business,  and  some 
knowledge  of  the  local  field.  The  lessee  may  have  a  good  well, 
from  which  he  can  utilize  the  gas  with  profit.  He  may  put 
down  another  on  the  same  farm,  and  thereby  so  reduce  the 
pressure  in  the  first  as  wholly  to  destroy  its  value,  without  get- 
ting a  sufficient  pressure  at  tlie  second  to  enable  him  to  utilize 
that.  The  gas,  if  coming  from  one  well,  would  be  of  great 
value.  Divided  in  such  manner  that  the  volume  and  pressure 
at  each  is  below^  the  necessary  standard,  the  whole  is  lost.  Thus 
the  application  of  the  rule  laid  down  by  tlie  court  below,  as  the 
jury  must  have  understood  it,  might  result  in  this,  that  the 
effort  of  the  lessee  to  discharge  the  implied  obligation  of  his 
contract  for  the  common  benefit,  should  end  in  the  total  de- 
struction of  the  leasehold,  and  a  common  misfortune.  The 
mistake  of  the  court  below  was  in  failing  to  take  account  of 
and  to  read  into  the  contract  between  the  parties,  the  peculiar 
nature  and  characteristics  of  the  business  of  producing  and 
transporting  gas,  which  the  parties  themselves  well  under- 
stood, and  which  their  contract  shows  were  before  their  minds 


DURATION    OF    LEASE, 


197 


when  it  was  entered  into."''^  So  long,  however,  as  the  lessee 
sells  fas  from  a  well,  by  running  it  into  pipes  connected  with 
it,  it  is  conclusive  evidence  of  the  right  of  the  lessor  to  recover 
rent.''"''  A  gas  well  that  supplies  five  stoves,  one  grate,  three 
jets,  and  two  street  lights  produces  gas  in  paying  (piantitios, 
where,  after  the  quantity  is  known,  all  parties  thereto  join 
in  or  assent  to  the  laying  of  pipe  for  its  use  and  the  expendi- 


**  MoKnight  v.  Manufacturers', 
etc.,  Co.,  14G  Pa.  St.  185:  23  Atl. 
Rep.  1G4;  28  Am.  St.  Rep.  700;  In- 
dianapolis Gas  Co.  V.  Tetcrs,  15  Incl. 
App.  475;  44  X.  E.  Rep.  549.  See 
Glasgow  V.  Chartiers  Oil  Co.,  152 
Pa.  St.  148;  25  Atl.  Rep.  232;  Mur- 
dock-Wes-t  Co.  v.  Logan,  69  Oliio  St. 
1514;   69  N.  E.  Rep.  084. 

Where  the  term  of  an  oil  and  gas 
lease  is  for  "one  year,  and  as  much 
longer  as  oil  or  gas  is  found  in 
paving  quantities  or  the  hereinafter 
described  rental  is  paid,"  such  term 
is  of  uncertain  duration,  which,  af- 
ter the  lx>ginning  of  a  paying  pro- 
duction, will  end  only  with  the  ceas- 
ing of  that  production,  unless  sooner 
terminated  for  some  other  reason. 
Consumers'  Heating  Co.  v.  American 
Land  Co.,  31  Pittsb.  Leg.  J.  (N.  S.) 
24. 

Where  a  lease  was  entered  into 
between  a  landowner  and  an  oil  pro- 
ducer for  the  purpose  of  enabling 
the  latter  to  follow  his  occupation 
on  the  premises  and  produce  oil  and 
gas  therefrom,  the  oil  producer  had 
the  right  to  explore  for  oil,  and, 
when  he  discovered  it,  the  contract 
would  endure  for  such  time  as  was 
necessary  to  accomplish  the  purpose 
of  the  contract,  and  hence  the  agree- 
ment was  not  invalid  because  no 
time  was  fixed  in  it.  Tucker  v. 
Watts,  25  Ohio  Cir.  Ct.  R.  320. 

45  Hankey  v.  Kramp,  12  Ohio  Cir. 
Ct.   Rep.   05;   5   Ohio  C.  D.  430. 

In  an  action  for  rentals  under  a 
gas  lease  providing  that,  if  gas  were 
found  in  suflicient  quantities  to  mar- 
ket and  to  be  f)ipod  to  such  market, 
plaintilFs  compensation  should  be  a 


certain  sum  per  well,  allegations  in 
the  complaint  that  gas  was  found 
in  sufficient  quantities  to  be  market- 
ed and  to  be  piped  to  market,  and 
that  there  were  good  markets  within 
ten  miles,  and  others  further  away, 
where  the  gas  could  have  been  de- 
livered and  sold  at  a  j)rofit  to  de- 
fendant, set  out  facts  which,  if 
proved,  with  the  other  material  aver- 
ments of  the  complaint,  would 
entitle  plaintiff  to  recover,  and  hence 
were  not  averments  of  mere  opin- 
ions. Indiana  Natural  Gas  &  Oil 
Co.  V.  Wilhelm,  44  Ind.  100;  86 
N.  E.  86. 

Under  an  oil  and  gas  lease  for  a 
term  of  twenty  years  a  well  was 
drilled,  and  produced  gas  which  was 
utilized  by  the  assignee  of  the  les- 
sees, who  paid  the  lessor  a  stipu- 
lated royalty  of  $500  per  annum  on 
the  well  for  two  successive  years, 
and  before  the  end  of  the  second 
year  the  well,  through  no  fault  of 
the  assignees  and  operators,  was 
flooded  with  salt  water  and  ceased 
to  produce  gas;  the  flooding  not  be- 
ing due  to  any  negligence  of  the 
assignees.  A  lessor  brought  suit 
against  the  assignee  of  the  lessees  to 
recover  the  third  and  fourth  years' 
royalty  on  the  well.  It  was  held 
that  there  should  W  read  into  the 
lease  the  implied  agreement  or  un- 
derstanding that  the  well  which  was 
to  be  paid  for  at  the  rate  of  $.'>00 
a  year  was  to  be  and  remain  a  gas 
well,  and  that  when  it  ceased  to 
produce  gas  it  ceased  to  be  a  gas 
well.  McConnell  v.  Lawrence  Nat- 
ural Gas  Co.,  30  Pittsb.  Ix>g.  J. 
(N.  S.)    346, 


198  OIL   AND    GAS. 

ture  of  money   for  such   materials   and   work.*''     An   oil    and 
gas  lease  provided  that,  if  gas  was  not  "found"  in  paying 
quantities,  the  lessor  might  terminate  the  lease  and  have  the 
gas  hy  paying  the  ordinary  price  for  the  casing  and  rig,  and 
it  was  to  extend  six  years,  and  as  much  longer  as  gas  was 
found  in  paying  quantities.    The  word  "found"  was  construed 
as  referring  to  a  continuing  condition,  and  not  synonymous 
with  the  word  "discover;"  and  hence  gas  having  been  dis- 
covered but  the  well  ceasing  to  yield  a  marketable  quantity, 
the  lessor  was  entitled  to  the  well  on  paying  for  the  rig  ^'''" 
So  where  a  contract  permitted  a  person  to  explore  certain  oil 
land,  and  provided  for  a  sale  to  him  at  a  specified  price  if 
paid  within  ninety  days  after  "success"  on  the  land,  it  was 
held  that  the  finding  of  oil  in  less  than  paying  quantities,  or 
the  finding  of  a  stratum  of  salt  several  hundred  feet  below  the 
surface,  was  not  a  "success"  in  finding  commercial  substances 
within  the  contract.'*''*'       So  where  a  gas  lease  for  two  years 
contained  a  clause  "and  as  much  longer  as  oil  and  gas  are 
found  in  paying  quantities,"  it  was  held,  as  a  matter  of  law, 
that  the  lessor  had  no  right  to   declare  a  forfeiture   of  the 
lease  at  the  end  of  the  two  years,  because  during  that  time 
no  gas  .had  been  marketed,  where  the  evidence  showed  that  a 
well  on  the  land  produced  one  million  cubic   feet   per  day, 
worth,  when  conveyed  to  market,  three  to  five  cents  per  one 
thousand  feet.*"*^    And  where  the  lease  for  gas  was  "so  long  as 
it  is  used  for  the  same,"  it  was  held  that  the  lease  was  term- 
inable on  the  parties  ceasing  to   use  the  property  as  a  gas 
well;  and  if  the  gas  ceased  to  flow  the  use  of  the  well  was 
actually  terminated,  and  the  subsequent  discovery  of  gas  in 
the  well   in    (juantities  sufficient   for  user  did  not  revive  the 
lease.**"^ 

§  136a.     Gas  used  for  manufacturing  purposes. 

Where  a  lease  is  to  continue  for  a  certain  number  of  years 
and  until  "gas  ceases  to  be  used  generally  for  manufacturing 

40  Herrington  V.  Wood,  0  Ohio  Cir.  lips   v.   Hamilton,    17    Wyo.   26;    95 

Ct.  Pvcp.  32G;  .3  Ohio  Cir.  Dec.  475.  Tac.  846. 

■40a  Smith     V.     Hickman,     14     Pa.  4cc  Gummervillo  v.  Apollo  Oas  Co., 

Super.  Ct.  46.  207   Pa.   334;    56  All.  Rep.   876. 

40b  Anse  LaButte  Oil  Co.  v.  Babb,  40(l  Shenk   v.   Stahl,   35   Ind.  App. 

122  La.  415;  47  So.  Rep.  754;  Phil-  444;   74  N.  E.  Rep.  538. 


DURATION    OF    LEASE.  199 

imrposes,"  or  whenever  the  k^ssee  fails  to  pay  the  stipulated 
ii'!itnl  price  within  a  time  specified,  the  gas  continues  so  long 
as  gas  is  generally  used  for  manufacturing  purposes,  and  it 
cannot  be  terminated  by  the  mere  fact  of  non-payment  of  the 
rent  at  the  option  of  the  lessee.*® 

§  136b.    Payment  as  a  renewal  of  the  term. 

As  a  rule  the  payment  of  another  year's  rent  at  the  end  of  a 
term  will  not  have  the  effect  to  renew  the  lease  for  another 
term.  Thus  where  a  lease  was  "for  a  term  of  twelve  years 
and  so  long  thereafter  as  petroleum,  gas  or  mineral  substances 
can  be  procured  in  paying  quantities,  or  the  payments  here- 
inafter provided  for  are  made  according  to  the  terms  and 
conditions  attaching  thereto,"  it  was  held  that  the  word  "or" 
before  the  words  "the  payments"  must  be  construed  "and," 
and  that  the  payment  of  the  rent  for  the  thirteenth  year  did  not 
renew^  the  lease  for  another  term  of  twelve  years,  even  though 
the  receipt  given  for  the  payment  recited  that  the  "payment 
continues  said  lease  in  force  for  another  term."  "In  our 
opinion,"  said  the  court,  "this  transaction  would  not  be  suffi- 
cient to  extend  such  lease  for  additional  term  of  twelve  years, 
but  it  is  sufficient  to  constitute  a  w^aiver  by  the  landowners  of 
the  definite  time  of  termination  therein  fixed.  It  was  therefore 
a  waiver  of  this  right  to  claim  a  forfeiture  of  the  lease  at  the 
end  of  the  twelve-year  period,  and  effective  to  require  notice  to 
the  lessee  and  a  reasonable  time  thereafter  to  comply  with  the 
terms  of  the  lease  before  forfeiture.  There  is  no  claim  of 
fraud  or  bad  faith  anywhere  in  this  deal,  whereby  the  land- 
owners were  overreached  or  induced  to  grant  such  waiver.  It 
must  be  presumed  that  they  accepted  the  thirteeutli  paj'uient 
with  full  knowledge  of  all  the  facts,  as  well  as  its  legal  effect. 
They  were  at  liberty  to  insist  upon  a  termination  of  the  leases 
according  to  their  terms  or  waive  such  stipulation.  For  a 
valuable  consideration  they  chose  the  latter.  By  their  own 
voluntary  choosing  they  must  be  content.     Therefore  to  give 

4oe  Diamond    Plate    Glass    Co.    v.  Plate  Glass  Co.   v.  Curless,  22   Ind. 

Knote,   38    Ind.   App.   20;    79   N.   E.  App.  24G;   52  N.  E.  Rep.  782;    Dia- 

Rep.     954;     Hancock     v.     Diamond  mond  Plate  Glass  Co.  v.  Echclbargcr, 

Plate   Glass   Co.,    1C2    Ind.    14G:    70  24    Ind.   App.    124;    55    N.    E.    Rep. 

N.  E.  Rep.  149,  overruling  Diamond  233. 


200  OIL    AND   GAS. 

the  transaction  the  force  we  liave  ascribed  to  it  does  not  take 
away  from  the  landowner  the  right  to  declare  a  forfeiture  of 
such  lease."  *" 

§  136c.     Non-paying   well   as   a   termination    of   the   lease. — 
Abandonment. — Drilling  or  completing  a  well. 

The  question  has  arisen  whether  tlie  development  of  a  non- 
paying  or  non-producing  well   is  a  termination  of  the  lease. 
The  question  may  arise  when  the  payment  of  rent  is  involved. 
Thus  where  a  lease  provided  that  "in  case  a  well  is  not  com- 
pleted within  six  months  from  the  date"  of  the  lease,   the 
"lessee  will  pay  to  the  lessors  for  the  delay  the  sum  of  ten 
dollars  each  quarter  thereafter,  in  advance,  until  said  well  be 
completed  or  this  lease  surrendered."     "If  at  any  time  after 
a   well   or  wells   have   been   drilled   six   months   shall   elapse 
without  any  revenue  being  received  by  the  lessors  from  said 
well  or  wells,  or  without  any  further  drilling  being  done  by 
the  lessee,  this  lease  shall  be  deemed  abandoned  and  all  rights 
of  the  lessee  thereunder  ended."     This  lease  was  dated  June 
30,  1898.    No  well  was  completed  within  six  months  from  that 
date ;  and  within  the  expiration  of  that  time  the  payment  of 
the  stipulated  sura  of  ten  dollars  a  quarter  begun  and  was 
continued  up  to  and  including  October  1,  1902.    In  July,  1902, 
an  attempt  was  made  to  drill  a  well  which  proceeded  until  a 
depth  of  1,000  feet   was  reached ;  and  then  the   casing  was 
pulled  out  and  the  hole  plugged,  and  no  further  drilling  done. 
There  was  evidence  from  which  it  might  be  inferred  that  the 
drilling  showed  the  existence  of  oil  in  sufficient  quantity  to 
warrant  shooting,  which  was  not  attempted ;  and  it  was  held 
that  the  operations  described  amounted  to  the  drilling  of  a 
well  within  the  meaning  of  the  contract,  and  that  the  cessa- 
tion of  the  operations  for  six  months  constituted  an  abandon- 
ment of  the  lease ;  and  that  the  receipt  of  a  quarterly  payment 
of  the  operations  described  took  place,  but  less  than  six  months 
thereafter,  did  not  commit  the  lessor  to  the  position  that  a 
Avell  had  not  been  drilled,  for  it  was  the  completion  of  a  well 
that  was  to  end  such  payments,  and  the  well  had  not  been 

46f  American  Window  Glass  Co.  v.  diana  Natural  Gas  &■  Oil  Co.  v. 
Indiana  Nat.  Gas  &  Oil  Co.,  37  Ind.  Bcales,  IGG  Ind.  684;  76  N.  E.  Rep. 
App.  439;   76  N.  E.  Rep.   1006;   In-       520,    reversing   74   N.   E.    Rep.    551. 


DURATION    OF    LKASE.  201 

completed  within  the  meaning  of  the  lease.  The  court  sj'id 
there  was  a  difference  between  completing  a  well  and  drilling 
a  well;  and  that  "those  phrases  cannot  be  said,  as  a  matter 
of  law,  to  mean  the  same  tiling. "  ■"''''  In  this  case  it  was  con- 
tended that,  although  the  well  showed  the  presence  of  some 
oil,  yet  the  product  of  the  drilling  was  not  i)roperly  a  well, 
but  it  was  a  mere  "dry  hole,''  and  not  a  well  within  tiie 
meaning  of  the  word  as  employed  in  the  contract.  The  court 
referred  to  the  practice  of  courts  to  refer  to  "dry  wells"  aiid 
"non-productive  wells,"  and  referred  to  a  case  where  certain 
persons  bought  an  "oil  well"  which  did  not  yield  oil  in  com- 
mercial quantities,  and,  as  it  did  not  respond  to  tiie  designa- 
tion used,  there  was  a  failure  of  consideration.  But  the  court 
before  whom  the  case  was  pending  on  appeal  said:  "The  thing 
sold  here  was  an  oil  well,  and  it  is  admitted  the  company  got 
an  oil  well,  but  the  objection  is  that  it  wholly  failed  to  answer 
the  purpose  for  which  it  was  bought.  It  did  not  yield  enough 
to  justify  working  it.  This  fact,  however,  does  not  constitute 
a  failure  of  consideration."**"^  Referring  again  to  the  case 
under  discussion  in  this  section,  I  quote:  "The  well  or  hole 
involved  in  the  present  case  was  never  shot,  and  there  was 
testimony  that  the  reason  for  this  was  that  the  indications 
were  not  such  as  to  justify  it.  But  there  was  also  testimony 
that  there  was  some  oil  in  the  well,  and  that  other  wells  in 
the  neighborhood  that  showed  no  more  favorably  at  the  same 
stage  had  produced  oil  in  paying  quantities  after  being  shut. 
The  pulling  up  of  the  casing  was  certainly  strong  evidence  that 
those  in  charge  of  the  work  believed  in  good  faith  that  the 
further  prosecution  was  useless,  still  the  trial  court  may  have 
concluded  that  they  were  mistaken  or  perhaps  insincere." 
The  court,  therefore,  held  that  the  lower  court  was  justified  in 
holding  that  the  lease  was  abandoned  after  the  well  had  been 
drilled.*"! 

46g  Federal     Betterment      Co.     v.  when  a  well  has  been  drilled — that 

Bales,    75    Kan.    69;    88    Pac.    Rep.  is,    when    enough    boring    has    lieon 

555.  done  to   show  the  presence   of  oil — 

40h  Pennman    v.    Winner,    54    ^Md.  the    lessee    has    but    three    courses 

127.      See   also    Smith    v.   Penn.    Oil  open:     (1)    To   complete    it   and   see 

Co.,  5!)  W.  Va.  204;   53  S.  E.  Rep.  that    it    produces    revenue;    or    (2) 

152.  so  to   prosecute  operations  that  six 

•*6l  The  court  construed  the  provi-  months    shall     not    elapse    without 

sions    of    the    lease    thus:       "That  some   drilling;   or    (."3)    to  surrender 


202 


OIL    AND    GAS. 


§  137.     Abandonment. 

The  distinction  between  an  abandonment  and  a  forfeiture 
is  often  so  thin  as  not  to  be  distinguishable.  And  yet,  broadly 
speaking,  there  is  a  difference,  which  may  in  a  measure  be 
stated  thus :  An  abandonment  rests  upon  the  intention  of  the 
lessee  to  relinciuish  the  premises,  and  is  therefore  a  question 
of  fact  for  the  jury;  ■*'  while  a  forfeiture  does  not  rest  upon  an 
intent  to  release  the  premises,  but  is  an  enforced  release."^" 
The  act  that  authorizes  the  declaration  by  the  lessor  of  a 
forfeiture  may  be  unintentionally,  or  unavoidably,  committed, 
by  the  lessee,  with  no  design  to  relinquish  his  lease,  and  yet 
will  work  a  forfeiture.  It,  however,  matters  little  to  the 
lessee  or  lessor,  for  in  either  instance  he  loses  his  lease  and 
his  term  is  ended.  Whether  or  not  a  lease  has  been  abandoned 
is  a  matter  of  defense,  and  need  not  be  negatived  by  the  plain- 
tiff in  an  action  for  the  rent."*^  If  the  lessee  in  fact  abandon 
the  lease  for  the  purpose  for  which  it  was  granted,  it  is  not 
necessary  for  him  to  yield  up  actual  possession  of  the  surface, 
to  enable  the  lessor  to  declare  an  abandonment  has  been 
made.*^     Rent   falling  due   or  accruing  before  abandonment 


all  claims  under  the  lease  and  sulTer 
the  lessor  to  resume  the  absolute 
control  of  his  property." 

To  the  argument  that  because  of 
the  acceptance  of  $10  paid  October 
1,  1002,  the  lessors  admitted  that 
the  hole  bored  during  the  preceding 
July  was  not  a  well,  since  quarterly 
payments  were  to  cease  wherever  a 
well  had  been  completed,  the  court 
said:  "This  argument  ignores  the 
distinction  between  completing  a 
well  and  drilling  a  well.  These 
phrases  cannot  be  said,  as  a  matter 
of  law,  to  mean  the  same  thing. 
There  was  evidence  in  this  case  from 
which  it  might  be  found  that  a  well 
was  drilled  but  not  completed,  if 
these  words  are  to  be  given  tlieir  or- 
dinary meaning,  and  there  is  noth- 
ing in  the  contract  itself  or  in  the 
undisputed  facts  that  require  any 
unusual  significance  to  be  attached 
to  them."  Federal  Betterment  Co. 
V.  Bhies,  75  Kan.  09;  S8  Pac.  Rep. 
555. 


A  provision  that  when  the  lessee 
"shall  begin  such  operation,  it  shall 
have  the  right  to  make  such  suc- 
cessive attempts  to  find  oil  as  it  may 
desire,"  does  not  mean  that  the  time 
of  the  lease  is  for  an  uncertain  time. 
Cook  V.  Gulf  Refining  Co.,  127  La. 
592;  53  Po.  874. 

47  Beatty  v.  Gregory,  17  la.  109; 
Bartley  v.  Phillips,  105  Pa.  St.  325; 
30  Ail  Rep.  842;  Whitcomb  v.  Hoyt, 
30  Pa.  St.  403;  Calhoun  v.  Neely, 
201  Pa.  St.  97;  50  Atl.  Rep.  967; 
Lowther  Oil  Co.  v.  :\Iiller-SibIey 
Oil  Co.,  53  W.  Va.  501:  44  S.  E. 
Rep.  433;  Garrett  v.  South  Penn. 
Oil.  Co.,  00  W.  Va.  587:  00  S.  E. 
Rep.  741;  Gray  v.  Spring,  129  T.a. 
— :  50  So.  305. 

47a  Garrett  v.  South  Penn.  Oil  Co., 
00   W.   Va.   587:    W   S.    E.   741. 

■•8  McDowell  V.  Ilondrix,  07  Ind. 
513. 

•«!>  Eaton  V.  Allegheny  Gas  Co.,  122 
X.  Y.  410:  25  X.  E.  Rep.  981; 
reversing   42    Hun    01;    Gadbury   v. 


nrUATiox  OF  LEASE.  202a 

must  be  paid.*^"  The  lessee  caunot  abandon  a  part  of  the  prem- 
ises and  retain  a  part;  to  render  his  act  of  abandonment  ef- 
fectual he  must  abandon  the  whole  premises  and  all  his  rights 
under  the  lease."''  If  the  lessor  ac(iuicsce  in  the  temporary  or 
other  cessure  of  work  for  a  period  extending  beyond  the  time 
when  the  work  was  to  have  been  completed,  he  cannot  because 
of  each  cessure,  especially  where  the  lessee  has  resumed  opera- 
tions at  a  considerable  expense  to  himself,  insist  that  there  haa 
been  an  abandonment."'-  As  against  any  one  but  the  grantor, 
an  abandonment  is  not  complete  until  the  statutory  period  of 
limitation  or  the  end  of  the  term  granted,  and  possession  may 
be  resumed  by  the  grantee  at  any  time  previous."'""'  A  priv- 
ilege to  mine  for  gold  that  is  a  personal  privilege,  is  terminated 
by  the  abandonment  by  the  person  to  whom  it  was  given. ^* 
If  the  lease  be  once  abandoned,  the  lessee  cannot  resume  op- 
erations under  it,  without  the  consent  of  the  lessor.""'*  A 
forfeiture  clause  is  not  necessary  to  enable  the  lessee  to  aban- 
don the  lease."""""*  The  fact  that  under  a  provision  in  leases 
the  lessee  issues  to  the  lessors  what  are  denominated  "first 
mortgage  bonds"  for  a  certain  amount  per  acre,  with  interest 
payable  from  its  net  profits,  reserving  the  right  to  cancel  the 
same  and  abandon  the  leases,  does  not  afi^ect  the  right  of  the 
lessors  to  treat  the  leases  as  abandoned,  although  they  have 
not  returned  the  bonds,  w^iere  they  have  received  no  payments* 
thereon,  such  bonds  not  being  negotiable  nor  of  any  validity 
after  the  leases  are  terminated  by  the  act  of  either  party. •''^'' 

Ohio,  etc..   Gas  Co.,   1G2  Ind.   0;    G7  -'Hodgson     v.    Perkins.     84     Va. 

N.   E.   Rep.   249;    Conlclin   v.   Kran-  70G;    5    S.    E.   Rep.   710. 

dusky   (N.  Y.),  112  N.  Y.  Supp.   13  ■'■•■■■.  Cole  v.  Taylor,  8  Pa.  Super.  Ct. 

(two  months'  failure   to  pay  rent).  Rep.    19;    Shenk    v.    Stahl,    35    Ind. 

so  Buhl     V.    Thompson,    3    Penny  App.  444;   74  X.  E.  Rep.  538;   Ohio 

(Pa.)    2G7.    See  Smiley  v.  Western,  Oil  Co.  v.  Detamore,   1G5   Ind.  243; 

etc.,  Co.,  138  Pa.  St.  57G;  27  W.  X.  73    X.    E.    Rep:    900;    Florence    Oil, 

C.  230;   21  Atl.  Rep.   1.  etc.,    Co.    v.    Ormr.n,    ::9    Colo.    App. 

51  Bestwick    v.    Ormsby    Coal    Co.,  79;    73   Pac.   Rep.    G28    (two   years' 

129  Pa.  St.  592;    18  Atl.  Rep.   538.  failure     to     develop);      Conklin    v. 

-IS  Riddle    v.    Mellon,    147    Pa.    St.  Krandusky  (X.  Y.) ,  112  X.  Y.  Supp. 

30;    23    Atl.    Rep.    241.  13;     Rawlings    v.    Armel,    70    Kan. 

53Bartley  v.  Phillips,  1G5  Pa.  St.  778;    79  Pac.  Rep.  683. 

325;    30  Atl.   Rep.   842;    Bartley  v.  •'■•''•a  Smith  v.  Root,  fifi  W.  Va.  G.-JS; 

Phillips,    179   Pa.   St.    175;    36   Atl.  GG  S.  E.  Rep.  1005. 

Rep.  217.     See   Eaton   v.   Allegheny  ''''t)  I>ogan     Xatural     Oas     Co.     v. 

Cxas  Co.,   122  X.  Y.   416;    25   X.   E.  Oreat   Southern   Gas   Co.,    126    Fed. 

Rep.  981;    reversing  42  Hun  61.  Rep.  G23. 


202b  OIL    AND    GAS. 

Expenses  of  a  grantee  in  drilling  wells  after  abandonment  and 
notice  by  the  lessor  not  to  drill  them  cannot  be  recovered  from 
the  grantor/'"  Whether  or  not  there  has  been  an  abandon- 
ment is  a  <iuestion  of  fact  for  the  jury.''""  But  in  some  in- 
stances the  court  may  say  as  a  matter  of  law  there  has  been 
an  abandonment.  Thus  the  owner  of  land  in  1893  executtd 
an  oil  lease  thereof  to  G.,  for  the  term  of  fifteen  years,  or  as 
long  as  oil  should  be  found  in  paying  quantities.  G.,  in  pur- 
suance of  the  terms  of  the  lease,  drilled  a  well  and  finished  it 
in  1894,  but  found  no  oil  in  paying  quantities,  and  in  the 
same  year  took  away  his  machinery  and  rigging  used  in  drill- 
ing, leaving  only  the  casing  in  the  well,  and  did  nothing 
further  in  the  matter  until  1905,  after  the  owner,  in  1904,  had 
executed  another  oil  lease  of  the  land  to  plaintiff,  when  G.  put 
down  another  well  on  the  premises.  It  was  held  that  the 
evidence  showed  as  a  matter  of  law  that  G.  had  abandoned  his 
lease  before  the  execution  of  the  lease  to  plaintiff.^"''  What- 
ever interest  the  lessee  had  under  the  lease,  even  a  "freehold 
interest,"  becomes  extinguished  when  the  work  is  aban- 
doned.'"'"'^ It  is  not  necessary  that  the  statute  of  limitations 
shall  have  fully  run  in  order  to  be  an  abandonment.''"'^ 

§  138.     Lessee  may  abandon  non-productive  premises. 

As  the  object  in  leasing  oil  or  gas  premises  is  to  secure  the 
oil  or  gas  beneath  the  surface,  as  soon  as  it  has  been  demon- 
strated that  no  oil,  in  case  of  an  oil  lease,  or  no  gas,  in  case 
of  a  gas  lease,  is  beneath  the  surface,  or  it  does  not  exist  in 
paying  quantities,  the  lessee  may  abandon  the  premises  or  his 
lease;  or  if  the  oil  or  gas  becomes  exhausted  he  may  in  like 

■".GDctlor   V.   Holland,   57   Ohio  St.  :\Iills    v.    Ilartz,    77    Kan.    218;    94 

492;    49  X.  K.    Rep.   090;    39   Wkly.  Pac.  Rep.   142. 

L.  Bull.  1S7.  sGc  Watford  Oil  &  Gas  Co.  v.  Ship- 
sea  Rawlings  V.  Armel,  70  Kan.  man,  233  111.  9;  84  X.  E.  Rep.  53. 
778;  79  Pac.  Rep.  683;  Aye  V.  Phila-  sod  Rawlings  v.  Armol,  70  Kan. 
delphia  Co.,  193  Pa.  451;  44  Atl.  778;  79  Pac.  C83.  Tho  law  recog- 
555;  Garrett  v.  South  Pcnn.  Co.,  nizes  a  distinction  between  the  aban- 
66  W.  Va.  587;  66  S.  E.  Rep.  741;  donment  of  operations  under  a  lease 
Smith  V.  Root,  06  W.  Va.  6.3.3;  66  and  an  intention  to  abandon  or  sur- 
S.  E.  Rep.  1005.  render  the  lease  itself.  Parish  Fork 
56b  Conklin  V.  Krandusky  (N.  "5^.),  Oil  Co.  v.  Bridgewater  Gas  Co.,  51 
112  N.  Y.  Supp.  13;  Tucker  v.  W.  Va.  583;  42  S.  E.  655. 
Watts,   25   Ohio  Cir.  Ct.    Rep.   320; 


DURATION    OF    LEASE.  2():i 

manner  abandon  them.  This  is  true  of  other  minerals.  Thus 
where  a  lease  required  the  lessee  to  mine  at  least  a  certain 
quantity  of  iron  ore  each  year  and  pay  a  royalty  thereon,  or 
even  if  not  mined  pay  the  royalty,  it  was  held  tliat  if  the  ore 
become  exhausted  during  the  term  the  lessor  was  not  there- 
after entitled  to  royalties.''^  And  the  same  is  true  if  the 
mineral  is  not  merchantable ;  for  it  cannot  be  understood  that 
the  parties  contemplated  the  mining  of  unmarketable  ore.'*' 
Where  a  lessee  covenanted  to  pay  so  much  for  each  ton  of 
coal  mined,  and  for  any  period  of  three  years  after  the  first 
the  aggregate  royalty  should  not  be  less  than  ten  thousand 
dollars,  whether  ore  to  that  extent  was  mined  or  not,  it  was 
held  that  the  lessee  could  show  as  a  defense,  when  an  action 
was  brought  to  recover  the  royalty  due  for  the  second  period 
of  three  years,  that  the  ore  contained  in  the  leased  premises 
was  not  sufficient  in  quantity  to  produce  the  amount  of  rent 
or  royalty  claimed  by  the  lessor,  and  that  too  even  though 
judgment  for  the  rent  due  on  the  first  period  of  three  years  had 
been  recovered.'"  But  an  absolute  agreement  to  pay  for  so 
much  coal,  whether  there  is  coal  or  not,  will  defeat  a  defense 
that  there  was  no  coal  on  the  leased  premises.*" 

§  138a.     No  express  forfeiture  clause  necessary  for  an  aban- 
donment. 

In  speaking  about  the  power  to  abandon  an  oil  lease,  the 
Supreme  Court  of  West  Virginia  used  this  language:     "It  is 

57  Hewitt  Iron  Mining  Co.  v.  Des-  ben  v.   Atkinson,  64   Midi.   651;   31 

sau   Co.,   129   yilch.  590;    89   N.  W.  N.  W.  Rep.  570;   Cook  v.  Andrews, 

Rep.   365.     This   is  true   of  oil  and  36  Ohio  St.  174;   Brick,  etc.,  Co.  v. 

gas  leases.     Watford  Oil  &  Gas  Co.  Pond,  38  Ohio  St.  65 ;  Read  v.  Beck, 

V.  Shipman,  233  111.  9;  84  X.  E.  Rep.  66    Iowa    21;    23    X.    W.    Rep.    159. 

53;     Rawlings    v.    Armel,    70    Kan.  Contra,  Clark  v.  Midland,  etc.,  Co., 

778;    79  Pac.   Rep.   683.  21    Mo.   App.  58;    Indianapolis,  etc.. 

The  first  well  proving  to  be  a  dry  Co.    v.   Teeters,    15    Ind.    App.   475; 

one    is  •  not    sufficient    to    show    an  44  X.  E.  Rep.  549. 

abandonment  or  cessure  of  the  lease.  ''9  Kemble    Coal    and    Iron   Co.    v. 

Logansport,    etc..    Gas   Co.    v.    Ross,  Scott,  90  Pa.  St.  332;   Boyer  v.  I^il- 

32    Ind.    App.    638;    70    X.    E.    Rep.  mer,    170  Pa.  St.  282;   35  Atl.   Rep. 

544.     See  Ohio  Oil  Co.  v.  Detamore,  235.     See  McCalian  v.  Wharton,  121 

165  Ind.  243;  73  X.  E.  Rep.  90G.  Pa.  St.  424;   15  Atl.'Pvop.  615. 

•"'S  Muhlenberg  V.  Hcnning,  116  Pa.  «o  Timlin    v.    Brown,    158    Pa.    St. 

St.  138;  9  Atl.  Rep.  144.     See  John-  606;  28  Atl.  Rep.  236. 
ston  V.  Cowan,  59  Pa.  St.  275 ;  Grib- 


204  OIL    AND    GAS. 

true,  as  counsel  contends,  tliat   there  is  no  express  forfeiture 
clause  in  the  contract,  but  this  does  not  prevent  the  lessees 
from  voluntarily  abandoning  the  lease.    The  contract  expressly 
gave  them  the  right  to  surrender  the  lease  at  any  time,  upon 
the  payment  to  the  lessor  of  one  dollar.     This  provision  in 
the  contract  was   evidently   intended   for  the   benefit   of  the 
lessee  and  to  avoid  the  payment  of  any  further  cash  rental. 
This  is  one  method  by  which  the  lessee  could  certainly  have 
been  ended,  but  it  did  not  preclude  the  possibility  of  termi- 
nating  the   contract  by  some   other  method.     If  the  lessees 
choose  to  abandon  the  enterprise,  and  thus  put  an  end  to  the 
contract,  without  an  actual  return  to  the  lessor  of  the  lease 
contract  and  the  payment  to  him  of  the  one  dollar,  they  could 
surely  do  so,  but  not  without  liability  to  him  for  the   cash 
rental  then  due.    On  the  other  hand,  the  lessor  could  waive  his 
right  to  collect  the  cash  rental,  and  in  the  event  of  an  actual 
abandonment  by  the  lessees,  could  release  the  premises.     This 
contract,  commonly  called  an  oil  and  gas  lease,  did  not  invtst 
Goflf  and  Meek  with  any  estate  in  the  oil  and  gas  in  place;  it 
simpl}''   gave   them   the   exclusive   right   to   make   exploration 
upon  this  land  for  oil  and  gas.     The  right  was  simply  an  in- 
choate right,  not  a  vested   estate  in  land.     The  lease   is   an 
executory  contract  in  the  nature  of  a  license  to  enter  upon 
the  land  and  make  exploration  for  oil  and  gas  for  a  period  of 
ten  years,  and  longer  if  oil  or  gas  be  discovered,  and  to  extract 
them  from  the  earth.    No  estate  vests  until  discovery.     Conse- 
quently the  rights  of  the  respective  parties  under  this  lease 
are  not  to  be  determined  solely  by  the  rules  of  law  applicable 
in  determining  whether  or  not  an  estate  in  lands,  once  vested, 
has  been  forfeited.     Neither  is  it  necessary  that  a  lease,  such 
as  the  one  under  consideration,  should   contain  a   forfeiture 
clause  before  it  can  be  shown  that  the  lessee  actually  relin- 
quished  all   his  rights  thereunder;  in   other  words,   that  he 
abandoned  the  lease.    A  lessee  may  abandon  the  premises  not- 
withstanding  there   is   no   forfeiture   clause.      His    failure   to 
pay  the  cash  rentals  stipulated  in  the  contract  may  not  alone 
be  sufficient  to  prove  abandonment;  but  his   failure  to  pay, 
taken  in  connection  with  other  facts  and  circumstances  evinc- 
ing a  clear  intention  to  abandon  the  enterprise,  coupled  with 
the  fact  that  no  operations  were  ever  begun  upon  the  land, 
is   sufficient   to    prove   relinquishment    of   lessee's    rights.      If 


DURATION   or    LEASE.  205 

abandonment  by  a  lessee,  ■svho  lias  taken  possession  and  bc^'un 
operations  on  the  premises,  can  be  established  by  proving  a 
relinquishment  of  the  leased  premises,  coupled  -with  an  inten- 
tion to  abandon,  it  certainly  follows  that  an  abandonment,  or 
what  is  practically  the  same  thing,  a  relinquishment  of  his 
rights,  by  a  lessee  who  has  never  taken  possession,  or  liegun 
operations  on  the  leased  premises,  may  be  establislied  by  prov- 
ing that  he  had  abandoned  his  intention  to  do  so.  There  is  an 
implied  covenant  in  the  lease  under  consideration  that  lessees 
will  use  diligence  to  develop  the  property.  In  view  of  this 
implied  agreement  to  use  diligence  in  making  development, 
the  failure  to  do  so,  or  to  paj^  the  cash  rentals  for  a  long  time, 
becomes  a  potent  element  of  proof  of  intention  to  abandon.""" 

§  138b.     Abandonment  under  mutual  mistake  of  law  concern- 
ing rights  to  hold  leased  premises. 

In  a  case  where  it  was  argued  for  the  lessees  that  they  mis- 
construed the  contract,  that  they  were  laboring  under  a  mis- 
apprehension of  their  legal  rights,  and  that  this  was  a  mistake 
of  law  by  which  they  should  not  be  bound.  To  this  argument 
the  court  said:  "But  if  such  was  their  understanding  of  the 
agreement,  and  they  acted  upon  it,  how  can  they  be  heard 
to  complain  of  their  own  mistake  of  law?  If  such  was  their 
interpretation  of  the  w^riting,  then  it  might  well  be  said  that 
such  was  in  fact  their  agreement,  so  long  as  it  did  not  milit:;te 
against  the  rights  of  the  lessor.  The  lessor  and  lessees  both 
put  the  same  construction  on  the  contract ;  they  both  thought 
that  a  failure  to  pay  cash  quarterly  rental,  promptly  in  advance, 
terminated  the  contract;  and  if  the  lessees  abandoned  their 
rights  in  ignorance  of  what  those  rights  actually  were,  tlicy 
were  not  misled  by  the  lessor  to  do  so,  and  they  have  or.ly 
themselves  to  ])lame.  They  were  not  vested  with  title  to  real 
estate  by  the  contract ;  they  simply  had  the  right ,  by  its  terms, 
to  hold  the  lease  for  a  period  of  ten  years,  even  without  making 
any  efifort  to  develop.  But  they  were  also  bound  to  pay  at  the 
rate  of  $26.50  a  quarter  as  a  consideration  for  this  right,  and, 
thinking  their  rights  would  cease  if  payment  was  not  promptly 
made,  they  applied  to  the  lessor  for  a  continuation  of  the  lease 

60a  Smith  V.  Root,  GG  W.  Va.  03.3;  ings  v.  Armcl,  70  Kan.  77S;  79 
66  S.  E.  Rep.  1005.     See  also  Rawl-       Pac.  683. 


206  OIL   AND    GAS. 

through  another  quarter  without  pay  of  rental,  and  lliis  was 
refused.  This  shows  the  understanding  of  the  contracting  par- 
ties. Neither  was  misled  by  the  other.  The  lessees  are  now, 
in  effect,  asking  to  be  relieved  against  the  consequences  of  a 
mistake  of  law  committed  by  themselves.  It  is  a  rule  almrst 
universally  applied  by  the  courts,  that  relief  cannot  be  given 
in  favor  of  one  who  has  committed  a  mistake  of  law.  Conse- 
quently, the  reason,  or  motive,  for  the  abandonment,  if  one 
actually  occurred,  becomes  immaterial."  ""*' 

§139.     Completion  of  non-productive  well. —  Title. 

So  thoroughly  fixed  in  the  law  of  oil  or  gas  leases  is  the  prin- 
ciple that  if  the  leased  premises  prove  non-productive  no  title 
to  thoni  vests  in  the  lessee,  that  the  completion  of  a  non-pro- 
ductive well,  even  though  at  great  expense,  will  not  vest  a  title 
to  such  premises  in  the  lessee.**^ 

§140.     Instances  of  abandonment. 

Ceasing  to  operate  a  coal  mine,  and  removing  the  machinery 
and  appliances,  was  held  a  sufficient  abandonment,  without  a 
surrender  of  the  lease  or  cancellation  of  mortgages  of  the  lease- 
hold tJiat  were  on  record. °'  Where  a  lease  of  a  coal  mine  was 
given  in  1858,  a  rental  to  be  paid  per  annum  on  a  minimmn 
amount  of  coal;  but  the  lessee,  thinking  the  mines  not  worth 
working,  never  went  on  the  lands,  and  in  1871  ceased  paying 
rent,  it  was  held  that  in  1879  the  lessor  had  a  right  to  consider 
the   premises   abandoned   and   to   relet   them.*''     Where   a   coal 

eob  Smith  v.  Root,  6G  W.  Va.  G33;  Ross,   32   Ind.   App.   638;    70   N.   E. 

66  S.  E.  Rep.   1005.  Rep.  544 ;  Ohio  Oil  Co.  v.  Detamore, 

01  Steelsmith    v.    C.arlhin,    45    W.  105  Ind.  243;   73  X.  E.  Rep.  906. 
Va.  27;  29  S.  E.  Rep.  978;  44  L.  R.  What  is  a  producing  well,  and  the 
A.   107;   Barnhart  v.  Lockwood,  152  distinction   between   drilling   a   well 
Pa.  St.  82;  31  W.  M".  C.  209;  25  All.  and  completing  one,  see  Federal  Bet- 
Rep.    237;     Deilor    v.    Holland,     57  terment  Co.  v.   Ba<^lcs,   75  Kan.  69; 
Ohio    St.   492;    49   N.   E.   Rep.   690;  88  Pac.  Rep.  555. 
Iluggins  V.  Daley,  99  Fed.  Rep.  606;  6->  Van  Meter  v.  Chicago,  etc.,  Co., 
48  L.  R.  A.  320;  ivlanhattan  Oil  Co.  88  Iowa  92;  55  X.  W.  Rep.  106. 
V.   Carrcll,    104   Ind.  526;    73  X.  E.  exporter  v.   Xoyes,   47   Mich.  55; 
1084;    Logansport,  etc.,  Gas   Co.  v.  10  X^  \V.  Rep.  77. 


DURATION    OF    IjEASE.  207 

lease  requires  the  lessee,  in  ease  he  ahaiuloiiod  the  premises,  to 
notify  the  lessor,  it  is  immaterial  whether  or  not  he  gives  such 
notieo,  if  he  in  fact  abandon  tliom  ;  and  findinji  quantities  of 
coal  that  will  not  justify  mining  it  will  not  change  the  rule."* 
Where  a  lease  was  executed  in   1S7S,  for  oil  and  gas,  hut  the 
lessees  never  entered  ujum  the  j)remises,  because  of  the  fact  they 
had  drilled  a  well  near  the  leased  premises  which  proved  to  be 
a  dry  well;  and  twelve  years  after\v;iid  the  premises  having  be- 
come valuable  by  reason  of  other  territory  in  the  neighborhood 
proving  to  be  good  for  oil,  when  the  lessees  claimed  the  leased 
premises,  it  was  held  that  by  their  conduct  they  had  not  only 
abandoned  but  surrendered  the  premises.®"''     A  lease  was  given 
"  for  the  sole  and  only  purpose  of  mining  and  excavating  for  pe- 
troleum, or  carbon  oil,  gas,  or  other  valuable  mineral  or  volatile 
substances,"    for   twenty    years,    the    consideration    being  one- 
eightli  of  the  product.     It  provided  that  "  the  party  of  the  sec- 
ond part  covenants  to  commence  operations  for  said  mining  pur- 
poses within  six  months     ...     on  some  one  of  the  farms 
leased     .     .     .     and  when  oil  is  found  in  paying  quantities, 
then  he  agrees  to  commence  operations  within  sixty  days  upon 
the  next  adjoining  farm  leased  by  him,   and  so  on  until  all 
lands  (hereby)  leased  in  the  township  are  tested  to  success  or 
abandonment."     The  lessee  began  oix^rations  and  drilled  a  well 
on  another  farm,  but  found  neither  oil  nor  gas.     He  made  no 
further  effort  to  test  the  land,  for  the  reason  that  he  thought  the 
territory  was  \vorthless  as  oil  land.     Six  years  after  the  lessor 
gave  a  second  oil  lease  on  the  territory  to  a  third  party.     It 
was  held  that  the  last  lease  was  valid,  because  the  first  one  had 
been  abandoned.'"'     An  oil  lease  provided  that  the  lessees  "  shall 
have  the  right  at  any  time  to  surrender  up  this  lease,  and  be 
released  from  all  money  due  and  conditions  unfulfilled."      It 
gave   the   lessor   no   right   to   rescind.      There    was   no   express 
covenant  on  the  part  of  the  lessees  to  develop  the  land  ;  but  they 
agreed  to  bore  a  well  or  pay  one  hundred  dollars  a  month  if  they 

«4East  Jersey  Co.   v.   Wright,  32  aa  Venture  Oil   Co.   v.   Fretts,   152 

N.  J.  Eq.  248.  Pa.   St.  451;    25  Atl.   Rep.   732;    31 

6'.  Barnhart  v.  T>ick\vood,  152  Ta.  W.  N.  C.  432. 
St.  82;  25  Atl.  Rep.  237. 


208  OIL    AND    GAS. 

(li(]  not.  Tlip  lessees  never  took  possession  of  the  land.  On  the 
triiil  it  was  slunm  that  after  tlie  first  two  payments  had  boon 
iiKidc,  two  (d"  the  three  lessees  requested  of  the  lessor  for  time 
nil  the  third  monthly  jinyiiicnt ;  and  it  was  acTPCMl  that  the 
time  should  be  extended  three  weeks,  and  if  the  rent  by  that 
time  was  not  ])aid,  they  should  surrender  the  lease.  The  money 
was  not  paid  as  agi'eed ;  and  one  of  the  lessees  told  the  lessor 
that  he  could  lease  the  property  to  any  one,  and  that  the  lease 
would  bo  returned.  Tt  was  never  redelivered.  Sixteen  monthb 
afterward  the  owner  exeriited  a  seeond  lease  of  the  premises  to 
a  third  party.  It  was  ludd  that  tlioi'o  liad  been  a  rescission  of 
the  lease;  and  a  tender  of  the  monthly  rental  after  the  rescission 
could  not  revive  the  lessees'  rights  or  privileires.*'^  Of  course 
after  tlie  lessee  has  abandoned  the  lease  the  lessor  is  no  longer 
bound.''''  A  lease  on  a  royalty  of  so  much  per  ton,  on  coal 
mined,  of  coal  lands  for  ninety-nine  years  is  abandoned  where 
nothing  is  done  by  the  lessee  for  seventeen  years  ;^®  and  so  for 
eleven  years.'"  Under  a  five-year  lease,  or  as  long  as  gas  and 
oil  may  be  found  in  jiaying  quantities,  and  a  conveyance  to  tlie 
lessee  of  a  part  of  the  land  is  made,  in  the  deed  of  conveyance, 
it  being  provided  that  it  shall  not  affect  the  rights  of  the  grantee 
under  the  lease  and  that  a  certain  paymeiit  shall  be  in  full  pay- 
ment of  all  the  lease  rental  and  royalty  tlu'i'eundev  until  the  time 
when  other  wells  are  drilled  and  the  product  taken  from  them  — 
the  lessee  cannot  begin  operations  on  the  land  not  conveyed  after 
the  expiration  of  five  years.^^  A  lease  was  given  for  ton  years, 
and  as  long  thereafter  as  oil  and  gas  were  found  in  ]iayiiii:  (pian- 
tities.  The  lessee  was  retpiired  to  drill  a  well  within  one  year, 
lie  had  the  right  to  abandon  the  premises  at  any  time,  but  the 
abandonment  was  not  to  deprive  him  of  the  right  to  convey  oil 
ai;d  gas  over  the  land  fi'oni  other  lands,  on  an  annual  rental. 

67  Hooks    V.    Forst,     1C5    Pa.    St.  non-user.      Wagner    v.    Tilallory.    41 

2.38;  30  Ail.  Rep.  84G.  X.  Y.  App.  Div.  120;  5^  X.  Y.  Supp. 

G8  Cowan  V.  Ratlford  Iron   Co.,  C.3  .320. 
Va.  547;   3  S.  E.  Rep.   120.  vn  Welty  v.  Wise,  5  Ohio  X.  P.  50. 

69  Bluestone   Coal   Co.   v.   Pell,   38  7i  Simon    v.    X'ortliweslern    Ohio, 

W.  Va.  207;   18  S.  E.  Rep.  403.    Oil  etc.,  Co.,  12  Ohio  Cir.  Ct.  Rep.  170; 

lease    abandoned    by    twenty    years'  5  Ohio  C.  D.  456. 


DURATION    OF    liEASE. 


208a 


lie  completed  a  well  on  time,  which  was  nii|ir(ujiicl  ive.  Two 
years  after  the  lease  was  granlcil,  he  ndtilicd  the  Icssni- 1>\'  hi~  in- 
tention to  abandon  the  well ;  drew  the  casings,  and  removed  all 
his  mnchinerv.  SubseqneTitly  he  drilh^l  wells  and  condueted 
o^x^rations  at  great  cost  in  the  vieinitv,  hut  ina<l('  im  search  on 
the  leased  premises.  Five  years  after  he  abandnncd  his  search, 
the  lessor  requested  him  to  surrender  the  lease,  which  he  refnsed 
to  do,  and  afterwards  recorded  it.  In  an  action  involving  its 
validity,  he  testified  that  ho  had  never  intended  to  abandon  the 
lease;  bnt  the  court  held  that  a  finding  of  abanchmmtMit  was 
justified  by  the  evidence.'"  A  non-exclusive  right  to  entoi'  on 
lands  for  mining  purposes  only  and  to  prosjiect  thereon  and 
mine  tliem,  does  not  prevent  the  grantor  and  his  grantees  f  lom 
prospecting  and  mining  on  the  same  land ;  and  no  presumption 
of  an  abandonment  of  the  first  right  granted  arises  from  the 
fact  that  similar  rights  were  exercised  by  the  grantor  and  his 
grantee."  If  a  lease  requires  that  the  work  of  testing  a  well 
shall  be  prosecuted  wdth  due  diligence,  a  cessure  of  operations 
for  three  months  after  work  begun  is  an  abandonment  of  it.''* 


72  stage  V.  Boyer,  183  Pa.  St. 
560;  38  Atl.  Rep.  1035;  Heintz  v. 
Shortt,  149  Pa.  St.  28G;  24  Atl. 
Rep.   31G. 

73  \Yoodside  v.  Ciceroni,  03  Fed. 
Rep.    1;    35   C.   C.  A.    177. 

74  Kennedy  v.  Crawford,  138  Pa. 
St.  661;  21  Atl.  Rep.  10;  :\ronroe 
V.  Armstrong,  96  Pa.  St.  307;  Steel- 
smith  V.  Gartlan,  45  W.  Va.  27;  29 
S.  E.  Rep.  978;  44  L.  R.  A.  107; 
Huggins  V.  Daley,  99  Fed.  Rep.  606; 
48  L.  R.  A.  320. 

See  also  CofTinberry  v.  Sun  Oil 
Co.,  68  Ohio  488;  67  N.  E.  Rep. 
1069. 

Where  a  lessee  of  a  enal  mine 
left  his  tools  on  the  premises  for 
two  years,  but  did  not  work  tlie 
mine,  it  was  held  he  had  not  aban- 
doned tlie  mine,  nor  had  he  aban- 
doned stone  he  had  quarried  and 
left  on  the  ground.  Russell  v.  Strat- 
ton,  201  Pa.  St.  277;  50  Atl.  Rep. 
975. 


Wliere  the  conii)laint  alleged  pro- 
visions of  the  lease  showing  that 
a  well  was  to  be  drilled  within  three 
months,  or  thereafter  the  lessee  was 
to  pay  tlie  lessor  a  specified  yearly 
rental  until  tlie  well  was  to  be 
drilled;  and  it  also  was  alleged  that 
one  well  was  drilled  but  no  oil  de- 
veloped, upon  which  it  was  aban- 
doned: (hat  the  plaintifT  lessor  had 
re-entered  the  premises;  and  that 
after  the  abandonment  of  the  well 
the  lessees  had  assigned  their  con- 
tract to  the  defendant,  it  was  held 
that  the  eoniplainl  wn-<  not  sufiieient, 
there  being  no  showing  of  a  failure 
on  the  part  of  the  lessee  to  perform 
any  covenant,  and  the  fact  that  the 
unproductive  well  was  abandoned 
did  not  entitle  the  lessor  to  a  for- 
feiture. Tvogansport,  etc.,  Cas  Co.  v. 
Ross,  32  Ind.  App.  638;  70  X.  K. 
Rep.  544;  r.eatty-Xickle  Oil  Co.  v. 
Smetliers  (Ind.  App.),  96  N.  E. 
Rep.    19. 


2081) 


OIL   AND    GAS. 


Tlic  following:  analysis  in  (inc  case 
will  clearly  show  how  a  case  of  this 
kind  is  viewed  by  the  courts,  "But  it 
seems  to  be  clearly  proven  that  Gofl" 
and  Heck  regarded  the  lease  of  no 
value,  and  that  this  is  the  reason 
for  their  abandoning  the  enterprise. 
GofT  and  ITeck  were  both  officers  of 
the  Lucky  Oil  &  Gas  Company  which 
they  had  been  instrumental  in  or- 
ganizing for  the  purpose  of  develop- 
ing this  property.  This  company 
bored  one  dry  well  on  a  contiguous 
farm,  and  exhausted  its  funds  in 
doing  so.  Tt  hastened  the  comple- 
tion of  this  well  before  the  2nth  of 
November,  1904,  for  the  purpose  of 
avoiding  the  payment  of  the  each 
quarterly  rental  then  to  become  due. 
As  soon  as  the  dry  well  was  com- 
pleted the  Lucky  Oil  &  Gas  Company 
ceased  to  do  business  and  surren- 
dered its  charter.  Shortly  after  the 
third  rental  becam.e  due,  TIeck  told 
Sherman  Nicholson,  under  whom 
they  held  an  oil  lease  in  the  same 
territory,  that  the  Lucky  Oil  &  Gas 
Company  had  gone  out  of  business, 
and  that  if  Nicholson  wanted  to  give 
another  lease  on  his  land  'to  go 
ahead  and  lease.'  Ihis  witness  fur- 
ther says  that  Heck  told  him  that 
the  reason  why  they  did  not  sur- 
render the  leases  was  because  it 
would  cost  at  least  .$10  to  do  so. 
John  Nutter,  who  had  also  leased  to 
them  and  whose  lands  joined  the 
Donohue  land,  says  that  he  had  a 
conversation  with  GofT  and  Heck  af- 
ter the  dry  well  was  bored  on  the 
Donohue  place,  and  that  in  that  con- 
versation they  told  him  that  they 
had  nothing  to  do  with  the  leases, 
that  they  had  sold  the  leases  to  the 
Lucky  Oil  &  Gas  Company.  This 
was  after  the  third  rental  had  be- 
come due  to  Nutter,  whose  lease  was 
of  the  same  date  as  the  Hall   lease. 


I.iiiiiif  Nuder,  wife  of  .lolin  Nutter, 
says  that  Heck  was  at  their  home 
in  January,  1!)06,  and  asked  her  if 
Nutter  had  leased  his  land,  and  when 
she  told  him  that  he  had  'optioned 
it'  ho  replied  that  he  was  sorry  be- 
cause he  wanted  to  lease  it  himself. 
Adam  Goebel  who  had  also  given 
GofT  and  Heck  a  lease  for  oil  and 
gas  on  March  2j  1904,  and  which  is 
also  one  of  the  leases  transferred 
to  the  Lucky  Oil  &  Gas  Company 
by  GofT  and  Heck,  and  later  sold  by 
them  to  Smith,  the  plaintifT,  says 
tliat,  after  the  third  rental  became 
due  on  his  lease  and  was  not  paid, 
he  had  a  taiic  with  Heck  about  De- 
cember 2,  1904,  and  that  Heck  then 
told  him  that  he  had  nothing  to  do 
with  the  lease,  that  the  Lucky  Oil 
&  Gas  Company  had  surrendered  its 
charter  and  that  the  lease  was  null 
and  void.  J.  A.  Epling,  another 
one  of  their  lessors,  says  that  he  had 
a  conversation  witli  Heck  in  Jan- 
uary, 190G,  and  Heck  wanted  to 
know  of  him  if  he  had  leased  his 
land,  and  wlien  witness  told  him 
he  had  'optioned  it'  Heck  said  that 
he  was  sorry,  that  he  would  have 
advanced  him  ten  cents  an  acre  on 
the  first  rental.  Similar  testimony 
was  given  by  a  number  of  other  wit- 
nesses. Some  of  this  testimony  is 
denied  by  GofT  and  Heck,  but  much 
of  it  i-i  admitted  substantially  as  re- 
lated by  the  witnesses.  All  of  this 
testimony  is  in  relation  to  conversa- 
tions had  between  the  witnesses  and 
either  GofT  or  Heck,  before  the  time 
of  the  assignment  of  leases  by  GofT 
and  ITeck  to  IT.  L.  Smith.  They 
relate  also  to  leases  which  GofT  and 
Heck  held  upon  other  tracts  of  land 
in  the  vicinity  of  the  Hall  tract, 
some  of  which  adjoined  the  Hall 
tract,  and  are  some  of  tlie  same 
leases   which   GofT  and  Heck   turned 


DURATION   OF    LEASE. 


209 


over  to  the  Lucky  Oil  &  Gas  Com- 
pany and  which,  they  claim,  were 
later  returned  to  them  by  the  said 
company  at  the  time  of  its  dissolu- 
tion. This  testimony  was  admissible 
only  for  the  purixjsc  of  showing  tlie 
intention  of  CofT  and  Ileck  to  aban- 
don the  leases  in  that  territory,  and 
the  Hall  tract  was  one  of  them.  The 
Hall  tract  was  also  one  of  the  leases 
which  had  been  assigned  to  the 
Lucky  Oil  &  Gas  Comjjany.  At  the 
time  when  Heck  wanted  to  know 
of  Epling  if  he  had  leased  his  land, 
a  producing  well  had  been  drilled 
in  the  neighborhood  on  a  tract 
known  as  the  "Bee  tract,"  and  inter- 
est in  the  oil  business  was  very 
much  revived  thereby.  This  fact  no 
doubt  explains  Heck's  anxiety  to 
obtain  another  lease  from  Epling  at 
that  time.  All  of  this  testimony 
clearly  shows  that  GoiT  and  Heck 
had  abandoned  whatever  rights  they 
had  under  their  leases  which  had 
been  once  held  by  the  Lucky  Oil  & 
Gas  Company.  The  drilling  of  the 
dry  well,  and  the  expenditure  of 
$6,500  by  the  Lucky  Oil  &  Gas  Com- 
pany in  the  druiing  of  it,  seems  to 
have  been  sufficient  to  satisfy  GofT 
and  Heck  that  they  would  be  losing 
money  by  the  payment  of  any  fur- 
ther cash  rentals,  and  they  then 
made  up  their  minds  to  abandon 
prospecting  any  further.  Failure  to 
pay  the  quarterly  rentals,  taken  by 
itself,  would  not  be  sufficient  to 
prove  intention  to  abandon,  but  it  is 
an  evidential  fact  which  may  prop- 
erly be  considered  in  determining 
intention.  It  materially  strengthens 
the  evidence  of  intention  to  abandon 
which  other  facts  tend  to  prove.  The 
failure  of  GofT  and  Heck  to  make 
any  exploration  for  oil  and  gas  on 
the  Hall  tract  for  more  than  a  year 
after   the    date   of   their   lease,   and 


their  failure  to  pay  tliree  successive 
quarterly  rentals,  taken  in  connec- 
tion with  the  other  facts  and  cir- 
cumstances hereinbefore  adverted  to, 
we  think  clearly  prove  that  they 
had  abandoned  their  rights  under 
the  lease.  Sucii  abandonment  oper- 
ated as  a  surrender  in  law  of  their 
lease,  and  gave  the  Halls  the  right 
to  execute  the  lease  to  Thornily, 
under  which  the  defendants  claim. 

The  fact  that  GofT  aiid  Heck  were 
financially  resjxjnsible  for  the  cash 
rentals  and  that  such  rentals  could 
have  been  collected  by  legal  process 
does  not  afTect  the  merits  of  the  con- 
troversy, 'ihe  Halls  could  waive 
their  right  to  sue,  and  had  a  right 
to  treat  the  contract  as  at  an  end 
whenever  Goff  and  Heck  voluntarily 
abandoned  their  right  to  make 
further  exploration. 

There  is  another  circumstance  in 
the  record  which  tends  strongly  to 
show  abandonment.  It  is  this,  the 
minutes  of  the  stockholders'  meeting 
of  the  Lucky  Oil  &  Gas  Company 
held  for  the  purpose  of  dissolution 
is  entered  upon  the  book  of  said  cor- 
poration in  two  places,  one  entry  on 
page  9  and  another  on  page  11  of 
the  corporation's  book.  The  entry 
on  page  9  was  made  a  few  days  after 
the  meeting  of  the  stockholders 
which  was  held  on  the  24th  of  No- 
vember, 1904,  and  appears  to  have 
been  made  by  A.  S.  Heck.  The  reso- 
lution autliorizing  the  return  of  the 
leases  to  GofT  and  Heck  was  not 
entered  in  the  body  of  the  minutes, 
but  was  entered  on  the  margin  of 
the  page  in  pencil,  afterwards  by 
him.  The  same  minutes  are  re-en- 
tered on  pages  1 1  and  12  of  the  cor- 
poration l)ook  by  Mr.  G.  F.  Hopkins 
about  14  months  after  the  meeting, 
after  the  corporation  was  dissolved. 
This  fact  tends  to  prove  two  things: 


210 


OIL    AND    G.VS. 


§  141.     Cessure  of  work  after  operations  begun. 

A  cessure  of  Avork  "vvill  operate  as  a  termination  of  a  lease 
by  abandonment,  especially  where  the  first  or  second  well 
proves  to  be  a  dry  one.  Thus  where  a  lease  was  for  "fifteen 
3^ears,  and  as  much  longer  as  oil  or  gas  is  found  in  paying 
quantities;"  and  the  lessee  erected  a  "rig,"  drilled  a  test  well, 
but  obtained  no  oil ;  and  thereupon  removed  tlie  machinery 
used  in  drilling,  leaving  nothing  l)ut  a  wooden  tank,  which 
rotted,  asserting  no  title  to  the  premises  for  nine  years,  when 
other  lessees  found  oil  in  paying  quantitios,  it  was  held  tliat 


( 1 )  That  GoflF  and  Heck  regarded 
the  leases  of  no  value  and  forgot 
to  have  a  resolution  passed  provid- 
ing for  the  return  of  them;  and  (2) 
that  it  was  desirable  to  present  to 
Smitli  an  unsuspicious  record  wliicli 
would  show  a  return  of  the  case  to 
Goff  and   Heck   bj'  the  corporation. 

We  think  the  court  below  Avas 
clearly  warranted  by  the  facts  in 
finding  that  GofT  and  Heck  had 
voluntarily  abandoned  their  rights 
under  the  lease  from  the  Halls  prior 
to  the  execution  of  the  second  lease 
by  the  Halls  to  Thornily,  and  find- 
ing no  error  in  the  decree  of  the 
lower  court  the  same  will  be  af- 
firmed." Smith  v.  Root,  66  W.  Va. 
633:   G6  S.  E.  Rep.  100.5. 

The  preliminary  right  to  explore 
for  gas  and  oil  can  be  lost  by  aban- 
donment without  the  lapse  of  time 
prescribed  by  the  statute  of  limita- 
tions. Rawiings  v.  Armel,  70  Kan. 
777:  79  Pac.  Rep.  683. 

Where  an  oil  lease  provided  that 
work  should  be  commenced  within  a 
certain  time,  and  that  failure  on  the 
part  of  the  lessee  to  complete  one 
well  should  render  the  lease  void, 
and  the  lessee  commenced  work 
within  the  required  time,  but  failed 
to  find  any  oil,  and  no  further  work 
was  done  for  several  years,  when 
work  was  resumed,  owing  to  oil  dis- 
coveries in  the  vicinity,  the  conduct 
of  the  lessee  amounted  to  an  aban- 
donment. Ray  State  Petrol?",im  C). 
V.  Penn  T.iibripitin"'  Co..  P7  S.  W. 
1102.  27  Ky.  Law  Rep.  1133. 


Where  a  lessee  in  an  oil  lease  in 
efrect  abandoned  the  lease,  but  sub- 
sequently the  lessor  failed  to  stand 
by  his  objection  to  a  re-entry,  and 
acquiesced  therein,  and  the  lessee 
then  again  abandoned  the  property, 
the  acquiescence  of  the  lessor  did 
not  estop  him  to  deny  the  lessee's 
right  to  return  a  second  time.  Bay 
State  Petroleum  Co.  v.  Penn  Lubri- 
cating Co.,  87  S.  W.  1102,  27  Ky. 
Law  Rep.  1133. 

In  an  action  to  cancel  a  lease  and 
to  quiet  title  to  the  real  e.state  it 
covered,  the  complaint  alleged  the 
execution  of  the  lease  by  the  then 
owner  of  the  real  estate,'  and  that 
the  lessee  defendant  had  failed  to 
carry  out  its  conditions,  one  of 
which  required  the  lessee  to  com- 
plete three  wells  within  one  year 
from  the  date  of  the  lease,  provided 
each  was  a  paying  gas  well,  and  to 
complete  a  well  every  60  days  until 
ten  wells  were  drilled,  provided  each 
well  drilled  was  a  paying  well.  It 
also  alleged  that  one  paying  well 
was  drilled,  but  the  defendant  lessee 
discontinued  its  use  and  drilled  no 
additional  wells,  and  that  he  had 
therefor  committed  a  breach  of  the 
conditions  f)f  the  lease  and  aban- 
doned it.  and  that  his  operation  of 
wells  on  adjoining  lands  was  remov- 
ing the  oil  from  under  plaintiff's 
lands.  It  was  held  that  the  com- 
plaint stated  a  good  case  of  action. 
Peatty-NTicl-le  Oil  Co.  v.  Smethers, 
m  N.  E.  in. 


DURATION    OF    LEASH.  211 

the  first  lease  had  heeu  terminated  hy  an  abandonment/''  But 
a  temporary  suspension  after  the  well  has  l)een  sunk,  which 
proves  a  dry  one,  while  awaiting  further  developments  in  the 
vicinity,  will  not  operate  as  an  abandonment  of  the  lease.'"  A 
cessure  for  two  years,  although  oil  has  been  found  in  paying 
quantities  will  work  in  eiiuity  a  forfeiture  of  the  lease. '^ 
Where  a  lease  was  to  run  fifteen  years  in  consideration  of  a 
payment  of  fifty  dollars,  and  one-eighth  of  the  oil  obtained; 
and  the  lessee  covenanted  to  begin  operations  to  secure  ril 
"so  as  to  complete  the  first  well  within  six  months  from"'  the 
date  of  tile  lease,  or  thereafter  within  sixty  days  to  remove 
all  the  machinery  and  buildings  he  had  placed  on  the  premises; 
and  the  lease  provided  tliat  the  lease  should  "be  declared 
null  and  void  unless  further  prosecuted  after  the  first  well 
drilled,"'  and  that  the  "time  of  getting  oil"  was  of  the  "es- 
sence of  the  lease,"  it  was  held  that  such  lease  had  become 
void,  where  one  well  had  been  drilled  within  the  stipulated 
time,  but  thereafter  no  operations  for  mining  purposes  were 
prosecuted  on  the  land  during  several  years.'^''  The  fact  that 
the  cessure  of  work  or  operations  was  induced  by  the  in- 
clemency of  the  weather  is  no  excuse.'^  Although  a  well  be 
commenced  on  time,  yet  if  it  be  not  completed  on  time,  the 
lease  will  terminate. ®°     If  a  well  be   drilled  and  oil   found, 

T^Calhoon   v.   Neely,   201    Ta.   St.  \iral   Oas   Co.,   1.38  Pa.   St.  576;    20 

97;    50  Atl.    Rep.  967;    Barnhart  v.  Atl.  Rep.  1065;  12  L.  R.  A.  290. 

Lockwood,  152  Pa.  St.  82;  31  W.  N.  '6  Baumgardner    v.    Browning,    12 

C.   209;    25  Atl.   Rep.  237;    McXish  Ohio  Cir.  L't.  Rep.   tS-  5  Ohio  C.  D. 

V.  Stone,  152  Pa.  St.  457 ;  23  Pittsb.  394. 

L.  J.   (N.  S.)   232  Rorer  Iron  Co.  v.  7- Cole    v.    Taylor,    8    Pa.    Super. 

Trout,  83  Va.  397;  2  S.  E.  Rep.  713;  Ct.    Rep.    19;    Crawford   v.    Ritchie, 

Cadhury    v.     Ohio,     etc.,    Cas     Co.,  43  W.  Va.  252;   27   S.  E.   Rep.  220. 

162  Ind.  9,  67  N.  E.  Rep.  249;  Amer-  78  Heintz    v.    Nhortt,    149    Pa.    St. 

ican  Window  Glass  Co.  v.  Williams,  286;   24  Atl.  Rep.  316. 

37  Ind.  App.  439,  66  X.  E.  Rep.  912;  79  Cryan  v.  Ridelspergen.  7  Pa.  Co. 

Rawlings  V.  Armel,  70  Kan.  777:  79  Ct.    Rep.    473;    Steelsniith    v.    Oart- 

Pac.  Rep.  683;  Beatty-Nickle  Oil  Co.  Ian.  4ia  W.  Va.  27:  29  S.  E.  978;  44 

V.   Smethers    (Ind.  App.),  96  X.   E.  L.  R.  A.   107. 

19.  **"  Cleniinger    v.     Baden    Gas    Co., 

Tlie  lessees  "wore  not  bound  to  159  Pa.  St.  16;  28  Atl.  Rep.  293. 
do  more  than  make  a  reasonable  Time  is  of  the  essenee  of  all  con- 
search  for  oil,  but  they  were  bound  tracts  relating  to  mining  property, 
to  operate  or  quit;  they  could  not  Waterman  v.  Banks,  144  U.  S.  394: 
hold  or  quit."  Munroe  v.  Arm-  12  Sup.  Ct.  Rep.  646;  Island  Coal 
strong,  96  Pa.  St.  317;  Ray  v.  Kat-  Co.  v.   Combs,   152   Ind.  379;   53  N. 

E.  Rep.  452. 


212  OIL   AND    GAS. 

tliougli  the  lessee  remove  the  casing  and  plug  the  well,  the  well 
is  considered  completed.®^  If  the  lease  require  work  to  be 
commenced  within  a  certain  time,  and  yet  does  not  provide 
when  a  well  shall  ))e  completed,  yet  the  lessee  may  not  suspend 
work  after  he  has  commenced  drilling,  but  must  push  the  work 
with  ordinary  diligence  until  the  well  is  completed,  either  as  a 
dry  or  producing  well.  So,  too,  if  he  is  to  begin  the  develop- 
ment of  the  leased  premises  by  a  certain  time,  he  must  prose- 
cute the  work  in  the  manner  in  which  the  business  is  ordinarily 
carried  on  and  with  ordinary  diligence  until  the  search  for 
oil  or  gas  is  ended,  either  by  finding  it,  and  thereafter  operat- 
ing the  premises,  or  by  demonstrating  that  there  is  no  oil  or 
gas,  and  surrendering  the  leased  territory.^-  It  is  more  espe- 
cially true  that  the  lessee  must  proceed  to  develop  the  terri- 
tory if,  after  reaching  oil  or  gas  bearing  rock,  there  be  strong 
indications  of  oil  or  gas.*^ 

§  142.     Surrender. 

A  surrender  involves  the  yielding  up  of  the  lease  or  the 
premises.  It  implies  an  action  on  the  part  of  the  lessee.  If  the 
lease  does  not  give  the  lessee  the  right  to  surrender  it  or  the 
premises,  then  an  acceptance  of  it  by  the  lessor,  or  at  least  an 
acquiescence  that  implies  an  acceptance,  is  essential  to  com- 
plete the  act  of  surrender.    But  if  the  lease  gives  the  lessee  the 

81  Stahl  V.  Van  Vlock,  53  Ohio  St.  and  oil  secTired,  the  immodiate  with- 
13G;   41  N.  E.  Rep.  35.  drawing  of  the  casing  and  plugging 

As     to    the     distinction     between  the  well  did  not  terminate  the  lease, 

drilling  a  well  and  completing  one,  Stahl  v.  Van  Vleck,  53  Ohio  St.  13G; 

see  Federal  Bettorment  Co.  v.  Blue-,  41  N.  E.  Rep.  35. 

75  Kan.  09;  88  Pac.  Rep.  555.  An  abandonment  of  the   lease   in- 

82  ;McNish  V.  Stone,  152  Pa.  St.  eludes  an  abandonment  of  all  rights 
457;  23  Pittsb.  L.  J.  (N.  S.)  232;  under  the  contract.  Paine  v.  Grif- 
Ray'v.  Natural  Gas  Co.,  138  Pa.  St.  fiths,  86  Fed.  Rep.  452. 

576;  20  Atl.  Rep.  10G5;   12  L.  R.  A.  Cessure  of  work  for  three  months 

290.  has    been    held    to    be    an    abandon- 

83  Kennedy  v.  Crawford,  138  Pa.  mont.  Kennedy  v.  Crawford  138 
St.  561;  2l"Atl.  Rep.  10;  Lowther  Pa.  St.  561;  21  Atl.  Rep.  19.  See 
Oil  Co.  V.  Miller-Sibley  Oil  Co.  53  ]\Tonroe  v.  Armstrong,  96  Pa.  St. 
W.  Va.  501,  44  S.  E.  Rep.  433.  307:    Steelsmith   v.   Gartlan,   45   W. 

Where  a  lease  provided  that  if  the  Va.  27;    29   S.    E.   Rep.   978;    44  L. 

lessee  did  not  "commence  a   test  oil  R.    A.    107:    Huggins    v.    Daley,    99 

or  gas  well"  at  a  certain  plnce  "or  Fed.  Rep.  60^5;  48  L.  R.  A.  320.    See 

vicinitv   in    ninety    days,    this   lease  also     Federal     Betterment     Co.     v. 

to  be  void,"  it  was  held  that  a  test  Blaes,  75  Kan.  69;  88  Pac.  Rep.  555. 
well  having  been  cnmpleted  on  time 


DURATION    OF    l^ASE.  213 

right  to  make  the  surreiulcr,  tlien.  of  course,  acceptance  by  tlie 
lessor  is  iniinaterial.'*^  11"  the  lessee  retain  and  use  the  pi-ciuises 
after  he  has  delivered  to  the  lessor  a  deed  of  release  and  sur- 
render, he  will  be  liable  for  the  rents  and  royalties  he  was  to 
pay  under  the  lease/-'  Where  the  lessee  has  the  ri^ht  under 
the  lease  to  rescind  it  at  any  time,  he  may  sun-cndcr  tlie 
premises  by  parol.'"'  Where  a  lessee  ceased  to  work  a  coal 
mine,  said  he  would  do  nothing  more  under  the  lease,  com- 
pletely dismantled  the  mine,  moved  off  all  the  mining  appa- 
ratus, and  left  the  mine  in  such  a  condition  that  it  would 
even  become  valueless  by  caving  in,  aiul  three  months  after- 
ward again  entered  on  the  premises  against  tlic  ])i'()tcst  of  tlie 
lessor  and  forcibly  attempted  to  sink  a  shaft  outside  of  the 
limits  of  shafts  specified  in  the  lease — it  was  held  that  these 
facts  showed  a  surrender  by  mutual  agreement.**^  A  surrender 
of  the  lease  releases  the  lessee  from  all  liability  thereafter 
(though  not  from  liability  for  past  rents,  or  possibly  dam- 
ages) ;  and  the  surrender  will  be  binding  on  l)oth  Icssoi-  and 
lessee;  and  also  upon  the  heir.  If  an  heir  accept  the  surrender 
of  the  lease,  it  will  bind  his  co-heirs,  even  though  they  be 
minors,  if  for  their  benefit.''^  The  assignee  of  a  lease  may  sur- 
render it,  but  the  surrender  will  not  release  him  from  a  liability 
to  the  assignor  assumed  in  the  assignment,  as  a  payment  of  so 
much  for  each  producing  well  drilled.^"  If  the  lessor  only  had 
a  life  estate,  and  at  his  death  the  remainderman  offers  to  con- 

84Barnhart  v.  Lockwood,  152  Pa.  «« Hooks    v.    Forst,     I'GS    Pa.    St. 

St.  82:  25  Atl.  Rep.  237;  McKinncy  238;    30  Atl.   Rep.   84G;    Cochran   v. 

V.     Reader,     7     Watts     (Pa.)      123;  Slienango,  etc.,   Co.,   23   Pittsb.   Leg. 

Whitcoml)  V.  Hoyt,  30  Pa.  St.  403.  J.   (N.  S.)   82. 

Under   the   civil   law  a  considera-  But  where  the  contract  grants  to 

tion  of  $1.00  for  a  lease  is  no  con-  anotlier  "ail  the  oil  and  gas  in  and 

sideration  at  all,  and  the  same  may  under"   certain    land,    it   is    such    a 

be  said  of  $2.00.  giving  tlie  privilege  grant  of  an   interest  in  the  land  as 

of  returning  thereupon  at  any  time.  requires  the  surrender  to  be  in  writ- 

Thcrefore,   an  oil   lease    providing   a  ing.     Heller  v.  Uailey.  28  Ind.  App. 

consideration    of    $1.00    for    an    oil  555;    63   N.    E.    Rep   400.      vSee   this 

lease  and  $2.00   to  retire  therefrom  case   for   an.  extended   discussion   of 

at  any  time  and  containing  an  obli-  the  cases  on.  surrender, 

gation    to    complete    one    well    in    a  87  Worrall  v.  Wilson,  101  la.  475; 

year  is  a  nullity.     Murray  v.  Barn-  70  N.  W.  Rep.  G19. 

iiart,    117    La.    1023;    42*  So.    Rep.  ««  Wilson    v.    fioldstein,     152    Pa. 

480.  St.  524;   25  Atl.   Rep.  403. 

85  Restwick    v.    Ormsby    Coal    Co.,  8!i  Smith    v.    Munhall.    130   Pa.    St. 

129  Pa.  St.  592;  18  Atl." Rep.  538.  253;    21   Atl.    Rep.   735;    Roberts  v. 


214 


OIL    AND    GAS. 


tinue  the  lease  on  the  same  terms,  the  lessee  cannot  surrender 
the  lease  before  the  term  for  which  it  was  given  has  expired."" 
A  lease  may  be  siirreiidercd  after  suit  brought  to  cancel  it,  by 
way  of  a  compromise;  and  a  purchaser  of  a  majority  of  the 
stock  of  the  lessee,  (with  knowledge  of  the  compromise,  at 
least)  will  be  bound  thereby."^  The  lease  may  be  terminated 
by  express  surrender  in  law  affected  by  abandonment  of  the 


Bettman,  45  W.  Va.  143:  30  S.  E. 
95-  Ward  v.  Tipple  State,  etc.,  Co. 
131  Kv.  711:  115  S.  W.  819;  Bett- 
man V.  Shadle,  22  Ind.  542;  53  N. 
E.  6G2. 

9"  Lake  Erie,  etc.,  Co.  v.  Patter- 
son, 184  Pa.  St.  364;  39  Atl. 
Rep.  68. 

91  Southern  Oil  Co.  v.  Wilson,  22 
Tex.  Civ.  App.  534;  56  S.  W.  Rep. 
429. 

Under   a  lease  allowing   60   days' 
grace    in    the    payment    of    annual 
rents,  and  authorizing  the  lessee  to 
surrender  after  5  years,  on  payment 
of  rentals  to  tlie  date  of  surrender, 
the  fact  that  the  5tli  annual  rental 
was   not    paid   until    10    days    after 
expiration  of  the  days  of  grace  was 
held  not  to  efToct  the  lessee's  right 
to  surrender   at  the  end  of  5  years 
from  the  date  of  the  lease,  where  the 
lessor    was    duly    notified    that    the 
lease  would  be  surrendered.  Ward  v. 
Tipple  State,  etc.,  Co.,  131  Ky.  711; 
115  S.  W.  Rep.  815;  34  Ky.  L.  Rep. 
A  stipulation   in   a  lease  for   five 
years,    and   as    much    longer    as    oil 
or  gas  be  found  in  paying  quantities, 
which    gives    to    the    lessee,    on    the 
payment  of  .$1.00,  the  right  to  sur- 
render the  lease  for  cancellation  and 
avoid    all    payments    and    liabilities 
thereafter  accruing  under  the  lease, 
deprives   the   lessee   of   the    right    to 
enjoin   a   violation   of   the   lease   by 
the  lessor.     Ulrey  v.  Keith,  237  111. 
284;     86    N.     E.     Rep.     696.       See 
Poe  v.  Ulrey,  233  111.  56;   84  N.  E. 
Rep.  46. 

The  leaving  of  a  pipe  line  in  the 
ground  does  not  prohibit  a  surrender 
if  it  bo  abandoned,  and   it  does  not 


interfere  with  the  lessor's  use  of  the 
promises.  Ward  v.  Tripple  State, 
etc.,  Co.,  131  Ky.  711;  115  S.  W. 
Rep.  819. 

The  lessee  in  an  oil  and  gas  lease 
of  20  acres,  providing  that,  if  no 
well  be  completed  within  15  months, 
the  lease  should  l)e  void  unless  the 
lessee  paid  $1  per  day  for  each 
day's  delay,  and  that  the  lessee 
sliould  drill  an  additional  well  each 
60  days  or  pay  $1  per  day  for  each 
day's  delay  until  three  wells  were 
drilled,  and  that  he  should  have  the 
right  at  any  time  to  cancel  the  con- 
tract or  any  part  thereof,  who 
drilled  two  wells  on  the  east  13  1-3 
acres,  but  who  failed  to  drill  a  well 
on  the  6%  acres  off  the  west  end  of 
the  tract,  could  not  cancel  the  lease 
as  to  the  6%  acres  and  escape  lia- 
bility for  failing  to  drill  three  wells. 
Ramage  v.  Wilson,  45  Ind.  App. 
599 ;  88  X.  E.  862. 

Where  a  mining  lease  provided 
that  the  grantee  might  terminate 
the  same  at  his  election,  the  lease 
was  terminable  at  tlie  tcill  of  either 
party.  Tonessec  Oil,  Gas  &  Mineral 
Co.  V.  Brown,  131  F.  696,  65  C.  C. 
A.  524. 

A  surrender  clause  in  an  oil  and 
gas  lease,  giving  the  lessee  the 
option  to  surrender  it  before  the  ex- 
piration of  its  term,  upon  the  pay- 
ment of  .$1,  but  not  giving  the  lessor 
the  right  to  compel  a  surrender,  did 
not  create  a  tenancy  at  will,  and 
hence  did  not  render  the  lease  in- 
valid for  lack  of  mutuality.  Poe  v. 
Ulrey,  84  N.  E.  46,  233  111.  56. 

In  Heller  v.  Dailey,  28  Ind.  App. 
555;  63  N.  E.  Rep.  490,  a  surrender 


DURATION   OF    I^EASE.  214a 

premises  by  the  lessee  and  the  resumption  of  possession  hy  tlu' 
lessor;  and  whether  such  a  surrender  in  hiw  lias  occurred  is  a 
question  of  intent.  Thus  a  lease  was  foi-  live  years,  and  as  long 
as  oil  and  gas  should  be  found  in  paying  (luantities,  or  the 
rental  paid.  After  development  of  one  paying  gas  well,  and 
fruitless  efforts  to  find  oil,  gas  from  the  well  was  used  until 
after  the  five-year  period,  when  the  well  was  disconnnectcd 
as  an  exhausted  Avell.  IMore  than  tiiree  years  after  the  last 
effort  to  find  more  gas  or  oil,  the  lessor  executed  a  new  lease 
to  a  stranger.  It  was  held  that  a  surrender  of  the  lease  had 
been  effected.^'''  And  where  a  lessee  could  release  any  part 
of  the  tract  it  desired :  and  it  need  not  drill  any  wells  after 
drilling  the  first  non-paying  well,  its  failure  to  do  so  or  its 
abandonment  of  a  well  drilled  was  held  not  to  be  an  aban- 
donment of  its  exclusive  right  to  drill  on  any  unreleased  port 
during  the  year,  nor  was  the  release  of  a  third  part  of  the 
tract  an  abandonment  of  the  whole  tract  for  drilling  pur- 
poses.®^'' 

§  142a.     Surrender  of  premises  which  are  not  definitely  de- 
scribed— Selection  by  lessee. 

The  fact  that  the  lease  contains  an  insufficient  description 
of  the  land  leased  will  not  render  that  part  of  the  contract 
relating  to  a  surrender  void.  xVnd  if  the  lessee  has  a  right  to 
surrender  a  part  of  a  definitely  described  piece  of  real  estate, 
the  fact  that  the  part  is  indefinitely  descril)i'(l  will  not  render 
that  part  of  the  contract  relating  to  the  surrender  void  if  he 
has  the  right  to  select  the  part  to  be  surrendered.  In  passing 
upon  this  question  one  court  said:  "It  is  obvious  that  such  a 
case  does  not  fall  within  the  principle  of  that  class  of  cases 
in  which  it  is  adjudged  that  nothing  passes  by  the  deed  when 
the  terms  are  so  uncertain  that  the  intention  of  the  parties 
cannot  be  ascertained.  It  will  be  observed  that  the  contract 
contains  a  covenant  upon  the  part  of  the  grantee  to  surrendt  r. 
This,  within  the  limits,  gave  the  grantee  the  power  of  seh-.c- 
tion,  and  the  mere  fact  that  the  land  Avhich  he  might  select  to 
reconvey  was  originally  uncertain  does  not  prevent  an  enforce- 

of  a  grant  by  a  land  owner  to  an-  could  not  Imj  made  unless  in  writ- 
otluT  of  "ail  the  oil  and  gas  in  and       ing. 

under"  a  certain  tract  of  land,  and  "'a  Suit  v.  Iloekstotter  Hil  Co.,  03 

providing  penalties  for  delay  in  tlie       W.  Va.  .'317;   01   S.  E.  Rep.  307. 
drilling   of   the    wells,    it   was    held  nii>0'Xeil   v.  Sun.   Co.    (Tex.  Civ. 

App.),   123   S.  \V.  Rep.   172. 


214b  OIL    AND    GAS. 

ment  of  the  undertaking  according  to  its  terms.""'  There  is 
no  more  of  legal  uncertainty  in  such  a  matter  as  this  than 
there  is  in  the  case  of  a  way  of  necessity  where  the  reservation 
implied  as  vesting  on  the  presumed  intention  of  the  par- 
ties. "'•^^  Therefore,  where  a  lease  provided  that  the  lessee 
when  it  failed  to  operate  one  well  for  a  period  of  sixty  days, 
or  to  pay  the  lessor  $1  per  day  from  the  time  it  fails  to 
operate  the  well,  "the  ten  acres  on  which"  the  well  was 
located  should  "be  cancelled  and  returned  to"  the  lessor,  was 
not  void  as  to  that  part  relating  to  the  surrender,  although  the 
leased  premises  was  a  very  large  tract  of  land.  "Therefore," 
said  the  court,  "since  the  lessee  had  the  power  to  select  the 
particular  tract  to  reconvey,  it  cannot  be  heard  to  say  that 
the  clause  is  unenforceable  because  of  uncertainty  in  the  de- 
scription." ''^'^  But  it  is  entirely  a  different  proposition  when 
the  lessor  endeavors  to  quiet  title  to  so  much  of  the  land  as  is 
undeveloped,  in  such  an  instance.  Thus  the  owner  of  lands 
sought  to  quiet  his  title  when  his  contract  provided  for  putting 
down  eight  wells  for  oil  and  gas  on  a  certain  tract,  and  it 
contained  a  stipulation  that  "on  failure  to  drill  any  of  these 
wells  within  the  specified  time,  the  second  party  shall  sur- 
render the  right  to  drill  on  all  of  this  grant  excepting  ten 
acres  for  each  well  drilled,"  it  was  held  that  the  owner  could 
not  maintain  an  action  to  quiet  his  title  to  the  undeveloped 
part  of  the  tract,  because  the  stipulation  was  so  uncertain  that 
it  did  not  apply  to  any  part  of  it.^^"^ 

§  143.     Surrender  by  substitution  of  tenants  or  assignments  of 
lease. 

"Without  discussing  whether  a  surrender  must  be  evidenced 
by  a  writing,  tliat  having  been  discussed  elsewhere,  we  will 
take  up  the  question  in  this  section  of  a  surrender  by  substi- 
tution of  tenants  and  to  instances  of  an  assignment  of  the  lease 

9ia  Citing  Smith  V.  Furbish,  68  N.  44   N.   E.  Rep.   831;    1   Jones,   Real 

H.  123;  44  Atl.  Rep.  39S;  47  L.  R.  Property   Conveyancing    §334. 

A.  22G;   Gardner  v.  Webster,  04  X.  oib  Jones  v.  ^fount,  IGG  Ind.  570: 

H.  520;    15  Atl.  Rep.    144;   Dull  v.  77  N.  E.  Rep.  1089. 

Blum,   68   Tex.   299;    4   S.   W.   Rep.  9ic  Perry  v.  Acme  Oil  Co.,  44  Ind. 

489:   Xye  v.  Moody,  70  Tex.  434;   8  App.    207-^    88   N.   E.    Rep.    859,    re- 

S.  W.  Rep.  606;  Doiioncy  v.  Womack,  versing  80  N.  E.  Rep.  174. 

1  Tex.  Civ.  App.  354.     19  S.  W.  Rep.  s.ifi  Jones  v.  Mount,  166  Tnd.  570, 

883;   20  S.  W.  Rep.  950;   Waters  v.  77    N.    E.    Rep.    1089:     Parsons    & 

Bew,  52  N.  J.  Eg.  787;  29  Atl.  Rep.  Sweeney   Oil    Co.  v.  McCormlck,   68 

590;    Lane   v.   Allen,    162    111.    426;  W.    Va.    604:    70    S.    E.    471, 


DURATION    OK    LKAKK.  215 

by  the  lessee  to  tliird  {ktsoiis,  the  hitter  usnallv,  if  not  always, 
being  evidenced  by  a  writing^.  And  it  may  Ik-  stated  generally, 
tliat  if  the  laws  will  imply  a  surrender  in  a  <2;ivcn  instance,  it 
is  reasonably  clear  that  the  implication  will  arise  from  tJie  acts 
of  the  parties,  and  need  not  be  based  upon  proof  of  an  oral 
agreement  between  the  lessor  and  lessee.  "  The  one,  whetJier 
lessor  or  lessee,  against  whom  such  a  surrender  is  asserted  by 
the  other,  must  have  been  a  party  to  some  action  from  which  a 
surrender  may  properly  be  presumed  by  the  court.  The  sur- 
render should  be  indicated  by  acts."  "^  "If  the  lessee  assign  to 
a  third  person  and  the  lessor  accept  rents  from  the  assignee  in 
peaceable  possession,  it  may  be  presumed  from  this  act  of  the 
lessor  in  accepting  the  rent  due  from  his  lessee  through  the  hantis 
of  another  in  possession,  that  the  lessor  asquiesces  in  tlie  assign- 
ment, but  such  conduct  does  not  necessarily  indicate,  that  the 
lessor  has  been  a  party  of  the  creation  of  a  new  tenancy.  Such 
facts  may  constitute  evidence  of  an  assigiinicnf  hut  not  of  a  sur- 
render, and  if  a  surrender  may  be  established  by  the  further 
proof  of  a  parol  agreement  between  the  lessor  and  the  lessee, 
to  which  the  assignee  w^as  not  a  party,  this  would  be  basing  the 
essential  fact  constituting  the  surrender  upon  parol  evidence  of 
an  express  contract,  and  not  deriving  it  by  act  and  operation 
of  law."  ®^  It  therefore  follows  that  a  plea  alleging  that  the 
lessee  entered  into  negotiations  with  a  third  party  named,  and 
notified  the  lessor,  who  encouraged  the  lessee  to  sell  and  assign 
the  lease  to  a  third  party,  and  therefore  the  lessee  duly  assigned 
and  conveyed  the  lease  to  such  third  party,  who  entered  ujwm 
the  demised  premises  and  was  duly  accepted  as  his  tenant,  and 
that  the  lessor  collected  rent  from  the  assignee  and  recovered  a 
judgment  for  rent  which  afterwards  fell  due,  is  insufficient,  for 
it  needed  an  averment  that  the  assignee  was  substituted  in  place 
of  the  original  lessee,  with  intent  on  the  part  of  the  jiarties  to  the 
demise  to  annul  the  obligation  of  the  lease."*  An  assignment  of 
the  lease  by  the  lessee  does  not  release  him  frotn  his  liability  to 

02  Heller  v.  Dailey,   28   Tnd.   App.  os  Tlcller  v.  Dailoy.  supra. 

555;  63  N.  E.  Rep.  400;  Parish  Fork  ("•  Crcvelinp  v.  Do  Hart,  54  N.  .1 

Oil  Co.  V.  Bridcrewater  Gas  Co.,  51  L.  338;  23  Atl.  Rep.  (111. 
W.  Va.  583;  42  S.  E.  Rep.  655. 


-1^  OIL    AND    GAS. 

pay  the  rent  duo  under  it,  even  though  the  lessor  collect  rent 
from  the  assignee,  and  tlieso  acts,  of  course,  are  not  eipiivalent 
t<)  a  surrender.*"^  "  Nor  did  the  sale  of  the  saloon  by  tlie  tenant 
to  Ruse,"  in  the  language  of  one  court,  "  nor  the  taking  of  posr 
session  by  Ruse,  nor  the  acceptance  of  rent  from  the  latter  by 
the  landlord,  operate  as  a  discharge  of  the  grantors.  The  as- 
signee of  a  leasehold  estate  is  liable  for  the  rent  according  to 
the  terms  of  the  lease,  and  the  fact  of  his  liability  after  the 
assignment  does  not  discharge  the  lessee  from  his  covenant  to 
pay  rent  In  case  the  rent  is  not  paid  by  the  assignee  as  it  be- 
comes due,  an  action  may  be  sustained  against  the  lessee  there- 
for; and  it  makes  no  difference,  in  this  respect,  that  the  lessor 
may  have  received  rent  from  the  assignee,  and  accepted  him  as 
tenant  of  the  premises.^®  Where  there  is  an  express  covenant 
to  pay  rent  for  a  term  of  years,  the  mere  acceptance  of  rent  by 
the  lessor  from  tlie  assignee  of  the  lessee  does  not  discharge  the 
lessee."^  The  contract  of  the  latter  continues  in  force,  notwith- 
standing he  may  have  parted  with  his  interest  in  the  estate, 
unless  the  lessor  enters  into  such  stipulations  with  the  assigneo 
as  to  accept  him  as  sole  tenant  and  absolve  the  original  lessee. 
If  there  be  not  a  substitution  of  the  assignee  in  place  of  the 
original  lessee,  and  a  clear  intent  to  make  a  new  contract  with 
tlie  former  to  discharge  the  latter  from  further  liability  under 
the  lease,  both  Avill  be  held  liable  to  the  lessor."  "**  In  order  to 
prove  a  surrender,  however,  it  is  not  necessary  to  show  an  ex- 
press contract  betAveen  the  lessor  and  lessee ;  but  it  must  l)c 
shown  that  the  landlord  by  his  conduct,  as  between  himself  and 
the  assignee,  "  does  not  hold  the  laUer  merely  to  the  obligation 
of  an  assignee  of  the  term  in  possession,  but  has  assumed  an 

ns  Frank    v.   Majruire,    42    Pa.    St.  Rocd.  6  Allen  364 ;  Hoerdt  v.  Ilaline, 

77;    Sanders  v.    Sharp,    153    Pa.   St.  91  111.  App.  r)14;  Detroit  Pharniacal 

05.5;   25  Atl.  Hep.  524.  Co.   v.   Burt.    124   Midi.   220;    82   N. 

"8  Citing    Sliavv    v.    Partridge,    17  W.    Rop.    893;    Charles    v.    Froebel, 

Vt.   626.  47  Mo.   App.  45;   Levering  v.  Lang- 

!'T  Citing  Harris  v.  Heatknian,  62  ley.  8  Minn.   107;   Lyon  v.  Reed,  13 

la.  411;   17  N.  W.  Rep.  592.  M.  and  W.  285;   Lynch  v.  Lynch,  6 

nsOrommes  v.  St.  Paul  Trust  Co.,  Irish  L.  R.  131;  Lewis  v.  Brooks,  8 

147  111.  634;   35  N.  E.  Rep.  820;   37  U.   C.  Q.  B.   576. 
Am.  St.  Rep.  248.     See  also  Way  v. 


DURATION    OF    LEASE. 


Iil7 


attitude  inconsistent  with  tlie  continuance  of  the  contract  rela- 
tion between  him  and  the  original  lessee,  and  has  treated  the 
assignee  as  his  own  tenant  by  substitution."""  The  taking  of 
a  new  lease  from  a  third  party,  or  even  from  the  first  lessee, 
and  putting  the  new  lessee  in  possession  of  the  premises,  is  a 
surrender,  and  nothing  farther  is  required  to  make  it  ef- 
fectual.^"" 

§  144.     Parol  surrender. 

If  the  written  instrument,  under  which  the  lessee  or  grantee, 
or  by  whatever  name  he  is  designated,  grants  or  gives  an  in- 
terest in  the  land,  then,  as  we  have  seen,  the  surrender  must  be 
in  writing ;  ^"^  but  if  it  be  a  mere  lease,  not  under  seal,  although 
written  and  not  giving  an  interest  in  the  land,  then  it  may  be 
surrendered  and  released  by  parol."-  Any  notice  is  sufficient 
that  definitely  informs  the  adverse  party  that  the  lease  has 


89  Heler  v.  Dailej',  supra. 

100  Coe  V.  Hobby,  72  N.  Y.  141. 

A  verbal  agreement  by  which  de- 
fendants were  authorized  to  enter 
into  a  mining  claim  and  extract 
ore  therefrom  during  plaintiff's  will 
and  pleasure,  and  with  the  under- 
standing that  the  privilege  should 
terminate  whenever  plaintiff  might 
desire,  created  in  defendants  merely 
a  license  revocable  at  plaintiff's 
pleasure,  and  ga^-e  defendants  no 
interest  or  right  in  the  realty,  but 
merely  a  property  in  the  ore  which 
they  actually  took  from  the  mine. 
Clark  V.  Wall,  79  P.  1052,  32  Mont. 
219. 

101  Heller  v.  Dailey,  28  Ind.  App. 
555;  63  X.  E.  Rep.  490. 

Where  A.  and  B.,  o%vning  adjoin- 
ing tracts,  leased  the  same  to  C.  for 
the  purpose  of  prospecting  for  oil 
and  other  minerals,  and  within  30 
days  B.  leased  his  tract  to  C.  for  one 
year  and  on  different  terms,  the 
lessee  binding  himself  to  develop 
the  property,  and  the  royalty  being 
made  payable  to  B.  alone,  the  first 
lease  was  abandoned  and  terminated 


and  was  no  longer  binding  on  A. 
Martel  v.  Jennings-IIcywood  Oil 
Syndicate,  38  So.  253,  114  La.  351. 

lo-Donahoe  v.  Rich,  2  Ind.  App. 
540;  28  X.  E.  Rep.  1001;  Rhodes  v. 
Thomas,  2  Ind.  o38;  Ward  v.  Wal- 
ton, 4  Ind.  75;  Knarr  v.  Conaway, 
42  Ind.  260;  Stockton  v.  Stockton, 
40  Ind.  225;  Wood  L.  and  T.,  Sec. 
492;  Terstegge  v.  First  German, 
etc.,  92  Ind.  82;  Parish  Fork  Oil  Co. 
V.  Bridgewater  Gas  Co.,  51  W.  Va. 
583;  42  S.  E.  Rep.  655;  Hooks  v. 
Forest,  1G5  Pa.  238;  30  Atl.  Rep. 
846;  Cochran  v.  Shenango,  etc.,  Co., 
23  Pittsb.  Leg.  J.  (N.  S.)  82;  Heller 
V.  Dailey,  28  Ind.  App.  555;  63  N. 
E.  Rep.  490. 

Where  a  penalty  was  imposed 
only  for  not  drilling  a  well  within 
a  certain  prescribed  time,  a  lessee's 
failure  to  give  a  written  notice  of 
the  termination  of  the  lease  was 
held  not  to  render  him  liable  for  the 
penalty  provided  for  not  drilling  a 
well  within  such  time.  May  v.  Ha- 
zelwood  Oil  Co.,  152  Pa.  St.  518; 
25   Atl.   Rep.   564. 


218  ■  OIL   AND    GAS. 

been  surrendered,  but  the  original  lease  ought  to  be  destroyed 
or  delivered  to  the  lessor;  and  if  it  has  been  recorded,  it  can 
only  be  surrendered  by  an  entry  on  the  margin  of  the  record, 
or  by  an  instrument  signed  and  acknowledged  by  the  lessee.'"^* 
The  landowner  may  waive  a  written  notice,  though  the  lepse 
call  for  such  an  one.^*^'' 

§  144a.     Reservation  of  right  to  surrender  lease. — Completion 
of  surrender. 

A  lease  may  give  the  lessee  the  right  to  surrender  the  lease 
upon  payment  of  a  sum  of  money  named;  and  it  is  not  void 
for  mutuality. ^"-^  And  where  a  lease  gave  the  lessee  the  right 
to  cancel  his  lease  by  giving  the  lessor  written  notice  of  his 
intention,  by  paying  him  an  additional  sum,  and  by  releasing 
of  record  the  lease,  it  was  held  that  he  might,  upon  perform- 
ance of  the  conditions  determine  the  lease,  though  it  normally 
extended  over  a  period  of  time  not  yet  expired.  In  this  case 
the  contract  called  for  a  release  of  record,  and  it  was  held 
that  until  there  was  a  release  of  record  entered  by  the  lessee, 
as  well  as  a  giving  of  a  written  notice,  there  was  no  release ; 
for  the  lessor  was  not  bound  to  incur  the  expense  of  releasing 
the  lease  of  record. ^"-'^  Such  a  lease  cannot  be  specifically 
enforced  by  the  lessor,  upon  the  ground  that  whenever  a  con- 
tract is  incapable  of  being  enforced  against  one  party,  that 
party  is  equally  incapable  of  enforcing  it  against  the  other; 
and  unless  a  contract  can  be  specifically  enforced  as  to  all 
parties  equity  will  not  interfere. ^"-'^  If  the  lessee  must  pay 
damages  for  failure  to  drill  an  oil  well,  or,  at  his  option,  release 

102a  Ward   v.    Tripple    State,   etc.,  by    an    instrument    duly    executed, 

Co.    (Ky.);   115  S.  W.  Rep.  819.  acknowledgod    and    attested   by   wit- 

102b  PajTie  V.  Neurol,  155  Cal.  46;  nesses.     Marks  v.   Rushville  Gas   & 

99  Pac.  Rep.  476.  Oil  Co.,  30  Ohio  Cir.  Ct.  R.  798. 

Where  an  oil  and  gas  lease  pro-  102c  Watford    Oil    &    Gas    Co.    v, 

vides    that    it    may    be    surrendered  Shipman,  233  111.  9;   84  N.  E.  Rep. 

by     the     parties,     the     indorsement  53;    Poe   v.   Ulrey,   233   111.   56;    84 

thereon  of  its  cancellation  and  sur-  N.  E.  Rep.  46,  affirming  134  111.  App. 

render,  whether  such  indorsement  is  298. 

entitled  to  record  on  the  margin  of  i"2<J  Scott  v.  Lafayette  Gas  Co.,  42 

the  lease  record  or  not,  constitutes  Ind.  App.  614;  86  N.  E.  Rep.  495. 

a  legal   cancellation   and   surrender,  io2e  Ulrey  v.  Keith,  237  111.  284; 

though  the  statutory  provision  that  86  N.  E.  Rep.  696. 
any  interest  in  land  must  be  granted 


DURATION   OF  LEASE.  219 

the  premises,  his  failure  to  exercise  his  right  of  option  to  release 
the  land  entitles  the  lessor  to  recover  damages,  as  provided  in 
the  lease.^°=' 

§  145.     Payment  of  rental  instead  of  developing  premises. 

As  a  general  rule  a  lessee  cannot  prolong  the  life  of  a  lease 
by  the  mere  payment  of  rental/"'''  especially  where  he  has  a 
certain  period  within  which  to  develop  it.  Thus  where  the 
lease  was  for  two  years  "and  as  much  longer  as  oil  or  gas  is 
found  in  paying  quantities  or  the  rental  paid  thereon,"  and  it 
provided  for  a  rent  of  one-eighth  of  the  oil  and  two  hundred 
and  fifty  dollars  a  year  for  the  gas,  and  required  one  well  to 
be  completed  within  a  month  or  fifteen  dollars  per  month  to  be 
paid  in  advance  for  the  delay  until  one  well  should  be  com- 
pleted; and  it  also  provided  that  a  failure  to  complete  one 
well  or  make  such  payments  for  the  delay  should  render  the 
lease  void,  at  the  option  of  the  lessor,  it  was  held  that  it  did 
not  give  the  lessee  a  right  to  continue  the  lease  by  payiiig 
the  fifteen  dollars  per  month  after  the  expiration  of  two 
years,  after  the  beginning  of  operations.^"*  Where  a  lease 
was  given  for  two  years,  and  if  no  well  was  drilled  within 

.    i02f  steel  V.  People's  Oil  &  Gas  Co.,  Penn.    Gas    Co.    v.   George,    IGl    Pa. 

147  111.  App.  133.  St.   47;    34  W.  N.  C.   332;    28  Atl. 

Where  a  gas  company  surrendered,  Rep.     1004;    Murdock-West.    Co.    v. 

on  action  by  its  directors,  the  fran-  Logan,   C9   Ohio   St.  514;    69   N.   E. 

chises  over  a  portion  of  the  territory  Rep.   984 ;    Indiana   Natural    Gas   & 

occupied  by  it  without  objection  of  Oil    Co.    v.    Granger,    33    Ind.    App. 

its    stockholders,    creditors,    or    the  .559 ;  70  N.  E.  Rep.  395 ;  Logansport 

state,    it    was   held    that   the    land-  &  W.  V.  Gas  Co.  v.  Seegar,  1G5  Ind. 

owners  within  such  territory  had  no  1 ;  74  N.  E.  Rep.  500;  Dill  v.  Fraze, 

standing  to  question  the  act  of  the  1G5  Ind.  53;   79  N.  E.  Rep.  971;   77 

company,    though    they    were    previ-  N.   E.   Rep.    1147;    Armitage  v.  Mt. 

ously   served   by   it.     Germania   Re-  Sterling   Oil   &    Gas   Co.    (Ky.),   80 

fining  Co.  V.  Alum  Rock  Gas  Co.,  226  S.    W.   Rep.    177;    25    Ky.   L.    Rep. 

Pa.  433;  75  Atl.  Rep.  715.  2262;    North    Western,    etc.,   Co.   v. 

103  Brown  v.   Fowler,  65  Ohio  St.  Whitacre,    30    Ohio    Cir.    Ct.    Rep. 

507;  63  N.  E.  Rep.  70;  Gadbury  v.  737. 

Ohio,  etc.,  Co.  162  Ind.  9,  67  N.  E.  io4  Bettman  v.  Harness,  42  W.  Va. 

Rep.  259;    American   Window  Glass  433;    26  S.   E.   Rep.   271;   3G   L.   R. 

Co.  v.  Williams,  30  Ind.  App.  685;  A.  566;   a  similar  decision  in  Ponn- 

66  N.  E.  Rep.  912;  Indiana  Natural  .sylvania     was     rendered;      Western 

Gas  &   Oil   Co.   V.   Beales,    166   Ind.  Pennsylvania  Gas  Co.  v.  George,  161 

684;    76   N.   E.  Rep.  520;    Western  Pa.  St.  47;  34  W.  N.  C.  332;  28  Atl. 


220  OIL    .VND   GAS. 

twelve  months  it  was  to  become  void,  unless  the  lessee  paid 
for  further  delay  at  the  rate  of  one  dollar  per  acre  at  or 
before  the  end  of  the  second  year,  it  was  held  that  the  pay- 
ment of  one  dollar  per  acre  did  not  extend  the  lease  beyond 
the  two  years ;  and  no  oil  having  been  found  within  two 
years,  the  right  to  drill  for  oil  ceased/""'  But  in  Pennsylva'^  ia 
where  a  lease  provided  that  the  lessee  had  "the  option  to  drill 
the  well  or  not,  or  pay  said  rental  or  not,  as  he  may  elect,"  it 
was  held  that  the  lease  did  not  give  the  lessee  the  option  to  pay 
a  periodical  rental,  as  was  provided  in  the  lease,  or  drill  a  wi-ll 
if  it  so  pleased  him,  but  he  was  bound  to  either  drill  a  well  and, 
so  pay  no  rental,  or  pay  the  rental  and  not  be  compelled  to 
drill  the  well.  "It  is  not  for  the  lessor,"  said  the  court,  "but 
it  is  for  the  lessee  to  elect  which  he  will  do.  This  option  was 
deducible  from  the  stipulations  of  the  lease,  but  the  parties 
chose  to  put  it  in  words  and  make  it  a  part  of  the  contra'2t. 
The  contention  of  the  defendant  destroys  the  character  of  the 
whole  contract.  It  makes  the  lessee  say  that  he  will  drill  a  well 
within  a  given  time,  or,  failing  to  do  so,  that  he  will  pay  a 
monthly  rental,  but  that  he  will  do  neither  unless  it  pleases 
him ;  and  if  he  does  neither  he  shall  be  liable  in  no  manner  ^"or 
his  breach  of  contract.  Such  a  construction  is  so  unjust  and 
absurd  that  the  words  relied  upon  as  requiring  it  must  be  plain 
and  unambiguous,  and  must  be  incapable  of  an  exposition  in 
harmony  with  the  body  of  the  contract  before  we  can  consent 
to  adopt  it."  ^°'^    Unless  the  annual  rent  is  payable  in  advance, 

Rep.    1004.      [Followed    in    Indiana  no  gas  well  was  drilled  on  the  prem- 

Natural  Gas  &  Oil  Co.  v.  Granger,  iscs  within  five  years  it  should  be 
33    Ind.    App.   559;    70   N.    E.    Rep.  .   'Void,  unless  the  lessee  elected  from 

395.]      See   also   Detlor   v.   Holland,  year  to  year  to  continue  it  by  pay- 

57  Ohio  St.  492;  49  X.  E.  Rep.  G90.  ing  $40  each  year  in  advance  until 

105  Brown  v.   Fowler,   G5  Ohio  St.  a  well  was  completed  on  the  prcm- 

607;  63  N.  E.  Rep.  76.  ises.     It  was  held   that  this  was  a 

Upon     a     suHlcient    consideration  grant  of  a  term  for  ten  years,  con- 

the  owner  of  land  gave  a  lessee  the  ditioned  on  the  payment  of  $40  per 

exclusive  right  for  ten  years  to  en-  year    in    advance    after    the   expira- 

ter  on   such   land  and   prospect  for  tion   of   the    hrst   five  years.     Mon- 

oil   and  gas;   and  if  oil  or  gas  was  fort   v.    Lanyon   Zinc   Co.,    67    Kan. 

found     in     paying     quantities,     the  310;   72  Pac.  Rep.  784. 

privilege  of  operating  the  wells  was  los  McMillan  v.   Philadelphia  Co., 

given  so  long  as  they  produced  oil  159  Pa.  St.  142;  28  Atl.  Rep.  220. 

or   gas    in    paying   quantities.      The  A  failure  on  the  part  of  the  lessee 

agreement   furtner  provided   that   if  for  two  years  to  develop  the  prem- 


DURATION    OF    LEASE.  220a 

by  the  terms  of  the  lease,  it  need  not  be  so  paitl  in  oitlcr  to 
keep  the  lease  alive.'"""  Where  there  ^vas  an  annual  rental  ami 
free  gas  to  be  furnished,  it  was  held  that  the  lessor  could  not 
terminate  the  lease  so  long  as  he  used  the  gas.'""''  A  contract 
granting  the  exclusive  right  to  drill  and  operate  gas  and  oil 
wells  for  the  term  of  three  years,  and  as  much  longer  as  gas 
and  oil  are  found  in  paying  quantities,  in  consideration  for 
which  the  operators  were  to  pay  a  royalty  on  oil  produced  and 
$300  per  well  for  gas,  and,  in  case  no  well  be  drilled  within 
the  first  six  months,  a  stipulated  rental  per  year,  terminates 
upon  the  expiration  of  three  j-^ears  unless  oil  or  gas  is  produced 
in  paying  quantities.  Payment  of  yearly  rental  and  tender  of 
$300  per  year  for  non-producing  gas  well  will  not  effect  an 
extension  of  its  terms.  Neither  will  a  separate  agreement  upon 
consideration  three  years  and  eight  months  after  the  date  of 
the  contract,  granting  an  extension  to  a  fixed  date  more  than  a 
year  in  the  future,  the  terms  of  which  are  indorsed  on  the 
original  agreements,  continue  the  original  contract  in  force 
beyond  such  fixed  date,  especially  since  no  new  or  further 
efforts  were  made  to  develop  oil  or  gas  on  the  premises.'""*^ 


§  146.     Recision  for  fraud. 

An  oil  or  gas  lease  may  be  terminated  or  rescinded  for  fraud ; 
but  a  very  strong  case  must  be  made  out  to  secure  a  recision. 
A  representation  that  undeveloped  land  contains  oil  or  gas  is 
regarded  as  a  matter  of  opinion,  and  the  purchaser  is  bound 
so  to  understand  it;  because  of  the  uncertainty  attending  all 
mining  operations  for  gas  or  oil.'"^  But  if  the  grantor  or  lessor 
actually  knows  that  no  oil  or  gas  lies  beneath  the  surface,  or  if 

ises,    after    drilling    a    well,    finding  looa  Rhodes    v.    Mound    City    Gas, 

gas,  and  then  closing  it,  prima  facie  etc.,  Co.,  80  Kan.  7G2;   109  Pac.  Rep. 

authorizes  tlie  lessor,  who  was  to  be  851. 

paid  $100  per  annum  for  each  well  '"cbKing  v.   ..lorristown  F.  &   L. 

while   gas   was    being    used    off   the  Co.,   31    Ind.    App.    47G;    68    N.    E. 

premises,  without   demand,   to  treat  Rep.  310. 

the    grant    as   abandoned.      Oadbury  if'-c  North  Western  Ohio  Nat.  Caa 

V.  Ohio,  etc.,  Gas  Co.,  1G2  Ind.  9;  C7  Co.    v.   Whitacre,    30   Ohio   Cir.    Ct. 

N.  E.  Rep.  259.     See  also  American  Rep.  737. 

Window   Glass   Co.   v.   Williams,   30  lo^  IJoIbrook    v.    Connor,    60    Me. 

Ind.  App.   685;   66  N.   E.   Rep.  912.  578;    Gordon   v.    Butler,    105   U.   S. 

553    (a  case  of  stone). 


220b  OIL    AND   GAS. 

he  has  taken  active  steps  to  produce  a  false  impression  derived 
from  an  examination  of  the  premises — (as  in  "salting"  a 
silver  or  gold  mine) — then  the  representations  are  more  than 
an  opinion,  and  if  false,  and  they  induce  the  sale  or  acceptance 
of  a  lease,  then  such  a  fraud  will  authorize  a  recision  of  the 
contract  of  purchase  or  acceptance  of  the  lease.'""  The  fact 
that  the  purchaser,  who  has  brought  an  action  to  rescind  a 
purchase  he  has  made  on  the  ground  of  fraud,  has  used  a  quan- 
tity of  oil  which  he  has  received  from  the  property,  will  not 
necessarily  defeat  his  action ;  but  he  may  be  granted  relief 
on  the  payment  of  the  value  of  the  oil,  which  his  own  act  has 
rendered  impossible  for  him  to  restore.'"''  The  fact  that  the 
lessor  did  not  know  land  he  was  leasing  for  agricultural  pur- 
poses or  selling  contained  oil  or  gas  is  not  sufficient  to  avoid 
the  lease  for  fraud,  even  though  he  was  at  the  time  confined 
in  the  penitentiary  and  could  not,  of  course,  go  and  examine 
it,  and  even  though  gas  and  oil  in  paying  quantities  had  been 
developed  nearby,  or  within  two  miles,  if  the  lease  or  sale  be 
otherwise  equitable.  But  if  the  agent  of  the  lessee  or  pur- 
chaser, knowing  that  oil  had  been  produced  in  the  vicinity, 
and  knowing  that  the  owner  is  ignorant  of  that  fact,  repre- 
sents that  the  terms  offered  are  sufficient  the  lease  or  sale  will 
be  void  for  fraud,  especially  if  such  agent  was  acting  for 
such  owner  in  an  effort  to  secure  for  him  a  pardon.''"  A  court 
will  not  award  a  rescission  of  a  contract  made  by  parties  on 
equal  footing,  especially  when  to  grant  relief  is  as  liable  to  be 
wrong  as  right.'"  Nor  will  relief  be  given  though  the  terms 
are  harsh  or  unjust,  on  the  grounds  that  the  person  complain- 
ing did  not  use  good  business  judgment,  if  the  parties  stood 
on  an  equal  footing.'^-  A  false  representation  by  a  would-be- 
lessee  that  he  is  a  producer  of  oil,  made  to  induce  the  land- 
owner to  give  him  a  lease,  is  not  such  a  material  misrepreseni  a- 


108  Mudsill    Mining    Co.    v.    Wat-  109  Basye   v.    Paola    Refining    Co., 

reus,  61   Fed.  Rep.  163;   9  C.  C.  A.  79  Kan.  755;  101  Pac.  Rep.  658. 

415;  as  to  placing  in  statu  quo,  see  no  Moon  v.  Sawyer,  167  Fed.  Rep. 

Reeves  v.  Corning,  51  Fed.  Rep.  74;  826;   Guffey  v.  Clever,  146  Pa.  548; 

Billings  V.  Alfscn  Mining,  etc.,  Co.,  23  Atl.  161. 

51     Fed.    Rep.    338;     Thackarah    v.  m  Gillespie  v.   Fulton   Oil   &  Gas 

Haas,  119  U   S.  499;  7  Sup.  Ct.  Rep.  Co.,  230  111    188;  80  N.  E.  Rep.  219. 

311;    Gross   v     Scott.    Mfg.    Co.,   48  112  Poc  v.   Ulrey,   233  111.   56;    84 

Fed.  Rep   35.  N.  E.  Rep.  46. 


DURATION    OF    LEASH.  220c 

tion  as  will  justify  the  court  in  setting  aside  the  lease. "^ 
Nor  can  there  be  a  cancellation  of  the  lease  if  there  be  no 
proof  the  landlord  relied  upon  the  representations  of  the 
lessee."*  So  where  a  lessee  falsely  represented  that  he  had  a 
drill  which  he  was  bringing  to  the  oil  field  and  that  it  would 
be  put  in  operation  inside  of  thirty  days,  and  in  reliance 
thereon  the  lease  was  executed  wherein  it  was  provided  that 
on  a  failure  to  drill  an  oil  well  within  six  monllis  the  contract 
should  be  void,  it  was  held  that  an  action  to  set  aside  the  lease 
on  account  of  fraud  could  not  be  maintained."'  But  because 
of  the  peculiar  nature  of  oil  and  gaS,  both  the  quantity  and 
location  of  land  covered  by  an  oil  and  gas  lease  are  elements 
going  to  the  essence  of  the  contract  of  sale  of  such  a  lease, 
obligating  the  vendee  to  develop  the  property  and  deliver  a 
part  of  the  product  free  of  cost,  and  a  gross  misrepresentati-.n 
as  to  either  relied  upon  by  the  vendee  is  good  ground  for  a 
rescission."^  So  where  both  the  seller  and  producer  of  an  oil 
well  believed  that  it  was  an  oil-producing  well,  when  it  had 
been  salted  by  the  vendor's  assignors,  it  was  held  that  the 
purchaser  could  cancel  his  lease  and  recover  back  the  purchase 
money,  and  that  he  was  not  precluded  because  of  the  specula- 
tive character  of  the  property."^  The  fact  that  the  plaintiff 
executed  an  agreement  with  the  defendant  providing  for  delay, 

113  Gillespie  v.   Fulton  Oil  &  Gas  cancellation  of  their   conveyance   of 
Co.,  236  111.  188;  86  X.  E.  Rep.  219.  an    interest    therein   on    the   proiuid 

114  Gillespie  v.   Fulton   Oil  &  Gas  that,   if  the  well   had  been   sunk   to 
Co.,  supra.  the  "first  sand,"  it  might  have  pro- 

ii-""'  Rugples   V.    Spindle,   etc.,    Gas  ducod   oil. 

Co.,  72  Kan.  662;  83  Pac.  Rep.  399.  PlaintifT,    who   was    the    owner    of 

116  Bruner   v.    Miller,    59   W.   Va.  gas   land,   leased  certain  of   it   to  a 
36;  52  S.  E.  Rep.  995.  corporation  for  the  purpose  of  draw- 

117  Rowland  v.  Cox,  121  Ky.  341;  ing    gas    therefrom.      Thereafter    T. 
89  S.  W.  Rep.  215;   28  Ky.  L.  Rep.  applied  to  liim  to  lease  certain  other 
307.  lands  for  the  same  purpose.     Plain- 
In    this    case    the    lease    provided  tiff   refused   to   make    a    lease   if   it 

that  the  lessees  should  sink  the  well  was    intended    to    do    anything    to 

to  the  "first  sand,"  and  if  the  well  injure  tlie  other  lessee,  but,  on  being 

did  not  produce  oil  the  lease  should  assured  that  such  was  not  the  intent, 

be    null    and    void,    but    the    lessees,  leased  the  land  to  T.,  and  thereafter 

after  driving  the  well  to  a  depth  of  defendant    corporation     was    organ- 

489    feet,   salted   and   abandoned    it.  i/.ed,   and   expended  $20,000   putting 

It    was    held    that    their    assignees  down    gas    wells   and   establishing   a 

were  estopped   to   defend  a   suit  for  lampblack    factory    on    the    ground. 


220d 


OIL   AND   GAS. 


^\•\\\  not  deprive  the  plaintiff  of  his  right  to  forfeit  a  lease  for 
failure  to  prosecute  the  work  with  diligence  and  good  faith, 
where  it  appears  that  the  defendant's  purpose  in  securing  the 
agreement  was  fraudulent,  the  plaintiff  not  being  aware  of 
such  purpose  at  the  time  of  its  execution.^^* 


Gas  in  large  quantities  was  obtained 
from  defendant's  wells  which  was 
wasted  by  defenuant  to  the  injury 
of  the  other  lessee.  It  is  held  that 
such  facts  did  not  justify  a  cancel- 
lation of  defendant's  lease  on  the 
ground  of  fraud,  plaintiff  and  the 
other  lessee  being  protected  by 
statute  against  defendant's  further 
■waste  of  the  gas.  Louisville  Gas  Co. 
V.  Kentucky  Heating  Co.,  117  Ky. 
71;  77  S.  W.  3GS,  25  Ky.  Law  Rep. 
1221. 

lis  J.  M.  GufTey  retroleum  Co.  v. 
Oliver  (Tex.  Civ.  App.),  79  S.  W. 
Kep.  884. 


Where  an  o^\^ler  of  agricultural 
land  executed  an  oil  and  gas  lease 
providing  that,  if  it  should  be  detri- 
mental to  a  sale  of  the  place,  the 
lease  should  be  returned  to  him, 
such  provision  should  be  construed 
only  to  require  a  recission  if  the 
lease  was  detrimental  to  a  sale  of 
the  land  for  agricultural  or  other 
purposes  to  which  it  was  then  de- 
voted, and  did  not  authorize  a  re- 
cission to  permit  the  lessor  to 
dispose  of  his  oil  rights  to  greater 
advantage.  Duntley  y.  Anderson, 
109  F.  391. 


CHAPTER   V. 


FORFEITURE  OF  LEASE. 

§147.  Forfeiture  not  a  favorite  of  the  law. 

§148.  Rule  in  gas  or  oil  leases. 

§149.  History  of  change  in  rule  giving  lessor  exclusive  right  to  declare 
a  forfeiture. 

§150.  Forfeiture    favored    by    equity    when    it    will    promote   justice. 

§151.  Lessor  only  can  declare  forfeiture. 

§152.  Heirs  or  assignees  of  lessor  may  declare  forfeiture. —  Assignee. 

§153.  Stranger  cannot  avail  himself  of  forfeiture. 

§154.  Lease  may  be  voidable  at  election  of  lessee  on  his  default,  sur- 
render. 

§155.  Lessee  cannot  insist  on  forfeiture  to  escape  rent. 

§156.  Forfeiture  clause  omitted. 

§157.  Implied   covenants   do    not   authorize    forfeiture. 

§158.  Notice  of  election  to  declare   forfeiture. 

§150.  Waiver  of  forfeiture. 

§  160.  Waiver  of  forfeiture  by  accepting   payment. 

§  IGOa.  Waiver  of  forfeiture  by  receipt  of  gas. 

§  160b.  Acceptance  of  heat  for  definite  period. — Waiver  of  right  to  declare 
forfeiture. 

§161.  Eviction  of  lessee. 

§162.  Failure  to  operate  and  not  for  failure  to  develop. 

§16.3.  Continuance  of  operation. 

§164.  Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease. 

§165.  Covenant  uncertain. 

§166.  Re-entry. 

§167.  Release  of  premises  equivalent  to  a  re-entry. 

§168.  Surrender  after  assigninent. —  Forfeiture. 

§169.  Forfeiture  of  only  part  of  lease. 

§170.  Partial  development. —  Abandonment. 

§171.  T>espee  draining  leased  premises  by  wells  on  adjoining  territory. 

§172.  Lessee  draining  away  oil  by  sinking  wells  on  adjoining  premises. 

§173.  Inability  to  complete  work. 

§174.  Alortgage  of  leasehold  may  work  a  forfeiture. 

§175.  When  work   must  be  com))leted. 

§176.  Excavating  for  oil  means  bringing  11   to  tlie  surface. 

§177.  Failure  to  pay  royalties  or  to  report   them. 

§178.  Payinent  of  rent  will  not  prevent  forfeiture  for  neglect  to  develop. 

§179.  !Must  pay  rent  although  no  oil   on  premises. 

§180.  Lessee  must  pay  past  rents. —  Damages. 

§181.  Lessor  consenting  to  abandonment. 

221 


222  OIL    AND    GAS. 

§182.  Estoppel  of  lessor. 

§183.  Demand  for  coiiipliauee  with  lease. 

§184.  Abandonment   a    question   of   intention. 

§185.  Forfeiture  a   question    for  jury. 

§186.  Suit  to  cancel  lease  for  non-development  of  territory. 

§187.  Kelief  from  forfeiture. 

§188.  Time  to  avoid  forfeiture. 

§189.  Lessee  cannot  recover  premises  after  forfeiture. 

§100.  Reimbursement  for  expenses. 

§191.  Removal  of  fixtures  and  machinery. 

§192.  Damages  instead  of  declaring  a  forfeiture. 

§147.     Forfeiture  not  a  favorite  of  the  law. 

In  thousands  of  decisions  it  has  been  declared  that  "  for- 
feiture is  not  a  favorite  of  the  law."  ^  "  Conditions  that  work 
forfeitures,"  said  the  Supreme  Court  of  Pennsylvania,  '^  are 
not  favorites  of  the  law  ;  and  nothing  less  than  a  clear  expression 
of  intention  that  a  provision  shall  he  such  will  make  it  a  con- 
dition upon  which  the  conti>'<ance  of  an  estate  granted  de- 
pends."- A  court  of  equity  vrill  not  enforce  a  forfeiture.  It 
w^ill  not  divest  a  vested  estate  by  enforcing  a  forfeiture  for  the 
breach  of  a  subsequent  condition.  In  such  a  case,  a  party  is 
left  to  his  legal  remedy.-"^ 

§  148.     Rule  in  gas  or  oil  leases. 

Forfeitures,  hov^ever,  on  the  part  of  the  lessee  in  a  gas  or  oil 
lease,  which  arise  by  reason  of  his  neglect  to  develop  or  operate 
the  leased  premises,  are  rather  favored  by  the  law,  because  of 
the  peculiar  character  of  the  product  to  be  produced.^  The 
reasons  for  this  have  been  well  stated  in  a  Pennsylvania  case 
as  follows: 

"The  discovery  of  petroleum  led  to  new  forms  of  leasing 
land.    Its  fugitive  and  wandering  existence  within  the  limits  of 

i  Lauman   v.    Young,    31    Pa.    St.  3  Tliat  a  gas  or   oil   lease   is  con- 

306.  strued  more  favorably  to  tlie  lessor 

2MeKnight  v.  Kreutz,  ,51   Pa.  St.  tlian  to  the   lessee,   see   Edwards   v. 

232;  Westmoreland,  etc.,  Gas  Co.  v.  lola  Gas  Co.,  G5  Kan.  362;   69  Pac. 

DeVVitt,    130    Pa.    St.   235;    18    Atl.  Rep.  350;  and  Gadbury  v.  Ohio,  etc.. 

Rep.  724;   29  Am.  L.  Reg.  93;   Hen-  Gas  Co.,   162  Ind.  9;   67  N.  E.  Rep. 

derson  v.  Coal  and  Coke  Co.,  140  U.  259;  American  Window  Glass  Co.  v. 

S.  25;   11  Sup.  Ct.  Rep.  691.  Williams,   30   Ind.  App.   685;    66  N. 

2a  Craig  V.  Ilukill,  37  W.  Va.  520;  E.  Rep.  912;    Collmberry  v.  Sun  Oil 

16  S.  E.  363;  Pheasant  V.  Ilanna,  63  Co.    68    Ohio    488;     67    X.    E.    Rep. 

W.  Va.  613;   60  S.  E.  618;   Headley  1069;     Lowther    Oil    Co.    v.    Miller- 

V.    Hoopengarner,    60    W.    Va.    626;  Sibley  Oil  Co.,  53  W.  Va.  501;  44  S. 

55   S.   E.    144;    Newton   v.    Kemper,  W.   Rep.  433. 
66  W.  Va.  130;  66  S.  E.  102. 


FORFEITURE   OF    LEASE.  223 

a  particular  tract  was  unocrtiiin,  and  assumed  oortaiTitv  (uily  by 
actual  development  founded  uixtn  o.\i)erini('nt.  The  surface  re- 
quired was  often  small  compared  with  the  resuhs  when  att^'uded 
with  success;  whilst  these  results  led  to  a  great  six^culation  by 
means  of  leases  covering  the  lands  of  a  neighborhood  like  a 
flight  of  locusts.  Ileiieo  it  was  found  necessary  to  guard  the 
rights  of  the  land  owner,  as  well  as  ])ublic  interest,  by  numer- 
ous covenants,  some  of  the  most  stringent  kind,  to  prevent  their 
lands  from  being  burdened  by  unexecuted  and  profitless  leases 
incompatible  with  the  right  of  alienation  and  the  use  of  the  land. 
Witliout  tliese  guards,  lands  would  be  thatched  over  with  oil 
leases  by  subletting,  and  a  farm  riddled  with  holes  and  bristled 
with  derricks,  or  operations  would  be  delayed  so  long  as  tho 
speculator  would  find  it  hopeful  or  convenient  to  himself  alone. 
Hence  covenants  become  necessary  to  regulate  the  boring  of 
wells,  their  number,  the  time  of  succession,  the  period  of  com- 
mencement and  of  completion,  and  nuniy  other  nuitters  requir- 
ing special  regulation.  Prominent  among  these  was  the  clause 
of  forfeiture  to  com]>el  performance,  and  put  an  end  to  the  lease 
in  ease  of  injurious  delay  or  a  want  of  success.  These  leases 
were  not  valuable  except  by  means  of  development,  unlike  the 
ordinary  terms  for  tlie  cultivation  of  the  soil  or  for  the  removal 
of  fixed  minerals.  A  forfeiture  for  non-development  or  delay 
therefore  cut  off  no  valuable  rights  of  ]U'o]HM-ty,  wliih^  it  was 
essential  for  the  protection  of  private  public  interest  in  relation 
to  the  use  and  the  alienation  of  property.  In  the  present  case 
the  lease  was  modified  by  adding  immediately  after  the  clause 
of  forfeiture  a  stipulation  that,  should  the  lessee  not  commence 
operation  at  a  time  specified,  he  should  ])ay  to  the  landlord 
thirty  dollars  for  each  and  every  month  until  such  time  ^as 
drilling  should  be  commenced.  The  lessee,  having  ])aid  for 
three  months'  delay,  suffered  eleven  months  to  ela]xse  withnut 
payment  or  tender,  and  then  tendered  the  whole  sum,  which 
the  landlord  declined  to  accept,  and  insisted  on  the  forf(dture, 
he  in  meantime  having  made  a  now  lease  to  a  ]>arty  who  went 
into  possession.  The  learned  judge  below  held  tliiit  the  lease 
was  forfeited  by  the  omission  to  y>ay  the  monthly  sums,  the 
lessee  having  done  nothing  in  jjerformance  of  his  covenants. 


224  OIL   AND    GAS. 

We  cannot  pronounce  tliis  to  be  an  error,  in  view  of  the  nature 
of  the  lease,  the  true  intention  of  the  clause  of  forfeiture,  and 
the  want  of  any  valuable  interest  acquired  by  the  lessee,  by  per- 
formance. That  time  may  be  made  of  the  essence  of  the  con- 
tract by  the  express  agre<?ment  of  the  parties  has  been  so  often 
decided  that  no  citation  of  authority  is  necessary.  In  a  case 
like  this  equity  follows  the  law,  and  will  enforce  the  covenant 
of  forfeiture,  as  essential  to  do  justice.  It  is  true  as  a  general 
statement  that  equity  abhors  a  forfeiture;  but  this  is  when  it 
works  a  loss  that  is  contrary  to  equity,  not  when  it  works  equity, 
and  protects  the  land  owner  against  the  indifference  and  laches 
of  the  lessee,  and  prevents  a  great  mischief,  as  in  the  case  of 
such  lessees.  To  perpetuate  an  oil  lease  forever  by  the  pay- 
ment of  a  monthly  sum,  as  here,  at  the  will  or  ca])rice  of  the  les- 
see, would  work  great  injustice.  The  covenant  of  forfeiture 
was  not  abrogated  entirely,  but  only  modified."  *  In  a  subse- 
quent case  the  same  court  used  the  following  language: 

"  The  agreement  is  plain  that  if  the  lessees  failed  to  get  oil 
in  one  well,  they  had  a  right  to  put  down  another,  and  as  many 
more  as  they  pleased,  so  long  as  they  Avorked  with  diligence  to 
success  or  abandonment,  and  equally  plain  that  a  cessation  of 
thirty  days  would  end  their  lease.  They  were  not  bound  to  do 
more  than  make  a  reasonable  search  for  oil,  but  they  were  bound 
to  operate  or  quit;  they  could  not  hold  on  and  be  idle.  The 
contract  did  not  require  them  to  keep  on  drilling  oil  wells  in- 
definitely and  without  cessation,  for  twenty  years,  nor  for  any 
indefinite  length  of  time;  neither  did  it  entitle  them,  after  the 
drilling  of  the  well,  tri  hold  the  lease  for  twenty  years  without 
working  it.  Even  at  the  beginning  of  the  lease,  the  duration 
of  the  term  was  qualified  by  the  words,  '  unless  forfeited.'  The 
question  seems  to  be,  shall  the  concise  and  clear  expression  of 
the  agreement  rif  these  parties,  as  written,  give  way  To  imaginary 
terms  more  favorable  to  the  lessees?  What  is  there  in  the 
circumstances  calling  for  a  fiction  to  defeat  the  covenant  against 
delay  in  searching  for  or  producing  oil  ?  .  .  .  If  a  well  be 
productive,  it  is  thr>  interest  of  br)th  lessor  and  lessee  that  it  be 

*  Brown  v.  Vander^rift,  80  Pa.  St.  142. 


FORFEITURE   OP    LEASE.  225 

coiitimiously  oix^ratcd  till  its  exhaustion,  Inil,  if  dry,  it  is  of 
no  value.  Holding  on  to  a  lease  after  eeasiiig  search  is  often 
for  purposes  of  speculation,  the  thing  wliicli  a  prudent  land 
owner  guards  against.  Forfeiture  for  iiou-developineiit.  or 
delay,  is  essfential  to  private  and  jiulilic  interests  in  relation  to 
the  use  and  alienation  of  ])ro{K.M'ty.  In  such  cases  as  this  ecpiity 
follows  the  law. 

"  In  the  rapid  development  and  exhaustion  of  oil  lands,  cessa- 
tion of  work  for  nine  months  is  a  long  |wriod.  Often  in  far 
less  time  the  fluctuation  in  ]irices  of  land  and  h^isclioMs  is  very 
great.  Perha]>s  in  no  other  husiness  is  jirompt  ])erf(trmance  of 
contracts  so  essential  to  the  rights  of  the  parties,  or  delay  by 
one  party  likely  to  prove  so  injurious  to  the  other."  ^ 

§149.     History  of  change  in  rule  giving  lessor  exclusive  right  to 
declare  a  forfeiture. 

''  A  distinction  formerly  prevailed  between  a  proviso  declar- 
ing that  the  lease  should  be  void  on  a  syvccified  event,  and  a  >ro- 
viso  enabling  the  lessor  to  determine  it  by  re-entry.  It  was 
held  that  in  the  former  case  the  lease  became  absolutely  void  on 
the  event  named,  and  was  incapable  of  being  restored  by  ac- 
ceptance of  rent  or  other  act  of  intended  confinnation  ;  whilst 
in  the  latter  some  act,  such  as  entry  or  claim,  must  have  boon 
performed  by  the  lessor  to  manifest  his  intention  to  end  the 
demise,  which  was  voidable  in  the  interval  and  consequently 
confirmable.  The  force  of  this  distinction,  it  is  said,  in  Tay- 
lor on  Landlord  and  Tenant, °  has  been  almost,  if  not  (piite, 
abated  by  the  modern  decisions,  which  establish  that  the  effect 
of  a  condition  making  a  lease  void  upon  a  certain  evoTit,  is  t-o 
make  it  void  at  the  option  of  the  lessor  only,  in  cases  where 
the  condition  is  intended  for  his  benefit,  and  lie  actually  avails 
himself  of  this  privilege."-''  But  it  is  entirely  <i]ttional  with 
the  lessor  whether  he  will   avail  himself  of  his   i-ight    or   not, 

5  Munroe  v.  Armstrong,  00  Pa.  Pt.  Tn   Dio  absonco   of   sf  ipnlationa   to 

307.  tliat  ollcet,   a   cdiitract    granting  the 

This   runs  through   all  tho  cases:  riglit   of   oj)rra(ing   for   oil    and    gas 

Conkiing    v.     Krandusky     (N.    Y.),  cannot  Iw  forft'it<'(l   for   a   lircacii  of 

112   N.   Y.    Supp.    ]'A:    Stilil    v.   Illi-  one    of    its   terms.      Kosc    v.    Lanvon 

rois   Oil   Co.,  45   Ind.  App.  211*;    90  Zinc  Co.,  (58  Kan.  120;  74  Tac.  liep. 

N.  E.  Rep.  032:   Ciliesjiie  v.  Fulton  025. 

Oil  &  Cns  Co.,  236  111.  1.S8:  SO  X.  K.  «  Sec.  402. 

Vr-n.  -310;   Ohio  Oil  Co.  v.  Detamoro,  •"2  Piatt  on  Ix>ascs,  327. 
105   Ind.    248;    73   N.   E.   Rep.   908. 


226  OIL    AND    GAS. 

altliougli  by  the  terms  of  tlie  proviso  the  term  is  to  cease  or 
become  void  for  the  non-performance  of  the  covenant;  and  if 
the  lessor  docs  not  avail  himself  of  it  the  term  will  continue, 
for  the  lessee  camiot  elect  that  it  shall  cease  or  be  void.  Where 
there  is  a  proviso  in  a  lease  that  on  non-payment  of  rent  the 
term  shall  cease,  the  lessor  and  not  the  lessee  has  the  option  of 
determining  the  lease  u]X)n  a  breach  made.^  The  English  law 
in  this  respect  had  been  generally  followed  in  this  country,  and 
such  a  lease  is  held  to  be  good  until  avoided;  though  the  lessee 
is  estopped  to  set  it  up  against  the  lessor.  A  lessee  cannot  avail 
himself  of  his  own  act  to  vacate  a  lease,  on  the  principle  that 
no  man  shall  be  permitted  to  take  advantage  of  his  own  wrong.* 
So  Mr.  Parsons,  in  his  Law  of  Contracts,®  referring  to  the  dis- 
tinction formerly  recognized  between  the  effect  of  a  proviso  de- 
claring that  the  lease  shall  be  void  in  a  six^cified  event,  and  a 
proviso  enabling  the  lessor  to  determine  it  by  re-entry,  says: 
'  This  distinction  is  now  exploded,  and  it  is  held  that  the  lease 
is  voidable  only  at  the  election  of  the  lessor,  but  not  of  the  les- 
see, though  the  proviso  expressly  declare  that  it  shall  be  void.' 
In  Pennsylvania  the  older  doctrine  would  seem  at  first  to  have 
been  adhered  to,  that  in  a  lease  for  years  with  condition,  if  the 
condition  be  broken  by  the  lessee,  his  interest  was  ipso  facto  void 
by  the  breach,  and  no  subsequent  recognition  of  the  tenancy 
could  set  it  up.^°  In  the  case  cited  there  was  a  lease  of  land 
upon  condition  that  the  rent  should  be  paid  upon  certain  speci- 
fied dates,  and  if  a  certain  default  was  made  for  three  months, 
neglect  to  pay  after  ten  days'  notice  should  render  the  lease  null 
and  void.  The  default  occurred  and  notice  was  given,  and  it 
was  held  that  after  ten  days  the  lease  was  ipso  faclo  void,  with- 
out re-enti*y,  and  could  not  afterwards  be  affirmed  or  continued. 
In  Sheaffer  v.  Sheaffer "  the  doctrine  announced  by  Justice 
Sergeant,  in  Kenrick  v.  Smiek,  supra,  was  adhered  to ;  and 
English  cases  were  brought  into  contrast  with  the  doctrine  of 
Kenrick  v.Smick,  and  it  is  admitted  that  the  rule  of  the  English 
courts  is  followed  in  most  of  the  States  of  the  Union.  In 
Davis  V.  Moss,^^  the  rule  of  the  previous  cases  is  again  appa- 

^  Reid  v.  Parsons,  2  Chit.  247.  lo  Kenrick    v.    Smick,    7    W.    and 

8  Wood's    Landlord    and    Tenant,       S.  41. 

1204.  11  37  Pa.  .525. 

9  Vol.  I.,  p.  507.  12  38   Pa.   346. 


FORFEITURE   OF    LEASE.  227 

reiitly  recognized,  but  its  rii2:(>r  is  rohixcd  in  tliis,  that,  tho  for- 
feiture is  said  to  de]KMid  u]h>ii  the  tci'iiis  of  tlic  iiist niiiitMit, 
*  unless  tliere  be  evidence  to  etVcct  the  huuUord  with  a  waiver 
of  the  breach,  like  the  receipt  of  rent  or  other  equally  un- 
equivocal act.'  The  distinct  ion  Ix'twcen  the  Pennsylvania  cases 
referred  to  and  the  weight  of  authoiity  elsewhere,  therefore, 
would  seem  to  be  that  by  the  former  the  lease,  \\]xm  breach  of 
the  condition,  is  ipso  facto  void,  unless  by  some  unequivocal  act 
of  the  lessor  it  is  waived,  whilst  by  the  latter  it  is  void  if  the 
lessor  elects  by  some  positive  act  to  take  advantage  of  it.  We 
do  not  understand  that  in  either  case  a  re-entry  is  required  to 
complete  the  forfeituiK\  This  almost  amounts  to  a  distinction 
without  a  difference.  ]n  ]^ractice,  the  prima  fades  ho'ing  dif- 
ferent, it  merely  shifts  the  burden  of  proof  from  one  party  to 
the  other.  It  will  be  observed  moreover,  that  the  Pennsylvania 
cases  already  referred  to  arc  nil  cases  in  which  the  forfeiture 
was  set  up  by  the  lessor  upon  the  default  of  the  lessee;  in  none 
of  them  did  the  lessee  set  up  his  own  default  as  a  cause  of  for- 
feiture. No  case  has  been  called  to  our  attention,  in  this  or 
any  other  State,  in  England  or  elsewhere,  which  recognizes  the 
doctrine  that  a  party  may  take  advantage  of  his  own  wa'ong,  or 
set  up  his  own  default  to  work  a  forfeiture  of  his  own  contract. 
Persons  may,  of  course,  contract  in  this  form  and  to  this  effect 
if  they  choose,  but  we  do  not  understand  tho  ])arti(>s  to  this 
contract  to  have  so  intended.  But  the  rigid  rule  of  Kenrick  v. 
Smiek  is  further  relaxed  in  the  very  recent  case  of  Galey  v. 
Kellerman."  Thus  it  appears  that  the  distinction  formerly 
maintained  between  the  rulings  of  the  English  courts  and  of  the 
courts  of  our  sister  States,  and  the  rulings  in  Pennsylvania,  is 
no  longer  found  to  exist.  We  have  by  slow  approaches  at  last 
apparently  turned  into  the  general  current  of  cases,  in  which 
is  found,  without  doubt,  the  great  weight  of  authority,  l)oth  in 
England  and  in  this  country."  " 

13  123  Pa.  491 ;   16  Atl.  Eop.  474.       Atl.  Rop.  721 ;  ^  L.  R.  A.  C03. 
1*  Wills    V.    Manufacturers'    Nat-  For   Pennsylvania  cases,   see   pre- 

ural  Gas  Co.,   130  Pa.   St.  222;    18       ceding  section. 


228  OIL   AND    GAS. 

§150.     Forfeiture  favored  by  equity  when  it  will  promote  justice. 

A  forfei'.ure  is  iidt  :il\v:i_vs  nMidrfcd  liy  the  law,  luir  by  equity, 
if  its  enl\)rceiiK'tit  will  iu'diiidlc  jtistico.  SjTcaking  of  one  in- 
stance it  was  said  hy  an  aiipcUato  court:  "  In  a  ease  like 
tliis  equity  follows  the  law,  and  will  enforce  tlie  covenant  of 
forfeiture,  as  essentia!  to  do'  justice  It  is  trfiie  as  a  general  state- 
ment that  cciuity  altliors  a  fdri'ciiuix' ;  l)iit  this  is  when  it  works 
a  loss  that  is  contrary  to  equity,  not  when  it  works  equity,  and 
protects  the  land  owuer  against  the  indifference  ai\4  laches  of 
the  lessee,  and  prevents  a  great  mischief,  as  in  the  case  of  such 
lessees."  '"*  The  courts  have  gone  so  far  as  to  allow  a  specified 
time  within  which  to  complete  a  well,  and  if  not  done  within 
that  time,  the  lease  would  be  declared  forfeited.'*' 

§151.     Lessor  only  can  declare  forfeiture. 

A  lessee  cannot  set  up  his  own  default,  in  order  to  terminate 
the  lease  or  escape  liability  under  its  provisions.  If  he  make 
default,  not  keeping  the  covenants  of  the  lease,  it  is  with  the 
lessor  to  declare  a  forfeiture,  or  that  it  shall  no  longer  be  in 
force.  If  a  mining  lease  provide  that  if  the  mine  should  not 
be  worked  the  lease  should  be  void,  the  word  "  void  "  means 
"voidable"  at  the  election  of  the  lessor;  and  it  will  be  neces- 
sary for  him  to  do  some  act  evincing  an  intention  to  avoid  it 
before  it  can  be  considered  avoided  or  terminated.'^  This  is 
true  even  though  a  clause  provides  that  a  failure  to  do  the 
thing  covenanted  to  do  "  shall  render  this  lease  null  and  void, 

15  Brown  v.  Vandergrift,  80  Pa.  i7  Roberts  v.  I>avey,  4  Barn,  and 
St.  142;  Munroe  v.  Armstrong,  90  Ad.  0(34;  1  Nev.  and  M.  443;  Brj'an 
Fa.  St.  307;  Parish  Fork  Oil  Co.  v.  v.  Bancks,  4  J5arn.  and  Aid.  4U1; 
Bridgewater  Gas  Co.,  51  W.  Va.  Bettnian  v.  Jriariiess,  42  \V.  V'a.  433; 
583;  42  S.  E.  Kep.  (i55 ;  Barnsdall  20  S.  E.  Rep.  271;  36  L.  R.  A.  566; 
V.  Bolev,  119  Fed.  Rep.  191;  Monroe  Westmoreland,  etc..  Gas  Co.  v.  De- 
V.  Armstrong,  96  Pa.  307;  Doddridge  Witt,  130  Pa.  St.  235;  18  Atl.  Rep. 
Oil  &  Gas  Co.  V.  Smitli,  154  Fed.  724;  5  L.  R.  A.  731;  Smith  v.  Mil- 
970.  Icr,   49   N.   J.   L.   521;    13  Atl.   Rep. 

16  Young  V.  Vandergrift,  30  39;  llenne  v.  South  Penn.  Oil  Co., 
Pittsb.  L.  J.  (N.  S.)  39.  Reversed  .52  W.  Va.  192;  43  S.  E.  Rep.  147; 
in  Young  V.  Forest  Oil  Co.,  194  Pa.  Risch  v.  Busch  (Ind.),  95  N. 
St.  248;  30  Pittsb.  L.  J.  (N.  S.)  E.  123;  IMillaii  v.  P>artlett  (W.  Va.), 
221;    45    Atl.    Rep.    121.      See    Ohio  71    S.   E.    13. 

Oil  Co.  V.  Hurlbut,  7  chio  Dec.  321;  Where   an  oil   and   gas   lease  pro- 

14  Ohio  C.  C.   144,  reversing  6  Oliio  vided    for    drilling   or   operating   oil 

Dec.  305;   Henne  v.  South  Penn.  Oil  or  gas  wells,   and,  on  failure   to  do 

Co.,   52   W.  Va.    192;    43   S.  E.   Rep.  an,  to  pay  an  agreed  sum  per  day  to 

147;  Gadbury  v.  Ohio,  etc..  Gas  Co.,  the  lessor  for  such  failure  or  delay, 

162   Ind.  9 ;    67  N.  E,  Rep,  259.  and  that,  on  failure  to  drill,  operate, 


FORFEITURE   OF    LEASE. 


228a 


together  with  all  rights  and  claims,  ami  not  binding  on  citlior 
party  and  not  to  be  revived  witliout  the  consent  of  both  parties 
hereto  in  writing."  "  Such  provisions  of  forfeiture,"  said  the 
court,  "  are  for  the  benefit  of  the  lessor,  and  not  fur  the  beiictit 
of  the  lessee.  The  lessee  cannot  plead  his  own  default  or  wrong 
in  discharge  of  his  obligation  to  drill  or  pay  rental."  "*  The 
lessor  has  the  option  to  discontinue  the  lease,  on  default  of  the 
lessee,  or  affirm  the  continuance  of  the  contract.^''  Where  a 
lease  provided  that  the  lessee's  failure  to  complete  a  well  within 
a  certain  period,  or,  in  default  thereof,  to  j>ay  a  certain  yearly 
rental,  should  render  the  lease  ''  null  and  void,"  and  that  all 
rights  and  claims  should  therefrom  cease,  "  with  like  effect  as 
if  this  agreement  had  never  been  made,"  it  was  held  that  the 
lessee,  by  his  own  default,  could  not  relieve  hiuisclf  from  lia- 
bility already  incurred.'""  In  the  instances  just  given  parol 
evidence  is  not  admissible  to  show  the  uniform  construction  of 
similar  clauses  by  parties  to  such  loases.^^      Some  of  the  courts 


or  to  pay  the  agreed  sum,  the  lease 
should  be  voidj  such  provision  was 
for  the  benefit  of  the  lessor,  so  that, 
on  a  breach  of  the  lease,  he  might 
declare  a  forfeiture  by  proper  notice 
or  waive  the  forfeiture  and  proceed 
against  the  lessee  for  failure  to 
perform  the  covenants  of  the  lease, 
and  hence  title  did  not  revest  in  the 
lessor  immediately  on  tiie  lessee's 
default.  Perry  v.  Acme  Oil  Co.,  44 
Ind.  App.  207;  88  N.  E.  859;  re- 
versing 80  N.  E.  Hep.  174. 

18  Woodland  Oil  Co.  v.  Crawford, 
55  Ohio  St.  IGl ;  30  Oliio  L.  Bull. 
231;  44  N.  E.  Rep.  1093;  34  L.  R. 
A.  62;  Thomas  v.  Hukill,  34  W.  Va. 
385;  12  S.  E.  Rep.  522;  Jones  v. 
Western,  etc..  Gas  Co.,  146  Pa.  St. 
2o4;  23  Atl.  Rei  .  o86;  29  W.  N.  C. 
266;  Galey  v.  Kellerman,  123  Pa. 
St.  491;  16  Atl.  Rep.  474;  Ray  v. 
Western,  etc.,  (ias  Co.,  138  Pa.  St. 
576;  20  Atl.  Rep.  1065;  12  L.  R. 
A.  290;  Springer  v.  Citizens',  etc., 
Oas  Co.,  145  I'a.  St.  430;  22  At!. 
Rep.  986;  Cochran  v.  Pew,  159  Pa. 
St.  184;  28  Atl.  Rep.  219;  Smiley  v. 
Western,  etc.,  Gas  Co.,  27  W.  N.  C. 
238;  Liggett  v.  Shira,  159  Pa.  St. 
350;  33  W.  N.  C.  553;  25  A  J.  Rep. 
218;  Mathews  v.  People's,  etc..  Gas 
Co.,  17!>  Pa.  St.  165;  39  W.  N.  C. 
544;  27  Pittsb.  L.  J.  (NT.  S.)  421; 
36   Atl.    Rep.   216;    Harris    v.    Ohio 


Coal  Co.,  57  Ohio  St.  118;  48  X.  E. 
Rep.  502;  Indiana  Natural  (ias  Co. 
V.  Gainard,  45  Ind.  App.  613;  91  N, 
E.  Rep.  362;  New  Domain  Oil  & 
Gas  Co.  V.  Gaffney  Oil  Co.,  134  Kv. 
792;  121  S.  W.  Rep.  699;  34  Ky.  L. 
Rep.  — ;  Hancock  v.  Diamond  i'iate 
Glass  Co.,  162  Ind.  146;  70  N.  E. 
Rep.  149;  ililler  v.  Logan,  31  Pittsb. 
Leg.  J.  (X.  S.)  217;  Clierokee  Const. 
Co.  V.  Bishops,  86  Ark.  489;  112 
S.  W.  Rep.   189. 

19  Wills  V.  Manufacturers',  etc., 
Gas  Co.,  130  Pa.  St.  222;  18  Atl. 
Rep.  721;  5  L.  R.  A.  602;  Ogden  v. 
Hatry,  145  Pa.  St.  640;  23  Atl.  Rep. 
334;  Phillips  v.  Vandergrift,  146 
Pa.  St.  357;  23  Atl.  Kep.  347; 
Leatherman  v.  Oliver,  151  Pa.  St. 
646;  31  W.  X.  C.  205;  25  At!.  Rep. 
309;  Agerter  v.  Vandergrift,  138 
Pa.  St.  576;  27  W.  X.  C.  230;  21 
Atl.  Rep.  202. 

-"  Ogden  V.  Hatry,  supra ;  Shet- 
tler  v.  Hartman,  T  Pennvp.  (Pa.) 
279;  Miller  v.  Logan.  .31  Pittsb. 
I>eg.  J.  (X.  S.)  217;  Perlv  v.  Acme 
Oil  Co.,  44  Ind.  App.  207;'  88  X.  E. 
Rep.  859,  reversing  80  X.  E.  Rep. 
174. 

21  .Jones  V.  Western,  etc..  Gas  Co., 
146  Pa.  St.  204;  2!»  W.  X.  C.  -HHi; 
23   Atl.    Kep.   386. 

Where  a  clause  in  a  leise  reads 
"and  no  rigiit  of  action  shall  after 


22Sb 


OIL    AND   GAS. 


have  gone  a  long  ways  in  upholding  the  rule  that  only  the  less<jr 
can  take  advantage  of  the  lessee's  default.  Thus  where  a  lease 
provided  that  a  lease  must  be  completed  within  three  montlis, 
and  in  case  of  a  failure  to  do  so,  to  pay  a  rental  of  $25  a 
month,  until  the  conii>lotion  of  one  well;  and  then  expressly 
provided  that  "  a  failure  to  complete  Guch  a  well  or  to  comply 
with  any  of  the  foregoing  conditions,  or  to  make  any  such  pay- 
ments within  such  time  and  at  such  place  as  above  mentioned, 
renders  this  lease  absolutely  null  and  void,  and  no  longer  bind- 
ing on  either  party,  and  will  reinvest  the  estate  herein  granted 
in  the  lessor,  and  release  the  lessee  from  all  his  covenants  herein 
contained,  behaving  the  option  to  drill  said  well  or  not,  or  pay 
said  rental  or  not  as  he  may  elect  "  ;  this  clause  was  considered 
not  to  give  the  lessee  a  right  to  avoid  the  lease ;  and  he  not 
having  drilled  a  well  conld  not  set  up  a  forfeiture  to  avoid  pay- 
ing rent.""  In  discussing  a  case  of  this  kind  the  Supreme  Court 
of  Pennsylvania  used  the  following  language: 

"  Whilst  the  obligation  on  the  part  of  the  lessee  to  operate  is 
not  expressed  in  so  many  words,  it  arises  by  necessary  implica- 
tion. .  .  .  If  a  farm  is  leased  for  farming  purposes,  til's 
lessee  to  deliver  to  the  lessor  a  share  of  the  crops,  in  the  nature 
of  rent,  it  would  be  absurd  to  say,  because  there  was  no  express 


such  failure  accrue  to  either  party 
on  account  of  the  breacli  of  any 
promise  or  agreement  herein  con- 
tained," it  was  held  tliat  tlie  words 
"after  such  failure"  referred  to  the 
continued  failure  to  make  the  pay- 
ment after  it  became  due,  and  that 
the  right  of  action  to  recover  it  was 
not  affected.  Lcatherman  v.  Oliver, 
151  Pa.  St.  646;  25  Atl.  Rep.  309; 
31  \V.  N.  C.  205;  Conger  v.  Na- 
tional, etc.,  Co.,  IGo  Pa.  St.  561; 
31  Atl.  Rej).  1038;  Sanders  v.  Sharp 
153  Pa.  St.  555;  25  Atl.  Rep.  524. 
Scliaupp  V.  Hukill,  34  W.  Va.  375: 
12  S.  E.  501;  Ilukill  v.  Myers,  36 
W.  Va.  639;  15  S.  E.  151;  I^wther 
Oil  Co.  V.  GufTey,  52  W.  Va.  88 ;  42 
S.  E.  101 ;  Stone  v.  ]\Iarshall  Oil  Co., 
188  Pa.  602;  41  Atl.  748,  1119; 
Bartley  v.  Phillips,  165  Pa.  325;  30 
Atl.  842.  The  lessee  cannot  insist 
that  the  lessor  exercise  his  right  of 
option  in  order  that  he,  the  lessee, 
be  released  from  his  covenant. 
Leatherman  v.  Oliver.  151  Pa.  St. 
646;  25  Atl.  Ren.  309;  Licrsritt  v. 
Shira,  159  Pa.  350;  28  Atl.  218. 


22MciIillan  v.  Philadelphia  Co., 
159  Pa.  St.  142;  2S  Atl.  Kep.  220. 
See  also  Mataews  v.  People's  Nat- 
ural Gas  Co.,  179  Pa.  St.  165;  36 
Atl.  Rep.  216;  and  Bartley  v.  Phil- 
lips, 179  Pa.  St.  175;  36  Atl.  Rep. 
217.  The  lease  in  Cochran  v.  Pew, 
159  Pa.  St.  184;  28  Atl.  Rep.  219; 
was  almost  as  strong  in  the  lan- 
guage used,  and  a  like  result  was 
reached  by  the  court. 

A  lease  for  five  years  provided 
tliat  a  well  should  be  com])leted 
within  a  year,  or  tlie  lessee  pay  an 
annual  renlal  until  he  did  so.  If 
tlie  lessee  failed  to  make  any  of  the 
payments  within  ten  daj^s  after  the 
time  specified,  the  lease  should  be 
void,  and  neither  lessor  nor  lessee, 
after  such  failure,  should  have  a 
right  of  action  by  reason  of  the 
breach.  Tt  was  held  that  the  failure 
of  the  lessee  to  make  such  payments 
did  not  relieve  him  of  liability  for 
the  rent,  nor  prevent  the  lessor  from 
maintainintr  an  action  for  it.  Con- 
ger v.  National,  etc.,  Co.,  165  Pa. 
St.  561;   30  Atl.  Rep.  1038. 


l-'OKFEITURE   OF   LEASE.  228c 

engagement  to  farm,  lliat  the  lessee  was  under  no  o])ligation  to 
cultivate  the  land ;  an  engagement  to  farm  in  a  proper  manner, 
and  to  a  reasonable  extent,  is  necessarily  implied.  The  clear 
purpose  of  the  parties  to  this  lease  was  to  have  the  lands  de- 
veloped, and  the  half-yearly  payments,  and  the  other  sums  stip- 
ulated, were  intended  not  only  to  spur  the  operator,  but  to 
compensate  Ray  for  the  operator's  delay  or  default.  The 
lessor's  hands  have  been  tied  for  two  years.  We  do  not  know 
that  he  lost  anything  in  royalties,  or  that  he  suffered  by 
drainage,  for  the  territory  might  have  proved  unproducti\  e ; 
but,  as  the  transaction  was  founded  in  the  hope  that  either  gas 
or  oil,  or  both,  might  be  found  in  paying  quantities,  it  was 
competent  for  the  parties  to  contract  in  advance  for  the 
amount  of  compensation  to  which,  in  the  event  of  delay  or 
default  in  development,  the  lessor  would  be  entitled.  The 
provision  for  forfeiture  was  doubtless  inserted  in  anticipation 
that  the  lessee  might  make  default  and  become  unable  to  pay, 
in  which  event  he  might  put  an  end  to  the  lessee's  pretensions 
and  seek  other  means  of  development.  This  clause  having  been 
inserted  as  a  protection  to  the  lessor,  he  had  the  right  either 
to  declare  the  forfeiture  or  to  affirm  the  continuance  of  the 
contract;  and,  if  the  lessor  did  not  choose  to  avail  himself  of 
the  forfeiture,  the  lessee  cannot  set  it  up  as  a  defense  to  an 
action  in  affirmance  of  the  contract."-^  So  where  a  contract 
between  a  landowner  and  a  corporation  gave  the  latter  the 
exclusive  right  of  drilling  a  gas  well  on  certain  property,  and 
provided  that  until  that  was  done,  it  should  pay  $20  a  year 
for  the  exclusive  privilege,  and  that  the  contract  should  be 
deemed  terminated  whenever  it  should  fail  to  pay  the  rental 
price  within  sixty  days  after  it  became  due,  it  was  held  that 
a  failure  to  pay  the  rent  did  not  terminate  the  contract,  but 
merely  gave  the  landowner  the  right  to  do  so.-^* 

§  152.     Heirs  or  assignees  of  lessor  may  declare  forfeiture, — 
assignee. 

The  lessor  or  his  heirs  may  declare  a  forfeiture  and  make  a 
re-entry.-*     So  the  devisee  may  declare  a  forfeiture  and  re- 

23Rav    V.    Natural    Oas    Co.,    1.3S  24  island  Coal   Co.   v.  Combs.    l.'")2 

Pa    St.' 570;   20  Atl.  Rep.    1005;    12  Ind.   37t);    5.3   \.   K.   Rep.   452;    Wil- 

L.  R.  A.  200.  son  v.  Coklstcin,  152  Pa.  St.  524;  25 

23a  Hancock     v.     Diamond      Plat<>  Atl.  Rep.  493. 
Glass   Co..    102   Ind.    140;    70  N.   E. 
Kep.   149. 


228d  OIL   AND    GAS. 

enter.-'^  So  may  the  lessor's  assignees.'"  "Where  one,  wlio  was 
of  age,  of  several  children,  all  minors  but  he,  and  heirs  of  a 
deceased  lessor,  acting  on  behalf  of  all  declared  a  forfeiture, 
the  court  said  it  would  permit  a  repudiation  of  the  declaration 
of  a  forfeiture,  unless  it  be  shown  that  it  was  for  the  benefit  of 
such  minors  to  enforce  it  rather  than  keep  the  lease  alive." 
And  where  the  lessors  were  an  adult  and  also  a  guardian  of  a 
minor,  the  latter  alone  Avas  not  permitted  to  declare  a  for- 
feiture.-^^ These  two  last  cases  cover  the  statement  that  if  there 
be  several  lessors,  as  joint  or  tenants  in  common  of  the  same 
tract,  a  forfeiture  cannot  be  declared  and  enforced,  unless  all 
join  in  the  declaration.  Where  a  conditional  fee  is  conveyed, 
only  the  grantor  or  his  heirs  can  take  advantage  of  a  breach 
of  the  condition,  not  even  the  assignee  of  the  grantor  can 
do  so.-® 

§  153.     Stranger  cannot  avail  himself  of  forfeiture. 

As  only  the  lessor  can  avail  himself  of  the  right  to  declare  a 
forfeiture,  a  mere  stranger  cannot  set  up,  in  order  to  defeat 
him  in  his  rights,  that  the  lessee  has  forfeited  his  right  to  the 
lease,  so  long  as  the  lessor  has  not  entered  for  or  declared  a 
forfeiture.-^'*  Thus  in  an  action  of  ejectment  brought  by  the 
lessee  of  a  lease  against  a  mere  squatter,  where  such  lessee  had 
established  a  prima  facie  case,  it  was  held  that  the  squatter 
could  not  avail  himself  of  the  lessee's  want  of  diligence  in 
prosecuting  the  work,  as  required  by  the  lease,  and  insist  that 
the  premises  had  been  abandoned.^"  So  where  a  landowner 
executed  a  lease  on  his  farm,  and  at  the  same  time  he  entered 
into  a  contract  with  the  lessee  to  give  him  an  option  to  pur- 
chase, within  a  stated  time,  certain  completed  wells  on  the 
land  and  the  machinery  and  tools  upon  it;  and  the  existence 
of  this  contract  was  in  dispute,  but  in  any  event  it  was  not 

25  Hayden   v.    Rtou<;hton,    5    Pick.  sna  New  Domain  Oil  &  Gas  Co.  v. 

528;    Austin    v.    Cambridgeport,    21  CafTrcy   Oil   Co.,    134  Ky.   792;    121 

Pick.  215.  S.  W.  Kep.  609;   34  Ky.  L.  Rep.  — . 

28  Island   Coal   Co.  v.   Combs,   152  so  Bartley  v.  Phillips,  1G5  Pa.  St. 

Ind.  379;  53  N.  E.  Eep.  452.  325;   3G  W.  X.  C.   19;   30  Atl.  Rep. 

27  Wilson  V.  Goldstein,  supra.  842;  Gcrmania  Refining  Co.  v.  Alum 

28  Springer  v.  Citizens'  Gas  Co.,  Rock  Co.,  22G  Pa.  433;  75  Atl.  Rep. 
145  Pa.  St.  430;  22  Atl.  Rep.  98G.  715;    Doddridge   County   Oil   &   Gas 

29rpington   V.  Corring:in,   151  N.       Co.  v.  Smith,  154  Fed.  Rep.  970. 
Y.  143;  45  N.  E.  Rep.  359. 


FORFEITURE   OF    LEASE.  2'J!) 

assigned  to  the  plaintifV;  and  the  lease  required  the  lessee  to 
drill  a  well  within  four  months,  and  another  within  the  suc- 
ceeding four  months;  and  the  eoniplainant  drilled  the  first, 
using,  with  the  landowner's  consent,  his  niaeiiinery  and  tools 
and  some  of  his  material;  and  while  the  second  well  was  being 
drilled  for  complainant  by  a  contractor  using  tiiis  nuieiiinery 
and  these  tools,  the  alleged  option  expired,  and  the  landowner 
appeared  and  demanded  of  the  contractor  payment  of  the 
stipulated  price,  or  that  he  cease  Avork,  in  conseciuence  of 
which  the  contractor  stopped  work,  and  the  time  for  the  com- 
pletion of  the  work  expired  before  it  could  be  finished,  and 
the  landowner  took  possession  of  the  wells  and  complainant's 
property  it  was  held  that  the  complainant  had  nothing  to 
do  with  the  option  contract,  and  that  its  expiration  ailforded 
no  justification  for  the  action  of  the  landowner  in  stopping  the 
work.""''  If  the  lessor  sell  a  part  of  the  leased  premises,  he 
cannot  enforce  a  forfeiture  as  to  the  part  sold.''""' 

§  154.    Lease  may  be  voidable  at  election  of  lessee  on  his  de- 
fault. 

A  lease  may,  however,  be  so  drawn  that  a  lessee  may  take 
advantage  of  his  own  default.  "Parties  may  agree  that,"  said 
the  Supreme  Court  of  Ohio,  "in  case  of  failure  to  drill,  or  fail- 
ure to  pay,  or  both,  the  lessee  shall  be  relieved  of  his  obligation 
upon  such  terms  as  the  parties  may  agree  upon  in  the  lease, 
whether  the  terms  be  of  value  to  the  lessor  or  ineoiiVenience  to  the 
lessee;  but  a  naked  defaul'.  and  ndn-iHTfonnancc,  as  in  this  lease, 
cannot  be  held  to  discharge  the  obligation  of  the  lessee."  *''"  if 
the  lessee  may  take  advant.sge  of  his  owti  default,  he  must  sur- 

3oa  Doddridge  County  Oil  &  Gas  N.  E.  560;  Snodgrass  v.  South  Penn. 
Co.  V.  Smith,  154  Fed.  970.  See  Oil  Co.,  47  W.  Va.  509;  35  S.  E. 
also  Germania  Refining  Co.  v.  Alum  820;  Smitli  v.  South  Penn.  Oil  Co., 
Rock  Gas  Co.,  220  Pa.  43.3;  75  Atl.  50  W.  Va.  204:  53  S.  E.  152:  Jen- 
Rep.  715.  nings-IIeywood      Oil      Syndicate      v. 

sob  Brewster   v.   Lanyon   Zinc   Co.,  IIoussicrre-Latrcille     Oil     Co.,     Ill) 

140  Fed  Rep.  801;  C2  C.  C.  A.  213.  La.    804;     44    So.    4«1;     Hnusierre- 

*3o  Woodland  Oil  Co.  v.  Crawford,  Latreille    Oil    Co.    v.    Jennings-IIey- 

55   Ohio  St.    161;   36   Ohio  E.   Bull.  wood    Oil    Syndicate,    11.")    La.    107; 

231;   44  N.  E.  Rep.  1093;   34  L.  R.  38  So.  932;   Gillespie  v.   Fulton  Oil 

A.    02;    Van   Voorhis    v.   Oliver,    22  &   Gas  Co.,  23G   111.    188;    86   X.   E. 

Pittsb.    L.    J.     (X.    S.)     114;     Van  219. 
Etten  V.  Kellcy,  66  Ohio  St.  605 ;  04 


230  OIL    AND   GAS. 

render  the  lease  if  he  would  escape  liability.^^  Where  a  lease  pro- 
vided tiiat  ''  the  lessee  shall  coniijlete  a  well  within  six  months 
from  the  date  hereof  or  in  default  thereof  pay  to  the  party  of  the 
first  part,  for  further  delay,  an  annual  rental  of  seven  hundred 
dollars  in  advance  on  the  said  ]>remises,  from  the  time  above 
specified  until  such  well  shall  be  com])leted,  .  .  .  and  a 
failure  to  complete  said  well  or  pay  said  rental  for  ten  days 
after  the  time  above  specified  for  so  doing,  shall  render  the 
agreement  null  and  void,  and  it  c<an  only  be  renewed  by  mutual 
consent;  and  no  right  of  action  shall  accrue  after  such  failure 
to  either  party  on  account  of  the  breach  of  any  promise  or 
agreement  herein  contained,"  it  was  held  that  the  lessee  had  an 
option  to  drill  a  well  within  six  months  from  the  date  of  the 
lease  and  by  paying  seven  hundred  dollars  within  ten  days 
thereafter,  a  further  option  for  one  year;  and  that  the  lessee, 
having  a  mere  option,  could  set  up  his  o^vn  default,  availing 
himself  of  the  elective  right  secured  to  him  in  his  contract.'^ 
If  the  terms  of  the  lease  expressly  provide  that  the  lease  shall 
be  voidable,  at  the  option  of  either  party,  or  the  lessee;  then 
the  latter  may  unquestionably  avoid  liability  by  neglecting  to 
comply  with  its  requirements.^^  Where  a  lease  y>rovided  that 
the  lessee  was  to  pay  a  bonus  of  one  hundred  dollars,  and  a 
royalty  of  one-eighth  part  of  the  oil  produced ;  that  it  was  to 
continue  five  years,  and  as  much  longer  as  gas  or  oil  was  found 
in  paying  quantities;  if  gas  were  found,  then  three  hundred 
dollars  rental  per  year  for  each  well ;  and  there  was  a  proviso 
that  "this  lease  shall  become  null  and  void,  and  all  rights  here- 
under shall  cease  and  determine,  unless  a  well  shall  be  com- 
pleted on  the  premises  within  one  month  from  the  date  hereof, 
or  unless  the  lessee  shall  pay  at  the  rate  of  one  hundred  dollars 

31  Roberts  v.  Bettman,  45  W.  Va.  L.  J.  (N.  S.)  425;  Lowther  Oil  Co. 
143;  30  S.  E.  Rep.  95;  Johnstown,  v.  GufTey,  52  W.  Va.  88;  43  S.  E. 
etc.,  R.  R.  Co.  V.  Egbert,  152  Pa.  101;  Great  Western  Oil  Co.  v.  Car- 
St.  53;  25  Atl.  Rep.  151;  Coulter  v.  penter,  43  Tex.  Civ.  App.  229;  95 
Conemaugh  Co.,  30  Pittsb.  L.  J.  S.  W.  57;  Vendocia  Oil,  etc.,  Co.  v. 
{N.  S.)  281.  Robinson,  71  Ohio  St.  302;  73  N.  E. 

32  Van    Voorhis    v.    Oliver,    supra.  222. 

See  Ray  v.  Natural  Gas  Co.,  138  Pa.  33  Cochran    v.    Pew,    159    Pa.    St. 

St.  570;  20  Atl.  Rep.  10G5;  Glasgow  184;    28   Atl.   Rep.   219;    Liggett   v. 

V.  Griffith,  22  Pittsb.  L.  J.    (N.  S.)  Shira,    159    Pa.    350;    28    Atl.   Rep. 

181;    Ramsey   v.    White,    21    Pittsb.  218. 


J'ORFEITUUE   OF    LKASK.  'J.'U 

monthly  in  advance  for  each  additional  luontli" — it  was  held 
that  the  lease  contained  no  covenant  hinding  upon  the  lessee  to 
pay  rent,  the  only  penalty  imposed  upon  him  being  a  forfeiture 
of  his  rights  under  the  agreement.  "But  the  payment,"  said 
the  court,  "was  means  provided  by  the  contract  by  which  the 
exercise  of  the  right  of  the  lessor  to  asseil  a  forfeiture  could 
be  postponed.  If  the  lessee  did  not  wash  to  postpone  the  exer- 
cise of  such  right,  he  had  only  to  refrain  from  making  the 
payment."''*  Where  an  oil  lease  was  given  for  a  certain 
period,  providing  that  it  should  become  void  and  the  rights 
of  the  lessee  under  it  should  cease  unless  a  well  should  be 
completed  on  the  premises  within  a  certain  period  of  time,  or 
unless  the  lessee  should  pay  a  certain  sum  for  each  year  the 
completion  of  the  well  should  be  delayed ;  it  w^as  held  that  the 
terms  of  the  lease  did  not  require  the  lessee  to  develop  the 
land  or  pay  the  rent,  the  only  penalty  for  such  a  failure  being 
a  forfeiture  of  his  rights  under  it.^'^  The  lessor  may  even,  by 
contract,  preclude  himself  from  declaring  a  forfeiture  and 
give  the  exclusive  right  to  do  so  to  the  lessee,  or  give  him  the 
right  to  reconvey  the  premises  at  his  pleasure.  Thus  a  gas 
lease  giving  the  lessee  the  right  to  determine  it  by  reconvey- 
ing,  and  making  the  lease  void  for  a  refusal  by  him  to  pay 
the  stipulated  rentals,  is  not  voidable  at  the  option  of  the 
lessor,  since  such  contracts  are  not  designed  to  convey  a 
present  interest  in  the  land,  nor  is  it  governed  by  the  statutes 
relative  to  landlord  and  tenant.^"'" 

§  155.     Lessee  cannot  insist  on  forfeiture  to  escape  rent. 

A  lessee  cannot  insist  that  he  is  not  liable  because  the  lessor 
had  the  right  to  declare  a  forfeiture,  and  that  there  were  con- 
ditions   authorizing    him    to    declare    forfeiture    many    years 

^^  Glasgow  V.  Chartiers  Oil  Co.,  In  New  Jersey,  by  1  Hen.  St.,  p. 
'152  Pa.  St.  48;  25  Atl.  Rep.  232.  880,  Sees.  135  and  Isii,  the  defaiilt- 
"This  case  is  not  ruled,"  said  the  ing  lessee  has  the  same  right  to  de- 
court,  "by  Ray  vs.  The  Natural  Gas  clare  a  forfeiture  as  the  lessor  has. 
Co.,  138 'Pa.  Si.  576  [20  Atl.  Rep.  Boys  v.  Robinson  (N.  J.  L.),  38 
10C5,  12  L.  R.  A.  290],  and  kindred  Atl.  Rep.  813. 

cases."     See  Miller   v.   Balfour,   138  s.ia  New  American  Oil,  etc.,  Co.  v. 

Pa.  St.  183;  22  Atl.  Rep.  80.  Troyer,  16(j  Ind.  402;  76  N.  E.  Rep. 

35McKee  v.  Colwell,  7  Pa.  Super.  253;    77   N.   E.   Rep.   73!).     See  also 

Ct.    607;    Snodgrass    v.    South,    etc.,  Jones   v.    Mount,    106    Ind.    570;    77 

Oil   Co.,   47   VV.   Va.  509;    35   S.   E.  N.    E.    Rep.    1089;    74    N.    E.    Rep. 

Rep.  820.  1032. 


232 


OIL    AND    GAS. 


before,  in  order  to  escape  the  payment  of  rent.  In  such  an 
instance  it  remains  witli  the  lessor  to  determine  whether  he 
will  declare  a  forfeiture  or  insist  upon  the  rent.'" 

§156.     Forfeiture  clause  omitted. 

Whore  no  forfeiture  elnuse  is  inserted  in  n  loaso,  cithor  for 
faihire  to  pay  vent  or  (lovolo)>  the  premises;  and  neither  is  done, 
there  can  be  no  forfeiture  deehired.  15ut  the  faihire  to  pay 
rent  aecordiuo;  to  the  terms  of  the  leas(%  or  to  develop  tlie  jU'em- 
ises,  may  lie  oousidcrcd  as  suflicient  evidence,  if  unexj)laiiicd,  to 
support  the  charge  of  abandonment.''  And  the  usual  rule  is 
that  a  lease  must  state  tlie  condition  upon  which  a  forfeiture 
can  be  declared,  or  no  forf(Mtnre  can  be  declarcMl/^  But  whei'o 
the  lease  was  limited  to  twelve  months  or  so  long  as  gas  should 
be  found,  for  a  certain  royalty,  and  pay  blank  dollars  per  blank 
time  (the  blanks  not  being  filled)  ;  it  was  held  that  a  forfeiture 
could  be  declared. ^^ 

§157.     Implied  covenants  do  not  authorize  forfeiture. 

There  can  be  no  forfeiture  for  a  violation  of  an  implied 
covenant,  unless  the  lease  expressly  so  provides.*^**  "  A  breach 
of  the  implied  covenant  to  reasonably  develop  and  protect  lines 


36Ahrns  v.  Chartiers  Valley  Gas 
Co.,  188  Pa.  St.  249;  41  Atl.  Rep. 
739.  See  Bettman  v.  Shadle,  22 
Ind.  App.  542;  53  N.  E.  Rep.  002; 
Hancock  v.  Diamond  Plate  Glass 
Co.,  1G2  Ind.  140;  70  N.  E.  Rep. 
149;  Perry  v.  Acme  Oil  Co.,  44  Ind. 
App.  207;  88  N.  E.  Rep.  859;  Miller 
V.  Logan,  31  Pittsb.  Leg.  J.  (X.  S.) 
217. 

37  Marshall  v.  Forest  Oil  Co.,  198 
Pa.  St.  83;  47  Atl.  Rep.  927. 

38  Vandevoort  v.  Dewey,  42  Hun 
G8. 

An  oil  and  gas  lease  providing 
that  the  lessee  shall  begin  drilling 
within  8  months,  otherwise  t'lo  lease 
to  be  void,  and  tlint  if  no  oil  or  gis 
well  be  drilled  within  12  months  the 
lessee  may  pay  a  certain  sum  per 
acre    annually,    and   that   the   lease 


shall  be  binding  as  long  as  gas 
shall  be  furnislied  the  lessor's  resi- 
dence, and  if  wells  are  sunk  royalty 
shall  be  paid,  otherwise  the  lease 
shall  be  null  and  void,  as  no  refer- 
ence was  m.Tde  to  forfeiture  as  a  pen- 
alty for  failure  to  pay  the  royalties, 
default  in  such  payment  was  not 
ground  for  forfeiture.  Davis  v. 
Chautauqua  Oil  &  Gas  Co.,  78  Kari. 
97 :  9G  P.  47 ;  Poe  v.  Ulrey,  233  111. 
50:  89  X.  E.  Rep.  40. 

3!)  Eaton  V.  Allegany  Gas  Co.,  122 
X\  Y.  410;  25  N."  E."  Rep.  981,  re- 
versing 42  Hun  01.  See  also  Barns- 
dall  V.  Boley,  119  Fed.  Rep.  191. 

*:i9Poe  V.  Ulrey,  233  111.  50:  84 
X'.  E.  Rep.  40;  Davis  v.  Cliatauqua 
Oil  &  Gas  Co.,  78  Kan.  97;  96  Pac. 
Rep.  47;  Rose  v.  Lanvon  Zinc  Co., 
08  Kan.  126;  76  Pac.  Rep.  625;  Carr 


FORFEITURE   OF    LEASE. 


233 


does  not  have  the  eflfect.  to  forfeit  the  lease  in  whole  or  in  ]>art, 
nor  is  it  p;ood  eaiise  for  a  court  to  declare  such  f<irfeiture,  uidess 
the  lease  in  ex]>i'(\>is  terms  ijrovidcs  that  a  breach  of  such  im- 
plied covenant  shall  avoid  or  forfeit  the  lease."  "  It  is  stmnirlv 
urged  that  it  is  inequitable  for  the  lessee  to  hold  on  to  his  lease, 
and  still  fail  so  to  operate  the  premises  as  to  produce  reasonable 
results,  and  that  he  should  either  reasonably  operate  tlie  prem- 
ises or  get  off  and  permit  his  lease  to  be  forfeited.  The  answer 
is  that,  while  th?re  is  an  implied  covenant  to  reasonably  operate 
the  premises,  there  is  no  im])lie(l  or  express  covenant  to  got  otf 
and  forfeit  his  lease  for  a  breach  of  such  covenant.  The  lease 
in  question  provides  for  a  forfeiture  for  the  failure  to  comply 
with  the  conditions,  or  to  pay  the  cash  consideration  in  the 
lease  mentioned,  at  the  time  and  in  the  manner  agreed ;  but  the 
implied  covenant,  to  reasonably  operate  the  premises,  is  not 
mentioned  in  the  lease,  and  is  therefore  not  included  in  the 
causes  of  forfeiture.  Some  causes  of  forfeiture  being  expressly 
mentioned,  none  other  can  be  implied. "  ■***  A  number  of  cases 
hold,  however,  that  a  breach  of  an  implied  covenant  is  suffi- 
cient to  justif}^  the  declaration  of  a  forfeiture  ;^^  and  a  lessee 
may  lose  his  rights  hy  abandonment,  although  no  forfeiture 


V.  Huntington,  etc.,  Co.,  33  Ind.  App. 
1;  70  N.  E.  Eep.  552;  Thompson  v. 
Cristy,  138  Pa.  220;  20  Atl.  934. 

In  a  lease  the  covenants  of  the 
lessee  were  introduced  with  the 
statement  that  the  grant  is  on  the 
following  terms,  followed  by  a  stipu- 
lation that  the  lessee's  failure  to 
comply  with  any  of  the  conditions 
should  render  the  lease  void.  It  was 
held  that  the  stipulation  had  refer- 
ence to  the  legal  effect  of  what  pre- 
ceded, and  if  tliat,  by  necessary  im- 
plication, contained  a  covenant  by 
the  lessee  to  exercise  reasonable  dili- 
gence in  prosecuting  the  develop- 
ment, the  covenant  was  also  a  con- 
dition, a  substantial  breach  of 
which  entitled  the  lessor  to  avoid 
the  lease.  Brewster  v.  Lanyon  Zinc 
Co.,  140  Fed.  Rep.  801;  72  C.  C.  A. 
210. 


40  Harris  v.  Ohio  Oil  Co.,  57  Ohio 
St.  118;  48  X.  E.  Rep.  502;  1  Ohio 
N.  P.  132;  38  Wkly.  L.  Bull.  283; 
McKnight  v.  Kreutz,  51  Pa.  St.  232; 
Core  V.  N.  Y.,  etc.,  Co.,  52  W.  Va. 
27G;  43  S.  E.  Rep.  128.  The  remedy 
of  the  lessor  was  considered  to  be 
a  suit  for  damages. 

41  King  V.  Edwards,  32  111.  App. 
558;  Conrad  v.  Morehead,  89  N.  C. 
31;  Maxwell  v.  Todd,  112  N.  C. 
G77;  IG  S.  E.  Rep.  92G;  Hawkins  v. 
Pepper,  117  N.  C.  407;  23  S.  E.  Rep. 
434;  Parnsdall  v.  Bolcy,  119  Fed. 
Rep.  191;  Eaton  v.  Allegany  Gaa 
Co.,  122  N.  Y.  41G;  25  N.  E.  Rep. 
981,  reversing  4:d  Ilun  61.  See  Cof- 
finberry  v.  Sun  Oil  Co.,  67  N.  B. 
Rep.  1069;  Steelsmith  v.  Gartlan, 
45  W.  Va.  27;  29  S.  E.  978;  Klepp- 
ncr  V.  Lemon,  170  Pa.  502;  35  Atl. 
109;  Kellar  v.  Craig,  126  Fed.  030; 
61   C.  C.  A.  366. 


234  OIL    AND    GAS. 

clause  is  in  the  lease/'"  Where  a  gas  and  oil  lease  provided 
for  a  forfeiture  in  case  a  test  well  was  not  completed  on  a 
certain  block  of  leases  by  a  certain  date,  and  also  provided  for 
payment  of  a  stipulated  rental  in  case  of  failure  to  complete  a 
test  well  on  the  premises  covered  bj'-  the  lease  within  twelve 
months,  grounds  of  forfeiture  not  stipulated  for  would  not  be 
implied,  as  the  one  ground  of  forfeiture  stated  in  the  lease 
would  imply  an  exclusion  of  other  grounds,  and  the  agreement 
for  the  rental  excluded  a  forfeiture  not  stipulated  for/^''  A 
lease  of  oil  and  gas  on  certain  lands  will  not  be  forfeited  for 
breach  of  an  implied  covenant  to  drill  wells  on  the  land  cov- 
ered by  the  lease,  where  there  was  no  means  by  which  the 
product  of  wells  which  might  be  drilled  on  the  land  could  be 
marketed ;  the  remedy  of  the  lessor  in  such  case  not  being  a 
forfeiture  of  the  lease,  but  an  action  for  damages."*^ 

§  158.     Notice  of  election  to  declare  forfeiture. 

If  the  lessor  be  in  possession,  notice  to  the  lessee  of  his  inten- 
tion to  declare  a  forfeiture  is  not  necessary,  unless  the  lease 
provide  for  it ;  and  if  a  notice  is  necessary,  the  execution  of  a 
second  lease,  to  the  knowledge  of  the  first  lessee,  is  a  sufficient 
notice  to  him.*-  A  conveyance  of  the  property  in  fee,  by  the 
lessor,  after  default  made,  is  also  a  sufficient  notice  to  the  lessee, 
if  one  be  required.*^  But  if  there  has  been  a  substantial  per- 
formance, or  a  ho7ia  fide  attempt  at  it,  even  though  a  forfeiture 
could  have  been  enforced  by  making  a  demand  and  giving 
notice,  the  putting  of  another  tenant  on  the  premises,  without 
such  demand  and  notice,  will  not  enable  the  lessor  to  have  a 
forfeiture  declared.**    If  the  lessor  give  a  lessee  not  in  actual 

"The  obligation  to  explore  is  such  4ia  Smith  v.  Root,  60  \Y.  Va.  6.33; 

an    essential    part    of    the    contract,  06  S.  E.   Rep.    1005. 

tiiough   implied,  as  must  be  treated  4ib  Poe   v.   Ulrey,   233   111.   50;    84 

as  a  contract  which,  if  not  performed  N.  E.  Rep.  46. 

within    a    reasonable    time,    entitled  *^c  Foe  v.  Vlrcy,  supra. 

the    appellee    to   claim   a    forfeiture  *-  Allegheny   Oil    Co.   v.   Bradford 

under    the    agreement    that,    'in    de-  Oil  Co.,  21  Hun  20,  affirmed  86  N. 

fault  of  complete  compliance  on  the  Y.  638;   Gadbury  v.   Ohio,  etc.,  Gas 

part    of    the    second    party,    or    his  Co.,  1G2  Ind.  9;  67  N.  E.  Rep.  259; 

assigns,   renders   the  lease  null   and  Gadbury    v.     Ohio,     etc.,     Gas     Co. 

void.'"      Consumers'  Gas  Trust  Co.  (Ind.  App.),  65  N.  E.  Rep.  289. 

V.   Littler,    162    Ind.    320:    70  N.   E.  «  Shepher  v.  :McCalmont  Oil   Co., 

Rep.    363:    Gaaoury    v.    Ohio,    etc.,  38   Hun   37. 

Gas  Co.,  162  Ind.  9;   67  N.  E.  259.  44  Kreutz  v.  McKnight,  53  Pa.  St. 

319. 


FORrEITlRE   OF    LEASE.  235 

possession  notice  that  the  lease  is  forfeited,  it  is  substantially  a 
declaration  that  he  will  refuse  to  put  him  in  possession.^''  Where 
a  lease  provided  that  if  tlicre  was  a  delay  in  dcvelopiii<:;  the 
premises,  after  written  notice  by  the  letsoe  of  a  forfeiture,  the 
lessee  should  have  the  right  to  pay  an  annual  rent  because  of 
such  delay,  it  was  held  that  the  e.xccution  of  a  s<^(''nid  lease  con- 
ditioned on  the  avoidance  of  the  first,  was  not  such  a  written 
notice  as  the  lease  required."'^  If  the  lessor  has  demanded  ex- 
cessive royalties,  tiien  his  notice  of  a  forfeiture  is  a  nullity.'*^ 
If  he  has  such  possession  as  entitles  him  to  resist  the  entry  by 
the  lessee  after  a  forfeiture,  no  notice  of  a  forfeiture  is  neces- 
sary.*'^ If  the  lessor  desires  to  declare  a  forfeiture  of  the  lease 
for  the  reason  that  the  land  has  not  been  fully  developed,  al- 
tliough  the  lessee  has  entered  and  developed  a  part  of  it,  he 
must  give  notice  to  such  lessee  of  his  intention  to  declare  a  for- 
feiture if  the  lease  is  not  fully  develoj)ed,  and  reasonable  time 
must  be  given  for  the  develojnncnt.'*''  r>ut  if  a  lease  provide 
that  it  shall  be  subject  to  forfeiture  on  default  of  the  lessee, 
and  autliorizes  the  lessor  to  take  possession  ^'  without  any  notice 
or  legal  process,"  notice  is  not  necessary.^"  So  where  the  con- 
dition in  a  lease  was  that  if  no  well  should  be  completecl  within 
a  year  from  the  date  of  the  lease,  it  should  be  void,  unless  the 
lessee  pay  a  certain  named  sum  of  money  aniun.lly  during  the 
time  the  well  remained  uncompleted,  it  was  held  that  a  failure 


*■>  Carnegie,  etc.,  Gas  Co.  v,  Phila-  Uifayette   Gas   Co.    v.    Kelsey,    164 

delphia  Co.,  158  Pa.  St.  317;  27  Atl.  Ind. 'sGS;    74   N.   E.   Rep.    7;    Deihl 

Rep.  951.  V.    Ohio    Oil   Co.,    30   Ohio    Cir.    Ct. 

•»o  Soutii    Penn.    Oil    Co.    v.    Stone  Rep.  750;  New  American  Oil  &  Min- 

(Tenn.  Ch.),57  S.  W.  Rep.  374.  ing    Co.    v.    Troyer,    KUi    Ind.    402; 

47  West    Ridge    Coal    Co.    v.    Van  70  N.  E.  Rep.   253;    New  American 

Storch,  5  Lack.  Leg.  N.  189.  Oil  &  Mining  Co.  v.  Wolfl,  IGO  liid. 

4sMa.\\veIl    v.    Todd,     112    N.    C.  402;    76    N.    E.    Rep.    255;    Indiana 

677;   16  S.  E.  Rep.  926.  Natural    Gas   &    Oil    Co.    v.    Beah-s, 

*9  0hio  Oil  Co.  V.  Hurlbut,  7  Ohio  IGG    Ind.   684;    76   N.   E.    Rep.   520; 

Dec.  321;    14   Ohio   C.  C.  Rep.   144;  Consumers'   Gas   Trust    Co.    v.    Ink, 

reversing  0  Ohio  Doc.  305.     See  Cof-  163   Ind.    174;    71    N.   E.  Rep.   477; 

finberry    v.    Sun    Oil    Co.,    67    N.    E.  Consumers'  Gas  Trust  Co.  v.  Worth, 

Rep.    1069;   Pittinger  v.  Ramage.  40  163    Ind.    141;    71    N.   E.    Rop.    4S9; 

Ind.  App.  486;    82   N.  E.  Rep.  478;  I^Fonarch  Oil.  etc.,  Co.  v.  Ricliardson. 

Carr    v.    Huntington    Liglit    &    Fuel  124    Ky.   602;    99    S.   W.    Ri'ii.    668; 

Co.,  33  Ind.  App.  1  -,   70  N.  E.  Rep.  30  Ky!  L.  Rep.  824. 

552;   CamplK'll  v.  Rock  Oil  Co.,  151  bo  Fisher  v.  Dunring,  53  Mo.  App. 

Fed.    Rep.    191;    SO    C.    C.    A.    467;  548. 


236  OIL    AND    GAS. 

to  complete  the  well  during  the  year,  and  an  omission  to  pay 
the  first  annual  amount,  avoided  the  lease,  without  an  election 
on  the  part  of  the  owner  to  terminate  it.°^  If  there  be  two 
lessees,  and  one  is  a  non-resident,  the  notice  to  the  resident 
lessee  is  sufficient.'''"  A  refusal  on  the  part  of  the  lessor  to 
accept  rent  of  the  lessee  is  a  sufficient  notice  of  an  intention 
to  terminate  the  lease."**  But  an  unwarranted  declaration 
of  a  forfeiture  is  not  notice  of  an  intention  to  declare  a  for- 
feiture.'^^'^  If  the  lessor  is  to  receive  "free  gas,"  then  he  need 
not  notify  the  lessee  to  shut  off  the  gas,  the  notice  of  an  inten- 
tion to  terminate  the  lease  being  sufficient.^^*^  A  premature 
declaration  of  a  forfeiture  is  not  equivalent  of  an  intention  to 
declare  a  forfeiture."*^  So  notice  that  a  lease  has  expired  is 
not  the  equivalent  of  a  notice  that  it  would  be  declared  for- 
feited."« 

§  159.     Waiver  of  forfeiture. 

The  right  of  a  lessor  to  declare  a  forfeiture  and  re-enter  on 
the  leased  premises  because  of  that  fact  may  be  waived  by  him, 
and  often  is,  either  by  express  statements,  or  by  conduct  or  by 
acts.^"  A  waiver  of  the  time,  however,  within  which  o]>er;itions 
are  to  be  coninieiiced  is  not  necessarily  a  waiver  of  tlie  time  for 
completion  of  a  well."^  In  the  cfise  just  cited  tJie  operations 
were  to  begin  witliin  sixty  days,  and  a  well  to  be  completed 
within  five  months,  and  in 'either  event  the  lease  was  to  be  for- 
feited. The  lessor  waived  the  sixty  day  ])rovision ;  but  this 
was  held  not  a  waiver  of  the  five  inonths'  provision,  even  tliough 
the  lease  was  assigned  after  the  sixty  day  period.  But  if  there 
has  been  such  delay  as  entitles  the  lessor  to  declare  a  forfeiture, 

51  Kenton    Gas,   etc.,    Co.   v.    Dor-  sic  Miller  v.  VandergriR,  .30  Ohio 

ney,    17   Ohio   Cir.  Ct.   Rep.    101;    9  Cir.  Ct.  Rep.  730. 

Ohio  Cir.  Dec.   604.  '''''  Consumers'   Gas    Trust    Co.   v. 

r-ia  Flanagan  v.  Marsh   (Ky.),  105  Ink,    103    Ind.    174;    71    N   E.    Rep. 

S.  W.  Rep.  424;  32  Ky.  L.  Rep.  184.  477. 

5ibIjogansj)ort   &   W.   V.   Gas   Co.  ''ip  Indiana  Natural  Gas  &  Oil  Co. 

V.  Seejrar,  165  Ind.  1;  74  N.  E.  Rep.  v.   Beales,    166   Tiid.   6S4;    76   N.   E. 

500;    Consumers'   Gas   Trust   Co.   v.  Rep.  520. 

Ink,    16,3   Ind.    174;    71    N.   E.   Rep.  5  2  ]\roCarty  v.  Mellon.  5  Pa.  Dist. 

477;    Consumers'   Gas   Trust   Co.   v.  Rep.  425;   Friend  v.  IMallory.  52  W. 

Worth,  163  Ind.  141;  71  N.  E.  Rep.  Va.  53:   43  S.  E.  Rep.  114. 

489.  ^^  f'leminger    v.    Baden    Gas    Co., 

159  Pa.  St.  16;   28  Atl.  Rep.  293. 


FORFEITURE   OF    LEASE. 


237 


niul  witliout  <l(iiiii;'  so,  ho  jM'i'iiiil  tlic  Icssct*  id  (•(miuhciicc  oj)cr:i- 
tions  and  sink  wolls  on  tlio  land  with  his  consent,  he  waives  his 
ri2:ht  to  insist,  on  a  forfcitnre.''"'  Kvcmi  thou_i2:h  tlio  U'ase  lias  ex- 
pired, yet  if  the  lessor  permit  the  lessee  to  exjx^nd  larjije  sums 
of  money  in  its  devel(i])nient,  thus  lendinii'  the  lessee  to  believe 
that  it  was  not  his  intention  to  claim  a  forfeitnre,  he  cannot 
then  declare  a  forfeiture/'"  ^[ere  silence,  however,  on  the  jiart 
of  tlie  lessor  durinsi"  the  time  i>iven  for  the  development  of  the 
premises  will  not  he  a  waiver  of  the  riiiht  to  declare  a  for- 
feiture/" But  delay  in  completing"  a  well  witliin  time,  with  the 
assent  of  the  lessor,  who  is  anxious  that  the  work  he  continued, 
and  by  his  conduct  and  acquiescence  clearly  make  it  a]>])ear  that 
he  does  not  regard  the  delay  as  sufficient  ground  for  declaring 
a  forfeiture,  is  a  waiver  of  the  right  to  declare  it."^  Where  a 
lease  required  seven  wells  to  Iw  put  dowm,  acquiescence  in  tlie 
failure  to  put  do^^^l  two  or  three  of  the  preceding  six  wells  was 
lield  a  waiver  of  the  right  to  declare  a  forfeiture  as  to  the  delay 
made  in  neglect  to  drill  the  seventh  well  on  time/*  Where  an 
oil  lease  did  not  make  time  the  essence  of  the  contract,  and  the 
rent  for  delay  for  several  years  had  been  regularly  paid,  and  at 


B4  0hio  Oil  Co.  V.  Ilurlbut,  14 
Ohio  Cir.  Ct.  Rep.  144;  7  Ohio  Dec. 
321,  reversing  G  Ohio  Dec.  305; 
Hornet  v.  Singer,  35  P;i.  Super.  Ct. 
Rep.  491;  Pyle  v.  Henderson  (W. 
Va.),  G3  S.  E.  Rep.  7G2  (a  waiver 
of  payment  of  rent  for  a  time  be- 
cause the  title  was  defective)  ;  Duf- 
field  V.  Hue,  129  Pa.  94;  18  Atl. 
566;  Duntlev  v.  Anderson,  109  Fed. 
391;  94  C.  C.  A.  647;  Campi)eli  v. 
Rock  Oil  Co.,  151  Fed.  191;  80  C. 
C.  A.  407 ;  Kansas  Nat.  Gas  Co.  v. 
Harris,  79  Kan.  167;  100  Pac.  72; 
Pendoria  Oil,  etc.,  Co.  v.  Robinson, 
71  Oliio  St.  302;  73  N.  E.  222; 
Hukill  V.  Mvers,  36  W.  Va.  639; 
15  S.  E.  151;  Monarch  Oil,  etc., 
Co.  V.  Richardson,  99  S.  W.  668; 
30  Ky.  L.  Rep.  824;  Steincr  v. 
Marks,    172    Pa.    400;    33    Atl.    ()95. 

"Dufiield  V.  Michaels,  102  Fe(K 
Rep.  820:  42  C.  C.  A.  049;  Smith 
V.  vSoutli  Pcnn.  Co.,  66  W.  Va.  (i33 ; 
53  S.  E.  Rep.  152;  Lynch  v.  Ver- 
sniiies  Fuel  Gas  Co.,  165  Pa.  518; 
30   Atl.   984. 

50  Is. and  Coal  Co.  v.  Combs,  152 
Ind.  379;  53  N.  E.  Rep.  452;  Adams 


V.  Ore  Knob  Copper  Co.,  7  Fed.  Rep. 
634. 

lu  an  instance  of  a  stone  lease  it 
was  lield  tliat  a  demand  for  tlie  rent 
nuist  be  made  on  tlie  premises,  where 
the  leii-^e  did  not  specify  the  place 
of  payment,  before  notice  of  forfeit- 
ure could  be  given.  Hornet  v. 
Singer,  35   Pa.  Suj^r.  Ct.   Rep.  491. 

•■■Elk  Fork  Oil  &  Gas  I'o.  v. 
Jennings,  84  Fed.  Rep.  839;  Riddle 
V.  Mellon,  147  Pa.  St.  30;  23  Atl. 
Rep.   241. 

The  fact  that  the  lessor  and  les- 
see entered  i'lto  an  agreement  for 
d^ay  does  not  deprive  the  lessor 
of  liis  right  to  forfeit  the  lease 
for  failure  to  prosecute  the  work 
with  diligence  and  in  good  faith, 
where  the  lessee's  ])urpose  in  procur- 
ing the  agreement  was  fraudulent, 
the  lessor  not  being  aware  of  sucii 
])urpose  at  the  time  of  its  execution. 
.J.  W.  GufTey  Petroleum  Co.  v.  Oli- 
ver (Tex.  Civ.  App. ),  79  .s.  W.  l\i'p. 
884. 

■'X  DufTield  v.  Hue,  129  Pa.  St.  94; 
18  Atl.  Rep.  566. 


238  OIL    AND    GAS. 

the  time  anothor  year's  vent  fell  due,  the  lessee  was  daily  ex- 
pending, and  for  ten  days  thereafter  continued  daily  to  expend, 
to  the  knowledge  of  the  lessee,  a  snni  equal  t<»  a  year  and  a 
half's  rent  under  a  producing  well,  when  he  ])roduced  gas  in 
a  paying  cpiantity,  it  was  held  that  the  lessee  had  waived  his 
right  to  declare  a  forfeiture,  six  or  seven  days  after  such  rent 
fell  due,  because  of  its  nonrpayment  at  the  stipulated  time/® 
A  delay  for  a  very  short  time  —  as  a  day  or  so  —  will  not  work 
a  forfeiture  where  the  lessor  liy  his  acts  a!id  deelarations  has 
led  the  lessee  into  the  belief  that  a  forfeiture,  because  of  such 
delay,  would  not  be  enforced."''  Where  the  lessor,  after  acts 
sufficient  for  a  forfeiture  had  taken  place,  gave  a  second  lease  on 
the  premises,  but  eiidors(>d  on  it,  "  This  lease  is  taken  suject 
to  "  the  first  lease,  it  was  held  that  the  second  lease  was  not  an 
unequivocal  declaration  of  a  forfeiture  of  the  first  one,  and  that 
the  endorsement  was  such  as  to  enable  the  lessee  to  have  an  er- 
roneous endorsement  made  on  the  first  lease  corrected.®^  Where 
the  acts  of  the  lessor  tending  to  show  a  waiver  are  equivocal,  the 
question  of  waiver  is  one  for  the  jury.""  The  lessor  may  waive 
the  forfeiture,  although  in  possession,  affirm  the  continuance 
of  the  lease,  and  recover  the  sum  agreed  to  be  paid  under  its 
terms."^  Where  default  was  unintentionally  made  in  tlie  pay- 
ment of  rental  while  the  lessee  was  engaged  in  drilling  a  .second 

59  Lynch  v.  Versaillos  Fuel  Gas  167;  100  Pac.  Rep.  72;  Rawlinps 
Co.,  16.5  Pa.  St.  518:  35  \V.  N.  C.  v.  Armol,  7U  Kan.  778;  79  Pac. 
558;  30  Ail.  Rep.  084.  See  Mon-  Rep.  OS.'i;  Steiner  v.  IMarks,  172 
fort  V.  Lanvon  Zinc  Co.  (Kan.),  Pa.  400;  38  Atl.  695;  Pyle  v.  Hen- 
72  Pac.   Rep!  784.  dorson,    65    W.    Va.    39;    63    S.    E. 

The  lessor  must  act  promptly,  and  762    (new  lease). 

tne    result    of    enforcing    tlie    for-  g2  Wcsling  v.  Kroll.  78  Wis.  636; 

feiture  must   not  be  unconscionable.  47     N.     W.     Rejp.     943;     Nelson     v. 

Thompson    v.    Christie.    138    Pa.   St.  Eachel,    158    Pa.    St.    372;    27    Atl. 

230;   20  Atl.  Rep.  934;   11  L.  R.  A.  Rep.  1103. 

230.                                                             «  03  Ajzorter  v.  Vanderfrrrft,  138  Pa. 

60  Steiner  v.  I^.arks,  172  Pa.  St.  St.  576;  27  "'  N.  C.  230;  21  Atl. 
400-  33  Atl.  Rep.  695.  See  Clemin-  Rep.  202;  Rav  v.  Gas  Co.,  138  Pa. 
ger  V.  Baden  Gas  Co.,  150  Pa.  St.  St.  576;  27  W.  N.  C.  230;  20  Atl. 
16;  28  Atl.  Rep.  203.  Rep.    1065;    .Tones   v.    Western,   etc., 

61  Schaupp  V.  Hukill,  34  W.  Va.  Gas  Co..  146  Pa.  204:  23  Atl.  386; 
375;    12  S.  E.  Rep.  501.  Opden    v.    Hatry,    145    Pa.    640;    23 

Acceptance  of  acts  not  called  for  Atl.    334:    Phillips    v.    Vandergrift, 

by  the  lease  as  a  satisfaction  of  the  146  Pa.  357:   23  Atl.  347:   Porrv  v. 

terms    is   a    waiver    of    the   right    to  Acme    Oil    Co.,    44    Tnd.    App.    207; 

declare    a   forfeiture.      Kansas   Nat-  88    N.    E.    Rep.    859,    reversing    80 

ural    Gas    Co.    v.    Harris,    79    Kan.  N.  E.  Rep.  174. 


FORFEITURE   OF    LEASE.  239 

well,  and  the  lessor,  with  knowledge  of  the  default,  suffered  him 
to  continue  drilling,  for  some  period  of  time  (as,  for  two 
weeks),  before  declaring  a  forfeiture,  and  the  lessee  iinincdi- 
ately  offered  to  pay  the  rental,  the  court  construed  the  actions 
of  the  lessor  as  an  acquiescence  in  the  drilling  of  the  otlicr 
wells  and  refused  to  sustain  the  declaration  of  a  forfeiture."* 
Receiving  rent  after  default  made  will  be  a  waiver  of  the  right 
to  declare  a  forfeiture  for  a  failure  to  pay  the  rent  at  the 
time  stipulated  for  its  payment  in  the  lease. *'"'''  If  a  lease  be 
abandoned,  a  subsequent  parol  agreement  between  the  parties 
to  it,  whereby  the  lessee  was  permitted  to  enter  and  resume 
work  upon  complying  with  certain  conditions  similar  to  those 
imposed  by  the  original  lease,  will  not  be  a  waiver  of  the 
forfeiture  of  the  lessee's  interest  under  the  old  lease,  but  is  a 
new  contract.''^* 

§  160.     Waiver  of  forfeiture  by  accepting  payment. 

An  acceptance  of  rent  for  the  defaulted  period  or  any  part 
of  it  will  usually  be  a  waiver  of  a  right  to  declare  a  forfeiture.®" 
When  rent  was  accepted  by  the  lessor,  with  knowledge  on  his 
part  that  the  lessee  was  every  day  violating  the  covenants  of 

84  McCarty  v.  Mellon,  5  Pa.  Dist.  the  right  to   termin:ite   the   lease. — 

Rep.   425;    nukill   v.  Myers,  3G  W.  Hancock  v.  Diamond  Plate  Glass  Co., 

Va.    639;     15    S.    E.    151;    Pyle    v.  37    Incl.    App.   351;    75    N".    E.    G59. 

Henderson,  65  W.    v  a.  39;   63  S.  E.  cr,a  Ohio  Oil  Co.  v.  Detamore,   165 

762:     New    American     Oil     Co.     v.  Ind.  243;    73   X.   E.  Rep.  906.     See 

Troyer,  166  Ind.  402;   76  N.  E.  353.  Kansas  Natural  Gas  Co.  v.  Harris, 

ss  Friend  v.   Mallory,   52   W.   Va.  79  Kan.   167;    100  Pac.  Rep.   72. 

53;  43  S.  E.  Rep.  114.  «c  Davis  v.  Moss,  38  Pa.  St.  346; 

Where,  in  an  action  for  rent  un-  Boys    v.    Robinson    ( N.    J.    L. ) ,    38 

der    a    lease    of    oil    and    gas    land,  Atl.  Rep.  813;  Friend  v.  Mallory,  52 

the    court    on    appeal    decided    that  W.    \  a.    53;     43    S.    E.    Rep.    114; 

until  the  lessee  took  possession  the  Monfort  v.  Lanyon  Zinc  Co.,  67  Kan. 

agreement    was    one    from    year    to  310;     72    Pac.    Rep.    784;     Indiana 

year,  which  at  the  end  of  any  year  Natural  Gas  Co.  v.  Beales,  166  Ind. 

either  party  could  terminate,  a  find-  684:  76  N.  E.  Rep.  520;  Consumers' 

ing  in  a  subsequent  action  for  rent  Gas    'lYust    Co.    v.     Ink.     Ki."]     Ind. 

that  the  lessee,  after  having  elected  174;    71    N.    E.   Rep.   477;    Monarch 

to    terminate    the    agreement,     fur-  Oil,    etc.,     Co.     v.     Richardson,     124 

nished  gas  through   its  pipes  to  the  Ky.  602;  99  S.  W.  Rop.  fi6S;  30  Ky. 

lessor,  as  required  by  the  lease,  did  L.   Rep.   824;    Murdock-West   Co.   v. 

not  amount  to  finding  of  such  part  Logan,   69   Ohio   St.  514;    09  N.  E. 

performance  on  the  part  of  the  les-  Rep.  984;  Consumers'  Gas  Trust  Co. 

see  as  prevented  it  from  exercising  v.   Worth,    163    Ind.    141;    71    N.   E. 


240 


OIL    AND   GAS. 


the  lease,  it  was  lickl  that  tlic  lessor  aeceptinj^  i-cnt  could  not 
declare  a  forfeiture  without  a  reasonable  piior  notice  that  fur- 
ther non-compliance  would  not  be  waived.'"  Not  in  all  in- 
stances, however,  will  a  forfeiture  be  waived  by  a  receipt  of 
rent.  Thus  where  the  amount  of  the  ore  sold  and  delivered 
could  only  be  ascertained  by  an  examination  of  the  books  and 
accounts  of  the  lessees,  the  acceptance  of  a  part  of  the  rents  or 
royalties  by  one  of  two  joint  lessors,  without  any  knowledge 
that  a  greater  sum  than  that  tendei»ed  was  due,  was  held  not  to 
be  a  waiver  of  the  forfeiture  caused  by  non-payment  of  the 
full  amount  due.*'*  Where  a  lease  required  the  lessee  to  drill 
a  well  within  a  certain  time,  or,  in  default  of  its  completion 
within  such  time,  pay  ten  dollars  for  every  month  until  its 
completion — each  payment  to  keep  the  lease  in  force  for  one 
month  only,  it  was  held,  the  w^ell  not  having  been  completed 
within  the  required  time,  that  on  failure  to  make  the  monthly 
payments  required,  the  lessor  had  the  right  to  declare  the  lease 
forfeited,  and  that  he  had  not  waived  his  right  to  declare  a  for- 
feiture by  accepting  payment  for  the  last  preceding  month,  the 


Rep.  489 ;  Consumers'  Gas  Trust  Co. 
V.  Howard,  163  Ind.  170;  71  N.  E. 
Rep.  493 ;  Consumers'  Gas  Trust  Co. 
V.  Littler,  162  Ind.  320;  70  N.  E. 
Rep.  963;  Kcw  American  Oil  &  M. 
Co.  V.  Troyer,  166  Ind.  452;  76  N.  E. 
Rep.  353;  New  American  Oil  &  M. 
Co.  V.  Wolff,  16G  Ind.  402;  76  N.  E. 
Rep.  255;  American  Window  Glass 
Co.  V.  Indiana  Natural  Gas  &  Oil 
Co.,  37  Ind.  App.  439;  76  N.  E.  Rep. 
1006;  :Monarch  Oil,  etc.,  Co.  v.  Rich- 
ardson (Ky.),  99  S.  W.  Rep.  668; 
30  Ky.  L.  Rep.  824. 

If  the  rent  is  payable  periodically 
in  advance,  an  acceptance  of  rent 
for  such  period  is  a  waiver  of  per- 
formance during  that  period.  Con- 
sumers' Gas  Trust  Co.  v.  Worth,  163 
Ind.  141;  71  N.  E.  Rep.  489;  Con- 
sumers' Gas  Trust  Co.  v.  Howard, 
163  Ind.  170;  71  N.  E.  Rep.  493; 
Consumers'  Gas  Trust  Co.  v.  Littler, 
162  Ind.  320;  70  N.  E.  Rep.  363; 
New  American  Oil  &  M.  Co.  v. 
Troyer,  166  Ind.  402;  76  N.  E.  Rep. 
253;   77  N.  E.  739. 


An  unaccepted  tender,  after  there 
is  a  forfeiture,  will  not  serve  to  keep 
the  lease  alive.  Acme  Oil  &  M.  Co. 
V.  Williams,  140  Cal.  681;  74  Pac. 
Rep.   296. 

An  acceptance  of  a  part  of  the 
royalties  due  is  a  waiver.  Headley 
V.  Hoopengarner,  60  W.  Va.  26; 
55  S.  E.  Rep.  744  (received  by 
guardian)  ;  Hays  v.  Forest  Oil  Co., 
213  Pa.  536;  62  Atl.  Rep.  1072; 
New  American  Oil  &  ^.iining  Co.  v. 
Wolff,  166  Ind.  402;  76  N.  E.  Rep. 
255;  American  Window  Glass  Co.  v. 
Indiana  Natural  Gas  &  Oil  Co.,  37 
Ind.  App.  439;   76  N.  E.  Rep.  1006. 

0'  Verdolite  Co.  v.  Richards,  7 
North  Co.  Rep.  (Pa.)  113;  Wither- 
spoon  V.  Staley  (Tex.  Civ.  App.), 
138  S.  W.  1191;  Smith  v.  South,  66 
W.  Va.  633;  53  S.  E.  Rep.  152; 
Lynch  v.  Versailles  Fuel  Gas  Co., 
165  Pa.  318;  30  Atl.  984;  Pyle  v. 
Henderson,  05  W.  Va.  39;  63  N.  E. 
762. 

68  Boys  V.  Robinson,  supra. 


FORFEITURE   OF    LEASE.  240a 

rental  for  the  previous  months  being  unpaid. ""  The  receipt  of 
rent,  after  declaring  a  forfeiture  —  or,  hy  exectiting  a  sec«ind 
lease  to*  a  third  i>arty — will  not  he  a  waiver  of  the  power  U) 
declare  such  forfeiture,  cont4iined  in  the  first  lease,  nor  will  it 
reinstate  the  first  lessee  in  his  rights  under  the  lease.'"  But 
if  periodical  rents  are  to  be  paid,  for  which  a  liability  to  a 
forfeiture  will  be  incurred  if  default  l)e  made  in  llie  ])a\iiient  of 
rent  for  any  period ;  yet,  notwithstanding  tliat  fact,  the  lessor 
frequently  accept  the  rents  after  the  time  at  which  they  should 
have  been  paid  and  does  not  declare  a  forfeiture,  as  to  justify 
the  lessee  in  entertaining  the  heliei  that  he  will  not  Ix^  subject 
to  a  forfeiture  by  the  act  of  the  lessor  if  he  make  a  default,  he 
will  not,  after  repeatedly  making  default  in  the  time  of  pay- 
ment, followed  by  payment  to  and  receipt  of  rent  by  the  lessor, 
be  subject  to  a  forfeiture  for  neglect  to  pay  rents  on  time  tliere- 
after,  unless  the  lessor  notifies  him,  before  default  in  the 
particular  instance,  that  he  would  insist  upon  a  forfeiture  for 
neglect  to  pay  any  rent  falling  due  after  giving  su(^h  notice."' 
Where  work  is  done  after  default,  in  jxiyment  of  rent  due, 
without  objection  on  the  part  of  the  lessor,  there  is  a  waiver  of 
a  right  to  declare  a  forfeiture  for  neglect  to  pay  such  rent  within 
the  time  required."'  Agreeing  tliat  the  time  of  payment  may 
be  extended  is  a  waiver  of  the  right  to  declare  a  forfeiture  for 
the  lack  of  payment."'^  Where  the  rent  is  payable  in  a  ci^rtiin 
bank  by  deposit  Uierein,  a  deposit  therein  by  check  of  the 
amount  due,  on  or  before  the  date  of  payment,  is  sufficient  to 
j)revent  a  forfeiture. '^      Waiver  of  one  stipulation  in  a  lease  is 

esDuffield    v.    IVIichaels,    97     Fod.  ural  Gas  Co.  v.  Harris,  "H  Kan.  Ui7 ; 

Rep.   825.  K'O  I'ac.  7      What  was  not  a  waiver. 

TuGulley  v.  Hukiil,  34  \V.  Va.  49;  Clcniingcr  v.  Uaden  Gas  Co.,  15'J  Pa. 

11   S.   E.   Rep.   754.      See  Hukiil   v.  Hi;  28  Atl.  2!t;i. 

Gulley,   37    W.    Va.   425;    16   S.    E.  -i  Wakclidd  v.  Sunday  Lake,  etc., 

Kep.  544.  Co.,   85   Mich.   005;    40   N.   VV.    Rop. 

Ti  Hukiil    V.    Myers,    36    W.    Va.  135. 

630;    15    8.    E.   Rep.    157;    Smith   v.  So   acquiescence   in    dt-lay    in   coni- 

South  Pcnn.  Oil  Co.,  66  \V.  Va.  653;  mencing    work    is    a    waiver    of    the 

65  S.  E.  Rep.  152;  Steiner  v.  Marks,  right  to  declare  a  forfeiture  because 

172   Pa.  -iOO;    38  Atl.  605;    Pyle  v.  of   such   delay.      New   American   Oil 

Hender.son,  65  W.  Va.  30;   63's.  E.  Co.  v.  Troyer,  106  Ind.  402;  76  N.  E. 

762.  353;  77  N.  E.  730. 

72  McCarthy  v.  ilellon,  5  Pa.  Dist.  74  Friend   v.   Mallory,   52   W.    Va. 

R.   425.  53;    43    S.    E.    Rep.    114.     vSi-c   Mon- 

A    consideration    paid    because    of  fort  v.  Lanyon  Oil  Co.,  67  Kan.  310; 

default    is   a    waiver.      Kansas    Nat-  72  Pac.  Rep.   784. 


240b  OIL    AND    GAS. 

not  a  waiver  of  other  iudepeiidcnt  stipulations."  A  lease  re- 
quired a  well  to  be  completed  within  two  months  and  if  not 
the  lease  to  be  void  unless  die  lessee  after  that  time  should  pay 
montlily  ten  dollars  for  each  month's  delay  in  completing  a  well ; 
and  it  also  required  ojierations  on  the  well  to  l>e  commenced  in 
thirty  days,  and  if  not,  t^n  dollars  extra  should  l>e  paid  for  the 
second  montli ;  but  work  was  not  begun  within  tlie  first  month, 
nor  a  well  completed  witliin  two  montlis  and  eight  days.  At 
the  end  of  the  second  month,  the  lessee  paid  ten  dollars ;  and 
twelve  days  aft^r  the  eiul  of  the  third  he.  tciidorcd  ten  dollars 
more,  which  was  refused.  It  was  held  that  the  first  ten  dollar 
payment  could  not  be  claimed  by  the  lessor  as  a  payment  on 
account  ui  the  money  to  be  paid  extra  for  the  second  month,  and 
that  a  lease  given  to  a  third  party  after  the  end  of  the  third 
month,  and  before  the  well  had  been  completed,  under  the  claim 
that  the  first  lease  had  been  forfeited  by  reason  of  the  non- 
payment of  the  sum  agreed  upon  to  bo  ])ai(l  for  delay,  was  void. 
It  was  also  held  that  the  payments  to  be  made  "  for  each  month's 
delay  in  completing  "  the  well  not  being  made  payable  in  ad- 
vance by  tlie  terms  of  the  lease,  the  lessor  could  not  claim  a 
forfeiture  five  days  after  the  close  of  the  third  month,  on  the 
groimd  tliat  tlie  well  was  not  then  completed,  and  the  lessee  had 
failed  to  make  payment  for  delay  for  the  fourth  month.^" 

75  Murray  v.  Heinze.  17  Mont.  rights  abandoned,  it  was  held  that  as 
353;  42  Pac.  Rep.  1057;  43  Pac.  the  evidence  showed  the  existence  of 
Rep.  713;  Brown  v.  Vandergrift,  80  oil  in  sufTicient  quantity  to  war- 
Pa.  St.  142.  rant  shooting,  which  was  not  at- 
76Duffieid  V.  Michaels,  102  Fed.  tempted,  the  court  was  justified  in 
Rep.  820;  42  C.  C.  A.  040.  finding  that  tlie  operations  amount- 
Where  a  lease  provided  that  if  a  ed  to  the  drilling  of  a  well  within 
well  was  not  completed  within  six  the  meaning  of  the  contract,  and 
months,  it  could  be  kept  in  force  by  that  the  cessation  of  operations  for 
a  quarterly  payment  of  $10  until  six  months  was  an  abandonment  of 
one  was  completed;  that  if  at  any  the  lease;  and  that  the  receipt  of 
time  after  a  well  was  drilled,  six  a  quarterly  payment  after  the  opera- 
months  should  elapse  without  any  tions  took  place,  but  less  than  six 
revenue  being  received  from  it,  and  months  thereafter  did  not  commit 
without  any  further  drilling  having  the  lessor  to  the  position  that  a  well 
been  done,  the  lease  should  be  had  not  been  drilled,  since  it  was 
deemed  abandoned;  an  att<'nipt  hav-  the  completion  of  a  well  that  was 
ing  been  made  to  drill  a  well  which  to  end  such  payments,  and  the  court 
proceeded  until  1,000  feet  deep,  and  was  justified  in  further  finding  that 
then  the  casing  was  pulled  out  and  a  well  had  not  been  completed  with- 
the  well  plugged,  and  no  further  in  the  meaning  of  the  lease.  Federal 
drilling  done;  and  more  than  six  Betterment  Co.  v.  Bales,  75  Kan. 
months  thereafter  the  lessor  brought  69 ;  88  Pac.  Rep.  555. 
an    action    to    declare    the    lessee's 


FORFEITURE   OF    LEASE.  240c 

§  160a.     Waiver  of  forfeiture  by  receipt  of  gas. 

"Where  a  lessee  was  to  receive  free  gas  for  his  use,  tlic  use 
of  the  gas  after  forfeiture  was  held  not  to  be  a  waiver  (;f  the 
right  to  declare  and  insist  upon  a  forfeiture.  "The  land  with 
the  well  upon  it  being  the  property  of  the  appellee  [lessor], 
he  had  the  right  to  use  the  gas  from  the  well  without  incurring 
obligation  under  the  contract  to  the  appellant  [lessee]."  This 
was  an  instance  where  the  lessor  would  have  had  the  right  to 
use  the  gas  after  the  rights  of  the  lessee  were  extinguished.^"" 
In  another  instance  in  the  same  court,  where  the  gas  was  to 
be  taken  by  the  lessee  from  the  general  pipe  line  supplied  not 
only  by  the  well  on  the  lessor's  leased  lands,  but  also  by  wells 
on  other  lines,  it  was  held  that  there  could  be  no  forfeiture 
declared  so  long  as  the  lessor  continued  to  use  the  gas.^"** 
This  is  especially  true  if  his  gas  comes  from  the  leased  prem- 
ises.''"'^ A  service  of  notice  of  an  intention  to  declare  a  for- 
feiture is  sufificient  without  notice  to  cut  off  the  gas.'*"' 

§  160b.     Acceptance  of  rent  for  definite  period. — Waiver  of 
right  to  declare  forfeiture. 

The  acceptance  of  rent  for  a  definite  period  prevents  the 
lessor  declaring  a  forfeiture  during  the  period  of  time  covered 
by  the  rent.  Such  is  the  case  where  the  lessor  pays  in  advance 
rent  for  delay  in  not  developing  the  leased  premises.  Failure 
during  that  period  to  develop  the  premises  is  no  cause  for  the 
declaration  of  a  forfeiture ;  and  whatever  acts  or  non-perform- 
ance of  the  terms  of  the  lease  is  relied  upon  must  occur  or 
non-performance  take  place  after  the  period  for  which  rent 
has  been  paid  has  expired.  The  lessor  may  give  notice  to  the 
lessee  that  at  the  end  of  the  rental  period  he  will  accept  no 
more  rent  from  hira,  and  will  require  him  to  develop  the 
premises.  But  he  must  give  a  reasonable  time  within  which 
to  develop  them.     Ten  days  is  not  enough  time.^^ 

""ii  Arnorican  Window  Olass  Co.  v.  TOd  Miller  v.  Vandergrift.  .30  Ohio 

Williams,   :3()  Ind.   App.  685;   60  N.  Cir.  Ct.  Kpp.  730. 

E.  Kep.   912.  70else\v     American      Oil     Co.     v. 

-cbKing  V.  Morristown,  etc.,  Co.,  Trover,  IGfl  Ind.  402;  76  N.  E.  Rep. 

31    Ind.    App.    476;    68    N.    E.    Rep.  2.5.3-    Vendocia   Oil,  etc.,  Co.  v.  Rob- 

310;   Duntley  v.  Anderson,  169  Fed.  inson,    71    Ohio    St.    302;    73   N.   E. 

391;  94  C.  C.  A.  647.  222;    Consumers'   Gas   Trust  Co.   v. 

70c  Duntley  v.  Anderson,   169  Fed.  Littler,   162  Ind.  320;   72  X.  E.  360 

Rep.   391;    94   C.   C.   A.   647.  (fifteen    days    not   enough    notice); 


240d 


OIL   AND  GAS. 


§  161.     Eviction  of  lessee. 

An  eviction  of  the  lessee  by  the  lessor  will  excuse  him  from 
carrying  out  the  terms  of  his  lease,  and  will  also  prevent  a  for- 
feiture of  it  on  his  part.  The  eviction  may  be  purely  con- 
structive ;  such  as  a  conveyance  of  vacant  lots,  that  have  been 
leased,  by  the  lessor,  without  any  reservation  of  the  lessee's 
right  of  entry  to  drill  for  oil  or  gas.'"  But  the  entry  of  a  lessor 
and  the  construction  by  him  of  a  building  on  the  land  was  held 
not  to  be  such  a  rcsnniptidn  of  jx>ssession  as  will  terminate  his 
right  tliereafter  to  demand  rent,  simply  because  he  set  his  build- 
ing where  the  lessee  had  set  a  stake  to  designate  the  place 
where  tlie  well  was  to  be  drilled,  the  building  not  otlierwise 
preventing  the  development  of  the  premiscs.^^ 

§162.     Failure  to  operate  and  not  for  failure  to  develop. 

Occasionally  leases  are  met  with  that  a  failure  to  develop 
within  the  time  given  for  development  will  not  work  a  for- 
feiture; bnt  a  failure  after  development  to  operate  will  have 


Consumers'  Gas  Trust  Co.  v.  Ink, 
163  Ind.  174;  71  N.  E.  477;  Con- 
sumers' Gas  Trust  Co.  v.  Worth, 
163  Ind.  143;  71  N.  E.  489;  Con- 
sumers' Gas  Trust  Co.  v.  Howard, 
163  Ind.  170;  71  N.  E.  493;  Camp- 
bell V.  Rock  Oil  Co.,  151  Fed.  191; 
80  C.  C.  A.  467;  Monarch  Oil,  Gas 
&  Coal  Co.  V.  Richardson,  30  Ky. 
L.  Rep.  824;  99  S.  W.  668. 

^■7  Matthews  v.  People's  Natural 
Gas  Co.,  179  Pa.  St.  165;  39  W.  N. 
C.  544;  27  Pittsb.  L.  J.  (N.  S.) 
421;    36   Atl.  Rep.   216. 

78  Matliews  v.  People's  Natural 
Gas  Co.,  179  Pa.  St.  165;  27  Pittsb 
L.  J.  (N.  S.)  421;  39  W.  N.  C. 
544;   36  Atl.   Rep.   216. 

A  purchaser  cannot  insist  on  sus- 
pending payment  of  royalties  be- 
cause of  a  danger  of  eviction,  of 
which  he  was  informed  when  he  took 
the  lease.  Jennings-Heywood  Oil 
SjTidicate  v.  Home  Oil  &  L.  Co. 
li3  La,   383;   37   So,   Rep,   1, 


An  oil  lease  contained  a  covenant 
that  the  lessee  was  "to  stand  all 
expenses  of  any  lawsuit  that  may 
arise  in  defending  of  said  lease."  It 
was  held  that  it  was  incumbent  on 
the  lessee  to  defend  the  premises 
against  a  prior  lessee,  and  in  the 
event  of  his  failure  to  do  so,  on 
the  occupation  of  the  premises  by 
the  prior  lessee,  and  the  failure  to 
show  that  the  entry  of  such  prior 
lessee  was  authorized  by  the  lessor, 
or  that  it  would  be  fruitless  to  as- 
sail the  lease,  or  that  the  entry  was 
made  pursuant  to  some  agreement 
with  the  lessor,  the  lessee  cannot 
recover  the  consideration  paid  for 
his  lease,  which,  it  was  agreed,  was 
to  be  repaid  to  him  in  the  event 
there  was  any  outstanding  lease  or 
contract  superseding  tlie  lease  to 
him.  Conkling  v.  Kranduskv,  127 
N,  Y,  567;   112  N,  Y.  Supp,  "l3. 


r 


FORFEITURE   OF    LEASE.  241 

that  olToct.  '^riins  in  a  lonso  of  a  coal  hank,  the  lease  rcciuircd 
the  lessee  !(»•  ]>ut  tJic  hank  in  ii'ond  workini;:  (irdcr  idr  the  rent  of 
the  first  year,  but  tJioreaftor  to  jiay  a  royalty  on  (ncry  Imslicl  of 
coal  taken  out;  aiul  if  the  ci^al  hank  should  rcniain  idle  hv  the 
act  of  the  less(H\  wIumi  it  would  yield  coal,  for  the  term  of  one 
year,  it  should  he  considered  ahandiuied.  It  was  held  that  a 
failure  to  ])ut  the  coal  hank  in  good  working  order  the  first  year 
did  not  constitute  an  al>audouuieut  of  it ;  the  clause  of  for- 
feiture not  applying  to  such  neglect.''"  So  under  a  lease  giving 
the  lessee  the  right  to  hold  the  premises  for  two  years,  and  as 
long  thereafter  as  gas  or  oil  could  be  produced  in  paying 
quantities,  a  failure  to  work  the  wells  for  two  years  after  the 
expiration  of  the  first  tAvo  years  was  held  to  work  a  forfeiture 
of  the  lease,  notwithstanding  oil  could  have  been  produced  in 
paying  quantities  during  the  time  of  the  abandonment.'"" 

§  163.     Continuance  of  operations. 

Where  a  lease  provides  a  forfeiture  for  a  neglect  or  failure 
to  operate  the  oil  or  gas  wells,  no  makeshifts  of  operation  will 
prevent  the  forfeiture.  In  such  an  instance  the  operation  of 
the  well  means  the  extraction  of  oil  or  gas  from  the  premises ; 
and  the  lessee  cannot  successfully  claim  that  entries  from  time 
to  time  to  clean  and  grease  an  engine  Avhicli  he  had  erected  on 
the  premises  and  used  in  pumping  oil,  or  in  any  other  legiti- 
mate way,  was  a  continuance  of  mining  operations,  in  ordor  to 
prevent  a  forfeiture.*^"  Cessure  of  operation  for  nine  montiis 
was  held  to  be  such  a  neglect  as  entitled  the  lessor  to  a  for- 
feiture.   "In  the  rapid  development  and  exhaustion  of  lands, 

79  Moyers  v.  Tiley,  32  Pa.  St.  267.  did  not  continuously  work  tlio  mine, 

See   Thompson   v.   Christie,    138   Pa.  not  being  bound  to  do  so  in  tlie  ab- 

St.  230;    20  Atl.  Rep.  934;    1  L.  R.  sence  of  a  special  agreement.     Caley 

A.  290:  Barnsdall  V.  Boley,  119  Fed.  v.    Portland    (Colo.),    71    Pac.   Rep. 

Rep.    191:    and  Parisli   Fork  Oil  Co.  892.       See     Colorado,     etc.,     Co.     v. 

V.   Bridgewater   Oil    Co.,    51    W.  Va.  Prvor,    25   Colo.    540;    57    Pac.   Rep. 

583:   42  S.  E.  Rep.  05.5:   Cadbnry  v.  51." 

Ohio,  etc..   Gas  Co.,   102    Ind.  9;    07  ^na  Cole    v.    Taylor,    8    Pa.    Super. 

N.   E.    Rep.   259;    Gadliurv   v.    Ohio,  Ct.    Rep.    19;    Hovverton    v.    Kansas 

etc..  Gas  Co.    (Ind.  App.)',  05  N.  E.  Natural  Gas  Co.,  81  Kan.  553;    106 

Rep.  289;   American   Window   Glass  Pac.  Rep.  47. 

Co.  V.  Williams,  30  Ind.  App.  685;  8'>  Davis  v.  ISIoss,  38   Pa.  St.  346. 

66   N.    E.    Rep.   912.  After  a  refusal  to  accept  rent  for 

Where  a  lessor  of  a  mineral  mine  an  extension  of  the  term,  the  les>ee 

was  to  be   paid  only  out  of  the  net  need  not  tiiereafter  commence  ojiera- < 

proceeds,  and  there  were  no  net  pro-  tions    for    the    purpose    of    showing 

ceeds,   although   tlie  mine  was  oper-  diligence.     Consumers'  Gas  Trust  Co. 

ated,  it  was  held  that  the  lessee  was  v.    Worth,    103    Ind.    141;    71    -n.    E. 

not   liable    on    the    ground    that   he  Rep.   489. 


242  OIL    AND    GAS. 

cessation  of  work  for  nine  monllis  is  a  long  period.  Often,  in 
far  less  time,  the  fluctuations  in  prices  of  lands  and  lease- 
holds is  very  great.  Perhaps  in  no  other  business  is  prompt 
performance  of  contract  so  essential  to  the  rights  of  the  parties, 
or  delay  by  one  party  likely  to  prove  so  injurious  to  the 
other.  "^^  A  lease  of  the  gas  and  oil  on  certain  land  provided 
that  a  test  well  should  be  completed  on  a  certain  block  of 
leases,  which  included  the  land  covered  by  the  lease  in  question 
and  adjoining  lands,  by  a  certain  date,  and  that  the  lessee 
should,  witliiu  twelve  months  from  date  of  the  lease,  drill  a 
well  to  completion  on  the  land  covered  thereby,  and  further 
that,  in  case  no  well  was  completed  within  the  twelve  months, 
the  lessee  should  pay  a  certain  annual  rental  payable  quarterly. 
Shortly  after  procuring  the  lease  in  question,  and  before  the 
date  specified  therein,  a  test  well  was  drilled  on  adjoining 
land  within  the  block  of  leases  referred  to,  on  which  gas  was 
found,  but  there  being  no  market  therefor  or  pipe  line  or  other 
means  of  transportation  to  market,  the  well  was  shot,  cased, 
tubed,  packed,  and  equipped  with  appliances  used  in  gas  wells 
to  pipe  gas  to  market,  and  was  left  in  that  condition,  awaiting 
means  of  transportation.  Another  well  was  drilled  on  other 
adjoining  land  within  the  block,  but  abandoned  on  striking  a 
flow  of  salt  water,  which  destroyed  the  value  of  the  well.  The 
lessee  failed  to  complete  a  well  upon  the  land  covered  by  the 
lease  within  twelve  months  of  the  date  of  the  lease,  and,  upon 
such  failure,  he  exercised  the  option  provided  for  in  the  lease 
for  the  payment  quarterly  of  a  specified,  yearly  rental,  and 
tendered  the  amount  thereof  to  the  lessor.  It  was  held  that 
the  lessee  did  not  fail  to  perform  the  conditions  recjuired  by 
the  lease  to  be  performed  on  his  part,  so  as  to  entitle  the 
lessor  to  have  the  lease  canceled.'^'"     Where  a  landlord  leases 

81  Monroe    v.    Armstrong,    96    Pa.  W.  V.  Gas  Co.  v.  Seogar,  10.5  Ind.  1; 

St.  307.     See  also  Parish   Fork   Oil  74  N.  E.  Rep.  500. 

Co.  V.  Bridgewater  Gas  Co.,  51    W.  The   law    recognizes   a    distinction 

Va.  583;   42  S.  E.  Rep.  655;   Barns-  between   the   abandonment  of  opera- 

dall   V.    Boley,    119   Fed.    Rep.    191;  tions  under  an  oil  lease  and  an  inten- 

F^ederal  Oil  Co.  v.  Western   Oil  Co.,  tion    to    abandon    or    surrender    the 

112    Fed.   Rep.   373;    Buffalo   Valley  lease  itself.     Pari.sh  Fork  Oil  Co.  v. 

Oil    &    Gas    Co.    V.   .Tones,    75    Kan.  Bridgewater    Gas    Co.,    51    W.    Va. 

18;    88  Pac.  Rep.  537;    Acme  Oil  &  583:   42  S.  E.  Rep.  655. 

M.    Co.    V.   Williams,    140  Cal.   681;  See    the   excellent    ease    of    CofRn- 

74  Pac.  Rep.  296;  Pill  v.  Fraze.  165  berry   v.   Sun    Oil   Co.,   68   Ohio   St. 

'Tnd.    .53;    79    N.    E.    Rep.   971;    C)hio  488;    67    X.   E.    Rep.    1069. 

Oil  Co.  V.   Detamore,    105   ind.  243;  sm  Poe   v.   Ulrey,  233    111.  56;    84 

73   N.   E.   Rep.   906;    Logansport   &  N.  E.  Rep.  46. 


FORFEITURE   OF    LEASE.  243 

his  land,  the  lessee  agreeing  to  pay  an  annual  rental  until  the 
land  is  developed  and  after  development  to  pay  a  different  sum, 
such  lessee  agreeing  to  furnish  the  landlord  free  gas,  the  fur- 
nishing of  such  gas,  where  no  well  was  ever  drilled  and  no 
offer  made  to  drill  one,  does  not  constitute  the  taking  posses- 
sion for  the  purposes  of  the  lease,  nor  is  it  a  part  performance 
of  the  contract. ^''^ 

§  164.     Production  of  gas  will  not  prevent  forfeiture  of  an  oil 
lease. — Reimbursement. 

If  the  lease  is  for  the  development  of  the  leased  premises 
for  oil,  the  production  of  gas  will  not  prevent  its  forfeiture, 
although  the  gas  may  be  a  valuable  product.**-  In  such  an 
instance  the  lessee  has  no  right  to  be  reimbursed  the  expenses 
of  his  operations  out  of  the  proceeds  of  the  gas  obtained ;  for 
an  oil  and  not  a  gas  lease  was  contemplated  by  the  parties 
when  it  was  executed.®^ 

§  165.     Covenant  uncertain. 

To  authorize  a  forfeiture  for  a  failure  to  keep  a  covenant,  It 
must  not  only  be  valid  but  also  certain.  Thus  where  the  lessee 
covenanted  to  complete  four  oil  wells  within  a  year,  and  stip- 
ulated if  he  did  not  that  twenty-two  acres  should  be  forfeited 
for  each  well  not  so  completed,  it  was  held  that  the  forfeiture 
clause  was  void  for  uiioei-taiiity,  and  could  not  be  enforced.*** 
Aaid  where  the  lessee  of  a  mine  covenanted  to  "  use  all  economy 
in  the  conduct  and  management  of  the  mining  enterprise,"  it 
was  held  that  it  was  too  uncertain  to  be  recognized  as  a  condi- 
tion, for  the  breach  of  which  a  forfeiture  would  be  exacted. ^'^ 

Wherp   lessors  accopted  and   used  profitably  producinpj  either.     Miller 

gas  supplied  by  a  gas  company  and  v.  ^'andl■rf;rift,  30  Ohio  Cir.  Ct.  Hop. 

paid  for  by  tiie  lessees  in  considera-  730. 

tion    for     which    the    lessees     were  S'b  Hancock     v.     Diamond     Plate 

granted  an  extension  of  time  to  open  Glass  Co.,  .37  Ind.  App.  351;   75  N. 

a  well  producing  oil  and  giis,  which,  E.    Rep.    (i59. 

by    reason    of    the    intermingling   of  82  Truby   v.  Palmer,  4  Cent.   Rep. 

the    oil,    and    for    want    of    market-  (Pa.)    025:    6  Atl.  Rep.  74. 

able  facilities  of  the  oil,  was  unprof-  ^^  Palmer    v.    Truby,    130    Pa.    St. 

itable   to   operate   for   either   gas   or  556;  20  Atl.  Rep.  51(1. 

oil,  it  was  held  neither  to  extend  the  »<  Thomas   v.    Kirkbride,    15    Ohio 

terms  of  the  lease  nor  waive  condi-  Cir.  Ct.   Rep.  204-.   8  Ohio  Dee.    IHl. 

tions    of    forfeiture    for    non-compli-  s"' Benaivder  v.  Hunt,  70  Tex.  3S.'J ; 

ance  therewith,   especially  after  the  15    S.    W.    Rep.    3'J(i.      See    Swift    v. 

expiration    of    the    term    contracted  Occidental  ^f.  &  Ty.  Co.  141  Cal.  101 ; 

for,   and   in   the   absence   of   a   well  74  Pac.   Rep.  700. 


244 


OIL   AND   GAa. 


^166. 


Re-entry. 


A  forfeiture  may  be  incurred  by  a  breach  of  eitlier  a  covenant 
or  a  condition  subsequent.  If  it  be  incurred  by  reason  of  a 
breach  of  a  covenant,  then  the  right  of  re-entry  must  be  reserved 
to  work  a  forfeiture.""  In  tlie  case  of  a  condition  subsequent 
a  right  of  re-entiy  need  not  1x3  ex])ressly  reserved  if  the  condi- 
tion is  expressed,  hhit  a  re-entry  is  necessary  to  defeat  the 
lease,*^  or  acts  that  are  equivalent  to  it  —  such  as  bringing  an 
action  in  eject.ment.^^  If  a  lessor  he  in  possession,  then  a  re- 
entry is  not  necessar)',  nor  is  a  demand  for  possession.  The 
law  does  not  rccpiire  a  useless  act.  In  the  case  of  a  gas  or  oil 
lease,  where  the  lessor  is  in  possession  of  the  ground  for  the  pur- 
poses of  tillage,  he  has  such  a  possession  as  not  to  require  a  re- 
entrA',^**  and  there  must  be  a  breach  of  the  condition  or  covenant 


In  all  oil  and  gas  leases  a  cove- 
nant to  "protect  the  lines"  and  to 
"well  develop"  the  land  is  implied, 
and  the  fact  tiiat  such  covenants 
are  expressed  in  tlie  same  general 
words  adds  nothing  to  tlie  lessee's 
obligation,  and  tlie  lease  cannot  be 
forfeited  for  a  breach  of  such  cove- 
nants where  he  has  in  good  faith 
done  what  in  his  judgment  was  re- 
quired to  comply  therewith.  Kellar 
V.  Craig,  12G  F.  G30. 

86  Doe  V.  Jepson,  3  B.  and  Ad. 
402;  1  L.  J.  K.  15.  154;  Jones  v. 
Carter,  15  M.  and  W.  718;  Clark  v. 
Jones,  1  Denio  510;  Brown  v.  Bragg, 
22  Ind.  122;  Den.  v.  Post,  25  N.  J. 
L.  285;  Wheeler  v.  Earl,  5  Cusli.  31. 

87  Andrews  v.  Senter,  32  i\Ie.  394 ; 
Bowen  v.  Bowen,  18  Conn.  535;  Rol- 
lins V.  Rilej',  44  N.  H.  9;  Hamilton 
V.  Elliott,  5\S.  and  R.  375;  Hawkins 
V.  Pepper,  117  N.  C.  407:  23  S.  E. 
Rep.  434;  Acme  Oil  &  M.  Co.  v. 
Williams,  140  Cal.  G81;  74  Pac.  Rep. 
296. 

Wihere  there  is  a  comlition  of  re- 
entry for  non])aynient  of  rent  in  a 
lease  of  property  for  the  purpose  of 
quarrying  stone,  the  lessor  cannot 
re-enter  unless  lie  lias  made  a  de- 
mand of  the  precise  rent  due  on  the 
very  day  on  which  it  l>ecomes  due, 
and  on  the  most  notorious  place 
on  the  land,  although  there  should 
be  no  person  on  the  land  ready  to 
pay  it.  Homet  v.  Singer,  35  Pa. 
Super.  Ct.  491. 


RsGoodright  v.  Cator,  2  Dougl. 
485;  Doe  v.  Masters,  2  B.  and  C. 
490;  Osgood  V.  Abbott,  58  Me.  73; 
Fonda  v.  Sage,  40  Barb.  109; 
Stearns  v.  Harris,  8  Allen  597;  Mc- 
Kelway  v.  Seymour,  29  N.  J.  L. 
321;  Boys  v.  Robinson  ( N.  J.  L.), 
38  Atl.  Rep.  813;  Hoch  v.  Bass,  133 
Pa.  St.  328;  19  Atl.  Rep.  360.  As 
in  the  usual  lease  of  premises  for 
gas.  Gadbury  v.  Ohio,  etc.,  Gas  Co., 
162  Ind.  9;  67  N.  B.  Rep.  259; 
Suit  V.  A.  Hochstetler  Oil  Co.,  63 
W.  Va.  317;    01    S.  E.   Rep.  307. 

saGulTe"  v.  Hukill,  34  W.  Va. 
49;  11  S."  E.  Rep.  754;  8  L.  R.  A. 
759;  Adams  v.  Ore  Knob  Copper  Co., 
7  Fed.  Rep.  034;  Alleglieny  Oil  Co. 
v.  Bradford  Oil  Co.,  80  N.  Y.  638; 
afiirming  21  Hun  26;  Hawkins  v. 
Pepper,  117  N.  C.  407;  23  S.  E.  Rep. 
434;  Maxwell  v.  Todd,  112  N.  C. 
677;  16  S.  E.  Rep.  920;  Island  Coal 
Co.  v.  Combs,  152  Ind.  379;  53  N. 
E.  Rep.  452;  Rav  v.  Western  Penn- 
svlvania  N.  Ga.-,' Co.,  138  Pa.  570; 
20   Atl.    Rep.    1005. 

Where  a  grantor  of  an  oil  lease 
conveyed  only  the  riglit  to  drill 
for  oil  on  his  land,  together  with 
the  oil  and  gas  recovered,  and  the 
right  to  go  on  the  land  for  such 
purposes  only,  subject  to  certain 
conditions,  such  right  was  an  in- 
corporeal hereditament,  incapable  of 
livery  of  seisin,  and  therefore  not 
subject  to  reentry,  Monaghan  v. 
Mount,  36  Ind.  App.  188;  74  N.  E. 
579. 


FORFEITURE   OF    LEASE.  245 

mentioned  in  the  lease.""  The  right  t<»  re-enter,  ]iowever,  may 
be  waivt'd  or  deferred,  as  by  an  aet  extendiui;  the  time  witJiin 
whieh  a  payment  of  the  rent  might  be  made.  Even  if  notiee  to 
qnit  is  given,  bnt  accompanied  by  an  assurance  tliat  another 
notice  will  be  given,  tlie  riglit  to  re-enter  is  not  complete  until 
such  second  notice  has  been  served  (ui  ilie  lessee."'  If  ihc  re- 
entry be  illegal,  and  the  lessor  operate  llie  <iil  wells,  he  must  ac- 
count to  tlie  lessee  for  the  oil  taken  out  by  him  at  its  market 
value,  less  the  royalty  and  the  actual  cost  of  operating  the 
wells,  of  permanent  and  uecessni'v  iuijirdvciiieiits  made  by  him, 
and  of  money  actually  p'aid  by  him  fur  lab<;)r  chiims  against  the 
lessee's  property.""  If  the  lessee  dispute  all  the  assertidus  of 
forfeiture,  but  the  lessor  has  re-entered,  a  ]ii-eliiiiiuary  injunc- 
tion will  be  awarded  and  continued  to  restrain  the  lessor  for 
continued  interference  with  the  premises ;  "^  and  the  lessor  can- 
not, under  such  circumstances,  apply  for  a  preliminary  injunc- 
tion to  restrain  tJie  lessee  from  entering  ufwn  tlie  premises."* 

§  167.     Releasing  premises  equivalent  to  a  re-entry. 

The  execution  of  a  second  lease  to  a  third  person,  after  for- 
feiture incurred,  is  equivalent  to  a  re-entry,  and  is  as  effectual 
for  all  purposes  as  the  re-entry  itself."^     A  demand  for  the 

90  Harris  v.  Ohio  Coal  Co.,  57  A  right  of  re-ontry  belon<!in<;  to 
Ohio  St.  118;  48  N.  E.  Rep.  502;  the  lessor  for  condition  broken,  is 
McKniglit  V.  Kreutz,  51  Pa.  St.  232.  good  against  a  jiurcliaser  of  the 
See  Thompson  v.  C  hristie,  138  Pa.  leasehold  interest  at  execution  sale; 
St.  230;  20  Atl.  Rep.  934;  11  L.  R.  and  a  subsequent  redemption  by  the 
A.   23{).  lease    from    *ueh    a    purchaser    docs 

91  Wakefield  v.  Sunday  Lake,  etc.,  not  nullify  the  forfeiture.  Acme 
Co.,  85  Mich.  G05;  49  N.  W.  Rep.  Oil  &  M.  Co.  v.  Williams,  x40  Cal. 
135.  681;    74  Pac.  Rep.   296. 

92  ^\'akefield  v.  Sunday  Lake,  etc.,  95  Allegheny  Oil  Co.  v.  Bradford 
Co.,  85  Mich.  <305 ;  49  'N.  W.  Rep.  Oil  Co.,  86  'N.  Y.  638;  alliniiing 
135.  21    Ilun    2(i:    Huggins   v.    Daley.   99 

93Potterie    Gas    Co.    v.    Potterie,  Fed.  Rep.  606;  40  C.  C.  A.  12;  48  L. 

153   Pa.   St.   10:    25  Atl.  Rep.    1107.  R.  A.  320;  Guffey  v.  Hukill.  34  W. 

9  1  Potterie    v.    Potterie    Gas    Co..  Va.  49;    11   S.  E.  Rep.  754;    Kenton 

153  Pa.   St.    13;   25  Atl.  Rep.   1107.  Gas,  etc.,  Co.  v.  Dorney.  17  Ohio  Cir. 

A    right    of    re-entry    is    good    as  Ct.  Rep.  101;  9  Ohio  Cir.  Dec.  004; 

against  a  purchaser  of  the  leasehold  Conkling  v.    Krandusky,    127    N.    Y. 

interest    at    execution    sale;    and    a  App.    5(17:     112    N.     Y.    >Supp.     13; 

subsequent  redemption  by  the  lessee  Wade  v.  South  Penn.  Oil  Co..  45  W. 

from   such    purchaser   does   not    nul-  Va.  380;   32  S.  B.  169;    Ethvards  v. 

lifv  the  forfeiture.     Acme  Oil  &  M.  Hale,  37  W.  Va.  1<53;    16  S.  E.  587; 

Co".    V.    Williams,    140    Cal.    681;    74  Carnegie   Nat.   Gas   Co.   v.    Philadel- 

Pac.  Rep.  290.  phia  Co.,  158  Pa.  317;   27  Atl.  95; 


246  OIL   AND    GAS. 

payment  of  tJie  rent  (lu(\  wIkmt  the  forfeiture  is  for  tliat  reison, 
is  not  necessary  Ix^fore  exceutini!:  the  second  lease.'"*"  Xot  in 
every  instance,  however,  will  the  execution  of  a  second  lease  he 
equivalent  to  a  re-entn'  nor  to  a  declaration  of  a  forfeiture. 
ThiiSi  giving"  a  second  lease  subject  to  the  first  one  is  not  a  re- 
entry nor  a  declaration  of  a  forfeiture.''^  And  where  the  second 
lease  is  silent  on  tlie  subject  of  the  forfeiture  of  the  first  lease, 
oral  evidence  is  admissible  to  show  it  was  not  the  intention  of 
the  lessor  to  declare  a  forfeiture  of  such  first  lease."*  And  if 
there  has  been  a  waiver  of  the  time  or  manner  of  payment  of 
tlie  rent  specified  in  the  first  lease,  the  execution  of  a  second 
lease  because  of  a  failure  to  make  payment  in  the  manner  and 
at  the  time  required  by  such,  first  lease  will  not  \)c  sufiicient  to 
complete  its  forfeiture.""  Where  a  lease  has  not  only  been  for- 
feited but  also  abandoned  by  the  lessee,  and  he  has  given  up  all 
hope  of  developing  the  lands,  the  execution  of  a  second  lease 
by  the  lessor,  "  subject  to  "  the  first  lease,  will  not  be  construed 
as  a  recognition  of  the  validity  of  such  first  lease.^"°  Where  a 
first  lease  had  expired,  and  also  a  second  one  given  to  a  third 
person,  and  the  lessee  under  the  first  lease  took  possession  with 
the  lessor's  consent,  and  at  great  expense  produced  oil  in  pay- 
ing quantities,  it  was  held  that  the  second  lessee  could  not  main- 
tain an  action  for  the  possession  of  the  premises.^"^  Where  the 
first  lease  requires  the  lessee  to  re-convey  the  premises,  in  case 
of  acts  of  forfeiture  or  abandonment,  the  execution  of  a  second 
lease  will  not  work  a  forfeiture.""  Where  a  part  of  the  prem- 
ises were  subleased  by  the  lessee,  subject  to  the  conditions  of 

Wolf  V.  GufTev,  161  Pa.  276;  28  630;  15  S.  E.  151;  Lowther  Oil  Co. 
Atl.  1117;  Eclipse  Oil  Co.  v.  South  v.  GufToy,  52  W.  Va.  88;  43  S.  E. 
Penn.  Oil  €<:>.,  47  W.  Va.  84;  34  101;  Barf.ey  v.  Phillips,  165  Pa. 
S.  E.  923;  Martel  v.  Jennings-  Hey-  325;  30  Atl.  842;  Bartley  v.  Phil- 
wood  Oil  Syndicate,  114  La.  903;  38  lips,  179  Pa.  175;  36  Atl.  217. 
So.  253.  98  Thomas   v.    Hukill,    34   W.    Va. 

90  Wolf    V.    Guffey,     161    Pa.    St.  385;    12  S.  E.  Rep.  522. 

276;  28  Atl.  Rep.  1117;  Parish  Fork  99  Hukill    v.    Meyers,    36    W,    Va. 

Oil   Co.  V.   Bridgewater  Gas  Co.,  51  639;   15  S.  E.  Rep.  151. 

W.  Va.  583;   42  S.  E.  Rep.  655.  loo  Elk    Fork    Oil   and   Gas   Co.  v. 

97  Schaupp   V.   Hukill,   34   W.  Va.  Jennings,  84   Fed.  Rep.  839. 

375;    12   S.   E.   Rep.  501;    Henne  v.  loi  Thomas  v.   Hukill,   34   W.  Va. 

South  Penn.  Oil  Co.,  52  W.  Va.  192;  385;    12  S.  E.  Rep.  5(22. 

43   S.   E.   Rep.    147;    Stone  v.   Mar-  102  Northwestern  Ohio,  etc.,  Co.  v. 

shall,     188    Pa.    602;    41    Atl.    748,  Browning,  15  Ohio  Cir.  Ct.  Rep.  84; 

1119;    Hukill   V.  Myers,   36  W.  Va.  8  Ohio  Cir.  Dec.  188. 


FORFEITURE   OP    LEASE.  247 

tlie  first  lease,  wliicli  the  s-.ihlcssee  jissiuikmI,  Ixit  the  h'ssee  con- 
tinued to  pay  th(>  rent  until  the  last  ]Kiyiiicnt,  when  he  de- 
faulted; and  tlieren]>(>n  the  lessor  executed  a  seeoiid  lease  to  the 
sublessee  for  the  entire  premises,  jirovidinir  that  such  sid)lessce 
should  stand  Ix^tween  him  and  "  all  who  niav  have  claim  to  this 
lease,"  tliis  was  held  not  to  work  a  forfeit  ure  of  the  first  lease."" 
Where  a  lease  is  executed  e:ivini>-  the  lessor  an  option  to  declare 
it  forfeited,  under  certain  circumstances,  which  have  occurred, 
the  execution  of  a  second  lease  after  the  occurrence  of  tlie  facts 
audiorizing  a  forfeiture  is  a  sufficient  declaration  of  the  lessee 
that  he  is  exercising  his  right  of  option  to  declare  the  first  lease 
forfeited  or  at  an  end.^"* 

§168.     Surrender  after  assignment  or  conveyance. —  Forfeiture. 

After  ho  has  made  an  assignment  of  a  lease,  the  lessee  has  no 
power  to  make  a  surrender  of  it,  nor  t«  take  advantjige  of  his 
own  default,  where  he  w^ould  have  had  the  right  if  he  had  re- 
mained the  owner  of  the  lease;  nor  can  the  lessor  declare  a  for- 
feiture after  he  has  convoyed  away  the  premises.^"^  After  the 
lessor  has  transferred  a  lease,  he  has  no  |X)wer  to  accept  a  sur- 
render of  it,  but  the  acceptance  must  be  by  his  assignee  or 
grantee.'"® 

§169.     Forfeiture  of  only  part  of  lease. 

If  the  lease  require  several  wells,  within  different  periods  of 
time  to  be  drilled,  a  failure  to  put  down  all  of  them  within 
the  several  times  required  will  not  always  work  a  forfeiture  of 
the  entire  lease.  Of  course,  to  prevent  a  forfeiture  of  the 
entire  lease  the  wells  actually  drilled  must  be  paying  or  pro- 
ducing wells,   for  dry  wells   will   not  keep  a  lease   alive.      In 

103  Akin  V.  Marshall  Oil  Co.,  188  forfeiture.  Friend  v.  Mallory.  .')S 
Pa.  St.  602;  41  All.  Rep.  748.  W.  Va.  53;  43  S.  E.  Hop.   11  I. 

104  iXupfrins  V.  Daley,  99  Fed.  Rep.  lo"' Ohio  Iron  Co.  v.  Auburn  Iron 
600;  40  C.  C.  A.  12;  48  L.  R.  A.  Co.,  64  Minn.  404;  67  N.  W.  Rep. 
320.  221. 

A    second    lease   that   is    void,   be-  i"6 'iTiompson   v.  Christie,   l.TS  Pa. 

cause  the  lessee  therein  had  notice  St.  230;  27  W.  N.  C.  87;  20  At  I. 
of  the  first  lease,  will   not   work   a       Rep.  834;   11  L.  R.  A.  230. 


248  OIL   AND  GAS. 

one  case  where  the  wells  were  to  be  completed  within  successive 
periods  of  time,  and  while  two  were  completed  the  third  was 
not,  the  lease  was  considered  forfeited  as  to  one-third  of  the 
territory  covered  by  it.^^^  If  the  number  of  wells  to  be  sunk 
on  the  leased  premises  are  not  stated  in  the  lease,  the  lessee 
cannot  escape  by  sinking  a  single  producing  well,  or  even  two 
or  tliree,  if  not  sufficient  to  develop  and  secure  all  the  oil  under 
the  surface.  He  must  sink  enough  wells  to  secure  all  the  oil, 
especially  if  it  is  probably  escaping  to  adjoining  premises  in 
which  he  is  interested  ;  and  if  he  do  not,  he  will  forfeit  all  that 
part  of  the  ])remises  not  sufficiently  occupied  with  wells.^"^  By 
a  nuinl)er  of  leases,  similar  in  terms,  obtained  from  several 
]->ersons,  a  lessee  acquired  the  exclusive  right  in  a  large  terri- 
tory to  drill  and  operate  for  oil  and  gas.  lie  agreed  to  give 
each  lessee  a  certain  ]X)rtion  of  the  oil  obtained,  and  pay  a  cer- 
tain annual  sum  for  each  gas  well.  On  pain  of  forfeiture  he 
was  required  to  put  down  one  test  well  within  a  year  from  the 
date  of  the  leases.  The  leases  were  to  run  ten  years.  The 
putting  down  of  one  test  well  within  a  year  was  not  considered 
sufficient  to  vest  in  him  an  absolute  right  to  the  territory  cov- 
ered by  all  the  leases,  it  was  said,  but  he  must  proceed  and 
develop  within  a  reasonable  time  after  sinking  such  test  well  at 
least  one  well  on.  each  of  the  leased  premises,  and  a  failure  to 
do  so  as  tO'  any  one  lease  was  an  abandonment  of  the  premises 
described  in  it.  In  passing  on  the  case  the  court  used  the  fol- 
lowing language : 

"  With  the  conelusioii  reached  by  the  lessors  that  Johnston 
(the  lessee)  had  abandoned  the  leases,  we  fully  concur,  and  we 

lOTCryan   v     Ridelsperger,    7    Ta.  case    twenty    clays    were    given     in 

Co.   Ct.   Rep.  473.     See  "Baldwin   v.  which    to    sinlc    the    required    wells, 

Ohio  Oil  Co.,  13  Ohio  Cir.  Ct.  Rep.  and  if  not  so   done,  the  unoccupied 

619-   7  Ohio  Dec.  50.  pfirt  of  the  premises  were  to  be  for- 

a'  stipulation  that  twenty-two  f cited.  Same  rule  in  Young  v.  Van- 
acres  shall  be  forfeited  for  every  one  dorgrift,  30  Pittsb.  L.  J.  (N.  S.)  39. 
of  the  required  wells  not  sunk  is  But  both  cases  were  reversed.  Young 
void  for  uncertainty.  Thomas  v.  v.  Forest  Oil  Co.,  194  Pa.  St.  243; 
Kirkbridge,  15  Ohio  Cir.  Ct.  Rep.  45  Atl.  Rep.  121;  Colgan  v.  Forest 
294;   8  Ohio  C.  D.  181.  Oil   Co.,    194   Pa.    St.   234;    45   Atl. 

i"8  Colgan   V.    Forest   Oil   Co.,   30  Rep.  119;  Coffinberry  v.  Sun  Oil  Co., 

Pittsb.  L.   J.    (N.   S.)    68.     In  this  08  Ohio  St.  488;  67  N.  E.  Rep.  1069. 


FORFEniTRE   OP    LEASE.  249 

further  fiiul  from  the  ovidcuce  that,  as  to  these  particuhir  leases, 
it  was  his  intention  t/O  do  s<\  Both  pnhlie  and  i>rivate  interests 
require  that  such  facts  as  are  distdosed  bv  the  testinionv  in  thase 
cases  should  be  held  bv  a  court  of  equity  to  constitutx'  abandon- 
ment of  the  leases  involved,  because  of  non-development.  It 
sliould  be  kept  in  mind  t.hat  Johnston  in  all  these  leases  was 
the  party  who  was  to  take  initiative.  lie  was  the  actor  who 
was  to  commence  development  and  make  the  search  on  all  the 
land  described  in  them.  This  he,  for  reasons  of  his  own,  so  far 
as  these  particular  leases  were  concerned,  failed  to  do  from 
1889  to  1897.  lie  now  asks  a  court  of  equity,  after  such  un- 
reasonable delay  on  his  part,  and  gross  neglect  of  his  implied 
duty,  and  after  there  has  been  a  material  change  in  the  situa- 
tion, brought  about  by  the  efforts  of  others  in  interest,  to  decree 
tliat  he  is  entitled  to  tlie  possession  of  the  property  he  had  aban- 
doned. To  so  decree  would  bo  not  only  unconscionable,  but 
would  retard  the  development  of  the  country,  and  at  the  same 
time  it  would  reward  those  who  have  been  negligent,  and  ])unish 
those  who  have  been  prompt,  in  the  discharge  of  their  contract 
duties. 

"  After  Johnston  caused  the  Smith  well  to  bo  drilled  it  was 
liis  privilege  to  determine  —  using  for  that  purjxjse  the  in- 
formation secured  by  that  well  —  in  what  direction  and  in  what 
particular  tracts  of  land  he  would  make  his  subsequent  devel- 
opments, and,  if,  in  so  doing,  his  conduct  and  his  declarations 
resulted  in  tlie  abandonment  of  the  leases  located  in  other  sec- 
tions, for  any  misfortune  occasioned  to  him  tliereby  he  must 
hold  his  o\\Ti  judgment  responsible^  and  not  tlie  judgment  of  the 
court.  It  was  evidently  not  the  intention  of  Johnston,  when 
the  numerous  leases  were  executed  to  him  in  1889,  amoutiting 
in  the  aggregate  to  over  twenty  thousand  acres,  to  drill  wells 
upon  each  and  every  separate  tract,  but  he  intended,  using  each 
separate  search  as  an  indicator,  U^  locate,  if  ]>ossil)le,  the  ]ioints 
where  oil  and  gas  could  l)o  found,  and,  having  done  that,  to 
abandon  those  leas.es  that  ])revious  (levelo]>m(Mit  had  shown  to 
be  located  in  unprofitable  lociilitics.  That  he,  and  those  ojx'rat- 
ing  under  him,  regarded  tJie  leases  in  the  Elk  Fork  region  of 
Tyler  County  as  woiiJiless,   in  an.  oil-producing  sense,  is,  we 


250 


OIL   AND   GAS. 


think,  fully  sliowni  by  the  tesl.iniony,  and  such  conclusion  on. 
his  and  their  part  is  but  another  illustration  of  the  uncertainty 
and  surprises  that  c(3nie  to  those  engaged  in  t.ho  development 
of  oil  territ/>rv." 

An  important  feature  of  the  case  is  treated  as  follows: 
"  The  fact  that  all  the  Paova  leases  contained  the  following 
clause,  '  subject  to  the  Johnston  lease,'  must  be  considered  in 
connection  with  the  circumstances  surrounding  the  ]>arties  when 
they  executed  the  same.  In  our  judgment,  tlie  lessors  intendecf 
by  these  words  to  incorporate  into  tlieir  contracts  tlie  fact  that 
they  had  advised  tlieir  lessee  that  the  land  had  been  Uieretofore 
leased  to  Johnston,  and  that  he  was  to  take  it  subject  to  the  old 
lease,  with  the  understanding  that  if  the  Johnston  lease  was 
valid,  he  took  nothing  by  the  new  grant,  but  that  if  it  was  in- 
valid, the  conveyance  was  then  to  stand  as  a  contract  between 
the  parties.  To  hold,  as  insisted  upon  by  counsel  for  defend- 
ants, that  said  words  were  intended  as  an  admission  of  the  va- 
lidity of  the  Johnston  leases,  would  be  to  hold  that  the  parties 
to  the  new  leases,  admitted  by  them  that  the  lessor  had  notliing 
to  grant,  and  that  consequently  there  was  notliing  for  the  lessee 
to  take.  Clearly  does  it  appear  that  such  w^as  neither  the  be- 
lief nor  the  intention  of  the  parties.  Under  similar  circum- 
stances, learned  counsel  would  doubtless  have  employed  other 
and  more  apt  language,  but  still  we  think  the  words  used  are 
sufficient  to  enable  the  court  to  read  the  contract  as  we  have  con- 
strued it,  and  thereby  get  not  only  near  to,  but  exactly  at,  the 
intention  of  tlie  parties."  ^°^ 

§170.     Partial  development  —  abandonment. 

A  partial  development  may  prevent  a  forfeiture  for  a  failure 
to  develop,  even  as  to  the  entire  premises.  Thus  where  a  lease 
was  for  twenty  years;  two  wells  to  be  drilled,  the  first  within 
tlie  first  year,  and  the  second  in  two  years ;  and  if  the  second 
produced  sufficient  gas  to  be  capable  of  use,  tlie  consideration 

109  Elk   Fork   Oil   and   Gas  Co.   v.  Jennings.  84  Fed.   Rep.  839. 


FOKKKITIUH    OF    LKASE.  251 

in  full  for  such  woll  to  \x'  a  cortain  rental :  if  iIhtc!  was  dclav  in 
the  completion  of  the  two  wells,  the  annual  rentals  were  b»  1)G 
paid  and  accepted  in  full  consideration  for  the  delay;  and  t.ho 
lessee  drilled  tJie  first  well,  but  not  tJie  second,  oi>tained  c^as 
in  snflicient  qnantitv  to  use  it;  for  more  than  two  years  paid 
the  rental,  when  the  well  and  casinii;  were  plui]^£;:ed,  and  the 
"  rig  "  taken  down  ;  and  the  lessee  never  drilled  the  second  well, 
nor  paid  the  lessor  anythin<]i;  for  a  failure  to  do  so,  it  was  held 
that  these  facts  did  not  show  an  abandonment  of  the  lease.'"''* 
But  where  the  lessee  was  to  complete  a  well  wiliiin  six  months, 
or  thereafter  within  sixty  days  remove  all  machinery  and 
buildings,  in  which  event  the  lease  was  to  be  null  and  void, 
unless  further  prosecuted  after  the  first  w-ell  was  drilled — it 
w&s  held,  after  the  first  well  was  drilled,  that  the  lease  was 
avoided  by  a  failure  to  further  operate  for  mining  purposes 
for  a  period  of  several  years."'  A  lessee  of  seventy-four  acres, 
leased  on  a  royalty  for  a  terra  of  five  years,  and  as  much 
longer  "as  oil  or  gas  was  found  in  paying  quantities,"  by  the 
terms  of  the  lease  was  required  to  complete  a  well  thereon 
within  three  months.  lie  completed  this  well  on  time,  })ut 
drilled  no  others,  and  made  no  serious  efl'ort  to  do  so  during 
the  five  years,  although  the  lessor  repeatedly  urged  him  to  do 
so.  The  well  drilled  was  a  small  producer,  not  paying  the 
expense  of  operating  it.  After  the  expiration  of  the  term  of 
five  years,  the  lessee  applied  to  a  court  of  equity  to  enforce  the 
lease  against  the  lessor  and  those  to  whom  a  lease  had  been 
given  after  the  expiration  of  the  five  years ;  but  the  court 
refused  to  do  so,  basing  its  refusal  on  the  ground  that  tlie 
plaintiff  had  not  complied  with  the  implied  condition  of 
the  lease,  which  required  him  to  develop  the  property  in  good 
faith. ^'-     If  the  lessor  sell  part  of  the  leased  land,  he  can  not 

iioAhrns  v.  Chartiors  Valley  Gas  and   Iron   Co.,    160   Ta.   St.  4S.T:    34 

Co.,   188  Pa.    St.   249;    41   Ail.  Rep.  W.  N.  C.  36«;  28  All.   Kcp.  S.').'?. 

739.     See  Monfort   v.   Lanyon   Zinc  mHeintz  v.   Sliortt,    14!t    l':i.   St. 

Co.,  67  Kan.  310;  72  Pac.  Rep.  783.  286;   24  Ail.  Rep.  31li. 

As   to   what  is   a  development   of  The   law    recognizes   a   distinction 

the  leased  premises,  see  Consumers'  between  the   abandonment  of  oiK-ra- 

Gas  Trust  Co.   v.   Littler,    162   Ind.  tion  under  an  oil  lease  and  an  inten- 

320;    70   N.   E.   3G3,   for  a  decision.  tion    to    abandon    or    surrender    the 

Where    no    wonc   was    commenced  lease  itself.     Parish  Fork  Oil  Co.  v. 

it  was   held   there  was  no  abandon-  Bridpewater    Gas    Co.,    ,')1     \V.    Va. 

ment   of  a  hundred    years'    lease    to  583;  42  S.  E.  Rep.  65,'). 

mine    coal,    even    though    the    lessee  112  Barnsdall    v.    Roley,    11  !1    Ft-d. 

had   neither   paid   rent  nor  searched  Rep.  191.     See  Jackson  v.  American 

for  coal.     Plummer  v.  Hillside  Coal  Natural  Gas  Co.,  31   Pa.  Super.  Ct. 


252 


OIL   AND   GAS, 


enforce  a  forfeiture  of  the  lease  as  to  the  land  sold  for  a  sub- 
sequent breach  of  condition."-* 

§  171.     Lessee  draining  leased  premises  by  wells  on  adjoining 
territory. 

A  lessee  cannot  hold  the  leased  premises  and  drain  them  by 
sinking  oil  wells  on  adjoining  premises;  and  if  he  persist  in 
such  conduct  he  will  forfeit  his  lease.  Tn  an  instance  of  tiiis 
character,  or  at  least  where  there  was  danger  tJiat  the  leased 
premises  would  be  drained  of  its  oil  by  wells  operated  on  ad- 
joining premises  by  the  lessee,  it  was  hchl  to  be  the  duty  of  the 
lessee  to  open  as  many  wells  on  the  leased  premises  as  was 
necessary  to  secure  the  common  advantage  of  the  lessor  and  him- 
self, and  to  prevent  the  loss  of  oil  under  the  lessor's  land  by 
drainage  into  the  adjoining  wells;  in  default  of  which  tJie  lease 
might  be  declared  forfeited."'' 


Rep.  408.  A  well  must  be  drilled 
down  to  where  gas  or  oil  is  or 
should  be.  Consumers'  Gas  Trust 
Co.  V.  Littler,  1G2  Ind.  320;  70 
N.  E.  3G.3. 

The  lessee  could  release  any  part 
of  the  tract  it  desired;  but,  since 
it  need  not  drill  any  wells  after 
drilling  the  first  nonpaying  well,  its 
failure  to  do  so  or  its  abandonment 
of  a  well  drilled  would  not  be  an 
abandonment  of  its  exclusive  right 
to  drill  on  any  unreleased  part  dur- 
ing the  year,  nor  would  the  release 
of  a  third  of  the  tract  be  an  aban- 
donment of  the  whole  tract  for  drill- 
ing purposes:  that  provision  of  the 
lease  privileging  the  lessee  to  con- 
tinue operations  on  the  p'art  of  the 
tract  on  which  it  may  have  drilled 
wells  upon  the  release  of  a  part 
only  referring  to  the  released  land. 
O'Xcil  v.  Sun  Co.,  (Tex.  Civ.  App.), 
123  S.  W.  172. 

An  oil  lease  covered  three  sepa- 
rate tracts.  The  lessee  had  two  years 
to  drill  a  well  on  the  premises,  and 
the  time  could  be  enlarged  by  the 
payment  of  an  annual  rental  from 
the  expiration  of  the  second  year 
until  the  well  was  drilled;  and  if 
no  well  was  drilled  on  the  premises 


within  five  years,  the  lease  should 
be  void.  It  was  held  that  a  well 
having  been  drilled  on  one  of  the 
tracts  during  the  fifth  year,  and  the 
stipulated  rental  paid  from  the  end 
of  the  second  year  until  the  well 
had  been  drilled,  the  lease  was  not 
void  because  other  wells  were  not 
drilled  during  the  five-year  period. 
Brewster  v.  Lanyon  Zinc  Co.,  140 
Fed.  Rep.  801;   72  C.  C.  A.  213. 

A  father  and  son  leased  their 
separate  premises.  It  was  .provided 
that  a  well  should  be  drilled  on  the 
son's  land  after  the  completion  of 
one  on  the  father's.  The  lessee 
drilled  on  the  son's  land  first;  and 
thereby  caused  unusual  delay  in 
drilling  on  the  father's  land.  It  was 
held  that  the  father  was  entitled  to 
have  his  lease  cancelled.  Kimball 
Oil  Co.  V.  Keeton  (Ky.)  ;  101  S.  W. 
Rep.  887;   31  Ky.  L.  Rep.  146. 

1123  Rrewster  v.  Lanyon,  140  Fed. 
801;    72  C.  C.  A.  213.' 

113  Kleppner  v.  Lemon,  176  Pa.  St. 
502;.  38  W.  N.  C.  388;  35  Atl.  Rep. 
109;  Coffinberry  v.  Sun  Oil  Co. 
68  Ohio  St.  488;  G7  N.  E.  Rep. 
1060;  Barnerd  v.  Monongahela 
Natural  Gas  Co.,  210  Pa.  362;  Atl. 
Rep.  801. 


FORFEITURE   OF    LEASE.  253 

§172.     Lessee  draining  away  oil  by  sinking  wells  on  adjoining 
premises. 

But  if  the  lessee  has  eomplied  Avith  tlie  ternis  of  his  lea.se,  tlie 
lessor  ciinnot  declare  a  forfeiture  on  the  <>:round  tJiat  such  lessee 
has  leased  adjoininp;  territ-orv  and  is  draiiiinc;  his,  the  lessor's, 
premises  tlirduu'li  the  wells  ujinu  such  tcrritdrv,  jiltliouiih  the 
conduct  of  the  lessee  may  iutlict  u])oii  him  e,T(>at  d:iniai;es."* 

§173.     Inability  to  complete  work. —  Inclement  weather. 

The  lessee  cannot  always  urG;e  successfully  as  an  oxr-iiso  that 
the  weather  was  so  iuclciuciit  that  lie  cimld  Hdt  drill  the  wells 
within  the  time  fixed  In'  tJio  lease,  or  operate  them  continuously 
after  they  were  drilled.  In  order  to  do  this  he  should  have 
inserted  in  the  lease  a  clause  preventing  a  forfeiture  l>ecause  of 
that  fact.''"  In  the  first  case  cited  the  lease  rcfpiircd  one  well 
to  he  com]>leted  within  five  months,  a  second  within  one  year, 
and  a  third  within  two  years.  The  first  and  second  wells  were 
completed  on  time;  hut  tlic  third  was  not,  althduiili  Ix'fore  the 
ex])iration  of  the  two  years  the  lessee  had  jilaced  tiniher  u])on 
the  leased  premises  for  a  complete  carpenter's  ria^,  but  was  un- 
able to  secure  workmen  to  build  the  rig.  The  failure  to  secure 
workmen  was  held  to  be  no  excuse,  and  on  trial  the  lease  was 
declared  forfeited.  This  was  a  nisi  prius  decision.  But  in  the 
State  where  this  decision  was  given  the  Supreme  Court  held  that 
if  the  lessee,  on  the  last  day  of  the  jK'riod  allowed,  in  good 
faith  entered  on  the  premises  and  began  ojx^rations  ])repar:it(iry 
to  drilling  a  weil,  but  was  prevented  by  the  lessor  from  proceed- 
ing farther  (it  being  imjwssible  to  begin  the  well  on  time), 
there  was   no   forfeiture;^*''   and    in    another   State   where  the 

114  Ohio  Oil  Co.  V.  Harris,  1  Ohio  nsCryan    v.    Ridclspcrgcr,    7    Pa. 

Dec.   157;    same  case    1   Ohio  X.   P.  Cir.  Ct.  Pvop.  473;  Kennedy  v.  Craw- 

132.      See    Parish    Fork    Oil    Co.    v.  ford,     138     Pa.     St.     501;     21     All. 

Bridgevvater  Oil  Co.,  51  W.  Va.  583;  Rep.  in. 

42  S.  E.  Rep.  G55;   Barnard  v.  Mo-  nollondorson    v.    Frrrcll.    1S3   Pa. 

nongahela  Natural  Gas  Co.,  21G  Pa.  St.  517;   3S  Atl.  Rep.  1018. 
362;   65  Atl.  Rep.  801. 


254 


OIL    AND    G.VS. 


lessee  was  iidt  able  to  complete  tlie  well  on  time,  because  the  ex- 
cessively muddv  coiiditioii  of  the  roads  rendered  it  impossible 
to  get  the  necessai-y  machinery  on  the  premises  in  time,  it  wa^. 
held  that  there  was  no  forfeiture."^  Where  an  excuse  was  so^ 
up  by  lessees  as  a  defense  that  they  were  workinfj;  other  lease* 
aiul  were  "  a])])roac]iiiiu'  these  lands  as  fast  as  they  c<iuid,  and 
that  they  could  not  work  these  lands  for  want  of  railroad  facil'V 
ties,"  it  was  held  that  this  was  an  insufficient  excuse.  "  Coui'- 
sel's  contention  is,"  said  the  court,  "  that  the  enterprise  couM 
not  be  abandoned  unless  it  had  Ik'Cii  Ix'iiuii.  Thr-y  insist  that 
the  nieaniuir  of  the  contract  is  that  the  lease  continues  to  subsist 
for  the  full  tenn  of  twenty  years,  though  not  a  sinjjle  thine;  is 
done  under  it  on  the  land,  and  even  tliouuii  no  intention  exist* 
on  the  jiart of  the  lessees  to  do  anytliiiii;-  under  tli(>  terms  thereof. 
We  think  it  quite  clear  that  such  was  not  the  intent  of  the 
parties  as  leathered  from  the  lease  itself.  Xo  reason  is  fter 
ceived  wliy  it  would  net  1k'  as  injurious  to  the  lessors  to  fail  Ic 
commence  operatinir  the  mines  and  (]uarries  for  twelve  motiths 
as  to  cease  operatiui"-  them,  after  beginninij,  for  a  ]«?riod  oi 
twelve  months."  "* 


117  Fleming  Oil  and  Gas  Co.  v. 
South  Penn.  Oil  Co.,  37  W.  Va.  645 : 
17  S.  E.  Rep.  203.  See  Forney  v. 
Ward  (Tex.  Civ.  App.),  62  S.  W. 
Rep.  108;  Lane  v.  Gordon,  18  N.  Y. 
App.  Div.  438;   iQ  N.  Y.  Supp.  57. 

In  an  action  to  cancel  a  mining 
lease  for  failure  to  do  work  as 
agreed,  the  sickness  of  leases  a;nd  a 
stringency  in  the  monev  market, 
preventing  their  securing  necessary 
funds,  furnished  reasons  why  tliey 
were  not  as  diligent  as  they  should 
have  been,  and  are  entitled  to 
weight  in  determining  the  rights  of 
the  parties.  Ross  v.  Slicldon, 
(Ky.  — ),  34  Ky.  L.  Rep.  — ;  110  S. 
W.  225. 

iisWoodard  v.  Mitchell,  140  Ind. 
406;  39  N.  E.  Rep.  437. 


See  where  a  failure  to  begin  for 
five  and  a  half  years  to  develop  a 
mine  was  held  not  to  work  a  for- 
feiture. Baumgardncr  v.  Browning, 
12  Oliio  Cir.  Ct.  Rep.  73;  5  Ohio  Cir. 
Dec.  394. 

Where  tlie  lessee  in  an  oil  lease 
is  to  commence  operations  in  six 
months,  but  the  only  express  stipu- 
lation for  forfeiture  is  in  case  a 
test  well  is  not  completed  in  three 
years,  a  suit  to  cancel  the  lease, 
begun  several  months  before  the 
three  years  have  expired,  without 
an  averment  that  the  well  cannot 
be  completed  in  time,  is  premature, 
though  failure  to  commence  opera- 
tions within  the  six  months  is 
alleged.  Armitage  v.  Mt.  Sterling 
Oil  &  Gas  Co.  (Ky.),  80  S.  W.  177, 
25  Ky.  Law  Rep.  2lio2. 


FORFEITITRE   OP   LEASE.  254a 

§174.     Mortgage  of  leasehold  may  work  a  forfeiture. 

A  lease  may  prohibit  tlio  lessee  placinu;  a  ninrtjjajjo  on  the 
leasehold  untler  the  ])eiialty  of  its  forfeiture  if  he  do  so.  And 
if  tlie  lease  prohibit,  under  tlic  ])cn;ilt_v  of  forfeiture,  a  transfer 
of  it  by  the  lessee,  the  niortgaiiini::  of  the  leasehold  by  such 
lessee,  followed  by  a  sale  theretinder,  will  have  tlie  same  effect 
as  a  transfer  of  the  lease.  Where  in  .such  an  instiince,  the 
leasehold  was  sold  under  the  mortirage  at  a  constable's  saU",  it 
was  said:  "The  mortgage  u]X)n  the  leasehold  through  which 
he  claims,  fell  with  the  forfeiture.  The  creation  of  the  mort- 
gage was  prohibited  in  substance  by  the  lease,  and  was  a  ground 
of  forfeiture.  The  lessee,  having  no  right  to  assign  his  lease, 
could  not  do  so  indirectly  by  mortgaging  it.  As  against  the 
landlord  the  mortgage  was  a  nullity,  and  it  cannot  Iw  success- 
fully set  u]>  as  against  the  title  ac([uired  through  the  forfeiture 
and  constable's  sale."  "** 

§175.     When  work  must  be  completed. 

Not  only  must  the  work  l>e  commenced  within  the  time  speci- 
fied, but  it  must  he  completed  within  the  time  limited,  in  order 
to  avoid  a  forfeiture.  But  if  the  work  has  been  completed  in 
time,  a  forfeiture  will  not  l>e  declared  simply  because  it  has  not 
been  completed  in  the  order  specified  in  tlie  lease.  Thus  where 
two  wells  were  to  he  completed  the  first  six  months  of  the 
second  year,  and  two  more  the  second  six  months  of  such  year, 
a  completion  of  four  wells  within  tliat  year  was  considered  to  be 
such  a  substantial  compliance  with  the  lease  as  to  defeat  a 
forfeiture. ^■^*'  Where  the  lease  required  a  well  to  be  completed 
within  three  months,  and  all  wells  within  eighteen  months,  it 
was  held  that  tlie  court  would  not  dii'cct  how  the  lessee  should 
work  the  premises,  or  how  many  wells  should  be  suid-c ;  and  that 
the  lessor  could  insist  on  a  forfeiture  simply  because  the  lesse> 
had  not  been  sufficiently  active  in  developing  the  proj^rty.'"' 

"!>  Becker  v.   Werner.    08    P.i.   St.  121  Bnlihvin    v.    Oliio    Oil    ("n..    K? 

555.  Ohio    Cir.    Ct.    Kop.    .Sl!>;     7    Ohio 

120  Thomas  v.  Kirkbridge.  15  Ohio  Dee.  50. 
Cir.  Ct.  Rep.  294;   8  Ohio  Dec.  181. 


254b  OIL   AND   GAS. 

Where  a  well  was  to  be  commeiiced  witliin  sixty  days  and  com- 
pleted witliin  live  months,  a  failure  to  complete  a  well  within 
live  months  tliat  was  begun  within  the  sixty  days  was  held  to 
work  a  forfeiture  of  the  lease.^"" 

§176.     Excavating  for  oil  means  bringing  it  to  the  surface. 

Where  a  lease  provides  for  tlie  diligent  prosecution  of  the  un- 
dertaking to  success  or  abandonment  and  for  a  forfeiture  if  oil 
be  not  excavated  in  paying  quantities  on  or  before  a  given  date, 
the  oil  must  be  raised  to  the  surface,  and  merely  finding  it  in 
tlie  earth  witliin  the  time  given  will  not  ])revent  a  forfeiture,  if 
it  be  not  pumped  or  rise  to  the  surface  of  the  earth. ^"^ 

§177.     Failure  to  pay  royalty  or  report  them. 

A  mere  failure  to  pay  royalties  du(!  under  the  lease  will  not 
give  the  lessor  sufficient  ground  to  declare  a  forfeiture,  unless 
by  the  express  terms  of  the  lease  he  is  given  that  right  and 
power.^"*  But  a  failure  to  either  develop  the  leased  premises 
or  pay  rent,  within  the  time  named,  may  be  sufficient  evidence 
from  which  an  inference  of  abandonment  may  he  drawn. ^"'^  If 
the  lessor  is  to  receive  a  certain  portion  of  "  all  of  the  profits  " 
realized  from  oil  or  gas  found  on  the  premises,  that  means  the 
net  profits  ;  and  he  cannot  declare  a  forfeiture  for  neglect  of  the 
lessee  to  account  at  a  time  when  the  proper  expenses  of  the  lease 
exceed  the  recei])ts.^"^      A  lease  provided  for  a  yearly  rental  of 

122  Clemingef  v.  Baden  Gas  Co.,  Rep.  1004.  See  Edwards  v.  Tola  Gas 
159  Pa.  St.  Ki;  :}.3  W.  N.  C.  480;  Co.,  G5  Kan.  :}()2;  (.".l  I'ac.  Rep.  .350; 
28  Atl.  Rep.  293:  lluggins  v.  Daley,  Davis  v.  Cliatuuqua  Oil  &  Gas  Co.,  78 
99  Fed.  60();  40  C.  C.  A.  12;  48  Kan.  97;  9(j  Pac.  47. 
L.  R.  A.  320;  Fleming  Oil  &  Gas  If  the  lessor  by  his  conduct 
Co.  V.  South  Penn.  Oil  Co.,  37  W.  clearly  indicates  that  payment  will 
Va.  645;  17  S.  E.  203;  Fornej'  v.  not  be  demanded  when  due,  he  can- 
Ward,  25  Tex.  App.  443;  62  S.  W.  not,  without  demand  or  notice,  de- 
108;  Henderson  v.  Farrell,  183  Pa.  clare  a  forfeiture.  Pyle  v.  Hendcr- 
547;  38  Atl.  1018;  Detlor  v.  llol-  son,  65  W.  Va.  39;  63  S.  E.  Rep. 
land,  57  Ohio  St.  492;  49  X.  E.  690;  762. 
40  L.  R.  A.  206.  i-^' Marshall  v.  Forest  Oil  Co.,  198 

12-i  Kennedy  v.  Crawford,    138  Pa.  Pa.  St.  83;  47  Atl.  Fvop.  927;  Barn- 

St.  561;  21  Atl.  Rep.  19.    See  Parish  hart   v.   Lockwood,    152   Pa.   St.   82; 

Fork  Oil  Co.  v.  Bridgewater  Oil  Co.,  25  Atl.  Rep.  237  ;   Zeigler  v.  Dailey, 

51  W.  Va.  583;  42  S.  E.  Rep.  655.  37    Ind.   App.    240;    76   N.   E.   Rep. 

i-'4  Wakefield     v.      Sunday     Lake,  198. 

etc.,    Co.,   85   Mich.    605;    4!)   N.    W.  i-'6  Potterie    Gas    Co.    v.    Potterie, 

Rep.    135:    Ammons   v.  vSouth   Penn.  179  Pa.  St.  68;   36  Atl.  Rep.  232. 

Oil   Co..   47  W.  Va.  610;   35   S.  E.  In  such  an  instance,  a  stipulation 


FORFEITURE   OF    LEASE. 


204c 


four  Iniiulrcd  dollars,  jxiyablo  (luartorly,  the  aiiiount  to  lie  de- 
ducted from  royalties  wlien  in  excess  of  that  sum.  The  royal- 
ties were  payable  quarterly  on  ore  as  sold  and  delivered.  'I'hc 
lease  also  provided  tliat  if  payments  were  not  made  at  the  time 
specified,  the  lease  should  be  void,  it  was  held  that  a  failure 
to  fully  pay  all  rcyalties  on  ore  sold  and  delivered  at  the  end  (jf 
each  quarter  year  worked  a  forfeiture  of  the  lease.'"' 

§178.     Payment  of  rent  will  not  prevent  forfeiture  for  neglect  to 
develop. 

Payment  of  the  rent  will  not  always  prevent  a  forfeiture  for 
a  neglect  or  failure  to  develop,  or  for  a  neglect  to  operate  after 
development.  Thus  where  the  lease  was  for  two  years,  and  as 
much  longer  as  oil  was  found  in  paying  (juantities  ;  and  it  ])ro- 
vided  for  the  commencement  of  a  well  in  thirty  days,  and 
its  completion  in  ninety  days,  or,  in  default,  the  payment  of  an 
annual  rental  of  sixty  dollars  from  the  time  named  for  tlie  com- 
pletion of  the  well  until  it  shouUl  in  fact  be  completed  ;  it  was 
held  that  the  lessee  could  not  keep  the  lease  alive  after  the  two 
year  limit  by  the  payment  *of  an  annual  rental  merely.'"*  To 
hold  tJnit  lie  could  do  so,  was  considered  by  the  court,  to  convert 
the  lease  into  a  perpetual  option  to  drill  for  oil  and  gas,  when 
the  apparent  purpose  of  the  lessor  was  to  compel  the  develop- 


that  the  lessee  should  "use  all  econ- 
omy in  the  conduct  ami  niauajroiucnt 
of  the  mining  enterprise,"  is  toi)  un- 
certain to  be  recognized  as  a  condi- 
tion, for  the  breach  of  which  a  for- 
feiture may  be  enacted.  Benavides 
V.  Hunt,  7!)  Tex.  383;  15  S.  \V.  Rep. 
396. 

1-"  Boys  V.  Robinson  (X.  J.  L.), 
38  Atl.  Rep.  bl3. 

The  amount  of  deposit  made  by  a 
tenant  to  secure  the  observance  of 
the  conditions  of  a  lease,  cannot  be 
applied  to  the  payment  of  rent,  so 
as  to  avoid  a  forfeiture,  otherwise 
than  in  conformity  to  the  conditions 
of  the  deposit.  Rosenquist  v.  Ca- 
nary, 15  N.  Y.  Misc.  148;  30  N.  Y. 
Supp.  979;  72  N.  Y.  St.  Rep.  422. 


Where  an  oil  lease  provided  for 
the  payment  of  $50  per  month  in 
advance  after  a  fixed  term  of  uO 
days,  failure  of  the  lessees  to  pay 
such  rent  during  one  montli  rendered 
the  lease  null  and  void,  under  the 
provisions  of  the  lease,  from  the 
first  day  of  the  month  in  wliich  such 
payment  was  to  be  made.  Mur- 
dock-Wcst  Co.  V.  I>igan,  (!9  \.  ]•;. 
984.  G9  Ohio  Pt.  514. 

i-*8  Western  Pennslyvania  Cias  Co. 
V.  George.  101  Pa.  St.  47;  28  Atl. 
Rep.  1004;  followed  in  Indiana 
Natural  Gas  &  Oil  Co.  v.  CJranger, 
33  Ind.  App.  5.19 ;  70  X.  K.  Hep. 
395;  Boys  v.  Robinson  ( N'.  J.  L. ) , 
38  Atl.  Rep.  813;  American  Win- 
dow Glass  Co.  V.  Williams.  30 
Ind.  App.  685;  66  N.  E.  Rep.  912. 


254d  on.  and  gas. 

ment  of  his  land  within  the  piM-iod  of  two  years.^^"  If  a  lease 
provide  that  it  shall  be  forfeited  for  a  neglect  to  pay  any  of 
the  payments  re(iuired  to  ])e  made,  a  whole  payment  is  meant 
and  not  a  balance  on  a  running  account. ^"°  Where  the  lessee 
was  to  pay  a  stipulated  annual  rental  of  fifty  cents  an  acre, 
until,  in  his  judgment,  "oil  or  gas  cannot  be  found  on  the 
premises,  or,  having  been  found,  has  ceased  to  exist,"  it  was 
held  there  was  a  clear  engagement  to  explore  for  gas  and  oil 
and  develop  the  premises  within  a  reasonable  time.""" 

§  179.     Must  pay  rent  although  no  oil  on  premises. 

If  the  lease  require  the  lessee  to  complete  an  oil  well  within 
a  certain  time,  or  thereafter  pay  a  certain  sum  annually  until 
a  well  is  completed,  it  is  no  excuse  for  not  drilling  the  well 
that  the  premises  were  worthless  for  oil,  and  for  that  reason  a 
well  was  never  completed.     In  passing  on  the  case,  the  court 

said : 

"I  do  not  think,  however,  that  the  fact  of  there  being  no  oil 
or  gas  on  the  land,  no  matter  how  soon  found  out,  could  avail 
the  defendant.  The  lessors  were  entitled  to  insist  that  this  fact 
should  be  made  manifest  in  the  very  manner  agreed  upon,  or 

129  The  Appellate  Court  cited  Hoi-  tee  or  his  assign  and  mine  the 
lin^sworth  v.  Fry,  4  Dall.  34.5,  and  underlying  gas  or  oil;  or  that  he 
Packer  v.  Xobiej  103  Pa.  St.  188.  would  have  bargained  away  his 
See  National  Oil,  etc.,  I  Co.  v.  Teel  prospects  for  larger  gains  from  the 
95  Tex.  58G,  67  S.  W.  545 ;  08  S.  W.  gas  and  oil  under  his  land,  with 
779;  Gadbury  v.  Ohio,  etc..  Gas  Co.  the  knowledge  that  the  same  would 
lG2'lnd.  9,  67  N.  E.  Rep.  259;  Gad-  be  extracted  through  wells  on  other 
bury  V.  Ohio,  etc.,  Gas  Co.  (Ind.  premises,  and  that  his  profits  would 
App. ),  65  N.  E.  Rep.  289.  be    limited    to    the    annual    acreage 

130  Westmoreland,  etc.,  Gas  Co.  v.  rent  during  the  process  of  extrac- 
DeWitt,  130  Pa.  St.  235;  18  Atl.  tion.  It  is  as  obvious  as  if  ex- 
Rep.  724;  5  L.  R.  A.  731.  pressed    that    the   real    intention   of 

130a  Consumers'  Gas  Trust  Co.  v.  tiie  parties  was  that  the  gas  corn- 
Littler,  162  Ind.  320;  70  N.  E.  Rep.  pnn;-  or  its  assigns  should,  and 
363.  Said  the  court:  "It  will  not  within  reasonable  time,  enter  upwn 
do  to  believe  that  the  landowner  the  premises  and  drill  a  well,  and 
would  for  the  pittance  of  fifty  thereby  test  the  existence  or  non- 
cents  per  acre  per  annum  have  existence  and  continuance  of  the 
knowingly  encumbered  his  land  sit-  fluids  in  paying  quantity."  See  also 
uatc  in  the  gas  district,  and  thereby  Consumers'  Gas  Trust  Co.  v.  Worth, 
reduced  its  selling  value,  by  trans-  103  Ind.  141;  71  N.  E.  Rep.  489; 
ferring,  for  an  indefinite  period,  and  Consumers^  Gas  Trust  Co.  v. 
for  speculative  purposes,  the  right  Howard,  163  Ind.  170;  71  N.  E.  Rep. 
to  enter  at  the  pleasure  of  the  gran-  493. 


FORFEITURE   OF    LEASE.  255 

to  demand  the  sum  stipulated  to  be  paid  for  delay.  Tiie 
covenant  on  this  subject  is  absolute  and  uiKiualilicd,  and  pi-o- 
vides  for  the  doing  of  notliing  that  is  illegal  and  improbable. 
If  a  clear,  positive  covenant,  like  the  one  before  us.  to  do  a 
lawful  thing  or  pay  a  certain  sum  of  money  for  not  doing 
it,  can  be  evaded  by  showing  that  the  performance  of  the  act 
did  not  benefit  the  covenantee,  it  is  hard  to  tell  where  we  could 
properly  stop  in  applying  the  rule.  We  might  presently  reacii 
a  point  where  an  action  for  li(iuidated  damages  for  breach  of 
an  agreement  not  to  engage  in  a  certain  business  within  desig- 
nated limits,  might  be  defeated  by  proving  that  everyone  con- 
ducting the  same  business  in  the  neighborhood  had  been  losing 
money,  and,  for  reasons  shown,  would  probably  continue  to 
do  so.  .  .  That  the  contract  may  have  proved  a  losing  one 
to  the  lessee  or  his  assignee,  the  defendant,  is  neither  here  nor 
there.  To  quote  the  popular  saying,  'a  contract  is  a  contract' 
and  no  sufficient  reason  appears  why  the  one  under  considera- 
tion should  not  be  enforced."  ^^^ 

§  180.    Lessee  must  pay  past  rents. — Damages. 

A  forfeiture  declared  by  the  lessor  does  not  release  the 
lessee  from  the  payment  of  rents  or  royalties  or  other  sums 
that  had  matured  at  the  time  of  the  declaration  of  forfeiture. 
And  the  same  is  true  in  case  of  a  surrender.  "The  lessees  had 
the  right  to  surrender  the  lease  at  any  time,  but  such  sur- 
render was  not  a  payment  of  what  they  then  owed."  In  the 
case  from  which  this  quotation  has  just  been  made  the  lease 
provided  that  the  lessee  should  commence  a  well  within  one 
month  from  the  date  of  the  lease,  or  in  lieu  thereof,  pay  the 
lessor  two  dollars  per  day  until  it  was  commenced,  or  sur- 
render the  lease.  It  was  held  that  upon  surrender  of  the  lease 
that  the  payments  contemplated  were  to  be  made  up  to  the 
time  of  the  surrender;  (although  not  as  a  condition  of  the 
surrender),  and,  when  so  made,  they  should  be  in  full  satis- 
faction for  any  damages  by  reason  of  the  failure  of  the  lessee 
to  perform  the  conditions  of  the  lease. ^^-     But  even  here  there 

131  Springer  v.  National  Gas  Co.,  is;  Bettnian     v.     Shadlo,    22    Ind. 

145  Pa.  St.  430;  22  Atl.  Rep.  98G;  App.  542;   5.3  X.   E.   Rep.  G02.     See 

Baker    v.    Stone,  30    Ohio    Cir.    Ct.  aI.so  Wooflland  Oil  Co.  v.  Crawford, 

Rep.  724.  55  Ohio  St.   IGl;   3G  Oliio  Wkly.  U 


25G  OIL    AND    GAS. 

arise  eases  where  no  obligation  rests  upon  the  lessee  or  con- 
tractor to  pay  rents  past  due.  Thus  a  contract  provided  that 
"in  case  no  well  is  completed  within  sixty  days  from  this 
date,  then  this  grant  shall  become  null  and  void,  unless  second 
party  pay  at  the  rate  of  forty  dollars  for  each  year  such  com- 
mencement is  delayed."  The  contract  was  to  run  for  five 
years,  "and  as  long  as  oil  and  gas  can  bo  found  on  said  real 
estate  in  paying  quantities  or  the  rental  is  paid  as  i)rovided 
in  the  contract.  The  contractor  had  reserved  the  right  to 
cancel  the  contract  at  any  time  on  the  payment  of  one  dollar. 
It  was  said  that  the  contract  was  not  a  lease;  that  the  con- 
tractor had  not  agreed  to  pay  "any  sum  in  the  nature  of 
rent;  and,  as  the  relrtion  of  landlord  and  tenant  did  not  exist, 
and  as  there  was  no  beneficial  use  or  occupation,  an  action 
could  not  have  been  maintained  on  an  implied  agreement  to 
pay."^'-'' 

§  181.     Lessor  consenting  to  abandonment. 

If  the  lessor  consent  to  the  abandonment  by  the  lessee,  he 
cannot  thereafter  insist  that  the  lessee  must  pay  the  penalty 
or  the  rent  stipulated  for  in  the  lease.  Such  was  decided  to  be 
the  case  where  a  test  well  was  drilled,  which  proved  to  be  a 
dry  hole,  yielding  neither  gas  nor  oil,  the  lessee  openly  and 
publicly  removing  the  machinery  from  the  premises,  aban- 
doning all  further  operations  on  the  premises;  and  the  lessor, 
knowing  that  the  well  was  a  dry  hole  and  that  the  premises 
had  been  abandoned,  making  no  claim  upon  the  lessor  for  any 
sum  of  money  due  under  the  lease  for  several  years,  the  lessee 
waiving  a  written  notice  of  forfeiture,  and  the  lessor  subse- 
quently granting  to  another  party  an  option  to  buy  all  the 
coal  underlying  the  surface  of  the  premises. ^^^ 

Bull.  231;    14  :,.  E.  Rep.   1093;    34  more,   165  Ind.  243;    73  N.  E.  Rep. 

L.  R.  A.  62;  Scott  v.  Lafayette  Gas  906;    Diamond    Plate    Glass    Co.    v. 

Co.,    42    Ind.    App.    614;    86    N.    E.  Curless,  22  Ind.  App.  346;  52  N.  E. 

Rep.   495;    Lawson   v.   Kirchner,   50  782;    Hays    v.    Forest    Oil    Co.,   213 

W.  Va.  344;   40  S.  E.  344;   Roberts  Pa.  556;   62  Atl.  Rep.  1072;   United 

V.  Bettman,   45  W.   Va.    143;    30   S.  States  v.  Comet  Oil  &  Gas  Co.,  187 

E.  95.  Fed.  674. 

i-'i^aDill    V.    Frazee,    169    Ind.    53:  issMay     v.     Ilazelwood    Oil     Co., 

79  N.  E.  Rep.  971;   Smith  v.  South  152  Pa.  St.   518:   25  Atl.   Rep.  565. 

Penn.   Oil   Co.,   59   W.   Va.   204;    53  See    Stape    v.    Boyer,    183    Pa.    St. 

S.  E.  Rep.  152;  Oliio  Oil  Co.  v.  Deta-  560;  38  Atl.  Rep,   1035. 


FOUFKITIKK    OF    LEASK.  257 

§182.     Estoppel  of  lessor. 

A  lessor  l)y  his  cdiuluct  may  cstn]i  hiiusolf  to  doclaro  a  for- 
feiture. Such  ail  instance  is  \vlier(>  a  l('ss<v  is  i:iveii  to  under- 
stand, l)efore  forfeiture  iucurrcMK  lliat  it"  a  paiticular  cnvcnaiit 
in  the  lease  is  not  performed  on  time  there  will  he  no  forfeiture 
declared  or  enforced.  Perhaps  this  mijilit  he  put  on  the  £>;roun(l 
of  waiver,  altliouah  that  term  more  ])ro]>erly  applies  to  instances 
where  the  fdrfeiture  has  Ix^eu  incurrcMl  In't'orc  th(>  acts  of 
waiver  have  taken  ])]ace,  yet  preceding  the  declaration  of  for- 
feiture. Any  act  of  the  lessor  that  lulls  the  activity  of  the 
lessee,  and  upmi  wliich  he  has  a  ric:;ht  to  rely,  that  takes  place  be- 
fore a  forfeiture  is  incurred,  and  which  would  not  liavc  hecn 
j")ermitted  by  tlie  lessee  without  such  act  of  the  lessor,  may  well 
be  deemed  to  estop  such  lessor  from  insisting  upon  a  forfeiture 
for  a  non-performance  of  the  particular  covenant  of  which  lack 
of  performance  is  complained  and  insisted  u|Min  by  the  lessor  as 
cause  for  a  forfeiture.  It  would  be  inequitable  to  ]>?rmit  a  for- 
feiture under  such  circumstances.^"''*  But  an  estoppel  to  assert 
one  breach  cannot  be  made  to  a]>ply  to  another;  as,  for  instance, 
if  there  is  an  estop]x^l  to  insist  upon  a  forfeiture  to  commence 
a  well  witliin  sixty  days,  it  cannot  be  used  to  prevent  a  forfeiture 
for  having-  failed  to  complete  the  well  within  five  months.'^^  An 
estoppel  may  also  arise  where  the  less(U',  after  forfeiture  in- 
curred, permits  the  lessee  to  ex]X^nd  considerable,  or  at  lease 
large,  sums  of  money  in  developing  the  premises,  knowing,  or 
at  least  having  good  reasons  to  believe,  that  the  lessee  does  not 
think  a  forfeiture  will  be  enforced.''"'      This  is  ])articu]arly  true 

i34Rtemer  v.  Marks,   172  Pa.  St.  i^e  DufTipld   v.   :Mic5baol-;.    102   Fod. 

400:    .3.3  All.  Rep.  695;   Nov  Anicr-  Rep.   20.      Tlius,   wliere  tlio   conduct 

icin  Oil  Co.  v.  Trover,  IGG  Iiul.  402;  of  the  lessee  in  an  oil  lease  had  hoon 

76  X.  E.  353;  77  N.  E.  739;  IliiUill  such   as   to  amount   to  an  ahan.lon- 

V.   Myers  36  W.  Va.  639;    15  S.  E.  ment,   but   on   re-entry   by   liiiu.   llio 

151;    Pyle  v.  Henderson,  05  W.  Va.  lessor  did  not  stand  upon  liis  olijcc- 

39;   63  S.  E.  702;   Stiiner  v.  ^Marks,  tion,  but  acfpiiosced  in  the   resunij)- 

172   Pa.   400;    38   At).   695;    Kansas  tion  of  operations,  such  acquiescence 

Natural  Gas  Co.  v.  Harris.  79  Kan.  estopped    the   lessor   to   complain    of 

167;      100     Pac.     7;     Henderson     v.  the    entry.       Rav    State     Petroleum 

Ferrell,   183   Pa.  547;   38  Atl.   1018.  Co.  v.  Penn  Lubricating  Co.,   (Ky.), 

i35Cleminger    v.    Baden    Gas   Co.,  87    S.    W.    1102,   27    Ky.    Law   Rep. 

159  Pa.  St.  16;  28  Atl.  Rep.  293.  1133. 


258 


OIL    AND   GAS. 


of  the  pivmont  of  rout  mi  tlic  jirociso  dny  wlifii  iluc,  wliirh  in 
point  of  time  is  not  always  rep:ardo'(l  as  of  tlio  essence  of  the 
contract.  ''  There  is  a  wide  distinetion  even  in  equity  between 
forfeiture  for  failure  of  punctual  payment  of  money,"  snid  the 
court  in  one  case,  '"  whore  time  is  of  tlie  essence  of  the  con- 
tract and  where  it  is  not.  If  parties  choose  to  stipulate  for 
matters  as  essential,  it  is  not  for  courts  to  say  they  are  not  so, 
hr.t  in  the  absence  of  a  clear  agreement  for  materiality,  courts 
will  look  into  tlio  nature  of  the  transaction  and  1k'.  a'overned  by 
the  real  bearing  of  the  facts  upon  the  intentions  and  rights  of 
the  piirties."  ^'^  If  the  lessor  has  prevented  the  lessee  complet- 
ing a  well  in  time,  he  is  estopped  to  declare  a  forfeiture  for  a 
failure  to  keep  the  covenant  of  the  lease  in  that  respect.^^* 

gl83.     Demand  for  compliance  with  lease. 

If  the  lessee  has  made  default,  unless  the  lease  provide  other- 
wise, the  lessor  is  not  required  to  make  a  demand  on  him  to 
comply  with  the  lease,  especially  if  he,  and  not  the  lessee,  is  in 
possession.^'''  This  is  especially  true  if  the  lease  authorizes  in 
terms  the  lessor  to  re-enter  without  demand  or  notice.^**' 

§184.     Abandonment  a  question  of  intention. 

Abandonment  of  a  lease  is  a  question  of  intention,  and  is  to 
be  detenuined  only  on  an  investigation  of  the  facts.  Mere 
lapse  of  time  may  not  bs  sufficient  to  determine  that  question, 
but  it  may  be  "  aided  and  strengthened  by  the  acts  and  declara- 
tions of  the  tenant  evincing  the  intention  permanently  to 
abandon."  ''' 

137  Lynch    v.    Versailes    Fuel    Gas  i4o  island  Coal  Co.  v.  Combs,  152 

Co.,   165  Pa.  St.   518;    30  Atl.   Rep.  Ind.  .379;  53  N.  E.  Rep.  452. 
984.      See   Northwestern    Ohio,   etc.,  i^J  Karns   v.   Tanner,    66    Pa.    St. 

Gas   Co.  V.  Browning,   15   Ohio  Cir.  297;  Parish  Fork  Oil  Co.  v.  Bridge- 

Ct.  Rep.  84;  8  Ohio  Cir.  Dec.  188.  water  Gas  Co.,  51   W.   Va.  583;   42 

i-isStahl    V.    Van    Vleck,   53    Ohio  S.    E.   Rep.    655;    Suit   v.   A.    Hock- 

St.  136;  41  N.  E.  Rep.  35.  stetter,    63   W.   Va.    317;    61    S.   E. 

i39:\raxwell    V.    Todd,    112    N.    C.  Rep.   307;    Garrett   v.    South   Penn. 

677;   16  S.  E.  Rep.  920.  Oil    Co.,  66   W.   Va.   587;    66   S.   E. 

But   this   is  not  universally  true,  741;  Smith  v.  Root,  00  W.  Va.  633; 

as   will    be   seen    in   the  chapter   on  00  S.  E.  1005;  Phillips  v.  Hamilton, 

procedure    by    the    lessor    when    tlie  17   Wyo.  41;    95  Pac.   846. 
lessee  has  failed  to  exploit  the  land 
as  implied  in  the  terms  of  the  case. 


FORFEITURE   OF    LEASE.  259 

§185.     Forfeiture  a  question  for  jury. 

Usually  whether  or  not  tliei-e  has  heen  a  f(»rfeitiirc  or  ahan- 
donincnt  is  a  question  Ini'  the  jury.  Thus  a  Icssoo  was  to  coiu- 
mcnee  drilliug"  a  well  within  ninety  days  from  th(>  date  (d*  the 
lease,  and  ''  prosecute  said  drilling-  with  due  diliu-enee  to 
success  or  abandonment";  and  it  was  provided  that  if  oil 
or  gas  be  not  pumped  or  excavated  in  payiuir  quantities  on  or 
before  a  certain  date,  then  the  lease  was  to  he  null  and  void; 
and  the  lessee  hegan  the  work  on  time  and  prosecuted  it  contin- 
uously until  five  months  after  the  date  in  the  lease  set  for 
its  forfeiture,  when  he  withdrew  the  easing  and  hdt  the  prem- 
ises for  five  months  longer,  lie  claiiued  that  he  had  found  oil  in 
])aying  quantities,  but  admitted  he  had  never  ])um])ed  any  from 
the  well.  In  an  action  involving  the  validity  of  the  lease,  it  was 
held  that  the  lessee  had  no  diseretion  to  dehiy  operations  indeti- 
iiitely,  })rovided  he  produced  oil  or  gas  in  paying  (piantities  by 
the  date  fixed,  but  he  was  bound  to  exercise  diligence  during  tJie 
whcle  period;  and  it  was  a  (juestion  for  the  jury  whether  a 
forfeit  had  been  incurred  because  of  a  lack  of  due  diligeiiee.'^" 
A  lease  of  certain  ];iremises  provided  that  if  no  well  had  l>een 
l)egim  and  prosecuted  with  due  diligence  within  four  months 
it  should  be  void.  It  was  held  not  error  to  refuse  to  instruc» 
the  jury  that  if  the  lessee,  before  the  termination  of  the  lease, 
hauled  lumber  on  the  premises  with  the  purpose  to  begin  the 
well,  such  act  was  a  beginning  of  the  well  within  llu'  terms  of 
the  lease;  for  the  reason  as  tlie  lessee  had  hauled  lumber  on  tiio 
premises  the  day  before  the  lease  expire(|,  it  was  not  for  the 
court  to  determine  the  question  of  forfeiture  as  a  matter  of  law, 
but  the  question  was  one  for  the  juiw  to  decide,  in  connection 
with  the  testimony  as  to  the  general  uudei'stiinding  among  pe'"- 
sons  engaged  in  boring  wells  as  to  when  a  well  was  begun.'*"'      S'. 

i42KpnnPtly  v.  Crawford,   13S  Pa.  77S;     70    Pac.     Rep.     683;     BufTalo 

St.  501;    27    W.  N.  C.  306;   21   Atl.  Valley   Oil   &    Gas   Co.    v.   Jones,   75 

Rep.    19;    Rynd   v.    Rynd   Farm   Oil  Kan.'lS;   87  Pac.  Rep.  537. 
Co.,  63  Pa.  St.   397;    Karns  v.  Tan-  n'i  Forney  v.    Ward,   25  Tex.   Civ. 

ner,    06    Pa.    St.    297;    Weslinp    v.  A]>p.  443.   02   S.  W.  Rep.   108.     vSee 

Kroll.  78   Wis.   036;   47  N.  W.   Rep.  Fleming   Oil    and    Oas   Co.   v.   South 

943;    Nelson  v.   Eachel,   158  Pa.   St.  Penn.    Oil    Co.,   37    W.    Va.    645;    17 

372;  33  W.  N.  C.  281;  27  Atl.  Rep.  S.  E.  Rep.  203. 
1103;    Rawiings   v.   Armel,   70   Kan. 


260 


OIL    AND    GAS. 


where,  under  a  similar  lease,  tlic  lessee,  witliiii  llie  ti:iie  drilling 
on  the  w(ll  was  to  he  hegim,  coninieneed  the  eonstnietinn  of  nee- 
essarv  inachiner\  on  the  ]>reniiscs,  and  was  eno-a^ed  in  seeking 
for  contractors  to  do  the  work,  tlie  r|nestion  whctlier  the  lessee  had 
used  due  diliirence  in  constructing:  the  well  was  considered  one 
for  the  jiirv.^^*  Whether  there  has  heen  an  abandonment  by  the 
lessee  is  also  a  question  for  the  jury.'''''  If  there  l)e  no  dispute  as 
to  the  acts  done,  and  none  with  reference  to  the  inference  to  bo 
drawn  from  them,  it  is  error  to  submit  the  ([uestion  of  forfeiture 
to  tlie  jury.'" 

§186.     Suit  to  cancel  lease  for  non-development  of  territory. 

A  court  of  equity  has  full  power  to  entertain  a  suit  to  cancel 
a  lease  for  neglect  or  refusal  of  the  lessee  to  develop  the  premises 
leased.  Thus  where  the  lease  was  for  twenty  years,  or  so  long 
as  oil  and  gas  should  be  found  in  paying  quantities ;  and  seven 
years  had  elapsed  since  the  time  fixed  for  drilling  a  test  well,  it 
was  held  that  a  court  of  equity  would  cancel  the  lease,  tlie  pre- 
Eaimi)tioii  being  that  tlie  lessee  had  abandoned  it.''*'      But  if  the 


1*4  Lane  v.  Gordon,  18  N.  Y.  App. 
Div.  438;  46  N.  Y.  Supp.  57;  Hein- 
ouer  V.  Jones,  159  Pa.  St.  228;  28 
Ail.  Rep.  228. 

145  Bartley  v.  Phillips,  105  Pa. 
St.  325;   30  All.   Rep.  842. 

146  McKnight  v.  Kreutz,  51  Pa. 
St.  232. 

A  suit  to  quiet  title  lies  after  for- 
feiture incurred.  American  Window 
Glass  Co,  V.  Williams,  30  Ind.  App. 
685,  66  X.  E.  Rep.  912;  Gadbury  v. 
Ohio,  etc..  Gas  Co.,  102  Ind.  9,  67 
N.  E.  Rep.  259;  Gadbury  v.  Ohio, 
etc..  Gas  Co.  (Ind.  App.),  65  N.  E. 
Rep.  289. 

147  Crawford  v.  Ritchey,  43  W. 
Va.  252;  27  S.  E.  Rep.  220;  Bett- 
man  v.  Shadle,  22  Ind.  App.  542 ;  53 
N.  E.  Rep.  662;  Cowan  v.  Bradford 
Iron  Co.,  83  Va.  547;  3  S.  E.  Rep. 
120;  Southern  Oil  Co.  v.  Wilson,  22 
Tex.  Civ.  App.  534;  56  S.  W.  Rep. 
429;    Edwards   v.   lola  Gas   Co.,   65 


Kan.  362;  69  Pac.  Rep.  350;  Barns- 
dall  V.  Boley,  119  Fed.  Rep.  191; 
Parish  Fork  Oil  Co.  v.  Bridgewater 
Oil  Co.,  51  W.  Va.  583;  42  S.  E. 
Rep.  655;  Gadbury  v.  Ohio,  etc.. 
Gas  Co.,  162  Ind.  9,  67  N.  E.  Rep. 
259;  Kellar  v.  Craig,  126  Fed.  Rep. 
630;  Zeller  v.  Book,  28  Ohio  Cir.  Ct. 
Rep.  110;  Murray  v.  Barnhart,  117 
La.  1023;  42  So.  Rep.  489;  Brew- 
ster V.  Lanyon  Zinc  Co.,  140  Fed. 
Rep.  801;  72  C.  C.  A.  213;  J.  M. 
Guffey  Petroleum  Co.  v.  Oliver  (Tex. 
Civ.  App.),  79  S.  W.  Rep.  884. 

Equity  will  not  cancel  a  lease 
before  the  expiration  of  the  terms 
for  mere  delay  in  paying  rent  or 
commutation  money  and  failure  to 
commence  operations  at  the  stipu- 
lated time,  when  the  lessee  is  ready 
and  willing  to  pay  the  rent  and 
perform  the  covenant  to  operate  the 
mines.  Pheasant  v.  Ilanna,  63  W. 
Va.  013;  60  S.  E.  Rep.  618. 


FOKFHITIRE   OF    LEASE. 


2G1 


lessor  is  in  actunl  possession,  nml  I  lie  terms  ol  tlic  lease*  are 
such  as  to  render  the  lease  void  if  any  particular  oovcnant  is 
not  kept,  then  the  lessor  cannot  maintain  an  action  in  equity  to 
cancel  the  lease,  although  he  may  sue  in  assumpsit  for  arrears  of 
royalty,  or,  possihly  in  ejectment.'"''  Unusual  delay  will  work 
a  forfeiture  of  the  right  to  maintain  a  suit  to  cancel  a  lease, 
where  the  iiromid  of  forfeiture  is  a  failure  to  pay  royalties.'"'' 
In  an  action  to  eancel  the  lease  for  non-development  or  failui-e 
to  carry  on  mining  ojx^rations,  it  is  proper  to  show  that,  the 
lessee  had  failed  to  furnish  periodical  statements  of  the  oil  ]>ro- 
dticed,  as  required  by  the  contract;  tliat  he  is  insolvent,  and 
i.-reditors  are  seizing  th(>  mining  apparatus,  and  that  th(>  ]>ro|)orty 
is  likely  to  be  destroyed  or  injured  by  diseontonted  ajid  unj)aid 

•workmen.''"  Ejectment  lies  at  the  instance  of  the  lessor  or  his 
grantee  to  recover  possession,  without  making  any  re-entry, 
and  without  demanding  the  rent  or  royalties  due  and  un- 
paid.^^'  So  will  a  suit  to  quiet  title.'"  The  lessee  cannot 
stay  the  forfeiture  proceedings,  at  least  after  notice  of  for- 
feiture given,  by  an  appeal  to  a  provision  in  the  lease  whereby 


Where  a  contract  has  been  vio- 
lated by  not  doing  what  was  cov- 
enanted to  be  done  within  the  time 
stipulated,  a  putting  in  default  is 
not  a  prerequisite  to  a  suit  to 
rescind,  but  only  to  the  rocoverj^ 
of  future  damages.  Jennings-Hey- 
wood  Oil  Syndicate  v.  Houssierc- 
Latreille  Co.,  44  So.  481,  119  La. 
793. 

i^siToch  v.  Bass,  133  Pa.  St.  328; 
19  Atl.  Rep.  360. 

149  Drake  v.  Lacoo,  157  Pa.  St. 
17;  27  Atl.  Rep.  538.  The  delay 
was  twelve  years.  See  Core  v.  N. 
Y.,  etc.,  Co.,  52  W.  Va.  276;  43  S. 
E.  Rep.  128. 

An  action  to  cancel  the  lease  lies, 
although  the  lessor  can  obtain  com- 
pensation in  damages.  Powers  v. 
Bridgeport,  238  111.  397;  87  N.  E. 
Rep.  381. 

'•■•o  Sunday  Lake  Mining  Co.  v. 
Wakefield,  72  Wis.  204;   39  N.  W. 


Rep.  136.  In  this  case  it  was  also 
held  that  a  court  having  jurisdic- 
tion of  the  parties  could  grant  re- 
lief from  a  forfeiture,  though  the 
mines  were  situated  in  another 
State,  and  that  the  court  could  re- 
store the  possession  of  them. 

The  fact  that  it  is  questionable 
whether  oil  wells  on  land  held  under 
a  lease  operative  onlj'  so  long  as 
oil  or  gas  should  be  found  in  paying 
quantities  will  ever  yield  a  reason- 
able profit  on  the  investment  is  not 
sufiicient  ground  for  vacating  tho 
lease;  the  lessee  is  the  sole  judge 
on  this  question,  and  as  long  as  he 
can  make  a  profit  therefrom,  he 
will  be  permitted  to  do  .so.  Keller 
V.  Book,  28  Ohio  Cir.  Ct.  R.  119. 

151  Boys  V.  Robinson  (X.  J.  L.), 
38  Atl.  Rep.  813. 

isi  Island  Coal  Co.  v.  Combs,   152 
Ind.  379 ;  53  N.  E.  Rep.  452. 
I 


262 


OIL    AND    GAS. 


certain  questions  were  to  be  submitted  to  arbitration.^''^  If 
the  premises  in  part  have  been  developed,  the  suit  cannot  be 
maintained  for  the  forfeiture  of  the  entire  lease,  but  must  be 
for  damages.'^*  "Where  the  time  of  the  payment  of  the  rental 
is  not  a  part  of  the  essence  of  the  lease,  equity  may  excuse 
default  in  its  payment,  and  will  not  declare  a  forfeiture  and 
cancellation  of  the  lease,  if  it  would  be  ineciuitable  so  to  do."' 
For  a  failure  to  protect  the  lines  of  a  lease,  the  remedy  is  an 
action  for  damages,  and  not  a  forfeiture."^* 

§  187,     Relief  from  forfeiture. 

Equity  has  power  to  grant  relief  from  a  forfeiture  incurred 
where  the  lessee  has  not  in  fact  been  guilty  of  any  act  of  neg- 
lect, although  he  has  not  carried  out  the  provisions  of  the  lease 
to  their  full  extent.""  Such  was  the  case  of  the  failure  to  de- 
liver the  lessor  his  share  of  oil  where  there  was  such  an  extraor- 
dinary and  unexpected  flow  as  to  make  a  delivery  impractica- 
ble. If  it  would  be  unconscionable  to  allow  a  forfeiture  to  be 
enforced,  a  court  of  equity  will  grant  relief  against  such  for- 
feiture.^"    If  a  forfeiture  for  non-payment  of  money,  or  for 


153  Acme  Coal  Co.  v.  Stroud,  5 
Lack.  Leg.  Isews  (Pa.)    169. 

154  Harness  v.  Eastern  Oil  Co.,  49 
W.  Va.  232;  38  S.  E.  Rep.  662. 
Suit  to  cancel  so  much  of  the  lease 
as  pertains  to  the  undeveloped 
premises  will  lie.  Coffinberry  v.  Sun 
Oil  Co.,  68  Ohio  St.  488;  67  N.  E. 
Rep.  1069 ;  McGraw  Oil  &  Gas  Co.  v. 
Kennedy,  65  W.  Va.  595;  64  S.  E. 
Rep.  1027;  Doddridge  County  Oil  & 
Gas  Co.  V.  Smith,  154  Fed.  Rep. 
970. 

i--- Edwards  v.  Tola  Gas  Co.,  65 
Kan.  362;   69  Tac.  Rep.  350. 

A  court  will  not  cancel  the  lease 
if  at  the  time  of  the  trial  the  lessee 
has  drilled  the  full  number  of  wells 
and  is  still  in  possession,  when  the 
charge  is  an  abandonment.  Keller 
V.  Craig,  126  Fed.  Rep.  630;  Logans- 
port  &  W.  Va.  Gas.  Co.  v.  Ross,  32 
Ind.  App.  638;  70  N.  E.  Rep.  544. 

The  complaint  must  aver  that  the 
plaintiff  is  the  owner  of  the  ground 
upon  which  rests  the  lease  to  be 
cancelled.      Indiana   Natural   Gas   & 


Oil  Co.  V.  Sexton,  31  Ind.  App.  575; 
68  N.  E.  Rep.  692. 

ir.r.aDodridge  Co.  Oil  &  Gas  Co.  v. 
Smith,  154  Fed.  970. 

^■■<--  Edwards  v.  lola  Gas  Co.,  65 
Kan.  362;  69  Pac.  Rep.  350;  Head- 
ley  v.  Hoopengarner,  60  W.  Va.  626; 
55  S.  E.  144;  Eastern  Oil  Co.  v. 
Coulehan,  65  W.  Va.  531;  64  S.  E. 
826;  South  Penn.  Oil  Co.  v.  Edgell, 
48  W.  Va.  348 ;  37  S.  E.  596 ;  Hukill 
V.  Myers,  36  W.  Va.  639;  15  S.  E. 
151;  Doddridge  County  Oil  &  Gas 
Co.  V.  Smith,  154  Fed.  Rep.  970; 
Pheasant  v.  Hanna,  63  W.  Va.  613; 
60  S.  E.  Rep.  618  (relief  from  a 
mere  technical  forfeiture)  ;  Pyle  v. 
Henderson,  65  W.  Va.  39;  03  "s.  E. 
762. 

i.-'T  Thompson  v.  Christie,  138  Pa. 
St.  230;  20  At).  Rep.  934;  11  L. 
R.  A.  236 ;  Eastern  Oil  Co.  v.  Coule- 
han, 65  W.  Va.  531;  64  S.  E.  836; 
South  Penn.  Oil  Co.  v.  Edgell,  48 
W.  Va.  348;  37  S.  E.  596;  Newton 
V.  Kemper,  66  W.  Va.  130;  68  N. 
E.  102. 


FORFEITURE   OF    LEASE.  262{l 

failure  to  perform  any  other  act,  will  admit  of  accurate  and 
full  compensation,  and  is  provided  as  a  mere  ix'iialty  with  a 
view  to  enforce  a  performance  of  another  and  principal  obliga- 
tion, a  court  of  equity  will  gi-ant  relief  against  it,  and  will  not 
permit  it  to  be  used  for  a  different  and  ine(|uital)le  purpose. 
Thus  a  lease  provided  for  rent  payable  for  delay  in  drilling  a 
well;  but  as  no  time  was  specified  for  the  payment  of  rent,  it 
fell  due  by  operation  of  law  at  the  end  of  each  year.  For 
several  years,  instead  of  drilling  a  well,  the  lessee  paid  the 
rent.  He  then  began  drilling  a  well,  and  at  great  expense 
obtained  oil  in  paying  quantities.  By  oversight  the  lessee 
failed  to  pay  an  annual  rent  when  it  fell  due ;  and  six  days 
after  default  the  lessor  notified  him  to  remove  his  machinery, 
and  the  next  day  declared  a  forfeiture.  During  these  six  days 
the  lessee  spent  considerable  money  on  the  leased  premises 
in  their  development.  The  court  considered  the  lessee's  action 
lacked  that  promptness  that  was  essential  to  declare  a  for- 
feiture, that  his  action  was  unconscionable,  and  that  a  for- 
feiture could  not  be  enforced. ^''^  If  the  principal  thing  is  to 
sink  a  well,  then  relief  in  equity  will  not  be  given  upon  the 
tender  of  the  periodical  and  unpaid  rental,  where  neglect  to 
sink  the  well  cannot  be  compensated  for  in  damages. ^•'^'*  Relief 
can  be  afforded  by  a  court  having  jurisdiction  of  the  parties, 
although  the  premises  lie  in  another  State ;  and  the  court  can 
restore  possession  of  them  to  the  lessee.'""  If  the  time  of 
payment  of  the  rental  is  not  in  express  terms  or  necessary 
implication  made  the  essence  of  the  lease,  equity  may  excuse  a 
default  in  payment,  and  will  not  declare  a  forfeiture  and 
cancellation  of  it  in  a  case  where  it  would  be  inequitable  and 
unconscionable.'"'  Equity,  however,  will  not  grant  relief 
against  a  forfeiture  incurred  where  the  provision  of  the  lease 

iss  Lynch   v.   Vorsaillos   Fuel    Gas  failure   to   pay   rent   on   time,   wlien 

Co.,   1G5  Pa.   St.  518;   30  Atl.   Rep.  the    payment  "was    hindered    hy    hi-; 

984.     This   is  especially   true  whore  acts.      Young   v.   Ellis,   01    Va.   207; 

great    loss,    wholly    disproportionate  21    Atl.    Rep.   480. 

to    the     injury    occasioned     by    the  I'-oHukil!    v.    CiufTey,    37    \V.    ^'a. 

breach  of  the  contract  would  other-  42.5;   Ifi  S.  E.  Re.p.  544. 

wise  result  to  the  lessee  negiiirently,  i""  Sunday    Lake    Minin?    Co.    v. 

but    not     fraudulently,     in    default.  Wakefield,  72   Wis.   204;    39   N.   W. 

South    Penn.    Oil    Co."  v.    Edpcll,    48  Rep.    130. 

W.  Va.  348;    37  S.  E.  Rep.  59G;   8G  loi  Edwards    v.    Tola    Cas    Co..    (T, 

Am.    St.    43.      Such    would    be    the  Kan.  3(i2;   69   Pac.   Rep.  350. 
case  where  the  lessor  entered  for  a 


262b  on.  and  gas. 

violated  is  of  the  essence  of  the  contract  and  justice  would  be 
promoted  by  the  forfeiture  stipulated  for.'"'" 

§  188.     Time  to  avoid  forfeiture. 

Usually  courts  will  ^ive  some  time  after  the  date  of  forfeiture 
fixed  in  the  lease  to  pei-form  the  covenant  on  which  the  forfeit- 
ure depends.  Thus  where  a  lease  provided  for  the  drillinp^  of 
wells  within  a  stated  time,  or  payment  of  a  yearly  sum  in  ad- 
vance, it  was  held  that  the  lessor  could  not  declare  a  forfeiture 
immediately  at  the  termination  of  a  year  for  which  such  pay- 
ment had  been  made  in,  because  no  wells  had  been  drilled,  even 
tJiouiih  h(>  had  the  rii;ht  to  refuse  payment  for  a  succeeding 
year ;  for  the  lessee  had  a  right  to  a  reasonable  time  after  the 
expiration  of  the  year  paid  for  to  drill  a  well  and  operate  the 
premises.^*'"  -  So,  in  a  case  of  limitation.  Thus  where  a  lease 
was  given  for  five  years  and  as  much  longer  as  gas  and  oil  was 
found  in  paying  quantities,  on  the  failure  of  a  well  which  had 
produced  gas  in  paying  quantities  for  a  numl)er  of  years,  and 
for  which  the  rental  had  been  promptly  ])aid,  it  was  held  that 
the  lessee  was  entitled  to  a  reasonable  time  to  drill  at  other  loca- 
tions to  find  gas  or  oil  in  paying  quantities,  and  during  such 
time  and  for  such  purposes  tlie  lease  continued  in  foree.^*^^ 

leiaDill    v.    Fraze,    169    Tnd.    53;  v.  Browning,   15   Ohio  Cir.  Ct.  Rep. 

79  N.  E.  Rep.  971.     Equity  will  not  84;  8  Ohio  C.  D.  188. 

relieve  from   a  forfeiture  of   an   oil  io3  Rlair    v.     Northwestern,     etc., 

and  gas  lease  for  non-performance  of  Co.,    12    Ohio    Cir.    Ct.    Rep.    78;    5 

certain     conditions-     occasioned     by  Ohio  C.  D.  G20. 

fraud.  A   court    of    equity   in    a    suit    to 

Time  was  held  to  be  of  the  essence  enjoin  operations  and  quiet  title  of 

of   the   condition    in   an   oil   and   gas  the  lessor  under  an  expired  gas  and 

lease,      making     it     forfeitable     on  oil  lease  and  extension  thereof  will 

failure     to     perform     certain     acts.  grant  the  relief  sought;  but,  lessees 

Unreasonable   delay,   under   the   cir-  having  made  an  effort   to  complete 

cumstances,  was  held   to  bar   relief  a    first   well    within    the    terms    al- 

in  equity  irom  the  forfeiture  of  the  though  not  such  excusable  delay  as 

lease.     Laches  forbids  delay   in  the  to  extend  the  lease  upon  the  whole 

assertion  of  a  claim  for  relief  from  premises,     equity    will    permit    the 

forfeiture  of  a  lease,  with  intent  to  completion   thereof   for   the   purpose 

-claim   or   abandon  according  to   the  of    ascertaining   the    results    of    the 

event.     Westerman  v.  Dinsmore  (W.  work,   and   apportion    the   costs   be- 

Va.),  71  S.  E.  z50.  twcen  tlie  parties.     Hollister  v.  Van- 

162  Northwestern  Natural  Gas  Co.  dergrift,  .30  Ohio  Cir.  Ct.  R.  759. 


FORFEITURE   OP    LEASE.  262c 

§  189.     Lessee  cannot  recover  premises  after  forfeiture. 

If  the  losseo  lias  lK>cn  oustod  for  a  failnro  to  kcn-j)  tlio  Oiivo- 
naiits  of  the  lease,  he  cannot  recover  ]X)spossi()n."'^  A  ]xirt  i>er- 
foniiance  will  not  enable  him  to  recover  jwssession.*'*'^ 

§190.     Reimbursement  for  expenses. 

A  lessee  who  has  forfeited  his  lease  has  no  right  to  he  reim- 
bursed for  his  expenses  disbursed  in  attempting  to  develop  the 
land.^''"  And  if  it  is  an  <iil  lease,  but  sras  is  found,  the  lessee 
has  no  equity  to  Ix^  rcinibnrscd  for  the  expense  of  drilling  tlie 
well,  out  of  the  fund  produced  by  the  sale  of  the  gas.'""  But 
if  the  lease  may  be  determined  at  the  will  of  either  party  to  it, 
then  the  lessor  must  reimburse  the  lessee  by  a  payment  of  the 
value  of  all  labor  done  and  services  rendered  by  the  lessee.*"^* 

§  191.     Removal  of  fixtures  and  machinery. 

"When  the  lease  is  declared  forfeited  by  the  lessor,  the  lessee 
has  a  right  to  remove  the  fixturs  without  the  right  being  re- 
served in  the  lease. ^"^    And  if  the  right  to  remove  the  buildings, 

164  Oliver  v.  Goetz,   125  Mo.  370;  icsCasscll  v.  Crothers,  10.3  Pa.  St. 

28  S.  W.  Rep.  441.  359;     44    Atl.    Rep.    44G.      Siler    v. 

10.-.  Kreutz    v.    McKnight,    53    Pa.  Globe   Window   Glass   Co.,   21    Ohio 

St.  319.  Cir.    Ct.    Rep.    284.       Schertzer    v. 

iGo  Palmer   v.   Truby,    136  Pa.  St.  Myers,  82  Kan.  275;    108  Pac.  Rep. 

556;  20  Atl.  Rep.  516*.  105.     The  fixtures  must  be  removed 

107  Allen   V.    Palmer,    136   Pa.   St.  within  a  reasonable  time  after  for- 

556;  26  W.  X.  C.  514;   20  Atl.  Rep.  feiture.      Gartlan    v.    Hickman.    56 

516;    Palmer   v.  Truby,   136  Pa.  St.  W.  Va.  75;   49  S.  E.   14;   Shellar  v. 

Syo;   20  Atl.  Rep.  516.  Shivers,    171    Pa.    569;    33    Atl.    95 

107a  J.  M.  GufTey  Petroleum  Co.  v.  (four    years    too    lonp)  ;     Perrv    v. 

Oliver    (Tex.    Civ.   App.   — ),   79   S.  Acme  Oil  Co.,  44  Ind.  App.  207;   8 

W.  Rep.  884.     Where  an  issue  turns  N.    E.   859    ("at'  any   time,"   means 

upon  whether  a  license  to  mine  coal  within    a    reasnnnlile    lime).      What 

was    in    proper    form    and    jjroperly  is   a    reasonable   time    is  determined 

given,     the     question     as    to     what  upon    the    facts    of   each    particular 

money  was  expended  by  the  licensee  case.      Gartlan    v.    Hickman,    supra. 

in  the   development   of   the    mine    is  See   Shellar  v.   Shivers,    171    Pa.   St. 

not  relevant,  if  it  appears  that  this  569;  35  Atl.  95. 

expenditure    was    a    nece.ssiry    inci-  Put   it    is  not  error  for  the  court 

dent    of    the    license.      Gearhart    v.  to  refuse  to  allow  the  lessee  to  re- 

Gwinn.  32  Pa.  Super.  Ct.  567.  move  the  casings,  if  the  casing;  can- 


262d  OIL    AND    GAS. 

fixtures  and  inaeliinei'}'  be  reserved  in  the  Ittise,  tlie  right  to  do 
so  cannot  be  disputed.  Thus  where  the  lease  expressly  provided 
tliat  tiie  lessee  should  have  such  right  of  removal  "  unless  all 
right  thereto  "  had  l)cen  "  forfeited  by  a  forfeiture  "  of  tho 
lease,  or  forfeiture  for  non-payment  of  the  royalty,  it  was  held 
not  to  d('})rive  the  lessees  of  the  right  to  remove  the  buildings 
and  other  personal  pro}:>erty  which  he  had  put  on  the  lease, 
within  a  reasonable  time.^*'''  The  right  of  the  lessee  under  an 
express  reservation  of  the  right  to  remove  buildings  and 
maehineiy,  has  a  right  to  do  so,  irrespective  of  any  controversy 
as  to  whetlier  or  not  there  is  a  legal  right  to  abandon  the  lease 
by  reason  of  an  alleged  failure  on  his  part  to  complete  the  work 
of  development.^'"  If  the  lessee  is  refused  the  privilege  of  re- 
moving his  buildings  and  niachinen',  his  remedy  as  to  such 
buildings  and  machiner)'  is  an  action  for  conversion  and  not  an 
action  of  ejectment. ^^^  All  fixtures,  buildings  and  machinery 
must  be  removed  within  a  reasonable  time  after  notice  of  for- 
feiture given  him  by  the  lessor,^^^  or  else  they  will  be  deemed 
abandoned,  and  the  lessor  may  take  possassion  of  them  for  his 
owm  benefit.  The  lessee,  where  he  has  not  drilled  a  well  that 
yields  oil  or  gas  in  paying  quantities,  and  for  that  reason  has 
abandoned  it,  has  a  right  to  draw  and  remove  the  tubing,  casing, 
and  drive  pipe  from  the  well  at  any  time  prior  to  the  expiration 
of  his  lease.  These  instruments  are  regarded  as  trade  fixtures, 
and  are  not  governed  by  law  pertaining  to  leases  for  agricul- 
tural pursuits.^^^     But  if  the  lease  provide  that  if  the  lessee 

not   he   removed   without   destroying  i^:!  Riler    v.    Globe   Window    Glass 

the  wells.     Powers  v.  Bridgeport  Oil  Co.,   21    Ohio  Cir.   Ct.   Rep.   284;    11 

Co.,  2,38  111.  397;  87  N.  E.  Rep.  381.  Ohio  C.  D.  784.     Ejectment  by  the 

169  ]Mackle  v.  Douglas,  75  la.   78;  lessee    does    not    lie    to    obtain    pos- 

39   N.   W.    Rep.    198.      Ilowerton   v.  session  of  the  premises  in  order  to 

Gas  Co.,  81  Kan.  553;    100  Pac.  47.  remove   the  fixtures;    but  the  court 

I'o  Patterson   v.   Ilausbeck,   8   Pa.  will    direct    judgment    in    favor    of 

Super.    Ct.   Rep.   36.      In   a   contest  the  lessor  without   prejudice  to  the 

between  a  prior  lessor  and  a  subse-  lessee's  rights  to  maintain  an  action 

quent  one,   the   latter,  on   a   failure  against  the  lessor  for  taking  and  ap- 

to  maintain  his  rights,  has  a  right  propriating     the     fixtures     of     the 

to   remove   such   fixtures   as   he   has  lessee.     Cassell  v.  Crothers,   193  Pa. 

placed  on  the  premises.     Linden  Oil  359;   44  Atl.  446. 

Co.  V.  Jennings,  207  Pa.  254;  56  Atl.  Though    a    party    invading,    with 

1074.  notice,    the    right   of   another    under 

1^1  Cassell   V.    Crothers,   supra.  a   lease  to   explore   premises   for  oil 

172  Mickle  V.  Douglas,  supra.  and  gas,  may  be  enjoined,  and  for- 


FORFEITURE   OF    LEASE.  263 

abandon  the  premises  while  there  is  a  well  furnishing  gas 
sufficient  for  the  lessor's  residence  on  the  premises,  when  he 
abandons  the  premises  the  lessor  must  leave  tiie  well  in  a  con- 
dition to  be  used  by  the  lessor,  and  he  cannot  remove  the  pipe, 
thereby  cutting  ofT  the  supply  of  gas  to  the  residence,  whether 
or  not  such  i^ipe  bo  personal  property.*^^" 

§192.     Damages  instead  of  declaring  a  forfeiture. 

Instead  of  declaring  a  forfeiture,  the  lessor  may  waive  it, 
affirm  the  continuance  of  the  lease,  and  recover  the  anmuiit 
specified  in  such  lease  as  dainages  for  a  failure  to  comply  with 
its  terms.^^*  If  the  lessees  do  not  covenant  to  pay  rent  or  de- 
velop the  mine,  but  tlio  lens(^  C(^ntains  a  provision  that  the  lease 
shall  become  void  and  all  rights  cease  unless  a  well  should  bo 
completed  Avnthin  a  specified  period  of  time,  or  unless  the  less<^e 
pay  rent  at  a  certain  rate  yter  month  or  year  in  advance,  the  fail- 
ure to  explore  for  oil  will  moroly  work  a  forfeiture  of  the  lease 
and  not  imix)se  any  pecuniary  liability  on  the  lessee.^'^ 

feita    whatever    work    ho    has    done  Dix    River    Barytes    Co.    v.    Pence 

and  material  which  cannot  be  taken  ( Ky.  — )  ;   123  S.  W.  Rep.  263;  34- 

away   without    injury    to    what    has  Ky.   L.    Rep.   — ;    Steel   v.    People's 

been   done,   he   will   be   permitted   to  Oil   &  Gas    Co.,    147    111.   App.    133; 

remove  machinery  or  materials  used  Powers    v.    Bridgeport    Oil    Co.,    238 

in  drilling  wells  or  in  pumping,  con-  '  111.  307;   87  N.   E.  Rep.  381;    South 

veying,   or   storing  oil,  not   l>eing  a  Penn.  Oil   Co.  v.  Edgell,  48  W.  Va. 

part  of  the   wells   themselves.     Gil-  348;    37   S.   E.   Rep.   596;    Perry   v, 

lespie  v.  Fulton   Oil  &  Gas  Co.,  88  Acme  Oil  Co.,  44  Ind.  App.  207 ;  88 

N.  E.  192,  239  111.  326.  N.   E.  Rep   859,  reversing  80  N.  E. 

173a  Ohio    Oil    Co.    V.    Griest,    30  Rep.   174. 

Ind.  App.  84;  65  N.  E.  534.  i75  Glasgow   v.   Charticrs   Oil    Co., 

174  Springer    v.    Citizens'    Natural  1.5-2   Pa.   St.   48;    25  Atl.    Rep.   232; 

Gas   Co.,    145    Pa.    St.    430;    22   Atl.  atVirming    Glasgow     v.    GrifTith,     22 

Rep.  086,  following  Ray  v.  Gas  Co.,  Pittsb.  L.  J.    (N.  S.)    181;    Hays  v. 

138  Pa.  St.  570;   20  Atl.  Rep.  1065;  Forest  Oil  Co.,  213  111.  550;   62  Atl. 

Carr  v.  Huntington  L.  &  F.  Co.,  33  Rep.    1072-;    Dill   v.   Fraze,   169  Ind. 

Ind.   App.    1;    70   N.   E.    Rep.    552;  53;   79  N.  E.  Rep.  071. 


CHAPTER  VI. 


ASSIGNMENT    AND  SUBLETTING   OF   LEASE. 

§193.  Lessor  —  lessee. 

§194.  Interest  assi<;nee  secures. 

§195.  Assignee  cannot  take  advantage  of  default  in  lease. 

§196.  Refusing  consent  to  assignment. 

§197.  Sublease. —  Division. 

§198.  Assignment   carries  option. 

§199.  Transfer  of  lease  by  judicial  sale. 

§200.  Equitable  assignee  in  possession. 

§201.  Lease  unassignable. 

§202.  Assignment    of    royalties.—  Administrators. 

§203.  Assignee  of  lessee  bound  by  agreements  in  lease. —  Privity  of  estate 

§204.  Ground  of  assignee's   liability   to  lessor. 

§205.  Assignee's  liability  broadened  by  terms  of  assignment  or  by  outside 

contract. 

§206.  Extent  of  assignee's  liability. 

§207.  Liability  of  assignee  of  a  part  interest  in  lease. 

§208.  Liability  of  occupier  under  unassigned  lease. 

§209.  Assignee  not  taking  possession  liable. 

§210.  Several  successive  assignees. 

§211.  Lease  not  executed  by  lessee,  but  possession  taken  under  lease,  effect. 

§212.  Lessee  released  by  substitution  of  assignee. 

§213.  Trustee  of  lessee  and  not  bis  cesfuis  que  trustent  liable. 

§214.  Cesfuis  que  trustent  may  be  liable. 

§21,5.  Liability  of  assignee  to  his  assignor. 

§216.  Assignor  liable  on  account  of  lease  as  a  surety. 

§217.  Sublease. —  Liability  of  sublessee. 
§  217a.  Ejectment. 

§  217b.  Lessee  denying  landlord's  title. 
§  217c.  Liability  of  a  trustee  assigning  lease. 

§  193.     Lessor. — Lessee. 

As  a  general  rule,  a  lessor  may  assign  his  right  to  an  interest 
in  a  lease  he  has  given  on  his  real  estate ;  or  he  may  convey  the 
realty  itself  which  would  usually  carry  his  riglits  in  the  lease. 
And  also,  as  a  general  rule,  the  lessee  may  assign  the  lease  he 

264 


^VSSIGNMENT    OF    LKASE. 


265 


has  received;  or  if  he  has  a  t'rceliolil  interest  under  it,  lie  may 
convey  by  deed  his  freehold  interest." 

§194.     Interest  assignee  secures. 

The  assignee  secures  just  such  intxM'ost  as  liis  assiiin(U'  had  at 
the  time  of  tlie  assignment —  at  least  that  is  the  iicnci-al  rule, 
but,  under  special  circumstances,  he  may  Ix"  entitled  ti>  assumi; 
the  role  of  a  purchaser  for  value  without  notice  cf  the  rights 
of  otliers.^      ]f  he  have  notice  of  the  rights  of  a  prior  lessee,  he. 


a  Under  the  Civil  Code  of  Louisi- 
ana a  contract  to  explore  mineral 
land  is  assignable,  though  it  makes 
no  mention  of  assigns  or  of  the 
right  to  assign.  Anse  La.  Butte  Oil 
&  M.  Co.  V.  Babb,  122  La.  415;  47 
So.  Rep.  754 ; 

A  general  assignment  of  "all  live 
leases"  belonging  to  the  assignors 
carries  a  lease,  not  shown  on  the 
lease  register  of  the  lessor  (a  cor- 
poration), which  purported  to  show 
all  its  live  leases  though  it  may  be 
included  in  a  bunch  of  leases  marked 
"abandoned  leases,"  and  did  not 
come  to  the  knowledge  of  the  as- 
signee until  after  the  transfer  was 
consummated.  Indianapolis  Gas  Co. 
V.  Pierce  (Ind.  App.),  7G  N.  E.  Rep. 
173;  Indianapolis  Gas  Co.  v.  Rayle 
(Ind.  App);  76  X.  E.  Rep.  176; 
Carnegie  Nat.  Gas.  Co.  v.  South 
Penn.  Oil  Co.,  56  W.  Va.  402;  49 
S.  E.  5^8.  See  also  Anse  La.  Butte 
(La.  Danois)  Oil  &  M.  Co.  v.  Babb, 
122  La.  415;   47  So.  Rep.  754. 

An  owner  of  oil  and  gas  leases 
/covering  a  large  tract  of  land  as- 
signed all  his  gas  rights  to  another 
by  a  \\Tittcn  contract,  and  entered 
into  a  contract  with  the  assignee 
providing  that  the  parties  thereto 
should  have  a  right  to  operate  said 
territory  under  flicir  respective  in- 
terests,   and,    should    the    owner    of 


leases  develop  a  gas  well,  the  gas 
company  should  have  tlio  privilege 
of  having  such  well  transferred  to 
it  on  payment  of  the  cost  of  build- 
ing it,  and,  if  the  gas  company 
should  develop  an  oil  well,  the  as- 
signee should  have  the  privilege  of 
having  the  well  transferred  to  him 
on  paying  the  actual  cost  thereof, 
each  part}'  to  have  30  days  in  which 
to  test  any  such  well  built  by  the 
other.  It  was  held  that  on  devel- 
oping gas  in  paying  quantities  in 
drilling  for  oil  and  the  election  of 
the  gas  company  within  the  time 
limited  to  pay  the  cost  of  drilling 
and  the  other  expenses,  the  party 
drilling  it  must  deliver  possession 
to  the  gas  company.  Carnegie  Natu- 
ral Gas  Co.  v.  South  Penn.  Oil  Co., 
56  W.  Va.  402;  49  S.  E.  54S. 

1  Thompson  v.  Christie,  139  Pa. 
St.  230;  20  Atl.  Rep.  931;  11  L.  R. 
A.  236. 

Where  a  new  oil  and  gas  lease 
was  taken  by  one  of  two  prior 
lessees,  granting  to  liim,  without 
reservation  or  limitation,  the  exclu- 
sive right  to  enter  and  bore  for  oil 
and  gas,  his  assignment  of  the  new 
lease  vested  in  the  assignee  all  the 
assignor's  right  as  lessee  under 
either  of  the  leases,  and  barred  the 
assignor's  right  of  action  as  co- 
lessee   in   the   original   lease  against 


266 


OII>    AND    GAS. 


takes  no  greater  rig-hts  tJian  liis  assignor  had  acquired.*  If  the 
lease  provide  for  a  forfeiture  under  certain  conditions,  the 
assignee  must  at  his  peril  ascertain  whether  or  not  a  forfeiture 
has  been  incurred.^  The  assignee  is  liable  for  the  taxes  on  all 
improvements  ho  places  on  the  leasehold  premises. ■*  And  this 
is  true  where  the  several  owners  of  a  lease  have  so  conducted 
themselves  as  to  turn  their  several  interests  into  a  partnership.^ 

§195.     Assignee  cannot  take  advantage  of  default  in  lease. 

If  a  default  has  been  made  in.  carrying  out  the  provisions  of 
the  lease,  whether  made  by  tlie  lessee  or  the  assignee,  neither 


his  assignee,  or  any  subsequent  as- 
signee of  the  new  lease.  Garrett  v. 
South  Penn.  Oil  Co.,  GO  W.  Va.  587 ; 
€6  S.  E.  781. 

If  there  be  litigation  concerning 
the  lease,  the  assignee  is  chargeable 
■with  notice  of  it.  Pittinger  v. 
Eamage,  40  Ind.  App.  48G ;  82  X.  E. 
Rep.  478. 

2  Henderson  v.  Ferrell,  183  Pa. 
St.  547;  41  W.  N.  C.  404;  38  Atl. 
Hep.  1018;  Simons  v.  Van  Ingen,  86 
Pa.  St.  330;  In  re  Huddcll,  IG  Fed. 
Rep.  373;  Caley  v.  Portland  (Colo.), 
71  Pac.  Rep.  892;  Colorado,  etc., 
Co.  V.  Pryor,  25  Colo.  540,  549;  57 
Pac.  Rep.  51;  Moore  v.  Saw-j^er,  16 
Fed.  Rep.  826;  Bartley  v.  Phillips, 
199  Pa.  175;  36  Atl.  217;  Hicks  v. 
Gas  Co.,  207  Pa.  570;  57  Atl.  55; 
Pyle  V.  Henderson,  65  W.  Va.  39; 
63  Pa.  762;  Compton  v.  People's  Gas 
Co.,  75  Kan.  572;  89  Pac.  1029;  10 
L.  R.  A.  (N.  S.)  758;  National, 
etc.,  Co.  V.  Teel,  .95  Tex.  586;  67 
S.  W.  545;  68  S.  W.  797;  Gillespie 
V.  Fulton  Oil  &  Gas  Co.,  236  111. 
188;   86  X.  E.  215. 

3  Carnegie  Natural  Gas  Co.  v. 
Philadelphia  Co.,   158   Pa.   St.   317; 

27  Atl.  Rep.  951;  Aderhold  v.  Oil 
Well  Supply  Co.,   158   Pa.   St.  401; 

28  Atl.  Rep.  22 ;  Bartley  v.  Phillips, 
179  Pa.   175;   S6  Atl.   217. 


4  Tn  re  Huddell,  16  Fed.  Rep.  373. 

•"'  Brown  v.  Beecher,  120  Pa.  St. 
590;   15  Atl.  Rep.  608. 

A  verbal  transfer,  followed  by  a 
change  of  possession,  is  probably  a 
valid  transfer  of  the  lessee's  inter- 
est. Lockhart  v.  Rollins,  2  Idaho 
503;   21   Pac.   Rep.   413. 

Under  Ohio  Rev.  St.  §  4112a,  pro- 
viding that  an  unrecorded  lease  of 
any  interest  in  land,  whereby  a 
right  is  given  to  operate  a  natural 
gas  and  petroleum  plant,  shall  have 
no  force  except  as  between  the  par- 
ties, until  it  is  filed  for  record, 
unless  the  person  claiming  there- 
under is  in  actual  possession,  an 
assignment,  duly  executed  by  an  oil 
company,  of  all  its  property  for  the 
benefit  of  creditors,  which  is  duly 
recorded,  is  entitled  to  -priority  over 
a  transfer  of  the  lease-hold  estate  of 
the  oil  company  to  a  bank  for  the 
purpose  of  securing  it  for  money 
already  advanced  and  to  be  ad- 
vanced, where  such  transfer  is  not 
recorded  and  the  bank  has  not  taken 
possession  of  the  property  trans- 
ferred. Keystone  Bank  v.  Union 
Oil  Co.,  25  Ohio  Cir.  Ct.  R.  464; 
Tucker  v.  Watts,  25  Ohio  Cir.  Ct. 
Rep.  320. 


ASSIGNMENT   OF    LEASE. 


267 


such  lessee  nor  his  assignee  can  urge  the  default  as  an  excuse 
for  not  carrying  out  its  provisions;  for  such  a  provision  "in- 
ures to  the  benefit  of  the  lessor,  and  is  not  effective  in  behalf  of 
the  lessee,  unless  the  lessor  so  elects.""  I>ut  the  assignee  of 
an  oil  option  is  not  bound  by  the  fraud  of  the  assignor  in  pro- 
curing the  contracts,  though  the  grantors  are  in  possession, 
and  the  rights  claimed  under  the  option  are  consistent  with 
such  possession."* 

§  196.     Refusing  consent  to  assignment. 

If  the  lease  of  oil  or  mining  land  contain  a  covenant  ju-ohi bit- 
ing an  assignment  without  the  consent  of  the  lessor,  such  con- 
sent can  not  be  unreasonably  refused,  or  refused  to  a  person  of 
responsibility  and  respectability.  The  lessor  may  reasonably  re- 
fuse to  give  his  consent  to  an  assignment  to  a  eoi-poi-atiini  which 
does  not  take  it  witli  the  intention  to  operate  the  land,  for  such 
corporation  is  not  a  person  of  responsibility  and  resix-etability 
within  tlie  meaning  of  tJie  covenant  in  the  lease,  and  tJiat,  too, 
even  though  tliere  be  no  covenant  to  o}xn'ate  works  already  on  the 
lease.^ 


8  E<lmonds  v.  Mounscy,  15  Ind. 
App.  309;  44  N.  E.  Rep.  19G;  Wills 
V.  Jtfg.,  etc.,  Co.,  130  Pa.  St.  220; 
18  Atl.  Rep.  721;  Ray  v.  Western, 
etc.,  Gas  Co.,  138  Pa,  St.  570:  20 
Atl.  Rep.  1065;  Creveling  v.  West 
End  Iron  Co.,  51  N.  J.  L.  34 ;  IG 
Atl.  Rep.  184;  Cochran  v.  Pew, 
159  Pa.  St.  184;  28  Atl.  Rep.  219; 
Compton  V.  People's  Gas  Co.,  75 
Kan.  572;  89  Pac.  1029;  10  L.  R.  A. 
758. 

It  cannot  be  said  tliat  the  assign- 
ment is  without  consideration  be- 
cause it  was  made  at  a  time  the 
assignor  had  a  right  to  declare  a 
forfeiture  of  the  lease ;  for  the  as- 
signor (the  owner  of  the  land)  maj' 
waive  his  right  to  forfeit  the  lease. 
Shannon  v.  Mastin  (Mo.  A[)p. ).  Ids 
S.  W.  Rep.   IIIG. 


oa  Natural  Oil,  etc.,  Co.  v.  Teel, 
95  Tex.  58G;  G7  S.  W.  545;  GS  S.  W. 
979. 

"  Harrison  v.  Barrow,  03  L.  T. 
Rep.  834. 

The  fact  that  tlie  assignee  of  a 
permit  to  drill  an  oil  well  is  bound 
to  know  tliat  tlie  iierniit,  IxMiig  a 
lease  of  land,  could  not  be  assigned 
without  the  written  consent  of  the 
owner  of  the  land,  does  not  render 
the  assignee  a  purcliaser  at  his  own 
peril,  where  the  assignment  con- 
tains a  covenant  that  the  assignor 
liad  a  good  right  and  lawful  aii- 
thorit\-  to  sell  the  same,  sir.ee  h.- 
liad  a  right  to  assume  that  the  as- 
signor had  such  consent.  Sliannoii 
V.  Mastin  (Mo.  App.),  108  S.  W. 
1110. 


268  OIL   AND   G.VS. 

§197.     Sublease. —  Division.  ^ 

A  sale  of  tlic  gn.s  flowing  from  a  p;as  .woW,  hy  the  lessees,  to 
a  gas  company,  which  takes  cliarge  of  the  gas  and  oondnets  it  off 
the  premises,  is  not  an  assignment,  bnt  a  sublease  of  the  well 
itself.*  If  a  lessee  has  tlie  right,  by  the  terms  of  his  lease,  tJ 
sublet  and  subdivide  the  premises,  he  may  release  a  part  of 
tliem  set  off  in  partition  to  one  of  several  tx}nants  in  common, 
and  retain  the  lease  in  o]:>eration  upon  tlie  remainder  of  such 
land.** 

§198.     Assignment  carries  option. 

The  assignment  of  a  lease  carries  with  it  an  option  given  in 
such  lease  to  the  lessee ;  and  the  assignee  is  entitled  to  exercise 
such  option  upon  exactly  the  same  terms  as  the  lessee  would 
have  been  entitled  to  if  he  had  kept  tlie  lease.  Thus  where  the 
lease  of  a  farm  for  oil  purposes  gave  an  option  to  a  lease  on  an 
adjoining  tract  on  "  terms  that  may  bo  equal  to  the  best  terras 
offered  by  any  person  or  persons  therefor  " ;  and  the  lessor 
falsely  represented  to  the  assignee  that  he  had  been  offered 
tw^cnty  thousand  dollars  for  a  lease  of  the  tract,  when  lie  had  been 
offered  only  ten  thousand  dollars  for  it;  and  the  assignee  paid 
the  larger  sum  in  ig-norance  of  the  falsehood,  it  was  held  that  he 
had  a  right  to  exercise  the  option  given  by  the  terms  of  the  lease 
the  same  cs  the  lessee  had,  and  could  recover  back  one-half  the 
sum  he  ha('  paid  (with  interest).^''  > 

§199.     Transfer  of  lease  by  judicial  sale. 

A  lease  may  be  transferred  by  a  judicial  or  sheriff's  sale  of 
the  lessee's  interest  in  it,  and  the  purchaser  takes  the  latter's 
place,  standing  u]X)n  im  higher  plane  in  any  resi)cct,  and,  like 
the  tenant,  is  liable  for  all  taxes  or  improvements  placed  by  him- 

8  Akin  V.  Marshall  Oil  Co.,  188  Co.,  5  Ohio  C.  D.  620;  12  Ohio  Cir. 
ta.  St.  614;   41  All.  Rep.  748.  Ct.  Rep.  78. 

9  Blair  V    Northwestern,  etc..  Gas  ^oGufley    v.    Claver,    146    Pa.    St. 

548;  23  Atl.  Rep.  161. 


AS3ic;x:.:r.NT  or  lease. 


269 


self  ujMiii  tli(^  leased  premises."  Tlie  sale  (if  the  lease  earries 
Avith  it  all  the  rliilil  of  ihe  lessee.^"  if  the  sale  is  hy  a  receiver 
of  a  court,  no  title  to  the  lease  passes  until  tJie  sale  and  assign- 
ment of  the  lease  has  been  approved  by  the  court ;  and  until  then 
the  purchaser  is  not  liable  on  the  covenants  and  airi'eeinents  con- 
tained in  the  lease  even  if  he  take  possession.  The  lessor,  in 
such  an  instance,  has  tlie  burden  Uy  show  tliat  all  stejis  necessarj' 
to  vest  the  title  to  the  lease  in  the  assii>iiee  or  purchaser  were 
taken. ^'^  The  fact  that  the  lessor  makes  a  new  aereement  with 
the  assignee  wilr  not  release  the  lessee  from  his  liaiiility  under 
the  terms  of  the  lease  as  they  were  when  the  assignment  was 
made.^*  The  fact  that  the  lessee  may  have  intended  to  assign 
the  lease  to  a  company  that  was  to  be  formed,  will  not  release 
him  from  liability  on  the  covenants  of  the  lease,  even  though  the 
lessor  knew  of  the  possibility  of  the  assignment, ^^  Where  the 
lease  provided  that  the  lessee  should  pay  five  hundred  dollars 
for  tlie  first  well  drilled,  and  five  hundred  for  each  well  there- 
after drilled;  and  after  the  first  well  was  drilled  he  assigned 
the  lease,  and  then  the  assigiiee  put  down  a  well,  it  was  held  tliat 
the  lessee  was  liable  to  pay  five  hundred  dollars  for  the  well  the 
assignee  put  down.'** 


11  7rt  re  Huddell,  10  Fed.  Rep. 
373;  Lykens  Valley  Co.  v.  Dock, 
62  Pa.  St.  232;  Aderhold  v.  Oil  Well 
Supply  Co.,  158  Pa.  St.  401;  28 
All.  Rep.  22;  Jashanosky  v.  Vol- 
rath,  59  Ohio  St.  540:  53  X.  E.  Rep. 
40;  09  Am.  St.  Rep.  7SG;  Simons  v. 
Van  Ingen,  80  Pa.  St.  330;  Acklin 
V.  Waltermier,  10  Ohio  C.  C.  Dec. 
G29;   10  Ohio  C.  C.  Rep.  372. 

i2]Murphy  v.  Hardee,  i2  Oliio  Cir. 
Ct.  Dec.  837. 

13  Heller  v.  Dailey,  28  Ind.  Ai)p. 
555;   C3  X.  E.   Rep.  490. 

But  subsequently,  by  the  .same 
court,  it  was  lield  that  the  report 
of  the   sale  hv   the   receiver  and    its 


approval  by  the  court  was  sufficient 
to  assign  the  lease — without  a 
formal  assignment — to  render  the 
assignee  liable  under  the  terms  of 
the  lease.  Robyn  v.  Pickard,  37  Ind. 
App.  101;  70  X.  E.  Rpp.  042.  citing 
JIayhew  v.  West  Virginia  Oil  Co., 
24  Fed.  205,  215;  and  P.lcnd  v. 
P.owie,  53  Ala.  152,  159. 

14  Fisher  v.  Milliken,  8  Pa.  St. 
111. 

I-' Sanders  v.  Sharp,  ].")3  Pa.  St. 
555;  31  W.  X.  C.  374;  25  Atl.  Rep. 
524. 

10  Pittsburgh,  etc.,  Co.  v.  Oreenle, 
104  Pa.  St.  549;  30  Atl.  Rep.  489. 


270  OIL    AND    GAS. 

^200.     Equitable  assignee  in  possession. 

An  equitable  assig-nee,  tJiougli  he  takes  possession  under  the 
lease,  is  not  a  legal  assignee,  nor  is  he  liable  on  the  covenants  of 
the  lease  to  tiie  lessor.  Thus  wliei'e  a  lease  was  not  assignable 
without  the  consent  of  the  lessor,  but  the  lessee  agreed  in  writ- 
ing to  assign  the  lease  to  certain  ]>ersons,  who  took  ]X)Ssession 
of  the  premises  and  worked  the  mines  u|miii  tliciu,  but  no  deed 
of  assigninojit  was  ever  executed  to  tlicni ;  and  these  jiersons 
afterward  assigned  over  all  their  interests  to  an  indigent  work- 
man, the  court  declared  the  assignment  to  be  a  good  equitable 
one  under  the  agreement,  ])ut  the  persons  with  whom  the  agree^- 
ment  was  made  were  not  liable  at  the  suit  of  the  lessor  for  the 
performance  of  the  covenants,  for  the  agreements  in  the  lease 
were  not  between  the  lessor  and  such  persons,  and  a  court  of 
equity  could  not  treat  the  agreement  as  a  tenancy. ^^  But  where 
the  lease  was  to  a  trustee  for  five  other  persons,  who  entered 
and  worked  the  mines;  and  the  trustee  becoming  insolvent,  the 
lessor  sued  these  five  persons  for  the  rent,  it  was  decreed  that  an 
account  should  l)e  taken  of  the  amount  due  the  Icsvsor,  by  the 
trustee,  and  if  ho  made  default,  then  an  account  should  l)e  taken 
of  the  moneys  of  these  five  persons  in  his  hands,  and  tlie  amount 
due  the  lessor  paid  thereout ;  and  in  case  such  moneys  should  not 
be  sufficient  to  pay  the  lessor,  then  such  five  persons  were  to 
each  pay  one-fifth  part  of  the  deficiency ;  and  they  should  con- 
tinue to  pay  so  long  as  the  rents  became  due.^^ 

§201.     Lease  unassignable. 

If  a  lease  be  unassignable  —  as,  for  instance,  if  it  have  no 
words  ill  it  uuiking  it  run  to  the  assigns  of  the  lessee,  or  if  there 
is  an  express  statement  in  it  that  it  is  not  or  can  not  be  assigned 
—  that  will  not  permit  one  who  takes  possession  under  it  by 
virtue  of  an  attempted  assignment  to  escape  liability  to  the 
lessor.      In   such    an    instance   the   occupant   of  the   ground   is 

17  Cox  V.  Bishop,  8  De  G.  M.  and  i"  Lee  v.  Roundwood  Colliery  Co. 

G.    815;    26    L.   J.    Ch.   389;    3   Jur.  [1897],  1  Ch.  373;  60  L.  J.  Ch.  186; 

(N.  S.)    499;   29  L.  T.  44 ;   5  W.  R.  75  L.  T.  641;  45  W.  R.  324. 
4a7. 


ASSIGNMKNT    OF    LKASE.  271 

liable  to  the  owiut  u[h)ii.  an  iiiii>li('(l  assumpsit  to  j)ay  a  reasunu- 
ble  compensatiou  for  his  (K^cnpation,  or  for  trespass  for  the 
wrongful  oceupatioii.^"  And  the  lessor  luav  obtain  a  right 
against  tlie  assignioo  where  he  and  the  latter  have  entt'red  into 
an  agreement:  witk  res[)ect  to  the  oeou]xincy  of  the  premises  by 
reason,  of  such  assignee  having  taken  possession  under  the  at- 
tempted assignment,  Sneli  was  the  case  where  an  agreement 
was  entered  into  between  the  lessor  and  assignee  for  an  exten- 
sion of  tlie  time  of  performance  of  the  oivenants  of  the  lease, 
for  the  payment  of  increased  royalties,  and  also  into  a  jn'ovision 
that  the  lease  "  shall  remain  in  full  force  in  all  particulars  in 
which  tlie  same  is  not  hereby  modified."  This  gave  the  assignee 
all  the  rights  of  the  original  lessee,  even  to  a  renewal  of  the 
lease.*" 

§202.     Assignment  of  royalties.  —  Administrator. 

A  lessor  may  assign  a  lease  he  has  given,  eitlier  by  ]>roper 
words  of  assignment  on  the  lease,  if  he  can  obtain  possession  of 
it,  or  by  a  separate  instrument ;  and  his  assignment  will  carry 
the  rent  or  royalties  thereafter  falling  due,  but  not  those  that 
have  fallen  due  before  the  date  of  the  assignment,  unless  the 

18  Walters  v.  Northern  Coal  Min-  on  tlie  tract,  to  have  and  to  hold 
ing  Co.,  25  L.  J.  Ch.  (N.  S.)  633;  the  land  as  long  as  they  should 
5  De  G.  M.  and  G.  629;  26  L.  T.  deem  it  worthy  of  searching  for 
167;  4  W.  R.  140;  2  Jur.  (N.  S.)  minerals,  in  which  they  agree  to  not 
1.  But  see  Oil  Creek,  etc.,  v.  Stan-  use  the  land  for  any  other  pur- 
ton  Oil  Co.,  23  Pa.  Co.  Ct.  Rep.  poses,  is  an  unassignable  lease;  be- 
153;    30  Pittsb.  L.  J.    (N.  S.)    286.  cause     the     personal     skill     of     the 

20  Guffey    V.    Clever,    146    Pa.    St.  miners     has     been     contracted     for. 

548;   23  Atl.  Rep.   161.  Hodgson  v.   Perkins,  84   Va.  706;    5 

A  lease  contained  a  clause  tliat  it  S.  li,.  Rep.  710. 
shoulfi    terminate    on    "  a    sale    or  An  oil  well  on  a  lease  to  continue 

transfer"    of    the    property    during  as    long    as   oil    could    be   procured 

the  term,  it  was  held  that  the  word  from   the  premises  in  paying  qunn- 

"  transfer "  related  to  a  transfer  of  titles,    was    abandoned    by    the    Ics- 

ttie  title,   and   not  a  mere  transfer  sees,   becau.se   of  the   failure   of   (lie 

of  the  right  of  possession.     Ober  v.  output.     It    was   held    that    the    as- 

Schenck,  23  Utah  614;  65  Pac.  Rep.  sigruiicnt    of     the     lease    tliereiifter 

1073.  gave   no   title   to   the   nssjirnoe,   oven 

A  deed  conferring  upon  skilled  though  the  lessees  had  first  attempt- 
miners  the  privilege  to  raise  ore,  cd  to  renew  it.  Cole  v.  Taylor,  8 
with  the  use  of  timbers  and  water  Super.  Ct.    (Pa.)    19. 


272  OIL    AND    GAS. 

right  to  tliem  is  also  asvsigncd.  In  order  to  assign  the  lease  it 
is  not  necessary  to  make  a  sale  or  transfer  of  his  reversionary  in- 
terest in  th(>  land.  A  loa.se  was  assigned  afjer  it  had  exjtired, 
by  the  use  of  tlie  following  language  endorsed  upon  it:  "  For 
value  received  we  hereby  sell,  transfer  and  assign  all  our  in- 
terests, right  and  title  in  and  to  the  original  contract  to,"  a 
person  being  named  as  assignee.  It  was  clainuMl  that  this  did 
not  pass  the  right  to  collect  damages  then  due  by  the  terms  of 
tlie  lease,  but  the  court  held  otherwise.  "  They  had  a  right  of 
action  under  the  contract,"  said  the  court,  "  and  when  tliey  as- 
signed all  their  rights  and  interest  tlierein,  they  assigned  this 
right  of  action.  The  time  for  which  the  land  was  leased  having 
expired,  there  remained  nothing  but  this  right  of  action  to  be 
transferred.  To  hold  that  the  assignment  transferred  only  the 
original  instrument  would  be  too  narrow  a  construction."  ^^ 
So  where  tlie  owner  of  land  executes  a  gas  or  oil  lease  upon  it, 
and  afterward  conveys  the  land  by  an  ordinary  quit  claim  or 
warranty  deed  the  grantee  is  entitled  to  the  rents  iruituring  after 
tlie  conveyance.^"  But  where  a  lease  for  years  reserves  a  cer- 
tain royalty  for  all  oil  or  gas  produced,  the  royalty  reserved 
goes  to  the  personal  re]>resentatives  of  the  deceased  lessor,  and 
not  to  his  heirs.^^  So  where  the  royalty  reserved  was  a  certain 
fraction  of  the  oil  produced ;  and  afterward  the  lessor  gave  tlie 
land  to  his  children,  reserving  to  himself  a  life  estate  in  it,  it 

21  Indianapolis,  otr.,  Oas  Co.  v.  Woodburn'.s  Estate,  1.38  Pa.  St.  606; 
Pierce,  2.5  Ind.  App.  116;  .56  N.  E.  21  Ail.  Rep.  16;  21  Am.  St.  Rep. 
Rep.  1:57.  See  Morgan  v.  Yard,  1.3  932  (oil  and  gas)  ;  Manderbach  v. 
Pittsh.  ]..  .J.  (N.  S.)  178;  12  W.  N.  Bethany,  etc..  Home,  109  Pa.  St. 
C.  449;  Chandler  V.  Pittsburgh,  etc..  231;  2  Atl.  Rep.  422  (rent  for 
Co..  20  Ind.  App.  165;  50  N.  E.  Rep.  water  from  a  spring).  See  Butt  v. 
400.  Ellett.    19    Wall.    .544;    Van    Rensse- 

22  Chandler  v.  Pittsburgh,  etc.,  laer  v.  Hays.  19  N.  Y.  68;  75  Am. 
Co.,  20  Ind.  App.  165;  50  N.  E.  Rep.  Dec.  278;  Peerrin  v.  Lepper,  34 
400.  In  Swint  v.  McCalmont  Oil  Mien.  292;  McGufTie  v.  Carter,  42 
Co.,  184  Pa.  St.  202,  38  Atl.  Rep.  Mich.  497;  4  X.  W.  Rep.  211;  Page 
1021,  it  was  assumed  that  the  rents  v.  Culver.  55  ]\Io.  App.  606:  West 
passed  to  the  grantee.  Undue  rents  Shore  Mills  Co.  v.  Edwards.  24  Ore. 
for  coal  pass.  Hendrix  v.  McBeth,  475;  33  Pac.  Rep.  987;  Morrow  v. 
61  Ind.  473;  28  An^er.  Rep.  680;  Sawyer.  82  Ca.  226 ;  8  S.  E.  Rep.  51. 
Hendrix  v.  Hendrix,  65  Ind.  329;  2.-!  Rrunot's  Estate,  29  Pittsb.  L. 
McDowell   V.  Hendrix,  67   liul.   513;  J.   (N.  S.)    105. 


ASSIGNMENT   OF    LEASE. 


273 


Avas  liL'Kl  t.liat.  he  was  cntillfJ  to  the  royalty,  iiiulcr  tJu-.  rule 
that  tlie  life-teiiaiit  is  entitled  to  work  all  wells  open  at  the  time 
the  tenancy  is  created."*  Where  a  testator  owned  six  hundred 
acres  of  land,  divided  into  three  adjoinin<2;  farms,  njxm  all  of 
whicJi  was  an  oil  lease,  in  which  a  cert^iin  royalty  was  reserved 
and  which  had  tweKe  years  to  run  at  his  death;  and  W(dls, 
when  he  died,  were  in  operation  on  one  farm  only,  which  was 
given  by  liis  will  to  one  of  his  three  children,  and  tlie  other  two 
farms  to  his  other  two  chiklren  severally,  the  court  decitled 
that  tJic  royalties  should  also  be  divided,  and  one-third  n-iven  to 
each  devisee;  for  the  reason  tJiat  the  working  of  the  oil  wells  on 
the  one  farm  had  the  effect  to  drain  the  oil  froni  the  other  two 
farms,  and  thus  the  devisee  of  tliose  two  farms  would  receive 
no  benefit  from  the  lease  which  covered  their  fanns.'^  If  the 
owMier  of  the  reversion  has  sold  the  premises,  he  cannot  maintain 
an  action  in  his  own  name  for  the  use  of  his  vendee,  for  a  breach 
of  a  covenant  that  has  occurred  after  he  lias  made  tlie  sale.'"" 


24Kocn  V.  Bartlett,  41  \V.  Va. 
559;  23  S.  E.  Rep.  G64 ;  31  L.  R. 
A.  128. 

Where  the  owner  of  land  con- 
veyed it,  reserving  for  life  ono-eiglitli 
of  the  oil  produced,  and  tlie  giantee 
leased  the  hind,  reserving  to  him- 
self one-eighth,  it  was  held  that  the 
last  reservation  was  one-eighth  of 
seven-eighths,  for  it  could  not  he 
contended  that  when  he  made  his 
reservation  he  intended  to  reserve 
any  part  of  the  oil  reserved  by  the 
original  grantor,  but  he  reserved  a 
share  only  of  that  which  he  was  en- 
titled to  under  his  grant.  Harris  v. 
Cobb,  49  W.  Va.  350;  38  S.  E.  Rep. 
559. 

25Wettengel  v.  Gormley,  100  Pa. 
St.  559;  28  Atl.  Rep.  934;  40  Am. 
St.  Rep.  733;  Wettengel  v.  Gorm- 
ley, 184  Pa.  St.  304;  39  Atl.  Rep. 
1118.  But  see  where  the  Ohio  Su- 
preme Court  refused  to  follow  thes" 
eases.  Northwestern  OTiio  Nat.  Gas 
Co.  V.  Ullery,  67  N.  E.  Rep.  494. 


2c  Stoddard  v.  Emery.  128  Pa.  St. 
43G;   18  Atl.  Rep.  339. 

The  owner  of  oil  land  conveyed 
iin  undivided  interest  in  it,  and 
gave  to  the  gi'antees  the  right  to 
drill  for  oil  on  the  portion  uncon- 
veyed,  reserving  a  royalty  to  him- 
self. Afterward  he  sold  the  remain- 
ing undivided  interest,  subject  to 
the  oil  lease,  of  which  he  finally  he- 
came  the  assignee.  By  will  he  Ictt 
all  liis  property  to  his  devis(>es.  and 
they  conveyed  to  third  parties,  re- 
citing in  the  deed  that  it  was  tlieir 
intention  to  convey  all  lands  and 
premises  owned  by  IIkmu.  and  in 
which  they  had  an  interest,  it  was 
held  that  the  conveyance  passed  no 
rights  under  the  oil  lease,  for  it 
was  a  mere  incorporeal  right,  which 
the  conveyance  did  not  embrace. 
Wagner  v.  Mallory,  41  X.  Y.  .App. 
l>iv.  126:  58  N.  V.  Supp.  .".26 ; 
allirmed  169  X.  Y.  501;  02  N.  E. 
Rep.  584.  But  did  not  the  holders 
of  the  lease  have  an  interest   in   the 


274  on.    AND    GAS. 

If  there  has  been  a  joint  reservation  of  royalties,  an  assignment 
of  his  interest  in  the  lease  by  one  of  those  jointly  interested  does 
not  anionnt  to  a  severance  of  the  royalties  nor  aj)])ortion- 
nicnt  of  them  amonfi:  the  co-lessors,  but  the  assignee  becomes  a 
tenant  in  common  of  the  royalties  with  the  co-lessors,  and  any 
one  of  them  can  receipt  for  the  same.^^ 

^203.     Assignee  of  lessee  bound  by  agreements  in  lease. —  Privity 
of  estate. 

The  assignee  of  a  lessee  of  a  lease  takes  the  position  of  his 
assignor  and  becomes  bound  by  all  the  terms,  agreements  and 
covenants  of  the  lease  to  the  lessor,  to  be  performed  while  he 
holds  the  lease,  the  same  as  if  he  had  been  the  original  lessee. 
"  The  original  lessee  is  bound  by  the  contract,"  to  quote  from 
an  opinion  of  the  Court  of  Indiana,  "  to  make  the  payments. 
The  assignees  are  bound  by  their  acceptance  of  the  lease,  to 
make  good  the  covenants  to  pay  rent,  therein  contained.  Their 
liability  is  u]>on  the  covenants,  and  arises,  not  from  ftny  exy)ress 
assumption  or  agreement  to  pay  it,  which  might  be  contained  in 
the  written  assignment,  but  from  the  privity  of  estate  by  reason 
of  their  ownership  and  right  to  enjoy  the  benefit  of  the  lease. 
Covenants  to  pay  rent  and  royalties  run  with  the  land."  ^* 
"  The  assign6H3  is  answerable  for  the  rent,"  said  the  Supreme 
Court  of  California,  "  during  his  ownership  of  the  terms  under 
the  assignment,  and  his  liability  therefor  arises  out  of  the  privity 
of  estate,  and  this,  without  reference  to  any  obligation  assumed 
by  liiiu  in  the  contract  of  assignment."  '^     The  Supreme  Court 

land?     Soo  Hellor  v.  Dailov.  28  Tnd.  "R.  607.     Soe  also  Fonnell  v.  r.ufTpy, 

App.  555;  63  X.  E.  Ron.  400.  1.30    Pa.    341;    20  All.    1048;    Brad- 

27Swint    V.    McCalmont    Oil    Co.,  ford  OiJ  Co.  v.  Blair,  113  Pa.  83;  4 

184  Pa.  St.  202;  41   W.  N.  C.  491;  Atl.  218. 

38  Atl.  Rep.   1021.  29  Ponrtti   v.   'T'roat.   01    Cal.    223; 

28  Edmonds    v.    Mounsey,    15    Tnd.  27    Pac.    Pep.    C12;    Creckinridgc   v. 

App.  399;   44  N.  E.  Rep.   19G,  citin-r  Parrott,    15    Ind.    Apn.    411;    44    N. 

Watson    Coal,    etc.,    Co.    v.    Castcel,  E.    Rep.    GG;     Coddard's    Appeal,   1 

73   Ind.  20G-,    McDowell   v.  Hendrix,  Walker    (Pa.)    97    Bradford   Oil   Co. 

67    Tnd.   513;    Cordon   v.   Oeorrre,    12  v.  Blair,  113  Pa.  St.  83;  4  Atl.  Rep. 

Ind.    408;    Stewart    v.    I^ng    Island  218;    Washington,    etc.,    Gas    Co.    v. 

Ry.   Co.,    102   N.   Y.   601;    Moule   v.  Johnson,    123   Pa.    St.   576;    16   Atl. 

Garrett,   L.   R.   5   Exch.    132;    39   L.  Rep.  790;    11   Morr.  Min.  Rep.   165; 

J.   Exch.  69;   22   L.  T.   343;    18   W.  Goss  v.  Fire  Brick  Co.,  4  Super.  Ct. 


ASSIGNMENT    OP^    LK.VSE.  274a 

of  Pennsylvania  has  stated  the  ruU'  in  a  sin-^le  sentence,  thus: 
"It  is  settled  law  tliat  covenants  lo  pay  rent  oi-  royalty  run 
with  the  land,  and  that  the  assignee  of  tln^  lease  is  liable  for 
the  payment  of  all  rents  or  royaJties  which  accrue  wiiile  he 
held  the  assignment  of  the  lease."  ^"  Of  course,  when  the  lessor 
seeks  to  hold  the  assignee  liable  on  the  covenants  and  agree- 
ments in  the  lease,  he  has  the  burden  to  show  tiiat  an  actual 
assignment  was  niade.""  If  the  lease  has  expired  before  the 
assignment,  then  the  assignee  is  not  liable  under  its  terms, 
because  the  assignor  having  no  interest  in  the  lease  or  in  the 
premises,  he  owns  nothing  under  such  lease  capable  of  an 
assignment. •'''* 

§204.     Ground  of  assignee's  liability  to  lessor. 

By  the  assignment  of  the  lease  a  privity  of  estate  is  not 
created  between  the  assignor  and  the  lessor  for  that  period 
prior  to  the  assignment,  nor  for  the  part  of  the  lease  remaining 
after  he  has  ceased  to  enjoy  it.  "The  assignee,  having  entered 
under  an  assignment  and  thus  come  into  privity,  that  privity 
continues  as  long  as  his  beneficial  enjoyment  of  the  demised 
property  or  right  to  it  remains. ' '  ^-  The  liability  of  the  assignee 
to  the  lessor  is,  therefore,  based  upon  their  privity  of  estate, 
and  not  necessarily  upon  an  agreement  to  keep  the  covenants  of 
the  lease.  "A  lessee,"  said  Judge  Simonton,  "remains  liable 
on  his  express  obligation,  notwithstanding  he  may  have  as- 

(Pa.)    167;    Fennell    v.   GufToy,    139  Pickard,  37  Ind.  App.  161;  76  X.  E. 

Pa.    St.    341;     20    Atl.    Rep.    1048;  Rep.  642. 

Williams  v.  Short,  155  Pa.  St.  4S0;  so  Fennell    v.   GufTcy,    139    Pa.   St. 

26  Atl.   Rep.   002;   Comegjs  v.   Rus-  341;    20    Atl.    Rep.    1048;    Holler    v. 

sell,   175  Pa.  St.   100;    34*  AtL  Rep.  Dailey,  28  Ind.  App.  555;   03  N.  E. 

057;    Fennell  v.  GufTey,   155  Pa.  St.  Rep.  490. 

38;    25   Atl.    Rep.   785.;    Springer   v.  -ii  Heller  v.   Dailey,   28   Ind.    App. 

Citizens',  etc.,  Gas  Co.,   145  Pa.  St.  555;  03  X.  E.  Rep.  490. 

430;    22    Atl.    Rep.    986;    Aderhold  3ia  Chaney     v.     Ohio-Indiana     Oil 

V.  Oil  Well  Supply  Co.,  158  Pa.  St.  Co.,    32    Ind,    App.    193;    69    X.    E. 

401;    28   Atl.   Rep.    22;    Walters   v.  Rep.  477. 

Northern,    etc.,    Co.,    25    L.    J.    Ch.  If   liti<ration   be   pending   concern- 

(N.    S.)    633;    5    De   G.   M.   and   G.  ing  the  lease,  Uie  lessee  is  hound  to 

629;    26   L.   T     167;    4   W.   R.    140;  take  notice  of  it,  and  will  he  Ixnind 

2  Jur.    (N.  S.)    1;   Tmlianapolis  Gas  by  the  result  thereof.     Pittinger  v. 

Co.  V.  Pierce   (Ind.  App.  — )  ;  70  X^.  Ramage,   40   ind.   App.   486;    82   N. 

E.   Rep.    173;    Indianapolis   Gas   Co.  E.  Rep.  478. 

V.    Rayle     (Ind.    App.),    70    X.    E.  32  Negley   v.   Morgan,   46    Pa,    St. 

Rep.   176;    IVlacDonald  v.   O'Neil,  21  281. 

Pa.   Super.  Ct.   Rep.   304;    Robyu   v. 


274b  OIL   AND    GAS. 

signed  his  lease.  And  the  lessor  may  sue  at  his  election  either 
the  lessee  or  the  assignee,  or  may  pursue  this  remedy  against 
both  at  the  same  time,  though,  of  course,  with  but  one  satisfac- 
tion. In  such  cases,  the  liability  of  the  original  lessee  depends 
upon  privity  of  contract  and  continues  during  the  whole  terra, 
while  the  liability  of  the  assignee  depends  upon  privity  of  estate, 
created  b}'  the  assignment  and  ccntinuos  onl}-  during  the  time 
he  holds  legal  title  to  the  leasehold  estate  during  the  assign- 
ment." ^^  "  For,  although  there  was  no  privity  of  contract  be- 
tween the  lessor  and  the  assignee  of  the  lessees,  yet  there  was 
a  privity  of  estate  between  tliem,  as  long  as  tlie  assignee  re- 
mained in  possession  of  the  demised  premises,  which  created 
the  debt  for  the  rent  or  royalty  reserved  in  the  lease,  in  favor 
of  the  lessor  and  against  the  assignee."^*  "Turning  then  to 
the  question  raised  by  the  points,"  said  the  Supreme  Court  of 
Pennsylvania,  "  we  find  the  facts  to  be  assumed  therein,  and  the 
liability  of  the  gas  company  to  depend  uix)n  the  extent  to 
which  the  covenants  of  Guffey  run  with  the  land.  That  they 
continued  liable,  notwitlistanding  their  assignment  to  Robbins, 
is  very  clear.  The  covenant  was  their  own,  and  their  privity 
of  contract  with  tlieir  lessors  continued  notwithstanding  their 
assignment  of  the  lease.  Their  assignee,  Kobbins,  who  was 
in  possession  when  the  time  for  ])crformanee  arrived,  was  also 
liable,  because  of  the  privity  of  estate  which  arose  upon  his  ac- 
ceptance of  the  assignment.  Acquiring  the  leasehold  estate  by 
the  assignment  of  the  lease,  he  is  fixed  with  notice  of  its 
covenants,  aii<l  he  takes  the  estate  of  his  assignor  cum  onrre. 
But  as  his  liability  grows  out  of  privity  of  estate,  it  ceases  Avhen 
the  privity  ceases.  If  he  had  assigned  before  the  time  for  per- 
formance, his  liability  would  have. ceased  with  his  title,  and 
liability  woulil  bavo  attached  to  his  assignee  by  reason  of  priv- 
ity; but  he  wouKl  not  be  liable  for  those  previously  broken,  or 
subsequently  maturing,  because  of  the  absence  of  any  contract 

33  McBee  v.  Sampson,  66  Fed.  Eop.  34  Watson,  etc.,  Co.  v.  Casteel,  73 

416:    Chillis   v.   Clark,   3   P.irb.   Cli.  Ind.   2!)(i.  citing  Howland  v.   Coffin, 

52;    40   Am.    Dec.    164;    Johnson    v.  9    Pick.    .52;    Cordon    v.    George,    12 

Sherman,   15  Cal.  287;   76  Am.  Dec.  Ind.   408;    Carley   v.  Lewis,   24   Ind. 

481;    Wall    V.    Hinds,    4    Gray   256;  23;    McDowell    v.   Hendrix,    67    Ind. 

Smith  V,  Harrison,  42  Ohio  St.  180.  513. 


ASSIGNMENT    OF    LKASE.  274c 

relation  witli  tlio  lossor.  WliiK^  lio  li(tl<Is  (he  ostnto  and  oiijovs 
its  benefits,  he  bears  its  burdens  hy  assi^i-uniciit.  even  tlioui:Ii,  as 
is  said  is  done  in  'the  ease,  his  assignment  he  to  a  befz:;:ar."  '* 
And  the  eonrt  referred  tf)  the  elaini  tliat  a  certain  case'"'  held 
a  different  rule,  and  declared  it  was  clearly  distin^iishable  fmni 
the  case  then  in  hand.  "  The  covenant  whieii  it  was  songht  to 
enforce  in  that  case  was  not  for  the  completion  of  sncccssive 
wells  at  sncccssive  dates,  but  it  was  for  the  conimencenient  of 
the  work  of  developing  Blair's  farm  at  a  time  ct'i-tain,  and  to 
*  continne  with  due  diligence  and  without  delay  to  prosecute 
the  business  to  success  or  abandonment,  and,  if  successful,  to 
prosecute  the  same  without  interruption.'  Two  wells  were  com- 
pleted, and  were  successful  oil  wells.  Tlu^  assignee  of  the  lease 
owned  adjoining  lands  u]!on  wiiich  it  was  o]>erating,  and  it 
stopped  work  on  the  Blair  farm.  The  action  rested  on  the 
breach  of  the  covenant  to  prosecute  the  business  of  ])rodu('ing 
oil  from  the  land  of  the  lessor  with  due  diligence  and  ^  without 
interruption.'  The  obligation  of  a  covenant  to  prosecute  the 
business  developing  the  land  of  the  lessor  without  delay  and 
\ntliout  interruption,  is  a  continuing  one.  The  bi-cadi  for 
which  the  Bradford  Oil  Co.  was  held  liable  was  not  that  of 
some  previous  holder  of  the  title,  but  its  owner."  ^^ 

35  Washington,  etc.,  Gas  Co.  v.  •"'7  Akin  v.  :Marshall  Oil  Co.,  188 
Johnson,  123  Pa.  St.  576;  16  Atl.  Pa.  St.  6.14;  41  Atl.  Rep.  748;  Ader- 
Rep.  799;  Dailcy  v.  Heller,  41  Ind.  hold  v.  Oil  Well  Supply  Co.,  158  Pa. 
App.  379;  81  N.  E.  219;  Fisher  v.  St.  401;  28  Atl.  Rep.  22;  Drake  v. 
Guffey,  193  Pa.  393;  44  Atl.  452;  Lacoe,  157  Pa.  St.  17;  27  Atl.  Rep. 
Jackson  v.  O'Hara,  183  Pa.  233;  38  538;  Borland's  Appeal,  66  Pa.  St. 
Atl.  624;  Burton  v.  Forest  Oil  Co.,  470;  Goss  v.  Brick  Co.,  4  Super.  Ct. 
204  Pa.  249;    54  Atl.  266;    Indiana  (Pa.)    167. 

Xat.    Gas    Co.    v.    Ilinton,    159    Ind.  See  the  excellent  statement  of  tlie 

398;  04  X.  E.  224;  Moore  v.  Sawyer,  liability  in  Heller  v.  Dailey,  28  Ind. 

167    Fed.    826;    Woodlawn    Oil    Co.,  App.  555;    63   X.   E.   Rep.   490;    Ed- 

V.    Crawford,   55    Ohio   St.    161;    44  monds    v.    Mounsey,    15    Ind.    App. 

N.    E.    1093;    Heller    v.    Dailey,    28  309;    44   X.    E.    Rep.    196;    Bonetti 

Ind.  App.  555;  63  N.  E.  490;  Brad-  v.  Treat,  91  Cal.  223;   27  Pac.  Rep. 

ford   Oil   Co.   v.   Blair,    113   Pa.   83;  612-;    14   L.   R.   A.    151. 

4  Atl.   218;    Fennell   v.   GufTey,    139  If    the    lease    baa    expired    l)(f<ire 

Pa.  341;  20  Atl.  1048.  it  is  assigned,  nothing  passes  under 

36  Bradford  Oil  Co.  v.  Blair,  113  it,  there  is  no  priority  of  estate  and 
Pa.  St.  83;   4  Atl.  Rep.  218.  no   liability   of   the   assignee    under 


274d  OIL   AND   GAS. 

g205.     Assignee's  liability  broadened  by  terms  of  assignment  or 
by  outside  contract. 

The  linliility  df  an  assifjiipo  may  bo  broadonod  by  tlio  tonus  oi 
the  assiffiiniont,  or  by  a  contract  outside  of  it.  If  there  be 
express  covenants  in  the  assi<ninient,  they  are  so  many  additions 
to  the  covenants  of  the  lease,  and  the  lessor  may  take  advantage 
of  them  if  they  rnn  in  his  favor.^"  Tims  if  the  assignment 
provides  that  the  assignee  shall  hold  the  lease  under  the  terms 
of  the  lease  and  subject  to  the  rents  and  covenants  therein  on 
the  part  of  the  lessee,  and  he  accepts  it,  he  will  be  liable  for 
rentals  which  had  matured  and  remained  unpaid  at  the  time 
it  was  executed. ^^  An  agreement  to  perform  the  covenants 
of  the  lease  renders  the  assignee  liable  for  the  unperformed 
covenants;  and  also  renders  him  liable  for  the  rent  or  royal- 
ties accruing  after  he  may  have  also  assigned  the  lease  to 
another.^"  So  a  condition  in  an  assignment  that  if  the  interest 
conveyed  by  the  assignment  should  be  assailed  for  any  debts  of 
the  assignee,  the  rights  so  assigned  should  be  forfeited  to  the 
assignors  is  valid. ^°* 

§206.     Extent  of  assignee's  liability. 

While  the  assignee  is  liable  for  the  carrying  out  of  the  terms 
of  the  lease,  yet  he  is  liable  onl}^  for  those  obligations  that  ac- 
crue while  he  enjoys  its  pHvileges,  or,  as  it  has  been  said,  dur- 
ing the  continuance  of  his  own  estate.  His  agreement  is  that 
during  his  estate  he  will  pay  the  rents  or  royalties  due  under 
and  perform  the  covenants  of  the  lease."     lie  is  not  liable, 

its  terms.    Chaney  v.  Ohio  &  Indiana  344;   37  N.  E.  Rep.  937;   Goddard's 

Oil  Co.,  32  Ind.  App.  193;   G9  N.  E.  Appeal,    1    Walk.    (Pa.)    97. 

Rep.  477.  "9  Woodland  Oil  Co.  v.  Crawford, 

If  the  covenants  of  the  lease  run  55   Ohio   St.    IGl;    3G   Ohio  L.   Bull, 

with  the  land,  in  an  action  against  231;   44  X.  E.  Rep.   1093;   34  L.  R. 

the  assignee  for  a  failure  to  carry  A.  G2. 

them  out  during  his  holding  under  *<>  Port  v.  Jackson,  17  .Johns.  239; 

the    lease,    it    is    not    necessary    to  Martineau  v.  Steele,  14  Wis.  272. 

aver  that  he  agreed  to  perform  them.  -loa  Julian  v.  Eagle  Oil  &  Gas  Co., 

Indiana  Nat.  Gas  Co.  v.  Ilinton,  159  83  Kan.   127;   109  Pac.  Rep.  99G. 

Ind.   308;    G4   N.   E.   224.  4i  Wolveridge    v.    Steward,     1    C. 

3s  Consolidated  Coal  Co.  v.  Peers,  and   M.  G44;    2   L.   J.   Exch.   303;    3 

39  111.  App.  453;  same  case,  150  111.  Tyr.    037;    Moule   v.   Garrett,    L.   R. 


ASSIGNMENT    OF   LEASE.  275 

without  an  express  agreement  in  tlie  assignment,  to  pay  for 
rents  or  royalties  tliat  had  accrued,  or  for  the  performance  of 
covenants  that  were  so  performed  in  point  of  time  before  the 
assignment.  Thus,  where  the  assigned  lease  provided  that  a 
well  should  be  completed  within  a  certain  time,  and  if  not  a 
specified  sum  of  money  per  year  should  be  paid  for  each  year 
during  which  the  completion  of  a  well  was  delayed,  it  was  held 
that  the  assignee  was  not  liable  for  the  payment  of  such  sum, 
where  he  assigned  the  lease  before  the  lapse  of  the  year;  for 
the  amount  due  did  not  and  could  not  accrue  before  he  assigned 
the  lease,  and  conseciuently  he  was  not  liable.''-  Xor  is  the 
assignee  liable  for  damages  for  failure  to  dig  a  well  upon  the 
demised  premises  when  the  time  for  the  completion  of  the  well 
expired  before  the  lease  was  assigned.''^  If  the  time  for  the 
completion  of  the  well  had  expired  after  tJie  aspipiment,  the 
assignee  would  have  l>oon  liable.''''  In  a  coal  lease  it  was  ]ir<i- 
vided  that  royalties  should  be  paid  semi-annually,  and  if  tlie 
amount  due  at  the  end  of  any  half  year  remained  due  at  tin- 
end  of  a  year  thereafter,  the  lease  by  reason  of  such  delinqnency 
was  forfeited,  and  tJie  lessor  was  authorized  "  to  ciitor  and  take 
possession  without  recourse  to  law."  Four  years  after  its  ex- 
ecution the  lessee  gave  E  and  others  an  option  to  purchase  the 
lease,  one  of  the  conditions  being  that  they  should  test  the 
character  of  the  oil  veins  on  the  land  by  boring  down  tbror.gh 
them.  After  the  boring  was  done,  and  nearly  a  year  after  the 
option  was  given,  E  notified  the  lessee  tliat  they  accepted  his 
option.  More  than  a  year  after  this  notice  was  given,  E  and 
his  associates  called  up<in  the  lessor  to  jiay  any  royalties  then 

5    Exch.    132;    39    L.    J.    Excli.    G9 ;  rott.  15  Ind.  App.  417:  44  X.  E.  GO. 

22  L.  T.  343;   18  W.  R.  697;  Wasli-  ^c  Watt   v.    Equitable   Gas   Co.,    8 

ington,  etc..  Gas  Co.  v.  Johnson,  123  Super.  Ct.    (Pa.)    G18;  29  Pittsb.  L. 

Pa.   St.  57G;    IG   All.   Rep.   79D;    11  J.    (X.  S.)    221;   43  W.  X.  C.   215; 

Morr.    Alin.    Rep.    1G5;    Walters    v.  Chaney  v.  Ohio  Oil  Co.,  32  Ind.  App. 

Northern    Coal    Mining    Co.,    25    L.  193;  69  N.  E.  477. 

J.   (X".  S.)   Ch.  633;  5  De  G.  M.  and  ^3  Washington,    etc.,    Gas    Co.    v. 

G.  629;   26  L.  T.  167;  4  W.  R.  140;  Johnson,  fiujyra. 

2  Jur.    (X\  S.)    1;   Heller  v.  Dailcy,  ■•<  Adcrhold    v.    Oil    Well    Supply 

28    Ind.    App.    555;    63    X.    E.    Rep.  Co.,    158   Pa.   St.   401;    2S   Afl.    Rep. 

490;  Fennel!  v.  Guffey,  139  Pa.  341;  22. 
20  Atl.   1048;    Breckenridge  v.  Par- 


276  OIL   AND    GAS. 

due,  nTid  Avoro  told  bv  hiin  tlmt  iiono  wore  duo,  l>ut  if  tlioro 
were,  he  would  not  hxko  tlieui  from  them  —  from  E  aud  his 
associates.  Two  uiouths  afterwards  the  lessor  re-entered  for 
the  iion-])ayni(Mit  of  the  royalties  within  a  vear  after  thev  had 
accrued.  It  was  shown  that  the  lessor  knew  that  E  and  his 
associates  had  l>een.  boring  ujmju  the  land,  and  that  he  had 
pointed  out  to  them  the  lx)undarv  lines  of  the  tract..  It  was 
held  that  E  and  his  associates  were  l>iniiid  to  take  notice  of  the 
covenants  of  the  lease ;  that  the  fact  the  lessor  knew  of  the 
negotiations  for  the  assignment  of  the  lease  gave  E  and  his  as- 
sociates no  rights  as  against  the  lessor,  except  such  as  the  lessee 
had,  and  imposed  no  duties  on  the  lessor  toward  them,  except 
such  as  he  was  bound  to  the  lessee  under  the  terms  of  the  lease; 
tliat'  E  and  those  with  him  were  l>oiuid  to  take  notice  whether 
the  royalties  had  Iwen  aiul  were  being  paid,  what  was  the  state 
of  the  accounts,  the  res]X)nsibility  for  Avhich  they  were  about  to 
assume;  that  as  they  bad  neither  paid  nor  offered  to  pay  the 
royalties  they  had  uo  higher  standing  than  the  lessee  so  far  as 
their  contract  rights  were  concerned ;  and  that  the  les- 
sor was  not  estopjKMl  as  against  them  by  tlie  fact  tliat  he  knew 
the  boring  was  going  on,  or  by  what  he  had  said  to  tliem.*°  A 
lessee  assigned  an  oil  lease,  in  consideration  of  which  it  Avas 
agreed  that  if  the  assignee  or  his  assignees  should  "operate 
under  the  said  leaseholds,  that  on  each  of  the  leases  he  so 
operates,  and  if  the  oil  is  found  in  paying  quantities,  the  said 
assignee  or  his  assignees  agree  to  pay  the  lessee"  one  hundred 
dollars  for  the  leasehold  upon  which  a  paying  well  was  found. 
The  assignee  surrendered  the  leases  to  the  lessors  and  took  new 
ones  containing  the  sar-ie  provisions,  Avhich  he  assigned  to  inno- 
cent parties.  It  was  held  that  the  lessee's  claim  for  payment 
could  be  enforced  only  when  oil  had  been  found  on  the  land  in 
paying  quantities;  and  in  that  case,  by  whomsoever  found,  a 
recovery  could  be  had  against  the  assignee ;  but  the  fact  of  the 
surrender  gave  no  cause  of  action.^*'  When  the  lessor  sues  the 
assignee  on  the  covenants  of  the  lease,  he  has  the  burden  to 

45Comegj^s    V.    Russell,     175    Pa.       2.J3;   21   All.   Rop.  735.     See  Breck- 
St.    166;    34    Atl.    Rep.    657.  enridge    v.     Parrott,     15    Ind.    App. 

46  Smith   V.  Munhall,   139  Pa.   St.       411;  44  X.  E.  Rep.  66. 


ASSIGNMENT   OF   LEASE.  277 

show  an  actual  assignnieiit.  And  where  the  receiver  of  a  lessee 
assigned  the  lease,  but  tlie  assignment  or  transfer  was  never 
approved  by  the  court,  it  was  held  that  the  assignee  was  not 
liable  on  the  covenants  contained  in  the  lease  ;^'  but  if  the 
court  approve  the  sale  made  by  tlie  receiver,  and  the  purchaser 
of  the  lease  enter  on  the  premises,  he  is  liable  under  the  lease, 
though  no  formal  assignment  of  tiie  lease  has  been  made,  for 
the  reason  that  the  court  is  not  required  to  make  a  formal 
assignment,  the  approval  of  the  report  taking  its  place.^'" 

§  207.     Liability  of  assignee  of  a  part  interest  in  lease. 

"Where  the  lessee  assigns  only  a  part  of  the  lease,  as  an 
undivided  fourth  part,  and  he  and  the  assignee  operate  the 
lease  together  as  partners,  the  liability  of  the  assignee  may  be 
broader  than  it  otherwise  would  have  been.^^  Thus,  a  written 
assignment  of  an  undivided  one-half  of  a  lessee's  interest  in  an 
oil  and  gas  lease,  together  with  his  entire  gas  right  therein, 
was  held  to  make  the  assignee  a  joint  owner  of  the  lease,  and 
jointly  liable  thereunder  with  the  original  lessee.^"  The  court 
was  also  of  the  opinion  that  the  assignee  of  a  one-half  or  other 
distinct  interest  in  the  lease  was  jointly  liable  for  the  perform- 
ance of  a  covenant  therein  to  sink  an  oil  well  or  pay  a  monthly 
rental.  The  assignee  of  an  undivided  interest  of  a  partner  in 
the  usual  oil  or  gas  lease  takes  it  subject  to  the  partnership 
debts.'^*' 

§  208.     Liability  of  occupier  under  unassigned  lease. 

If  the  lessee  merely  permit  one  to  occupy  the  leased  prem- 
ises, such  occupier  is  not  liable  to  the  lessor  for  the  rent,  nor 
for  use  and  occupation  of  the  premises ;  but  if  the  occupier  has 
an  agreement  for  an  assignment  of  the  lease,  and  he  call  upon 
the  lessee  to  make  his  agreement  good,  then  the  lessor  may 
look   to  the   occupier  for  the   rents  and  performance   of  the 

4- Heller   v.  Dailey,  28   Ind.   Ajip.  ^n  .Jackson  v.  O'llara,   1S.3  Pa.  St. 

555;  63  X.  E.  Rep.  490.  233;    38   Atl.    Rep.    024;    Burton   v. 

*7a  Robyn  V.  Peckard,  37  Ind.  App.  Forest    Qil    Co.,    204"   Pa.    340;     54 

161;    70  N.   E.   Rep.   642.  All.   200. 

«8  Boydston   v.   Meacham,   28   ]Mo.  s"  (  lianibenlain  v.  Dow,   10  W.  N. 

App.  494.  C.    532. 


278  OIL    AND    GAS. 

covenants  falling  due  during  the  time  he  is  in  possession  of 
the  premises.^'  So,  where  a  landowner  sued  to  recover  rental 
for  a  natural  gas  well,  and  the  contract  of  lease  was  not 
between  him  and  the  defendant,  who  was  operating  a  well 
under  the  lease  from  another  person,  it  was  held  that  a  non- 
suit in  an  action  of  assumpsit  Avas  properly  entered.'^'* 

§  209.     Assignee  not  taking  possession  liable. 

The  assignee  of  an  oil  lease  cannot  escape  liability  on  the 
jjround  that  he  never  took  actual  possession,  nor  commenced 
operations  on  the  leased  premises,  the  lessor  not  being  at  fault. 
This  is  true  according  to  the  greater  number  of  authorities.^^ 
This  is  particularly  true  of  the  ordinary  oil  or  gas  lease.  In 
speaking  of  an  instance  where  possession  had  not  been  taken 
under  an  oil  lease  assigned,  the  court  used  the  following  lan- 
guage:  "Whatever  may  be  the  rule  as  to  an  ordinary  lease, 
where,  until  the  well  is  completed,  there  can  be  no  further 
physical  enjoyment,  as  to  rights  created  by  leases,  such  as  this, 
where,  until  the  well  is  completed,  there  can  be  no  further 
enjoyment  than  the  possession  of  the  right,  which  may  be  exer- 
cised at  will,  the  authorities  bearing  directly  upon  the  proposi- 
tion involved,  authorizes  us  to  declare  that  the  obligations  of 

the  assignees  are  not  postponed  until  the  actual  entry  upon  the 
land.  "^3 

51  Walters  v.  Northern  Coal  Min-  ton  v.  Cronlj^  14  Wend.  63;  Wil- 
ing Ck).,  25  L.  J.  Ch.  (N.  S.)  633;  Hams  v.  Bosanquet,  1  Brod.  and 
5  De  G.  M.  and  G.  629;  26  L.  T.  Birg.  238;  Burton  v.  Barclay,  7 
167;  4  W.  R.  140;  2  Jur.  (N.  S.)   1.  Bing.    745;    Cook    v.   Harris,    1    Ld. 

siaTitley   v.   Craig,  222  Pa.   618;  Raym.  367;    Babcock  v.  Scoviue,  56 

72  All.  Rep.  233.  111.   461;    Board    v.    Boatman's    Ins. 

Obligees    who    permit    lessees    to  Co.,  5  Mo.  App.  91;   Smith  v.  Brin- 

assign  their  contract  to  a  third  per-  ker,    17   Mo.    148;    Willi   v.    Dryden, 

son  without  the  consent  of  guaran-  52  ISIo.  319;  University  of  Vermont 

tors  of  the  lease,  and  who  looked  to  v.  Joslyn,  21  Vt.  52;  Damainville  v. 

such   third   person   for   its   perform-  Mann,  32  X.  Y.  197;  Carter  v.  Ilam- 

ance,    cannot   recover    on    the    guar-  mett,  18  Barb.  G08;   Fennell  v.  Guf- 

anty.    Williamson  v.  Davey,  52  Tex.  fey,    155   Pa.    St.   38;    2G    Atl.   Rep. 

Civ.  App.  353;   114  S.  W.  195.  785;  Heller  v.  Dailey,  28  Ind.  App. 

62  Edmonds   v.    Mounsey,    15    Ind.  555;   63  N.  E.  Rep.  490. 
App.  399 ;  44  N.  E.  Rep.  196 ;  Wal-  b3  Edmonds  v.  Mounsey,  supra. 


ASSIGNMENT.  OF   LEASE.  279 

g210.     Several  successive  assignees. 

If  there  be  several  successive  assignees,  each  will  l)e  liable 
for  the  ]x^rformance  of  the  covenants  or  agreement's  contained 
in  the  lease  which  matured  or  required  ixTformance  while  he 
was  in  possession  or  enjoying  the  estate,  or,  in  otiier  words,  so 
long  as  he  holds  the  lease.°* 

§211.     Lease  not  executed  by  lessee,  but  possession  taken  under 
the  lease,  effect. 

"  It  can  make  no  difference  in  principle  that  tiie  lease  is  not 
executed  bv  the  ]>ers()n  to  whom  tlie  demist^  is  made  —  exce]it 
that  (in  such  a  case)  the  landlord  may  not  be  al)lc  to  mnintain 
an  action  of  covenant;  but  if  tlie  ])erson  to  Avhom  the  demise 
is  made  accepts  the  lease,  either  by  occujning  the  demised 
property  himself  or  by  jwrmitting  othei*s  (as  his  nominees  or 
as  his  cestuls  que  irustent)  to  do  so,  the  non-exe<'ution  of  the 
instrument  of  demise  will  not  prevent  the  lessor  from  recovering 
the  rent  by  distress  or  by  action  of  debt  against  the  lessee.  Of 
course,  where  tlie  demise  is  made  to  a  person  who  neither  ex- 
ecutes the  lease  nor  adopts  it  by  entry  or  otherwise,  he  ( tbe 
lessee)  is  a  mere  stranger  against  whom  the  landlord  can  Inive 
no  rights;  and  if  (in  such  last-mentioned  case)  other  persons 
enter  claiming  to  be  the  nominees  or  the  cestuis  que  trustenl  of 
such  non-executing  and  non-adopting  lessee,  tlie  landlord's  rem- 
edy must  bo  by  distress  or  {scmhle,  by  action  of  trespass),  and 
is  not  either  in  debt  or  on  covenant."  °° 

B4  Bradford   Oil   Co.  v.   Blair,   113  219;   Fisher  v.  GufTey,  19.3  Pa.  393; 

Pa.  St.  83;   4  Ail.  Rep.  218;   Wash-  44  Ail.  452;  .Jackson  v.  O'llara,  183 

ington,  etc.,  Gas  Co.  V.  Johnson,  123  Pa.    233;    38    Atl.    624;     Burton    v. 

Pa.   St.   576;    16   Atl.   Rep.   799;    11  Forest    Oil    Co.,    204    Pa.    2-19;     54 

Morr.  Min.  Rep.  152;  Heller  v.  Dai-  Atl.  266;  Moore  v.  Sawyer,  167  Fed. 

ley,    28    Ind.    App.    5.55;    63    N.    E.  826. 

Rep.    490;    Fennell    v.    Guffey,    139  os  Bainbridge  on  Mines   (5tlied.), 

Pa.    341;    20    Atl.    1048;    Dailey    v.  p.  294. 
Heller,  41  Ind.  App.  379;   81  N.  E. 


280  OIL     AND    GAS. 

^212.     Lessee  released  by  substitution  of  assignee. 

But  a  lessee  may  be  released  by  tlie  act  of  the  lessor  in  ac- 
cepting; and  substituting  tlie  assignee  in  place  of  the  lessee. 
Thus  in  an  Indiana  ease  it  was  said  Ity  the  court:  "  There  has 
l)eon  a  diversity  of  decisidu  Ixith  as  to  the  facts  which  may 
constitute  a  surrender  by  ojx^ration  of  law  and  as  to  the  legal 
pi-inciples  applicable  thereto.  We  will  not  undertake  to  dis- 
cuss the  general  subject,  hut  will  confine  our  observations  to  the 
instance  of  a  substitution  df  tenants  and  to  the  case  where  there 
has  been  an  assignment  by  the  lessee  to  a  third  person.  If  the 
law  will  im]>ly  a  surrender  in  a  given  case,  it  would  seem  to 
be  reasonably  clear  that  the  implication  will  arise  from  the 
acts  of  the  parties,  and  will  not  be  based  upon  proof  of  an  oral 
agreement  between  lessor  and  lessee.  The  one,  whether  lessor 
or  lessee,  against  whom  such  a  surrender  is  asserted  by  the 
other,  must  have  been  a  party  to  some  action  from  which  a 
surrender  may  pro]:terly  be  presumed  by  the  court.  The  sur- 
render should  be  indicated  by  acts.  We  will  not  pause  to  seek 
to  reconcile  the  various  opinions  as  to  the  principle  of  law  on 
which  this  conclusion  of  the  court  should  proceed.  If  the  les- 
see assign  to  a  third  person,  and  the  lessor  accept  rents  from 
the  assignee  in  peaceable  possession,  it  may  be  presumed,  from 
this  act  of  the  lessor  in  accepting  the  rent  due  from  the  lessee 
through  hands  of  another  in  ]X)sscssion,  that  the  lessor  acquiesces 
in  the  assigTiment;  but  such  conduct  does  not  necessarily  indi- 
cate tliat  the  lessor  has  been  a  party  to  the  creation  of  a  new 
tenancy.  Such  facts  may  constitute  evidence  of  an  assigTiment, 
but  not  of  a  surrender,  and  if  a  surrender  may  be  established  by 
the  further  proof  of  a  parol  agreement  between  the  lessor  and 
the  lessee,  to  which  the  assignee  was  not  a  ]>arty,  this  would  be 
basing  the  essential  fact  constituting  the  surrendor  u]K)n  parol 
evidence  of  an  express  contract,  and  not  .deriving  it  by  act  and 
oj'teration  of  law.  In  Frank  v.  Maquire,*'^^  it  is  said :  '  It 
surely  is  not  necessary  to  cite  cases  to  prove  that  a  tenant  is 
bound  by  his  express  contract  to  pay  rent,  even  after  he  has 

•55  42  Pa.  St.  82 


ASSKJNMKNT    OK    l.KASE.  281 

iissigiKHl  the  tonii  with  his  hiiulldrd's  assent,  and  tln>ui:ii  ihe 
landlord  has  acce]>ted  the  assij:;nec  as  his  tenant  and  i-ccciv»d 
rent  from  him.'  In  Creveling  v.  I)e  Hart,  '"'  an  action  hy  a 
lessor  to  recover  from  the  lessee  for  non-j)ayme.nt  of  rent,  a 
pled  was  held  insiitheient  wliieh  stated  that  the  l('ss(^(^  cntcreil 
into  neg:otiations  with  a  third  party  nanicil,  and  notitied  lli<? 
lessor,  who  eneonracfed  the  lessee  to  sell  and  assiijn  the  lease  to 
a  third  party,  and  therefore  the  lessee  dnly  assignied  and  eon- 
veyed  tlie  same  to  such  third  party,  who  entered  npon  the  de- 
mised premises  and  was  dnly  accepted  hy  the  lessor  as  his 
tenant,  and  that  lessor  colleeted  rent  from  the  assifjnee,  and 
recovered  a  jndfrment  for  rent  Avhich  afterwards  fell  due.  Tt 
"was  held  that  to  make  the  nlea  shoAv  snrrender  in  law  it  needed 
an  averment  that  the  ossiofnoo  w!is  snhstitnt(>d  in  ])lace  of  the 
orififinal  lessee  with  tho  intont  on  the  nnrt  of  the  parties  to  the 
demise  to  annul  its  ohlijrations.  Tn  Orommes  v.  Trnst  Co.,*"" 
is  the  followins;  lanfl^na^re:  ''Nor  did  the  sale  of  the  saloon 
by  the  tenant  t^)  Ixnsc,  nor  the  taking  of  possession  by  Ruse, 
nor  the  aceeptance  of  rent  from  the  latter  by  tlie  landlord, 
operate  as  a  discliarire  of  the  c;i'ant.nrs.  The  assignee  of  a  lease- 
hold estate  is  liable  for  rent  accordinii'  to  the  terms  of  the  lease, 
and  the  fact  of  his  liability  after  the  assigimient  does  not  dis- 
charge the  lessee  from  kis  covenant  to  pay  rent,  Tn  case  the 
rent  is  not  paid  by  the  assigTiee  as  it  lx?comes  dne,  an  action 
may  be  sustained  against  the  lessee  therefor;  and  it  nnd^es  no 
difference  in  this  respect  that  the  lessor  may  have  received 
rent  from  the  assignee,  and  accepted  him  as  tenant  of  the  ])rem- 
ises.  Where  there  is  an  express  covenant  to  pay  rent  for  a 
term  of  years,  the  mere  acceptance  of  rent  by  the  less<ir  from 
the  assignee  of  the  lessee  does  not  discharge  tlie  lessee.  The 
contract  of  the  latter  continues  in  force,  not^^^thstanding  he 
may  have  parted  with  his  interest  in  the  estate*,  unless  the  lessor 
enters  into  snch  sti])nlalions  with  tlie  assign(M>  as  to  accept  him 
as  sole  tenapt  and  absolve  the  original  lessee.  If  there  Ik-  not 
a  substitution  of  the  assignee  in  place  of  the  original  lessee,  and 

5"  54  N.  J.  Law  338;  2.3  Atl.  Rip.  *50  147     111.    0.34-048;     3")    N.     K. 

811.  Rep.  823;   37  Am.  St.   Hop.  248. 


282  OIL    AND    GAS. 

a  clear  intent  to  make  a  new  crmtract  with  the  former  and  dis- 
charge the  latter  from  further  liability  under  the  lease,  Ixith 
will  be  held  liable  to  tJie  lessor.  We  do  not  hold  it  necessary  to 
show  an  express  contract  between  tlio  lessor  and  tlie  assignee, 
but  it  seems  to  be  requisite  to  show  that  tlie  landlord,  by  his 
conduct,  as  between  himself  and  the  assignee,  does  not  hold  the 
latter  merely  to  the  obligation  of  an  assigTiee  of  tlie  term  in 
possession,  but  has  assumed  an  attitude  inconsistent  with  the 
continuance  of  the  contract  relation  between  him  and  the  orig- 
inal lessee,  and  has  treated  the  assignee  as  his  oavti  tenant  by 
substitution."  ''''  There  must  be  a  surrender,  either  in  fact  or 
by  operation  of  law,  of  tlie  premises  by  tlie  lessee  and  a  sul)sti- 
tution  (if  his  assignee,  to  release  the  former  from  his  liability 
on  the  covenants  of  the  lease.  That  result  must  be  attained 
before  the  lessee  is  free  from  liability.*^^ 

§213.     Trustee  of  lessee  and  not  his  cestuis  que  trustent  liable. 

"  In  Walter  v.  Xorthem  Coal  Mining  Co.,''^  where  certain 
(coal)  mines  had  been  leased  to  a  trustee  for  the  defendant 
company  at  a  fixed  or  certain  rent,  and  at  a  tonnage  (or  ten 
tale)  rent  l>eyond ;  and  the  term  was  for  forty  years,  determin- 
able by  the  lessee  at  the  end  of  every  third  year  by  giving  one 
year's  previous  notice;  and  the  defendant  company  entered  into 
possession  and  worked  the  mines  under  tlie  lease  for  a  little 
over  a  year,  and  then  abandoned  the  mines  as  unprofitable  — 
never  having  paid  any  rent,  or  given  any  notice  to  determine 
the  term  ;  and  alx)ut  nine  years  afterwards  the  company  went 
into  liquidation,  and  the  liquidator  gave  the  notice  to  determine 
the  term,  protesting  also  that  tlie  lease  was  not  a  good  lease; 

57  Heller  v.   Dailey,   28   Ind.   Ajip.  W.   85;   Lynch  v.  Lynch,  6  Irish  L. 

555;   6.3  N.   E.  Rep.  490.  Rep.    131;    Lewis   v.    Brooks,   8  Up. 

On    the   question    of    substitution,  Can.   Q.  B.    570. 

see    Way    v.    Reed,    6    Allen    304;  *''■?  Donahoe  v.   Rich,  2  Ind.  App. 

Hoerdt  v.  Hahne,  91  111.  App.  514;  540;  28  N.  E.  Rep.  1001. 

Detroit  Pharmacal  Co.  v.  Burt,   124  ss  25  L.  J.  Ch.  633 ;   5  De  G.  M. 

Mich.    220;    82    N.    W.    Rep.    893;  and  G.  629;  26  L.  T.  167;  4  W.  R. 

Leverinjr   v.    Langley.    8    Minn.    107  140;    2   Jur.    (N.   S.)     1. 
(Gil.  82)  ;   Lyon  v.  Reed,   13  M.  & 


ASSIGNMENT   OF   LEASE. 


283 


aiid  tJie  plaintiff  (die  lessor)  tliercupon  tronnncnccd  Uiis  iict.iou 
to  recover  from  tlie  compiny  tlie  alleged  arrears  of  rent,  alleg- 
ing tliat  it  was  a  debt  in  equity  of  tlie  conijwny  —  the  court 
said,  tliat  the  lessor  sliduld  have  sued  the  trustcv-lessee,  and  not 
the  company  (the  cestui  que  triuit),  tlie  relation  being  a  purcly 
legal  relation."  *'* 

§214.     Cestuis  que  tnistent  may  be  liable. 

"  If , there  should  be  an  express  contract  between  the  crs(ui.<t 
que  trustent  and  the  landlord,  that  he  (the  landlord)  should 
grant,  and  that  they  (the  cestuis  que  trustent)  or  tlieir  trustees 
should  accept,  the  lease,  the  landlord  would  in  that  case  be  en- 
titled to  a  s])ecific  perfonnance  of  the  contract,  and  tlie  cestuis 
que  trustent  would  be  compelled  to  fulfil  their  contract,  and 
(either  by  themselves  or  by  their  trustees)  to  execute  a  counter- 
part of  the  lease,  the  landlord  having  first  executed  the  lease  — 
and  after  such  lease  and  countcr])art  had  Iveen  executed,  the 
legal  relations  above  enumerated  would  apply  as  l)etween  tlie 
landlord  and  his  lessee  (and  the  assignee  of  the  lessee)  — but 
otherwise  the  cestuis  que  trustent  would  remain  exempt  as  \yo- 
fore,  the  lessee  only  (or  his  assignee)  being  and  remaining 
liable  to  the  landlord."  ''' 

§215.     Liability  of  assignee  to  liis  ascignor. 

Between  the  assignee  and  his  assignor  there  is  such  a  privity 
of  contract  as  renders  the  latter  liable  tx)  the  fonncr,  without 
an  express  contract  to  that  effect.,  for  a  failure  to  carry  out  tJie 
covenants  or  agreements  of  the  lease.  If  the  lessee  (the  as- 
signor) has  to  pay  the  rent  falling  due  after  the  assignment,  he 
may  recover  from  the  assignee  the  amount  ])aid  ;  and  so  if  the 
lessee  has  to  carr}'  out  any  of  the  covenants,  jwrforniancc  of 
which  was  to  be  made,  by  the  terms  of  the  lease,  after  the  time 
of  the  assignment,   the   assignee  will  be  liable  to  liim   for  his 

•58  Bainbridge      on     Mines      (5th  ft"  I?ainl)ri(l;.'o  on  Mines   (r)tli  imI.), 

ed.),   p.   294.  p.   294. 


284 


on.    AND    GAS. 


failure  to  pcrfonn  sudi  covenants.*'"  So  the  first  assignee  is 
liable  for  tlie  rent^  accruinii-,  or  the  covenants  to  l>e  e<irried  out, 
after  he  has  assigned  tlie  lease;  and  if  he  has  been  coni])elled 
to  pay  or  earry  out  he  may  recover  the  amount  paid  from  his 
assignee;  so  the  assignor  (tlie  lessee)  may  sue  such  remote  as- 
siiniee  for  default  mad(^  dnrinu'  llic  time  he  holds  the  lease. "^ 
There  is  an  implied  promise  on  the  jnirt  of  each  successive  as- 
signee of  a  lease  to  indemnify  the  lessee  against  any  hreach  of 
a  covenant  in  a  lease  committed  by  the  assignee  during  the 
continnanco  of  his  (the  assignee's)  estate  —  which  implied 
promise  is  additional  to  (and  not  excluded  by)  the  express 
covenant  of  indemnity  which  eacli  assignee  enters  into  with  his 
o^vn  assignor."'  The  contract,  however,  between  the  lessee  (the 
assignor)  and  tliQ  assignee  may  be  such  as  to  modify  or  relieve 
the  latter  from  liability  to  the  former,  though  it  cannot  relieve 
sucli  assignee  from  liability  to  the  lessor  for  rents  or  royalties, 
or  the  like,  accruing  during  the  time  he  holds  the  lease.*'^  But 
where  a  second  assignee  of  tbe  lease  was  to  pay  a  cash  sum  as 
the  consideration  for  the  assignment,  and  an  additional  sum  to 
be  paid  if  oil  be  found  on  the  premises,  it  was  held  that  the 
lessor  could  not  recover  such  additional  sum,  after  oil  was 
found  by  him ;  for  tbe  reason  that  it  was  merely  a  bonus  to  bo 
paid  to  the  first  assignee  and  not  a  covenant  to  run  with  the 
land.**  By  no  arrangement  between  the  lessee  and  the  assignee 
can  they  lessen  the  liability  of  the  latter  to  the  lessor,  or  render 
the  assignor's  rights  less  valuable.  Thus,  where  a  first  lessee 
sublet  a  portion  of  his  lease,  and  the  sublessee  agreed  to  drill 
two  wells  and  pay  the  first  lessee  one-fourth  of  the  product 
from  them;  and  after  completing  one  well,  the  sublessee  pro- 
cured a  lease  direct  from  the  ovmer,  which  did  not  require 

eo  Burnett  v.  Lynch.  5  B.  and  C.  Bri<jht.    18G    Pa.    St.    181;    40    Atl. 

589;   8  D.  and  R.  368;   4  L.  J.    (O.  Rep.   414. 

S.)    K.    B.    274;    Humble   v.    Langs-  «2  Moule  v.  Oarrett.  L.  R.  .5  Exoh. 

ton.  7   M.   and   W.   ol7:    Steward  v.  132;    39   L.   J.    Exch.    69;    22   L.   T. 

Wolveridge.    9    Bing.    60;    Heller   v.  343;  18  W.  R.  697. 

Dailey.  28  Ind.  App.  555;  63  N.  E.  "S  Usher   v.    ChifTey.    193    Pa.    St. 

^ep.  490.  393 ;  44  Atl.  Rep.  459. 

fii  Brinkley  v.  Hambleton.  67  Md.  64  Fi.sher  v.  Guflfey,  supra. 
169;    8    Atl.    Rop.    904;    Knupp    v. 


ASSIGNMENT    Ol'    I.KASIC. 


284j 


two  wells  to  bo  <lug",  nor  the  i);iviiieiit  uf  ruyultics  if  tlu-j  woro 
dug,  it  was  held  that  tliis  seeond  lease  was  a  fraud  ujxni  tlie 
first  lessee.*"' 

§216.     Assignor  liable  on  account  of  lease  as  a  surety. 


The  assignment  of  tlie  lease  does  not  release  tlie  assignor  from 
tlie  fullillnient  of  the  covenants  or  engagements  contained  in 
it;  and  while  the  assignee  continues  to  enjoy  it,  such  assignor 
is  in  the  position  towards  him  of  a  surety,  and  such  assignee  is 
regarded  in  fact  as  the  principal  debtor.""  Even  tliough  the 
lessor  accept  the  assignee  as  a  tenant  that  will  not  ivlease  tlie 
lessee  from  his  covenant  to  pay  rent  or  royalties;  but  his  lia- 
bility continues  by  i)rivity  of  contract  until  the  lease  shall 
terminate.''^  The  wllection  of  rent  from  the  assignee  or  sub- 
tenant will  not  amount  to  a  surrender."^     Xor  can  tlie  assignee 


65  Akin  V.  Marshall  Oil  Co.,  188 
Pa.  St.  602:  41  Atl.  Rep.  748; 
Was^lington  Xat.  Gas  Co.  v.  John- 
son, 123  Ta.  57G;  IG  Atl.  799;  Wood- 
lawn  Oil  Co.  V.  Crawford,  55  Ohio 
St.  161;  44  N.  E.  1093;  Burton  v. 
Forest  Oil  Co.,  204  Pa.  349;  54 
Atl.  206;  Breckenridpe  v.  Parrott, 
15   Ind.   App.   417;'   44   N.   E.   66. 

Contract  giving  D.  exclusive  right 
to  drill  in  defendant's  land  with  a 
view  of  finding  commercial  sub- 
stances, and  in  case  of  success  with- 
in ninety  davs  thereafter  to  pay 
defendant  $100  per  arjient  for  a  con- 
veyance of  the  land,  does  not  impose 
a  personal  obligation  on  D.  within 
Laurence  Civil  Code,  art.  2000,  de- 
claring an  obligation  personal  when 
the  obligor  undertakes  to  perform 
anything  that  requires  his  personal 
skill  and  attention ;  and  hence  the 
contract  was  assignable.  Ansa  La 
Butte  (T>e  Danois)  Oil  &  Mineral 
Co.  V.  Babb,  122  La.  415;  47  So. 
754. 

CO  Burnett  v.  Lynch.  5  B.  and  C. 
589;  8  D.  and  R."  368;  4  L.  J.  (0. 
S.)  K.  R.  274;  Humble  v.  Langston, 
7  M.  and  W.  517;  Washington,  etc., 


Gas  Co.  V.  Johnson,  123  Pa.  St.  576; 
16  Atl.  Rep.  799;  IG  Morr.  Min. 
Rep.  165;  Ileller  v.  Dailcy,  28  Ind. 
App.  555;  63  N.  E.  Rep.  490;  Con- 
solidated Coal  Co.  v.  Peers,  150  111. 
344;  37  N.  E.  Rep.  937;  Sanders 
v.  Sharp,  153  Pa.  St.  555;  25  Atl. 
Rep.  524. 

oTBonetti  v.  Treat.  01  Cal.  223; 
27  Pac.  Rep.  6l2;  Creveling  v.  De- 
Hart,  54  X.  J.  L.  338;  23  Atl.  Rep. 
611;  Fisher  v.  Milliken,  8  Pa.  St. 
Ill;  Grommes  v.  St.  Paul  Trust 
Co.,  147  111.  634;  35  N.  E.  Rep. 
823;  37  Am.  St.  Rep.  248;  Frank  v. 
Maquire,  42  Pa.  St.  77;  Heller  v. 
Dailey,  28  Ind.  App.  555;  63  X.  E. 
Rep.  490;  Harris  v.  Heachman,  62 
la.  411  ;  17  N.  W.  Rep.  592;  Shaw  v. 
Patridge,  17  Vt.  626;  Way  v.  Reed, 
6  Allen  364;  Hoerdt  v.  Hahne.  91 
111.  App.  514;  Detroit  Pharmacal 
Co.  V.  Burt,  124  :^Iich.  220;  82  X. 
W.  Rep.  893;  Charlees  v.  Froehel, 
47  Mo.  App.  45;  Lewis  v.  Brooks, 
8  Up.  Can.  Q.  B.  576;  I>>vering  v. 
Langley,   8   Minn.    107. 

88  Jones  V.  Barnes,  45  Mo.  App. 
590. 


284b  OIL   .VND    GAS. 

relieve  liiitisdf  from  lialMlit.v  for  a  vcar's  rout  liv  siirrcndorin" 
the  lease  before  tJie  end  of  tJie  year,  for  which  the  rent  is  to 
be  paid, 'because  of  tJie  failure  to  complete  an  oil  or  gas  well, 
in  the  absence  of  any  agreement  to  release  or  acquit  the  pay- 
ment"" 

§217.     Sublease  —  liability  of  sublessee. 

A  sublease  is  always  less  than  the  lease  of  the  sublessor;  it 
is  only  a  part  of  tiic  lease.  Or,  in  other  words,  if  the  lessee 
parts  with  all  his  estate  except  such  as  he  reserves,  however 
small  the  reservation  may  be,  this  amounts  to  a  sublease;  while 
if  he  part  with  tlie  whole  leasehold  estate,  it  "vvill  be  an  assign- 
ment. Some  interest  in  the  part  of  the  premises  sublet  must 
remain  in  the  lessee ;  henoe  if  he  assign  a  distinct  portion  of  the 
premises  —  as  one-half,  by  metes  and  bounds  —  it  is  an  assign- 
ment and  not  a  subletting.^"  If,  however,  as  an  illustration,  a 
lease  be  for  ten  years,  and  tlie  lessee  should  demise  a  distinct 
part  or  the  whole  of  it  for  six  years,  that  would  be  a  subletting 
and  not  an  assignment.^^  Unlike  the  assignee  of  a  lease,  there 
is  no  privity  of  estate  l)etween  the  original  lessor  and  a  sub- 
lessee, and  the  latter  is  not  liable  to  the  former  for  any  part  of 
the  rent  due  him  nor  for  the  performance  of  the  covenants  in 
the  original  lease.^^  But  tlie  terms  of  the  original  lease  must 
be  carried  out,  either  by  tlie  lessee  or  the  sublessee,  or  the  orig- 
inal lessor  will  have  a  right  to  terminate  tlie  lease,  or  have 
right  of  action  for  damages,  as  tlie  case  may  be.^^     Of  course,  if 

C9  Breckenridge  V.  Parrott,  15  Tnd.  Topalmor  v.  Edwards,  Doug.   187, 

App.  411;   44  N.  E.  Rep.  66.  note:    Sands    v.    Plughes,    53    IST.    Y. 

A   lessee   of   a   gas   lease    was   to  287;    Bedford  v.  Terhiine,   30  N.  Y. 

pay  a  certain  royalty.     He  assigned  457;    Boardman  v.  Wilson,  L.   R.  4 

an  undivided  one-half  interest  tliere-  C.  B.  57. 

in  to  a  corporation,  to  hold  subject  ^i  Post  v.  Kearney,  2  X.  Y.  304; 

to    the     royalty    contained     in    the  Pingrey    v.    Watkins,    15    Vt.    479; 

lefase,    and    thereafter    assigned    the  Collins  v.  Hasbrouck,  56  N.  Y.  157; 

other   one-half   interest  to  a  second  15  Am.  Rep.  407. 

company.     The  first  corporation  op-  72  Hal  ford   v.   Hatch,   Dougl.   187; 

erated  the  land  under  an  agreement  Dartmouth   College  v.   Clougli,  8  N. 

to    account   to   the   second    company  H.  22;  McFarlan  v.  Watson,  3  N.  Y. 

for  one-half  of  the  proceeds,  the  lat-  286;    Gibson    v.    IMullican,    58    Tex. 

ter  company  to  pay  one-half  of  the  430;   Jennings  v.  Alexander,  1   Hilt, 

expenses.     It  was  held  that  the  first  (N.   Y.)     154;    Fulton  v.    Stuart,    2 

contpany   was   liable   for   the   entire  Ohio  215. 

royalty.     Burton   v.   Forest   Oil   Co.  73  Elms   v.    Randall,   4   Dana   519. 
(Pa.),  54  Atl.   Rep.   266. 


ASSIGNMENT   OP   LEASE.  284c 

a  sublessee  is  accepted  ]>v  tlie  orij!;iii:il  let^s()r  jis  his  tx>iiant,  lie 
then  l)oc<iiiies  liable  U>  him  the  same  as  if  he  had  his  lease  di- 
rectly from  such  lessor.'^  If  the  original  lease  contain  a  pro- 
hibition against  subleasing,  it  will  not  prevent  an  assignment ; 
and  so,  vice  vcrsa.''^  If  a  subletting  l>e  pn>hibited  bv  tlie  orig- 
inal lease,  a  violation  of  it  in  this  respect  will  give  the  original 
lessor  a  right  to  have  such  original  lease  canceled ;  ""^  which, 
of  course,  would  carry  down  with  it  the  sublease.  But  the  lease 
is  not  avoided  merely  because  there  has  been  an  assignment  or 
subletting  contrary  to  its  provisions ;  it  is  merely  voidable,  at 
the  option  of  the  original  lessor."  Tf  the  lessor  accepts  rent 
of  the  assignee  or  sublessee,  after  the  assignment  or  suhlettiug, 
with  knowledge  of  such  assignment  or  subletting,  he  will  waive 
tlie  right  to  re-enter  and  declare  the  original  lease  avoided.^* 
A  sale  by  the  lessees  of  an  oil  or  gas  well,  of  all  tlie  oil  or  gas 
pumped  or  flowing  from  it,  to  a.  company  taking  charge  of  it 
and  conducting  the  oil  or  gas  off  the  premises,  is  not  an  assign- 
ment but  a  subletting.^®  In  such  an  instance,  equity  has  power 
to  entertain  a  bill  for  discovery  to  ascertain  the  rights  and  rela- 
tions of  the  parties  to  the  lease  and  sublease,  and  to  compel  an 
accounting  for  the  profits  from  the  sale  of  oil  and  gas.^°  Under 
a  right  to  sublet  and  subdivide,  a  lessee  may  release  a  part  of 
the  premises  set  off  in  partition  to  one  of  several  tenants  in  com- 
mon, and  retain  the  lease  in  oi:)eration  upon  the  remainder  of 
the  land.'' 


7*StimmeI    v.    Walters,    2    Rush.  Boll.  fi4  Ta.  12.5;  10  X.  W.  Rep.  870; 

282.  Siiattuck  v.  Tx)vejoy,  8  Cray  204. 

7''' Grecnway  v.  Adams,  12  Ves.  Jr.  7s  O'Keefe    v.    Kennedy,    .3    Cusb. 

305;    Bockover  v.  PosjL,  25  N.   J.  L.  325;    Heeter    v.    Eckstein.    50    How. 

285;  Lynde  v.  Hough,  2J  Barb.  415;  Pr.  445;   Murray  v.  ITarway,  5G  N. 

Hargrave  v.   King,  5  Ired.  Eq.  430.  Y.  337. 

70  Stimmel  V.  Waters,  2f  Bush.  282.  -"  Akin   v.   :Marshall    Oil   Co.,    188 

77  Collier  v.   Cunningham.    2   Ind.  Ba.    St.   G02;    41    Atl.   Rep.  748. 

App.  254;  28  N.  E.  Rep.  341;  Jack-  s^  Ibid. 

son  V.   Groat,   7   Cow.   285;    Cooney  "'  Blair  v.  Xorthwestern.  etc.,  Co., 

V.  Hayes,  40  Vt.  478;  Burnes  v.  Mc-  12  Ohio  Cir.  Ct.  Rep.  78;  5  Ohio  C. 

Cobbin,    3    Kan.    221;    EJdredge    v.  D.  C.  620. 


284d  OIL  AND   GAS. 

§  217a.     Ejectment. 

The  assignee  of  an  oil  lease,  with  the  right  to  enter  on  the 
premises  described  in  the  lease,  to  mine  for  oil  and  gas,  cannot 
maintain  ejectment  against  the  lessee  in  a  subsequent  lease.®^ 

§217b.     Lessee  denying  landlord's  title. 

A  lessee,  in  an  action  to  recover  rents,  will  not  be  permitted 
to  deny  his  landlord's  title  so  long  as  he  occupies  the  premises. 
Thus,  where  oil  land  was  sold  for  taxes,  and  before  the  expira- 
tion of  the  period  for  redemption  the  owner  executed  an  oil 
lease,  and  thereafter  another  person  purchased  and  took  title 
to  the  land  by  deeds  from  the  purchasers  at  the  tax  sale, 
which  deeds  were  made  subject  to  the  oil  lease,  and  such 
person  then  took  an  assignment  of  the  oil  lease,  it  was  held 
that  he  could  not  set  up  the  title  to  the  land  which  he  had 
obtained  by  the  deeds  against  the  lessor  in  an  action  to  recover 
royalties  under  the  lease.*^ 

§  217c.     Liability  of  a  trustee  assigning  a  lease. 

Generally,  an  ordinary  trustee,  though  describing  himself  as 
such  and  signing  as  trustee,  will  be  bound  personally,  unless 
he  limits  the  contract  to  exclude  himself  personally.  But  that 
is  not  so  with  trustees  appointed  on  dissolution  of  a  corpora- 
tion, who  are  only  the  arm  of  a  court  in  the  exercise  of  a 
power  in  which  they  have  no  personal  interest,  and  in  such 
cases,  to  l)ind  them  personally,  the  contract  must  be  so  ex- 
pressed. Thus,  where  trustees  in  proceedings  to  dissolve  an 
oil  company,  covenanted  that  they  had  good  and  lawful  au- 
thority to  assign  a  lease,  it  was  held,  assuming  the  words  of 
the  covenant  meant  the  same  as  the  technical  words  "good 
right  to  convey,"  that  the  trustees,  in  view  of  their  official 
character,  were  not  personally  liable  on  the  covenant,  the 
covenant  being  only  an  assurance  of  their  official  character, 
and  of  their  due  appointment  and  authority.  It  was  also  held 
that  the  corporation  was  not  liable  under  the  assignment.^* 

82  Gillespie   v.    Fulton    Oil   &   Gas  ss  MacDonald    v.    O'Xeil,    21    Pa. 

Co.,    236    III.    188;    86    N.    E.    Rep.       Super.   Ct.   Rep.   364. 
219.  8-«  Shannon  v.  Mastin  (Mo.  App.), 

114  S.  W.  Rep.  1127. 


CHAPTER  VII. 

RENTS  AND  ROYALTIES. 

§218.  Limitations  of  chaptiT. 

§219.  Construction  of  leases. 

§220.  Various  methods  of  fixing  rents  or  royalties. 

§221.  A  royalty  is  rent. — "  Mining  rent." 

§222.  Definition  of  rent  and  rent  charges. 

§223.  Payment  so  much  per  well. 

§224.  Royalty,  percentage  of  profits  or  income. 

§225.  Payment  of  operating  expenses  first. —  Free  gas. 

§226.  Free  gas. 

§227.  Royaltj'  in  gas  or  oil  used  to  oj)erate  leased  premises. 

§228.  When  roj'alty  due. —  Removal   of  oil   from  premises. 

§229.  When  rent  is  due  for  failure  to  develop  land. 

§230.  To  whom  paj'ablc. — Joiiil  lessors. 

§230a.  Payment  of  rent  to   procure  right  to  mine. — Tender. 

§231.  Damages  for  failure  to  deliver  lessor  his  share. 

§232.  Interest  on  royalties. 

§233.  Waiver. —  Parol  evidence. 

§234.  Surrender. —  Tract  "retained." 

§235.  Interdependent   conditions. 

§236.  New   lease. 

§237.  Termination  of  lease  by   failure  to  keep   its  terms. 

§238.  Lessee    cannot   avoid    payment   by   taking   advantage    of   forfeiture 

clause. 

§230.  Forfeiture  clauses  and   lialnlity   for   rent. 

§240.  Surrender  of  lease  necessary  to  escape  liability  for  rent. 

§241.  Eviction. 

§242.  Rent  to  be  paid  if  well  not  drilled. 

§243.  Minimum  production  allowed. 

§244.  Consideration  for  lease  may  be  purchase  money. 

§245.  Consideration  for  grant  part  of  minerals,  creates  an  exception. 

§246.  One  well  draining  two  tracts  of  land. 

§247.  Oral  change  of  lease  discharging  or  changing  rents. 

§248.  Failure  of  oil,  royalty  ceases. 

§240.  Rent  for  exhausted  well. —  Flooded   well. 

§250.  Instances  of  lessee's  liability. 

§251.  Account  rendered. 

§252.  How  collected. 

§253.  Lien  of  royalty  accruing  during  receivership. 

§254.  Assignment  of  lease  does  not  carry  oil  in  f:tnk  on  premises. 

285 


286  OIL   AND    GAS. 

^218.     Limitations  of  chapter. 

The  discussion  of  the  subject  of  Rents  and  Royalties  in  this 
chapter  must  necessarily  be  limited,  in  order  to  avoid  repeti- 
tions. The  questions  involved  here  are  so  intimately  Iwund  up 
with  the  subjects  discussed  in  other  chapters,  that  it  is  impos- 
sible to  discuss  all  die  cases  without  unnecessarily  increasing 
the  size  of  this  volume.  Under  the  chapters  on  "  Duration  of 
Leases,"  "  Mortgagor  and  jNIortgagee,"  "  Life  Tenants,"  "  For- 
feitures," "  Assignments,"  will  bo  found  many  cases  on  the 
subject  of  Rents  and  Royalties,  that  are  pertinent  to  the  sev- 
eral subjects  of  those  chapters. 

§219.     Construction  of  leases. 

In  discussing  the  right  of  a  lessor  to  rent  or  royalties,  it  must 
be  borne  in  mind  that  oil  and  gas  leases  are  usually  construed 
favorably,  in  this  respect,  to  the  lessor,  if  there  he  a  doubt  con- 
cerning the  right  to  rent  or  royalty,  and  its  amount.  The  gen- 
eral rule  is  undoubtedly  that  a  deed  is  construed  most  strongly 
against  the  grantor  and  in  favor  of  the  grantee.  But  such  is 
viot  the  case  in  an  instance  of  an  oil  or  gas  lease ;  and  the  reason 
for  this  arises  out  of  the  well  known  transactions  of  oil  and 
gas  operators.  These  contracts  are  looked  upon  somewhat  in 
the  same  light  as  contracts  of  insurance.  By  long  experience 
insurance  companies  have  been  enabled  to  draw  a  policy  which 
is  often  difficult  to  determine  just  what  their  liability  may  be. 
They  have  their  attorneys  who  have  spent  years  in  studying 
contracts  of  insurance  and  the  decisions  of  the  courts,  until 
they  have  become  thoroughly  versed  in  all  phases  of  such  con- 
tracts. On  the  other  hand,  the  insured  is  usually  without  ad- 
vice when  entering  into  a  contract  of  insurance,  and  he  is  almost 
universally  ignorant  of  the  rules  of  law  applicable  to  such  obli- 
gations. To  such  an  extent  is  this  true  that  the  courts  have 
adopted  a  construction,  in  cases  of  doubt  or  obscurity,  favorable 
to  the  insured.  What  is  true  of  insurance  contracts,  may  be 
said  to  be  true  of  oil  or  gas  leases  (if  not  of  mining  leases). 
The  lessor  usually  knows  nothing  of  the  law  applicable  to  such 


RENTS    AND    KOYALTIES.  287 

instruments;  wliile  the  operator  is  usually  well  informed. 
Years  of  experience  have  shown  the  operator  how  to  draw  a 
lease  giving  him  many  advantages,  of  which  the  lessor  has  not 
even  thought.  For  this  reason  the  courts  have  adopted  a  rule 
to  the  effect  to  construe  an  oil  or  gas  lease  most  favoral)ly  to 
the  lessor,  where  its  terms  can  be  so  construed  without  doing 
violence  to  the  language  used.^  If  the  lessor  and  lessee  have 
put  a  construction  upon  the  lease,  as  evidenced  by  their  acts, 
the  courts  will  adopt  that  construction.'"  Contemporaneous 
acts  of  the  parties  may  be  examined  to  discover  the  construc- 
tion they  have  placed  on  the  lease.'''  And  the  construction 
put  on  the  lease  by  the  lessor  and  his  successor  in  title  cannot 
be  changed  by  a  subsequent  purchaser,  if  the  statute  of  limita- 
tions has  fully  run.'*"  The  language  of  the  lease  or  oil  contract 
will  also  be  given  its  ordinary  and  commonly  understood  mean- 
ing where  no  reason  appears  for  doing  otherwise ;  "'  and  it 
will  not  be  held  void  for  ambiguity  when  the  contract  of  the 
parties  can  be  ascertained  from  the  language  used  in  it.'^ 

§  220.     Various  methods  of  fixing  rents  or  royalties. 

There  are  various  methods  in  vogue  in  fixing  the  rents  or 
royalties  that  shall  be  paid  for  a  mining  or  oil  lease.  Thus,  the 
rent  may  be  (1)  a  fixed  sum;  or  an  (2)  annual  or  other  period- 
ical sum;  or  (3)  a  royalty  on  the  amount  of  the  minerals  or 

iSteelsmith    v.    Gartlan.    45    W.  Ind.  App.  614;   80  X.  E.   Rep.  495; 

Va.  27;   29  JST.  E.  Rep.  978;   44  L.  Smith  v.   South   Penn.    Oil   Co.,   59 

R.    A.    107;    Huggins    v.    Daley,    99  W.    Va.    204;    53    S.    B.    Rop.    1.52; 

Fed.    Rep.    606;    48    L.    R.   A.    320;  Stahl    v.    Illinois    Oil    Co.,    45    Ind. 

Dill  V.  Fraze,  169  Ind.  53;  79  N.  E.  App.  211;    90  N.  E.   Rep.  032. 

Rep.  971;   Ringle  v.  Quigg,  74  Kan.  ibRaniage  v.  Wilson,  37  Ind.  .\i'p. 

581;   87  Pac.  Rep.   724;   Logansport  532;   77  N.  E.  Rep.  308. 

&   W.   V.  Gas   Co.   V.  Null,  30   Ind.  ic  Gillespie  v.  Iseman,  210  r:i.   1; 

App.  503;  76  N.  E.  Rep.  125;  Ram-  59  Atl.   Rep.  200;    Indiana  Xatur.l 

age   V.    Wilson,   37    Ind.   App.    532;  Gas  &  Oil  Co.  v.  Leer,  34  Ind.  A -p. 

77  X.  E.  Rep.  308;   Smity  v.  South  61;   72  N.  E.  Rep.  283. 

Penn.   Oil   Co.,   42   W.   Va.   014;    53  m  Collier  v.  Munger,  75  Kan.  550; 

S.    E.    Rep.    152;    Stahl    v.    Illinois  89   Pac.   Rep.    1011. 

Oil  Co.,  45  Ind.  App.  211;  90  X.  E.  le  Ringle   v.  Quigg,   74   Kan.   581; 

Rep.   032;    Conkling   v.    Krundusky,  87    Pac.    Rep.    724;    Swift    v.    Occi- 

127  X.  Y.  App.  701;  112  X.  Y.  Supp.  dental   M.  &   P.   Co.,    141    Cal.    101; 

13.  74  Pac.  Rep.  700. 

la  Scott  V.  Lafayette  Gas  Co.,  42 


288  OIL    AND    GAS. 

oil  mined  or  produced,  payable  at  iixed  intervals  or  times;  or 
(4)  a  royalty,  not,  however,  less  in  the  aggregate  than  a  speci- 
fied sum  each  year;  or  (5)  a  royalty  accompanied  by  a  covenant 
to  mine  a  certain  minimum  amount  or  pay  a  certain  sum 
thereon;  or  (6)  in  case  of  a  gas  lease,  to  bore  so  many  wells 
and  pay  so  much  a  well,  or  forfeit  a  certain  sum  per  well  for 
a  failure  to  bore  the  required  number;  or  (7)  in  case  of  an 
oil  lease,  to  pay  a  certain  percentage  of  the  oil  taken  out  of 
the  premises.  It  is  believed  that  these  divisions  practically 
cover  all  methods  used  in  fixing  the  amount  the  lessee  shall 
pay  the  lessor,  aside  from  the  covenants  to  erect  improvements 
on  the  leased  lands,  or  make  repairs,  or  develop  the  premises 
leased. 

§221.     A  royalty  is  rent. — "Mining  rent." 

Royalty  is  another  term  for  rent,  but  is  limited  (except  such 
as  given  an  author  for  the  privilege  of  publishing  his  book,  or 
a  patentee  for  the  use  of  a  patent)  to  rents  due  for  the  right  or 
privilege  of  taking  minerals,  oil  or  gas  out  of  a  designated 
tract  of  land.  In  the  discussion  hereafter,  a  distinction  will 
be  drawn  between  "rent"  as  such  and  "purchase  money" 
under  an  instrument  selling  mineral  and  oil  beneath  the  sur- 
face of  a  specified  tract ;  and  in  such  an  instance  whatever 
would  not  be  a  "rent"  cannot  be  a  "royalty,"  but  must  be 
"purchase  money."  In  practice  the  term  "mining  rent"  is 
used  to  designate  the  consideration  given  for  a  mining  lease, 
whether  such  lease  creates  a  tenancy,  conveys  a  fee,  or  grants 
an  incorporeal  right  or  a  mere  license.  Its  true  significance 
must  be  read  or  determined  in  connection  with  the  rights 
granted.-  So  care  must  be  taken  to  distinguish  between  rent 
and  royalty  in  connection  with  gas  and  oil  leases.  Rent  is 
the  term  applied  to  the  privilege  given  to  bore  for  gas  and 
oil  and  for  delay  in  beginning  operations ;  while  royalty  is  a 
certain  percentage  of  the  oil  after  it  is  found,  or  so  much  per 
gas  well  developed.     Even  in  the  latter  instance  the  amount 

2  Where  royaltj'  on  coal  was  con-  C.  490;   Hope's  Appeal,  .3  Atl.   Rep. 

sidered   part   of   the   corpus   of   the  23;   2  Cent.  Rep.  43;   33  Pittsb.  L. 

estate  and  not  a  profit  issuing  out  J.    (N.    S.)    270. 
of  it,   see  Duff's  Appeal,  21  W.  N. 


RENTS    AND    ROYALTIES.  289 

to  be  paid  maj^  be  regulated  by  tlie  amount  of  the  pressure  of 
the  gas.-" 

§  222.     Definition  of  rent  and  rent  charges. 

Rent  has  been  defined  as  "a  certain  profit  issuing  yearly  out 
of  lands,"  as  "return  to  the  landlord  for  their  annual  use."^ 
Again:  "Rent  is  a  sum  stipulated  to  be  paid  for  the  actual 
use  and  enjoj^ment  of  another's  land,  and  is  supposed  to  come 
out  of  the  profits  of  the  estate."  *  A  more  extensive  definition 
is  as  follows:  "Rent,  or  render,  reditus,  signifies  a  compensa- 
tion, or  return,  it  being  in  the  nature  of  an  acknowledgment 
or  recompense  given  for  the  possession  of  some  corporeal  in- 
heritance. It  must  be  a  certain  profit  issuing  out  of  lands  and 
tenements  corporal ;  that  is,  from  some  inheritance  whereunto 
the  owner  or  grantee  of  rent  might  (anciently)  have  recourse 
to  restrain. ""^  A  rent  charge  has  been  defined  as  "a  rent 
granted  out  of  lands  by  him  who  is  the  owner  thereof,  with  an 
express  clause  of  distress"  and  the  reason  assigned  for  this 
definition  is  because  the  lands  were  charged  with  the  distress, 
and  the  grantee,  without  the  clause,  had  no  right  of  distress, 
because  there  was  no  fealty  annexed  to  the  grant. " "  In  an- 
other case  it  is  said  that  a  "rent  charge  is  a  rent  reserved  where 
the  landlord  has  no  reversionary  interest.  He  would  have,"  it 
was  said,  "for  such  rent,  no  right  to  distrain,  unless  the  power 
be  contained  in  the  lease."  ^  And  a  rent  charge  has  been  distin- 

2a  Headley  v.  Hoopengarner,  GO  W.  smith  v.  Gartlan,  45  W.  Va.  27 ;  29 

Va.   26;    55*  S.   E.    Rep.    744.     Cove-  S.   E.  978;    44  L.  R.  A.   107;    Craw- 

nants  to  pay  royalty   run  with   the  ford    v.    Ritchie,    43    W.    Va.    252; 

land,   and  bind   the   assignee  of  the  27   S.   E.  220;    Funk  v.  Halderman, 

land  to  the  lessor  for  tlie  payment  53  Pa.  229 ;   Florence  Oil  Co.  v.  Or- 

of  all   royalties  which  accrue  while  man,  19  Colo.  App.  79;  73  Pac.  728; 

he  holds  an  assignment  of  tlie  lease.  Venture  Oil   Co.  v.   Fretts,    152  Pa. 

Fennell  v.  Gullcv,    139   Pa.  341;    20  451;    25   Atl.    732;    Kellev    v.    Keys, 

Atl.    1048.             '  213   Pa.   219;    02   Atl.   911. 

The  consideration  for  the  grant  to  a  Boyd  v.  McConibs,  4  Pa.  St.  14li. 

the    lease    bj'    tlie    lessor    of    tlie   oil  *  ^Earsh    v.    Butterworth,   4    Mich, 

interests   is   the   receipt  of   and   tlie  575. 

delivery  to  the  lessor  of  the   royal-  •'■  Van     Wickien     v.     Paulson,      14 

ties  provided  for  by  the  lease.    T>ow-  Barb.   054.     See   Blood  wort  li  v.   Ptc- 

ther  Oil  Co.  v.  ^liller-Sibley  Oil  Co.,  vens,   51   Miss.  475;    Zouciie  v.   Dal- 

53  W.  V  a.  501;  44  R.  E.  433;  Parish  baic    L.    R.    10    Exch,    177;    People 

Fork  Oil  Co.  v.  Bridgewater  Cas  Co.,  v.   Van   Rensselaer.  8   Barb.    1S9. 

51  W.  Va.  583;   42  S.  E.  055:  59  L.  «  Spencer  v.  Au^^tin,  38  Vt.  258. 

R.  A.  566 ;   Lawson  v.  Kirchner,  50  7  Cornell  v.   Lamb,  2  Cow.   052. 
W.    Va.    344;    40   S.   E.    344;    Steel- 


290  OIL   AND    OAS. 

guished  from  an  annuity  by  saying  tliat  a  '^  rent  charge  is  a 
burden  imposed  upon  and  issuing  out  of  lands,  whereas  an 
annuity  is  chargeable  only  upon  the  person  of  the  grantor,"  * 
By  these  definitions  it  will  bo  observed  that  rent,  strictly  speak- 
ing, is  not  a  part  of  the  real  estate,  but  is  profit  issuing  out  of 
it.  It  will  be  necessary  to  bear  these  definitions  in  mind  in 
determining  the  status  of  a  rent  or  royalty  reserved  for  the 
right  to  dig  minerals  or  take  oil  or  gas  out  of  lands. 

§223.     Payment  so  much  per  well. 

Occasionally  a  provision  in  a  lease  provides  that  the  lessor's 
compensation  shall  be  so  much  per  well  drilled  or  to  be  drilled. 
This  is  more  frequently  the  case  with  respect  to  gas  than  oil 
wells;  but  occasionally  it  is  applied  to  the  latter.  Thus  a 
lease  for  gas  and  oil  provided  if  gas  only  be  found,  the  lessee 
should  pay  a  stipulated  sum  per  annum  for  each  well  "  while 
the  same  is  being  used  off  the  premises,"  but  contained  no 
clause  inconsistent  with  this  provision.  It  was  held  that  the 
lessee  w^as  not  required  to  pay  such  sum  for  a  gas  well  whose 
product  was  not  used,  even  though  it  might  be  used  off  the 
premises  without  loi-s  to  the  lessee.''  In  the  printed  part  of  a 
lease  it  was  stipulated  that  the  lessee  should  have  the  exclusive 

sWagstafT   v.    Loworre,    23    Barb.  leged   that   gas   was   fotmd    in   suflTi- 

209.  cient  quantities  to  bo  marketed  and 

9  Ohio    Oil    Co.    V.    Lane,    59    Oliio  to   be- piped   to   a   market,  and  that 

St.    307;    52    X.    E.    Rep.    791;    Sho-  there  were  good  markets  for  the  gas 

waiter  v.  Hamilton  Oil  Co.,  29  Ind.  within  ten  miles,  and  at  other  places 

App.  312;   62  N.  E.  Rep.  708.  further  away,  to  which  the  gas  could 

But  where   the  lessee   or   grantee  be    delivered    and    sold    at    a    profit 

was  to  pay  a  stipulated  rental  while  to    defendant,    the    amount    of    gas 

gas  was  transported  or  used  ofT  the  produced  in  any  well,  cost  of  produc- 

premises,    it    was    held    that    after  tion,   and   cost  of  transportation   to 

he  had  completed  a  well  which  pro-  market    were    evidentiary    facts    to 

duced    gas    in    great    quantities    he  be  proved  in  support  of  the  ultimate 

could    not    refuse    to    transport    the  facts  alleged,  and  need  not  be  plead- 

gas  for  the  sole  purpose  of  wrong-  ed.     Indiana  Natural  Gas  &  Oil  Co. 

fully    evading    the    payment   of    the  v.   Wilhelm,   44   Ind.  App.    100;    86 

rentals.      Pittsburg-Columbia    Oil    &  N.  E.  80. 

Gas    Co.    v.    Broyles,    46    Ind.    App.  An  oil  and  gas  lease  provided  that 

3;    91   N.   E.   Rep.   754    (for  a  com-  the  lessee  could  terminate  the  lease 

plaint,  see  this  case).  at  any  time  by  notice  in  writing  and 

In    an    action   to    recover    rentals  by   surrendering  the   same   and   dis- 

under  a  gas  lease,  where  it  was  al-  charging  it  of  record,  and  that  the 


KliNTS    AND    1{OYAI.TIP:s. 


201 


rii^ht-  t(i  (li-ill  wells  ;uul  ojioratc  tluMii  (Hi  :i  small  plot  of  jrniuinl, 
fur  which  it  was  to  furnish  lias  for  four  residences,  frci-  of 
charge,  so  long  as  gas  was  ohtained  in  ]>aying  (luantities,  and 
to  p:iy  a  rental  of  two  hundred  dollars  a  yoar  for  each  well 
eoni]>let(Ml.  In  the  written  yxirtion  it  was  stipulated  that  o^ 
the  well  rental,  one  hundred  dollars  should  he  paid  in  cash 
and  one  hundred  dollars  in  gas.  The  cash  payment  was  to  he 
annually  in  advance,  beginning  with  a  certain  date,  to  e.uote. 
''  whether  a  gas  well  is  drilled  or  not.  The  gas  payment  above 
named  begins  with  this  date,"  which  was  the  date  of  the  lease. 
The  contract  was  carried  out  for  two  years  according  to  the 
provisions  in  the  written  stipulations.  A  contention  arising 
between  the  lessor  and  lessee,  it  was  held  that  the  cash  and  gas 


lessee  should  pay  a  stipulated  rental 
each  year  until  the  royalties  from 
the  sale  of  tiie  oil  and  pas  equal 
the  rental  stipulated.  It  was  held 
that  the  lessor  was  entitled  to  the 
amount  of  the  rent  agreed  on  as 
long  as  the  lease  remained  in  force, 
and  the  royalties  did  not  equal  that 
amount.  The  lessee  completed  eight 
producing  wells  and  sold  all  the 
machinery  which  the  purchaser  pro- 
ceeded to  remove.  The  lessor 
brought  an  action  to  enjoin  the  re- 
moval and  to  cancel  the  lease  which 
action  was  pending  for  a  year,  dur- 
ing which  the  removal  was  re- 
strained by  an  injunction.  The  lessor 
was  allowed  an  injunction  provided 
he  paid  the  lessee  the  value  of  the 
machinery,  otherwise  the  injunction 
was  denied.  After  this  litigation 
ended  tlie  lessor  brought  an  action 
for  rent  pending  the  injunction  pro- 
ceedings. It  was  held  that  the 
fact  that  he  did  not  succeed  in  his 
action  was  not  sufllcient  to  defeat 
his  action  for  rent.  Shertzer  v. 
Myers,  82  Kan.  275;  108  Pac.  Rep. 
105. 

In  an  action  for  rentals  under  a 
gas  lease  giving  the  lessor  a  certain 
sum  per  well  if  gas  were  produced 
in  sufficient  quantities  to  make  it 
marketable,  where  the  wells  were 
already  proaucing  oil  in  marketable 


quantities,  the  original  cost  of  drill- 
ing the  wells  was  not  to  be  con- 
sidered in  determining  whether  the 
gas  produced  could  be  profitably 
marketed,  but  the  only  expense 
chargeable  to  the  gas  would  lie  that 
of  operating  and  marketing  it.  in- 
cluding the  rental  tliercfor.  Indiana 
Natural  Gas  &  Oil  Co.  v.  Willielm, 
44  Ind.  App.   100:    86  N.  E.  80. 

A  lease  for  oil  and  gas  provided 
that,  if  gas  only  was  found  and  the 
same  was  marketed  ofT  the  premises, 
les.see  agreed  to  pay  a  sj>ccified 
amount  per  pound  per  annum,  pay- 
able semi-annually  in  advance,  for 
each  pound  refiisfcrcd  in  otic  minute 
on  the  casing  at  the  well,  six  months 
from  date  of  completion.  No  test 
of  the  pressure  was  made  by  lessee 
at  the  time  appointed  by  the  lease, 
but,  based  on  the  pressure  ascer- 
tained at  the  time  of  completion 
of  the  well,  lessee  paid  lessor  the 
first  semi-annual  in'^tallment  of  rent 
for  the  gas  shortly  after  the  pressure 
had  been  so  ascertained.  It  was 
held,  in  an  action  for  the  sceoiul  in- 
stallment of  rent,  that  it  would  be 
presumed,  until  the  contrary  was 
shown,  that  the  pressure  in  the  well 
continued  as  shown  at  the  comple- 
tion thereof.  Mo<:>rc  v.  Ohio  \'alley 
Has  Co.,  G:}  W.  \  a,  455 ;  tiO  S.  E, 
401. 


292  OIL   AND   GAS. 

payment  were  to  be  paid  aniiiiallv,  wlipthor  a  gas  well  was 
drilled'  or  not.'"  It  is  no  defense  to  an  action  for  rent,  on  a 
lessee's  failure  t«  drill  more  than  two  wells,  where  a  lease  re- 
quired him  to  drill  three  wells  within  a  specitied  time,  or  pay 
a  year's  rent,  and  also  pay  for  all  marketable  wells  two  hun- 
dred dollars,  that  to  di-ill  a  third  well  would  destroy  the  other 
two,  and  would  be  of  no  use."  Where  for  the  first  well  so 
much  was  to  be  paid  if  it  produced  a  specified  amount  of  oil, 
and  so' nnu'h  more  if  tlie  amount  was  o-j-eater ;  and  if  a  second 
well  was  put  down,  a  sj^ecified  additional  amount ;  and  the  first 
well  failed,  but  the  second  was  productive,  it  was  h^ld  that  the 
lessee  must  pay  the  additional  sum  for  the  second  well,  as  pro- 
vided for  in  the  lease,  even  though  the  first  well  failed.^'  A 
lease  provided  that  a  well  should  be  drilled  within  sixty  days, 
a  second  within  four  months,  a  third  within  eight  montlis,  and 
a  fourth  within  a  year,  the  lessee  "  to  pay  one  hundred  and 
fifty  dollars  for  each  location,"  the  location  to  be  selected  by 
both  the  lessor  and  lessee.  The  lessee  was  to  hold  fifteen  acres 
only  for  each  w^ell  drilled,  unless  they  were  all  completed  as 
agreed.  The  lease  was  held  not  to  require  the  payment  of  lo- 
cation money  for  any  well  drilled  in  addition  to  the  four  pro- 
vided for,  for  the  reason  that  the  lessee,  on  the  completion  of 
the  four,  was  entitled  to  the  oil  right  to  the  entire  tract,  and 
in  that  event  an  increased  number  of  wells  would  benefit  the 
lessor.^^ 

§224.     Royalty,  percentage  of  profits  or  income. 

The  word  '^  profit  "  used  in  an  agreement  to  pay  a  certain 
portion  "  of  all  the  profits  realized  from  oil  or  gas  "  found  on 

10  Kokomo,  etc.,  Oas  Co.  v.  Al-  As  to  release  of  rent  per  well  and 
bright,  18  Ind.  App.  151;  47  N.  E.  substitution  of  another  rent,  by 
Rep.  682.  changing    the    number   of    wells,    see 

11  Young  V.  Equitable  Gas  Co.,  5  Meeker  v.  Browing,  9  Ohio  C.  D. 
Pa.  Super.  Ct.  232;  28  Pittsb.  L.  J.  108;  17  Ohio  C.  C.  .548;  and  Hunter 
(N.  S.)    75;    41   W.  N.  C.  24.  v.  Apollo  Oil  and  Gas  Co.   (Pa.),  54 

12  Brushwood,  etc.,   Co.  v.  Hickey  Atl.  Rep.  274. 

(Pa.),   16  Atl.  Rep.  70.  A  gas  and  oil  lease  provided  that 

13  Ft.  Orange  Oil  Co.  v.  Wichman,  the  lessee  should  deliver  to  the  les- 
17  Ohio  Cir.  Ct.  Rep.  57;  9  Ohio  sor  one-sixth  of  all  the  oil  produced 
Dec.  650;  reversing  4  Ohio  N.  P.  and  saved  from  the  premises,  and 
407.  pay  $100  yearly  for  each  well  from 


RENTS    AND    ROYALTIES. 


293 


the  leased  premises,  means  the  net  amount  realized  after  de- 
ducting the  expenses,  and  is  not  the  equivalent  of  "income."  '* 
"Where  the  agreement  was  to  give  a  certain  portion  of  the 
profits  of  all  gas  "conducted  off  the  premises,  for  use  or  sale," 
above  the  costs,  all  expenses,  including  cost  of  pipes  and 
materials,  and  payment  for  right  of  way  and  for  employees' 
salaries,  must  he  deducted  from  the  sales.'"'  If  there  he 
no  net  profits,  in  such  instances,  the  lessee  is  not  lial)le, 
not  even  if  he  permit  another  to  work  the  premises 
with  the  same  understanding,  who  fails  to  realize  profits, 
if  the  lease  does  not  prohibit  subletting.^"  But  where  the 
royalty  was  fixed  at  a  certain  portion  of  the  oil  to  be  deliv- 
ered, free  of  expense,  in  tanks  or  pipe  lines,  and  on  gas  "at 
the  rate  of  one-eighth  of  income  dollars  per  year,"  it  was 
held  that  the  "income"  referred  to  is  the  gross,  not  the  net 
income.^'  The  legal  effect  of  a  provision  in  a  deed  excepting 
and  reserving  out  of  and  from  a  grant  at  all  times  thereafter 


whicli  gas  Avas  transported  or  used 
off  the  premises.  It  was  helrl  that 
the  lessee  must  deliver  the  specified 
part  of  the  oil  prndueed  and  saved, 
and  where  the  oil  wells  also  prn- 
tluced  gas,  the  delivery  of  the  one- 
sixth  of  the  oil  did  not  prevent  a 
recovery  of  the  $100  per  well.  Pitts- 
burg-Columbia Oil  &  Gas  Co.,  4() 
Ind.  App.  3;  91  X.  E.  Rep.  754. 
(See  this  case  for  a  complaint.) 

A  lease  providing  for  the  succes- 
sive drilling  of  four  wells  witliin 
specified  times,  and  providing  tliat 
for  each  location,  when  made,  the 
lessee  should  j)ay  $150,  requires  the 
location  money  to  be  paid,  not  only 
for  the  four  wells  expressly  provi- 
ded for,  but  for  every  well  drilled 
bevond  that  number.  Wichman  v. 
Ft.  Orange  Oil  Co.,  4  Ohio  N.  P. 
407. 

Where  a  lease  of  oil  lands  provided 
that  in  case  no  well  was  completed 
within  sixty  days  from  date  the 
grant  should  be  null  and  A-oid.  unless 
the  lessee  should  pay  to  lessor  $1 
per  day  in  advance  for  each  day 
thereafter  such  completion  was  de- 
layed, and  that  lessee  should  drill 
a  well  at  the  rale  of  one  well  every 
sixty  days  after  date,  until  five  wells 


were  completed,  and  in  case  any  well 
was  not  completed  in  sixty  days  the 
lessee  should  pay  $1  per  day  in  ad- 
vance until  the  said  well  was  com- 
pleted, and  only  two  wells  were  com- 
pleted, the  first  provision  ajjplied 
only  to  the  first  well,  and  under  the 
last  provision  the  lessee  was  liable 
for  .$1  per  day  on  each  well  not 
drilled  within  their  resi)ective  sixty- 
day  periods  from  the  date  of  the  con- 
tract. Dailev  v.  Heller,  41  Ind. 
App.  ,370;  Sf  N.  E.  219. 

!■•  Potterie  Gas  Co.  v.  Potterie, 
170   Pa.   St.   68;   36   Atl.   Rep.   232. 

Royalty  generally  refers  to  "a 
share  of  tlie  product  or  profit  re- 
served by  the  owner  for  permitting 
another  to  use  the  propertv."  In- 
diana Natural  Gas  &  Oil' Co.  v. 
Ganaird,  45  Ind.  App.  61."$;  90  N.  E. 
Rep.  3S4. 

1--  Akin  v.  INIarshall  Oil  Co.,  188 
Pa.  St.  602;  41  Atl.  Rep.  74S. 

As  to  "first  net  profits"  of  a 
coal  mine,  see  Crocker  v.  Rarteau 
(Mo.),    110   S.    W.    Rep.    10<i2. 

i«Calev  v.  Portland,  12  Colo.  App. 
397:    56   Pac.   Rep.   :?50. 

17  Rnsbv  V.  Russell.  KS  Ohio  Cir. 
Ct.  Rep.  12;    10  Ohio  C.  D.  23. 


294  OIL    AND    GAS. 

and  forever,  unto  the  grantor,  his  lieirs  and  assigns  one-tenth 
of  all  the  mineral  oil  that  may  be  obtained  by  the  grantee,  his 
heirs  and  assigns,  from  the  land  granted,  to  be  delivered  on 
the  land  to  the  grantor,  liis  heirs  and  assigns,  his  or  their  agent, 
free  of  expense,  except  the  furnisliing  of  barrels  or  other 
means  of  transportation,  is  to  except  and  reserve  in  the 
grantor,  his  heirs  and  assigns,  to  be  delivered  as  stipulated,  a 
royalty  of  one-tenth  of  all  the  oil  produced,  possessing  the 
same  quality  of  estate  as  royalty  received  in  an  ordinary  lease 
for  oil  and  gas  purposes.  If  the  owner  of  the  land  lease  such 
tract  of  land  for  oil  and  gas,  reserving  one-eighth  royalty, 
without  stipulating  how  the  one-tenth  of  all  the  oil  reserved  in 
such  prior  grant  is  to  be  discharged,  his  lessee  will  be  enti- 
tled to  deduct  the  same  from  the  one-eighth  royalty  oil  re- 
served in  the  lease. ^^"^  A  clause  in  a  lease  providing  for  its 
forfeiture  if  operations  be  not  begun  or  a  well  completed  by  a 
designated  time,  has  no  application  to  a  failure  to  pay  the 
royalties  provided  for  in  the  lease ;  and  a  forfeiture  of  the 
lease  for  a  failure  to  pay  them  cannot  be  enforced.^^^  A 
clause  in  a  lease  to  the  effect  if  gas  be  obtained  and  used,  the 
consideration  in  full  shall  be  "one-tenth  portion  of  each  gas 
well  drilled  on  the  premises  described  when  utilized  and  sold 
off  the  premises,  payable  monthly  so  long  as  the  gas  is  to  be 
utilized,"  means  one-tenth  of  the  gas  or  proceeds  of  each  well 
when  sold.^^*^ 

§  225.     Payment  of  operating  expenses  first. — Free  gas. 

A  lease  provided  for  the  payment  of  a  royalty  on  the  gas 
actually  produced,  and  also   contained  the   following  clause: 

17a  .Jackson  v.  Dnlaney,  07  W.  Va.  difreiont  lessees,  r<'s<M-ving  tlie  usual 

309-    67    S.    E.   795.  royalty,    and,    after    tlie    first    lease 

Although  obtaining  royalties  be  had  been  avoided  Ixy  the  execution 
the  essence  of  an  oil  and  gas  lease,  of  the  second  the  first  lessee  paid 
the  time  vvlien  operations  shall  com-  two  years'  rental  or  ciuninuta-tion 
mence  is  the  proper  siiiijeet  of  the  money  to  the  lessor  with  full  knowl- 
ao-reement  between  the  jjarties,  and,  edge  of  the  execution  of  the  second 
in  the  absence  of  imi)osition.  fraud  lease.  It  was  held  that  such  pay- 
or mistake,  the  provisions  of  the  con-  ment  did  not  entitle  the  lessee  to 
tract  will  be  upheld.  Hingle  v.  claim  the  reserved  royalty  or  any 
Quigg,  74  Kan.  581;   87  Pac.  724.  part  of  it,  either  in  law  or  equity. 

17b  Davis  V.  Chautauqua  Oil  &  Gas  Eclipse    Oil    Co.    v.    Garner,    53    W. 

Co.,  78  Kan.  97;   90  Pac.  47.  Va.  151;  44  S.  E.  131. 

A     lessor     executed     at     different  1 7c  Barton  v.  Laclede  Oil  &  Mining 

times  two  sets  of  oil  leases  to  two  Co.,  27  Okl.  416;    112  Pac.  905. 


RENTS    AND    ROTAIvTIICS. 


294a 


"If  gas  is  obtaiueJ  in  sulTiciont  (luantities  and  utilized  off  these 
premises,  the  consideration  shall  be  the  use  thereof  for  domes- 
tic purposes  and  one-eighth  of  the  gas  sold  for  every  gas  well 
drilled  on  the  premises  herein  described  and  piped  off  the 
same."  The  lease  also  provided  that  the  lessee  should  have 
sufficient  gas  for  the  operation  of  the  lease.  It  was  held  that 
the  lessor  had  the  right  to  the  gas  if  it  was  obtained  in  suffi- 
cient quantities,  only  after  the  lessee  had  used  gas  for  the 
purpose  of  operating  his  lease  in  a  proper  and  reasonable 
manner.^^ 

§226.    Free  gas. 

A  very  common  provision  in  oil  or  gas  leases  is  that  the  les- 
sor shall  have  sufficient  gas,  if  any  be  found,  for  domestic  or 


18  Fanker  v.  Anderson,  173  Pa. 
St.  86;  34  Atl.  Rep.  434.  See  Akin 
V.  Marshall  Oil  Co.,  188  Pa.  St.  002; 
41  Atl.  Rep.  748. 

A  gas  and  oil  lease  contained  a 
clause  that,  if  gas  was  found  in  any 
well,  sufficient  to  justify  saving  and 
casing,  lessor  may  have  enough  for 
domestic  purposes  and  the  lessee  the 
remainder,  and  further  provided 
that,  if  the  lessee  shall  use  or  sell 
gas  from  any  well  producing  gas, 
it  shall  pay  therefor  $50  per  year 
while  the  gas  shall  be  sold  or  used, 
except  for  drilling  or  domestic  use 
of  parties  leasing  to  second  parties. 
It  was  held  that  the  lessee  was  li- 
able for  stipulated  rental  if  gas  is 
used  by  it  for  the  purposes  other 
than  drilling.  ]\Iathes  v.  Shaw  Oil 
Co.,   80   Kan.    181;    101    P.    998. 

An  oil  and  gas  lease  provided  as 
follows:  ■"The  party  of  the  first 
part  is  to  receive  the  one-eighth 
(Ys)  part  of  all  the  oil,  gas  or  other 
minerals  obtained  therefrom,  to  be 
delivered  to  the  party  of  tlie  first 
part  in  the  pipe  line  upon  the  prem- 
ises." This  was  all  printed,  except 
the  words  "one-eighth"  and  the  frac- 
tion "%"  and  the  words  "in  the 
pipe  line,"  which  were  written. 
Further  along  in  the  lease  was  the 
following,  all   in  writing:      "Should 


gas  be  found  in  well  or  wells  sunk 
on  said  demised  premises,  and  should 
gas  be  taken  oft  said  premises  ahd 
sold  for  compensation  by  said  les- 
sees, the  said  lessee  shall  pay  to  the 
said  lessor  $50.00  per  annum  for  a 
gas  pressure  of  125  pounds  to  the 
square  inch,  and  for  each  125  pounds 
additional  pressure  an  additional 
sum  of  $50.00  per  annum."  It  was 
held  that  the  court  below  committed 
no  error  in  holding  that  tlio  (]uoted 
clauses  of  the  lease  were  in  confiict, 
and  that  the  last  clause  furnished 
the  rule  for  compensating  the  lessor 
for  all  gas  produced  from  the  leased 
premises.  McArthur  v.  Tionesta  Cas 
Co.,  28  Pa.  Super.  Ct.  5G8. 

In  an  action  on  an  oil  and  gas 
lease  for  rent,  it  was  held  error  to 
permit  an  expert  to  testify  to  the 
necessity  of  removing  the  gas  in 
order  to  successfully  operate  the 
well  for  the  production  of  oil  as 
showing  that  the  removal  of  the  gas 
was  consistent  with  the  denial  of 
plaintiir's  right  to  collect  a  rental 
therefor  under  a  provision  in  the 
lea.se  to  pay  rent  should  the  well 
produce  gas  in  sullicii'nt  ipiantities 
to  justify  marketing  it.  Sliewalter 
v.  Hamilton  Oil  Co.,  28  Ind.  App. 
312;    G2   N.    E.    Kep.    708. 


294b  OIL    AND    GAS. 

a  specified  use,  in  addition  to  pay  for  the  lease  or  a  certain 
portion  of  the  oil  produced.  This  '^  free  gas "  may  be  re- 
garded as  a  part  of  tlie  royalty,  as  it  in  fact  is.  Such  a  con- 
tract is  binding  ujx)n  the  lessee.  Thus  "vvhere  a  contract  pro- 
vided that  one  of  the  ])artics  should  have  sufficient  natural  gas 
with  which  to  operate  his  electric  light  plant  so  long  as  a  gas 
well  belonging  to  the  other  party  would  supply  it,  but  allowing 
such  other  party  to  use  gas  from  the  well  for  .other  purposes,  it 
was  held  valid  ;  and  as  the  lessor  had  erected  an  electric  lighting 
plant  at  a  large  cxjx^nse,  which  could  be  operated  only  witli 
gas.  and  there  was  no  otJier  gas  obtainable  or  accessible  to  the 
jilant  witluiut  great  delay  and  expense,  an  injunction  was  issued 
to  prevent  the  cutting  oif  of  the  supply.^"  A  lease,  executed 
July  25,  required  the  lessees  to  drill  a  well  within  twelve  months, 
or  pay  the  lessor  fifty-six  dollars  yearly  as  rent.  It  also  pro- 
vided that  the  lessee  should  furnish  gas  to  heat  and  light  the 
dwelling  on  the  leased  premises  on  or  before  ISTovember  15th, 
of  the  same  year.  It  was  held,  notwithstanding  tliese  inconsis- 
tent provisions,  that  they  were  independent  and  lawful,  and 
that  the  lessee  was  not  excused  from  liability  for  a  failure  to 
furnish  gas  within  the  specified  time  by  their  neglect,  to  drill 
a  w^ell.  In  this  case  the  lessee  assigned  the  lease.  The  lessor 
sold  the  premises  leased  in  1896  to  the  plaintiff,  who  occupied 
them  for  some  time  thereafter.  In  1898  this  purchaser  ex- 
ecuted a  deed  absolute  on  its  face,  but  only  intended  to  secure 
a  debt  he  owed  to  his  grantees.  This  deed  provided  that  the 
grantees  were  "  to  have  the  proceeds  accruing  from  said  lease." 
In  1899  these  grantees  conveyed  the  leased  premises  by  quit 
claim  deed  to  one  M.  at  the  request  of  the  plaintiff.  This  quit 
claim  deed  was  to  secure  JM.  for  money  he  had  loaned  the  plain- 
tiff to  pay  the  grantee  in  the  deed  of  1898.  Tlio  phiintitT 
brought  suit  for  a  breach  of  the  agreement  in  the  lease  to  fur- 
nish gas  for  the  dwelling  on  the  leased  premises.  It  was  held 
that  the  plaintiff  who  occupied  and  used  the  leased  land  was 

19  Xenia  Real  Estate  Co.  v.  Macy,  Rop.    283.     and    Whitman    v.    Fay- 

147   Ind.    568;    47   N.   E.   Rep.    147.  ette  Fuel  Gas  Co.,  130  Pa.  St.  402; 

The  court  cited  Graves  v.  Key  City  20  Atl.  Rep.   10fi2.   which  have  been 

Gas   Co.,   83   Iowa    714;    50   N.    W.  discussed  elsewhere. 


RENTS    AND    ROYALTIES.  294c 

the  only  one  diunaged  by  a  breach  of  the  agreement,  and  that 
he  could  maintain  the  action,  and  not  tlie  grantees  in  tlie  deed 
—  the  word  "  proceeds"  referring  to  tiie  rentals  stipulated  in 
the  lease,  and  being  transferred  on  a  condition  never  enforced."" 
A  lease  contained  a  provision  requiring  the  lessee  to  furnish  the 
lessor  gas  free  for  the  hitter's  residence  on  the  ])remises.      It 
gave   tlie    lessee   the    privilege    to    remove   his    machinery    and 
fixtures,  but  provided  if  he  abandoned  tlie  lease  while  there  was 
a  well  furnishing  gas  sufficient  for  the  residence,  the  well  should 
be  left  in  such  a  condition  as  it  could  be  used  by  the  lessor. 
It  was  held  that  the  lessee  could  not  remove  the  pijx'  from  the 
well,  tliereby  cutting  off  the  supply  of  gas  to  the  residence,  re- 
gardless of  the  fact  whether  or   not  such   pi]w  was   personal 
property ;  and  a  comjdaint  charging  that  he  did  remove  the  Y>i\)e, 
whereby  the  gas  was  wrongfully  cut  off,  stated  a  good  cause  of 
action."*     Where  a  gas  company  entered  into  a  contract  with 
plaintiff,   who  was   not   the   owner   of   the    ]n-eniises   leased,   to 
furnish  gas  for  (Iwelling  house  purposes  so  long  as  a  sulficient 
amount  of  gas   would   flow   from    its   well ;    and    a   few   years 
thereafter  the  company  gave  notice  that  it  would  cut  off  the 
supply  of  gas,  claiming  that  the  flow  was  no  longer  sufficient 
to  supply  tlie  plaintiff,  it  was  held  he  was  not  entitled  to  an 
injunction  restraining  the  company  cutting  off  the  gas,  in  the 
absence  of  a  showing  that  he  had  no  other  means  of  heating  or 
lighting  his  dwelling.--      Tender  a  provision  that   if  gas  l)e  olv 
tained  on  the  leased  premises  in  sufficient  quantities  and  used 
off  the   premises,  the  lessor   shall   be  entitled   to  the   free  use 
thereof  for  domestic  purposes,  the  right  of  the  lessor  to  the  use 
of  gas  for  such  imrposos  is  conditioned  upm  \hovr  being  a  sutli- 
cient  quantity  for  that  pur]K)se  remaining  after  its  use  in  a  rea- 
sonable manner  by  the  lessee  in  the  operation  of  the  lease.*'      A 
right  given  a  lessor  to  use  gas  for  his  mill  and  three  houses  is 
confined  to  an  attachment  to  a  well  drilled  on  his  owm  premises, 
and  he  cannot  insist  that  he  receive  gas  from  a  pipe  line  con- 
veying gas  from  other  wells  beside  that  upon  his  own  premises, 
although  he  was  originally  permitted  to  attach  to  a  dilTcrent 

20  Indiana    Natural    da^    and    Oil  -'^  Lov    v.    Madison,   oic,   Has   Co., 
Co.  V.  Hinton,    159   Ind.  305;   04   X.  lof.   Ind.  .332:   .'58  N.  E.   Rpp._844. 
E.  Rep.  224.  23  Fankor    v.    Anderson,    173    Pa. 

21  Ohio'oil   Co.  V.  Ceiest.   30  Ind.  St.    8G;    34   All.    Kep.   434. 
App.   84;    65   N.   E.   Rep.   534. 


294d  OIL   AND    GAS. 

pipe  line  which  had  been  taken  np.  In  this  case  —  a  case  of  a 
grist  mill  — >tJio  substitution  of  the  roller  process  instead  of  the 
old  burr  }>roc<'ss  \va>*  held  not  a  violiitimi  of  the  e(3iitract  for  free 
gas  for  the  mill  ''  as  now  erected  and  built,"  the  change  not 
involving  an  increase  in  tlie  consumption  of  gas.^*  If  a  city 
or  town  grant  a  gas  company  the  exclusive  right  to  the  use  of 
its  streets,  on  condition  thai,  it  fnniisli  it  with  free  gas  "  so  long 
as  they  shall  have  tJie  exclusive  right  to  use  the  streets  and 
alleys  of  said  city  for  tlieir  pipes,"  such  company  is  only  com- 
I^elled  to  furnish  tlie  gas  so  long  as  they  have  the  only  right 
granted,  and  the  granting  of  the  ])rivilogc  to  another  company 
giving  it  the  right  to  lay  pipes  in  the  streets  for  the  same  pur- 
poses as  the  first  grant,  relieves  the  first  company  from  its 
obligation  to  funiish  free  gas.  In  this  case  the  second  contract 
contained  a  condition  precedent  to  the  effect  that  such  company 
should  have  such  right  if  one  or  more  gas  wells  were  in  opera- 
tion within  one  year;  and  it  was  held  that  the  holders  of  the 
original  francliise  were  not  relieved  from  funiishing  free  gas 
to  the  city  until  the  condition  in  tlie  second  contract  had  been 
performed  and  tlie  right  to  occupy  the  streets  with  its  pipes  by 
the  second  company  acquired.^^  An  owner  of  real  estate,  in 
consideration  of  ten  dollars,  on  April  3,  1889,  sold  to  defend- 
ant's assignors  all  the  gas  and  oil  thereunder,  with  the  right 
to  enter  the  land  to  drill  for  oil,  the  grantees  agreeing  to  drill 
a  well  on  the  premises  within  twelve  months,  or  pay  to  the 
grantor  a  yearly  rental  until  such  well  was  drilled.  Upon 
failure  to  pay  the  rental,  the  instrument  was  to  be  null  and 
void ;  and  the  grantor  was  to  have  one-eighth  of  the  oil  pro- 
duced and  gas  from  the  well  or  wells  for  light  and  heat  in 
the  dwellings  on  the  premises  free  of  expense,  and  the  grantees 
were  to  furnish  the  grantor  gas  in  lieu  of  rental  by  November 
1,  1889.  It  was  held  that  such  contract  entitled  the  grantor 
to  gas  for  use  in  his  dwelling-house  in  lieu  of  rental,  though 

24  Pearce  v.  Bridgewator  Gas  Co.,  The  case  of  Evans  v.  Consumers* 

28  Pittsb.  T>eg.   J.    (N.   S.)    171.  Oas  Trust  Co.   (Ind.),  29  N.  E.  Rep. 

2s  Newark    Gas    and    Fuel    Co.    v.  398;    31    L.    R.    A.    673,    was    one 

Newark,   8    Ohio   S.   and   C.  P.   Dec.  containing  a  question  of  "free  gas," 

418;   7  Ohio  N.  P.  76.  but  a    rchcuriiig   in   it  was  granted. 

An  assignee  of  the  lease  is  bound  and  no  second  opinion  filed, 

to  comply  with  the  provision  in  the  If    a    lessor    landowner    use    free 

lease    for    free    gas.      Peers    v.    Con-  gas  after  forfeiture  incurred,  he  will 

Bolidated  Coal  Co.,  59  111.  App.  595;  not  waive  his  right  to  declare  a  for- 

Consolidated   Coal  Co.  v.   Peers,   59  feiture.      American    Window    Glass 

111.  App.  604.  Co.  V.  Williams,  30  Ind.  App.  68.5- 

66  N.  E.  Rep.  912. 


RENTS    AND    ROYALTIES. 


295 


no  wells  were  drilled  on  his  premises,  and,  such  gas  having 
been  furnished,  the  grantees  were  not  in  default  for  failure 
to  furnish  gas  from  wells  developed  on  tlie  premises  or  pay 
rent.""  If  the  lease  provide  that  the  lessee  shall  furnish  the 
lessor  with  free  gas,  no  time  being  fixed  for  drilling  a  well,  the 
well  must  be  drilled  in  a  reasonable  time.-'^'^  Where  the  agree- 
ment is  to  furnish  gas  for  a  dwelling  or  pay  twenty  dollars 
yearly  in  advance,  the  lessor  is  entitled  to  the  benefit  of  such 
stipulation,  though  no  dwelling  was  maintained  on  the  prem- 
ises.-'^ *^ 

§  227.    Royalty  in  gas  or  oil  used  to  operate  leased  premises. 

It  has  been  hold  in  the  case  of  a  coal  mine  that  upon  coal 
consumed  in  running  an  engine  to  hoist  the  coal  from  the  mine, 


25.1  Indiana  Natural  C.as  &  Oil  Co. 
V.  Lee.  34  hid.  App.  61;  72  N.  E. 
Rep.  283. 

:;si>  Indiana  Natural  Has  &  Oil  Co. 
V.  Oaniard,  45  Ind.  App.  013;  !)1 
K   E.   Rep.   362. 

2r.c  Indiana  Natural  Gas  &  Oil  Co. 
V.   Caniard,   supra. 

An  agreement  to  furnish  "free 
gas"  for  a  dwelling  house  does  not 
require  the  lessee  tn  furnish  gas  for 
lights  outside  of  the  house.  Gilles- 
pie V.  Iseman,  210  Pa.  1;  5i)  Atl. 
Rep.  266. 

In  an  action  for  damages  for  fail- 
ure to  furnish  gas  for  domestic  pur- 
poses according  to  the  terms  of  a 
gas  lease,  a  complaint  alleging  that 
plaintiff  had  received  no  gas  under 
the  lease,  and  had  been  com]>ellcd  to 
procure  fuel  and  ligh.  from  other 
sources,  and  that  the  gas  for  f"el 
and  lights  which  shoula  have  been 
furnished  under  the  lease  was  of  the 
value  of  $100,  averred  sufTicient  facts 
for  the  determination  of  the  meas- 
ure of  damages.  Indiana  Natural 
Gas  &  Oil  Co.  v.  I^e,  34  Ind.  App. 
119;    72   N.   E.   492. 

The  lessee  cannot  defend  on  the 
ground  that  the  lessor  has  forfeited 
the  lease,  where  the  action  is  to  re- 
cover for  a  failure  to  furnish  pas 
before  the  lease  was  declared  for- 
feited. Indiana  Natural  Gas  &  Oil 
Co.  V.  Ganiard,  45  Ind.  App.  613; 
91   N.  E.   Rep.   362. 

Use  of  gas  constitutes  a  waiver  of 
the  right  to  cancel  or  declare  the 
lease  forfeited.  Dunllev  v.  Ander- 
Bon,    169    Fed.    Rep.    391.      Rut    see 


:Miller  v.  Vandergrift,  30  Ohio  Cir. 
1 1.  Rep.  730,  noted  elsewhere  in  this 
work. 

"Reserve  gas  enough,"  in  a  sale  of 
wells,  means  "gas  enough  to  supply 
the  plant"  referred  to  in  the  con- 
tract; and  the  contract  will  be  re- 
formed to  that  extent.  Carroll  v. 
Erie  County,  etc..  Fuel  Co..  10  Ont. 
Wkly.  Rep."  1017. 

An  owner  of  ;.00  acres  leased  the 
oil  and  gas  under  it,  with  the  priv- 
ilege of  removing  it  within  ten  years 
by  two  wells,  in  consideration  of 
furnishing  gas  for  use  in  his  dwell- 
ing on  the  premises.  Afterwards  he 
sold  eighty  acres,  including  the  land 
on  which  the  dwelling  stood,  and 
assigned  the  lease  to  the  purchaser. 
The  purchaser  and  the  lessee  agreed 
that  the  gas  to  be  supplied  under 
the  lease  should  be  supplied  for  use 
in  another  building.  It  was  held 
that  the  owner,  during  the  terms  of 
the  lease,  had  no  reserved  gas  or 
oil  rights  in  any  of  the  land,  and 
a  suhsrqnriit  Irofir  by  him  to  the 
original  lessee  before  the  expiration 
of  the  period  of  the  oil  and  gas 
under  the  land  retained  was  inef- 
fectual as  against  the  provisions  of 
the  outstanding  lease,  and  the  pur- 
chaser's riirhts  in  the  land  leased, 
and  the  purchaser  could  recover  from 
the  lessee  damatres  for  breach  of  the 
lease,  and  obtain  an  iniunction  re- 
straininfT  threatened  acts  of  the  les- 
see in  violation  of  his  rights.  Cen- 
tral Fuel  Co.  v.  Wallace'  (Ind.),  93 
N.  E.  65. 


2'JG 


OIL    AND    GAS. 


no  royalty  was  due.  In  Uiat  instance  the  lease  provided  for  a 
royalty  per  ton  on  all  a>al  mined,  tlie  ton  in  all  cjlscs  to  be 
2,240  pounds  prepared  coal;  and  it  was  shown  that  it  was  the 
custom  at  tlie  time  of  tlie  execution  of  the  lease  to  hoist  pre- 
pared coal  from  the  mines  by  the  use  of  steam  power  obtained 
by  the  incidental  consuiuittinn  df  the  cdal  it.solf.'""  But  where 
the  lessee  agreed  to  give  a  portion  of  all  the  oil  and  one-fourth 
of  the  profits  of  all  gas  "  conducted  off  tlie  premises  or  sold,  it 
was  held  that  in  ascertaining  the  amount  due  lessor,  all  the  ex- 
penses, including  the  cost  of  pipes  and  materials,  payments  for 
right  of  way  and  for  employees'  salaries  must  first  be  deducted, 
and  one-fourth  of  the  remainder  paid  him  ;  and  that  gas  used 
by  the  lessee  should  be  charged  for  at  the  same  rates  as  if  sold 
to  others."^ 

§228.     When  royalty  due, —  removal  of  oil  from  premises. 

The  usual  lease  fixes  the  time  when  the  royalty  shall  be 
paid  —  as,  where  it  provides  for  payment  of  a  royalty  on  all  oil 
produced  during  the  month.  In  such  an  event  the  royalty  is 
due,  of  course,  at  the  end  of  that  period  of  time.  As  a  rule 
little  controversy  can  arise  over  the  point  of  time  when  the 
royalty  is  payable.  If  the  lease  should  provide  that  it  was 
payable  on  each  barrel  of  oil  "  mined,  taken,  or  removed  from 
the  premises,"  then  the  royalty  is  due  when  the  oil  is  removed 
from  the  well,  and  its  maturity  is  not  postponed  until  after  its 
shipment.^* 

26  Wright    V.    Warrior    Run    Coal  in    quarterly    installments.     Tt    was 

Co.,    1S2   Pa.   St.  .514;   41   W.  N.   C.  hold    that    the    year    for    which    the 

175);    !>    Kulp.    1;    28    Pittsb.    [j.    J.  payments    were    to    be    made    com- 

(N.  S.)   202;   38  Atl.  Kep.  401.  menred    from    the   bpfrinning   of   the 

-'T  Akin    V.   Marshall    Oil    Co.,    188  nctual  "  ininini,'- year."  and  not  from 

Pa.  St.  fil4:  41   Atl.  Rep.  748.     See  the    time    at    which    the    lessee    had 

also  Meeker  v.  Browning,  9  Ohio  C.  procured    his    machinery    and    was 

D.  108.  ready  to  proceed  with  mining  opera- 

2^  fliggins  V.  California,  etc..  Co.,  tions.     Flynn  v.  White  Breast  Coal 

109  Cal.  .304;   41    Pac.  Rep.    1087.  Co.,    72    Iowa   738;    32   N.   W.    Rep. 

A    coal    lease    provided    that    the  471. 

lessee  should   mine  a   certain   quan-  I>essees  of  a   stone  quarry  agreed 

tity  of  coal  yearly,  and  pay  royalty  to    pay    a    certain    rate    for    stone 


RENTS    AND    KOYALTIKS.  1:'J7 

§  229.     When  rent  is  due  for  failure  to  develop  land. — Payable 
in  advance. 

Frequently  leases  require  the  premises  to  be  developed  by  a 
certain  time,  and  if  not  developed,  then  the  payment  of  a 
monthly  or  yearly  rental.  In  such  instances  it  becomes  ;i 
question  when  the  rent  is  payable.  In  one  case  a  lease  re- 
quired a  well  to  be  completed  within  ninety  days,  and,  "in 
case  of  failure  so  to  do,  to  pay  a  yearly  rental  from  the 
expiration  of  the  ninety  days  until  such  well  .shall  be  com- 
pleted." It  was  held  that  the  annual  rental  was  due  only 
at  the  end  of  one  year  after  the  default,  and  not  from  the 
beginning  of  the  lease.-''  Where  the  lease  required  the  pay- 
ment of  eight  dollars  per  annum  from  the  time  of  its  execu- 
tion until  a  fixed  date,  and  thereafter  one  hundred  dollars 
annually  for  each  gas  well  after  its  completion,  but  until  a 
well  was  drilled  the  rent  should  be  eight  dollars,  there  being 
no  clause  binding  the  lessee  to  drill  a  well,  it  was  held  that 
the  higher  rental  was  not  due  until  the  well  was  completed."" 
Under  a  covenant  to  commence  operations  within  a  year  or 
pay  twenty  cents  per  annum  "thereafter"  until  operations 
were  commenced,  the  lessor,  it  was  held,  could  not  demand 
pay  for  the  first  twelve  months  after  the  date  of  the  lease. 
If  the  sum  to  be  paid  is  to  be  regarded  as  liquidated  damages, 
or  as  a  penalty,  there  being  no  time  stated  in  the  lease  when 
it  is  to  be  paid,  it  is  due  when  operations  commence,  should 
they  commence  after  twelve  months  from  the  date  of  the 
lease.^"*^  Whether  or  not  rent  because  of  delay  in  developing 
the  premises  is  to  be  paid  in  advance  or  at  the  end   of  the 

"shipped"    by    them.      It    was    held  See  Edmonds  v.  Mounscy,   15  Ind. 

that  no  royalty  was   due   for   stone  App.   300;    44  N.  E.   Rep.    100,  and 

quarried    and    ready    for    sliipment,  Breckenridge    v.    Parrott,     15     Ind. 

but  not  actually  shipped.     Crawford  App.   411;    44   N.   E.   Rep.   GO. 

V.  Oman,  etc.,  Co.,  34  S.  C.  90;    12  so  Diamond    Plate    Class     Co.    v. 

S.   E.   Rep.   920.  Tennell,  22  Ind.  App.  34G;   52  X.  E. 

29  Evans  v.  Consumers'  Gas  Trust  Rop.  7S2. 

Co.    (Ind.),   29  N.  E.  Rep.   398;   31  3oa  Dix  River  Barytes  Co.  v.  Pence 

L.    R.    A.    673.      A    rehearing    was  (Ky.),  123  S.  \V.  Rep.  2G3 ;  34  Ky. 

granted,  however,  in  tliie  case;   and  L.    Rep.    — ;    Vendocia    Oil    &    Cas 

after  that  the  appeal  dismissed  with-  Co.  v.   Robinson,   71    Ohio   St.   302; 

out  a  second  opinion  being  filed.    It  73  N.  E.  Rep.  222 
is    not    known    on    what    point    the 
rehearing  was  granted. 


298  OIL   AND    GAS, 

period  for  wliicli  it  is  to  be  paid  is  dependent  upon  the  language 
used  in  the  lease.''"''  So  it  has  ])een  held  that  the  rent  for  delay 
must  be  paid  in  advance,  although  no  specific  requirement 
upon  this  point  is  inserted  in  the  lease.  Thus  where  a  lease 
contained  an  exj)ress  provision  for  a  forfeiture  if  a  well  was 
not  completed  within  sixty  days,  unless  the  lessee  thereafter 
paid  at  the  rate  of  forty  dollars  per  year  for  each  year  such 
completion  was  delayed,  the  court  considered  that  the  forty 
dollars  per  well  for  each  year's  delay  must  be  paid  in  advance, 
saying:  "While  the  ordinary  rule  governing  rentals  is  that 
payment  in  advance  is  not  required,  unless  so  stipulated  in 
the  contract,  yet,  as  the  endeavor  of  the  courts  in  the  enforce- 
ment of  agreements  is  to  effectuate  the  intent  of  the  makers, 
we  are  of  the  opinion  that,  in  the  circumstances  of  this  case,  it 
should  be  held  that  it  was  the  purpose  of  the  parties  that 
payment  should  be  made  in  advance.  The  situation  of  the 
appellant  [the  lessor]  must  be  considered.  There  was  no 
express  agreement  on  the  part  of  the  operator  that  he  w^ould 
even  explore  for  gas  or  oil ;  on  the  contrary,  he  had  reserved 
the  right  at  any  time,  upon  the  payment  of  the  nominal  con- 
sideration of  one  dollar,  to  cancel  and  annul  the  lease.  He 
had  not  agreed  that  he  would  pay  any  sum  in  the  nature  of 
rent.^"*"  The  contract  was  not  a  lease. ^^'^  And  as  the  relation 
of  landlord  and  tenant  did  not  exist,  and  as  there  was  no 
beneficial  use  or  occupation,  an  action  could  not  have  been 
maintained  on  an  implied  agreement  to  pay.  The  contract 
before  us  distinctly  contemplated  that  a  forfeiture  should 
result  at  the  end  of  sixty  days  (a  well  not  being  then  com- 
pleted), unless  the  operator  should  pay  the  consideration  for 
delay.  This  plainly  required  him  to  become  an  actor  if  he 
would  save  his   rights.     In  such   a   case  the   owner  has  the 

•'.Ob  Erie     Crawford      Oil      Co.     v.  Oil   Co.,    119   La.   703:    44   So.   Rop. 

Mecks,  40  Ind.  App.   156;   81   N.  E  481. 

Rep.  518;  Smith  v.  South  Penn.  Oil  socCitir.-r   Ohio    Oil    Co.    v.    Deta- 

Co.,  59  W.  Va.  204;   53  N.  E.  Rep.  moro,   10")   Ind.   143;   73  N.  E.  Rep. 

152;    Consumers'   Gas  Trust   Co.   v.  900:    V;in   Etter   v.   Kelly,   06   Oliio 

Littler,  102  Ind.  320;  70  X.  E.  Rep.  St.   605;    64   X.   E.   Rep.  500. 

303-    Consumers'   Gas  Trust   Co.   v.  ^ori  Citing    Hancock     v.     Diamond 

Worth,  163  Ind.  141;  71  X.  E.  Rep.  Rlate   Glass   Co.,    162   Ind.    146;    70 

489:    Consumers'   Gas  Trust   Co.   v.  X.  E.  Rep.  149,  and  Xew  American 

Howard,    105    Tnd.    170:    71    X.    E.  Oil    Co.    v.    Trover,    166    Ind.    402; 

Rep.     493;     Jenninirs-Hcvnvood     Oil  76  N.   E,   Rep.  353. 
Syndicate  Co.  v.  Houssiere-  Latteille 


RENTS    AND    ROYALTIES.  299 

privilege  of  declaring  the  lease  forfeited  at  the  end  of  said 
time,  except  as  the  otiier  party  pays  the  sum  stipulated  for 
delay.  The  forfeiture  must  occur,  if  at  all,  when  that  time 
has  elapsed,  provided  that  the  owner  sees  fit  to  take  advan- 
tage of  it.  In  those  circumstances,  it  would  throw  the  pro- 
visions of  said  contract  into  hopeless  confusion,  and  would 
work  great  injustice  to  the  OAvner,  to  hold  that  he  must  wait  a 
year,  without  even  the  assurance  that  the  contract  would 
then  be  complied  with,  and  with  no  remedy  for  compensation 
de  hors  the  contract,  to  have  it  determined  whether  the  for- 
feiture he  had  already  elected  to  declare,  acting  under  the 
terms  of  his  contract,  was  really  an  effective  act."^°*  It  will 
be  perceived  that  this  case  was  made  to  turn  upon  the  fact  that 
no  obligation  rested  upon  the  lessee  to  pay  the  rent,  but  be 
paid  at  his  option.  But  where  the  lessee  must  pay  the  rent — 
where  a  legal  obligation  rests  upon  him  to  pay  which  can  be 
enforced  and  the  amount  collected — then  payment  in  advance 
cannot  be  compelled,  in  the  absence  of  a  clause  in  the  lease 
to  that  effect.^°^  A  lessor  executed  at  different  times  two  sets 
of  oil  leases  to  two  different  lessees,  reserving  the  usual  roy- 
alty, and,  after  the  first  lease  had  been  avoided  by  the  execu- 
tion of  the  second  the  first  lessor  paid  two  year's  rental  or 
commutation  money  to  the  lessor  with  full  knowledge  of  the 
execution  of  the  second  lease,  it  was  held  that  such  payment 
did  not  entitle  him  to  claim  the  reserved  royalty  or  any  part  of 
it,  either  in  law  or  equity.^^s 

30eDill  V.   Fraze,   IGO  Tnd.  5.3;   70  in  equity   of  the   rent  called    for   in 

N.  E.  Rep.  971.     See  also  Hayes  v.  his  lease. 

Forest  Oil  Co.,  213  Pa.  550;  02  Atl.  A  covenant  in  a  gas  and  oil  lease 

Rep.   1072.  to  drill  a  well  on  the  leased  premises 

3of  Gillespie   v.   Fulton  Oil   &   Gas  within    two    years,    or    to    pay    .$80 

Co.,    23G    111.    188;    86    X.    E.    Rep.  annually   unt'il    the    well    is    drilled, 

219.      In    this    case    the    lessor    re-  does  not   require  the  payment  to  be 

pudiated    the   lease   before    the    year  made   in   advance,   and  the  covenant 

had  expired,  for  which  rent  was  to  is    performed   by   a    single    payment 

have    been    pai.i    by    releasing    the  of  the   entire   sum   any   time   before 

premises,  and  the  first  lessee  brought  the    end    of    the    j'ear.       Rhodes    v. 

a  suit  in  equity  before  the  year  had  Mount    City   Gas,    Coal    &    Oil    Co., 

expired  to  set  aside  the  second  lease.  80   Kan.  702;    104  Pao.  851. 

and  in  his  bill  tendered  performance  What    is  a    completion   of   a   well, 

of  all  the  conditions  to  be  performed  see  Sahl  v.   Illinois  Oil  Co..  -15   Iml. 

by  him  under  his  lease;   and  it  was  App.  211;   90  X.  E.  Rep.  032. 

held  that  this  was  a  sufTicient  tender  3"k  Eclipse   Oil   Co.   v.   Garner,   53 

W.  Va.    151;   44  S.  E.   131. 


300  OIL    AND    GAS. 

§  230.     To  whom  payable — joint  lessors. 

Royalties  or  rent  is  payable,  of  course,  to  the  lessor  or  his 
agent,  or  to  the  person  designated  in  the  lease  as  the  beneficiary 
or  recipient.  On  such  a  proposition  as  this,  there  can  be  no 
dispute.  Of  course,  if  the  lessor  assign  or  convey  the  lease,  or 
convey  the  fee  in  the  leased  premises,  without  reserving  the 
right  to  the  rent  or  royalty,  then  it  will  be  payable  to  his 
assignee  or  grantee.  -tVnd  if  the  lease  be  granted  by  two  or 
more  joint  owners  of  the  premises,  and  the  rent  or  royalties 
fixed  in  it  is  reserved  to  them  jointly,  without  a  designation  of 

any  particular  part  due  any  of  tlie  lessors,  payment  to  one  will 
be  a  ]>aymciit  to  all,  especially  so  if  there  be  no  objection  upon 
the  part  of  the  lessors  not  receiving  them."^  And  if  the  rent  is 
payable  to  two  lessors,  one  of  whom  in  fact  had  no  interest  in 
the  premises,  in  an  action  to  recover  one-half  of  the  rent  brought 
by  the  party  having  no  interest  in  the  premises,  the  lessee  may 
show  the  circumstances  under  which  such  lessor  signed  the  lease, 
not  to  deny  his  landlord's  title,  but  to  deny  that,  as  to  such  al- 
leged lessor,  the  lease  created  that  relation.^"  In  such  a  cas<5 
the  assignment  by  the  owner  of  his  interest  in  the  lease,  does 
not  amount  to  a  severance  of  his  interest  nor  an  ap|X)rtionment 
of  the  rent,  as  a  matter  of  law.^^  Where  a  lease  was  put  upon 
six  hundred  acres,  divided  into  three  farms,  and  the  lessor 
dying  devised  them  to  his  three  children  ;  and  the  lease  provided 
that  all  its  conditions  should  extend  to  the  lessor's  heiirs,  as- 
signs and  personal  ropresontativos,  it  was  hold  that  each  child 
was  entitled  to  a  share  in  the  royalties,  projwrtioncd  according 
as  his  holdings  bore  to  the  six  hundred  acres,  although  the  wells 
were  all  on  one  farm.'''*     The  grantor  of  leased  premises  may 

31  Swint  V.  IMcCalmont  Oil  Co.,  other  co-worker  may  enjoin  opera- 
184  Pa.  St.  202;  41  W.  N.  C.  491;  tions  and  recover  his  projwrtion  of 
38  Atl.  Eep.  1021 ;  28  Pittsb.  L.  J.  the  oil  and  gas  produced,  without 
(N.  S.)  319;  Harness  v.  Eastern  Oil  being  charged  with  any  cost  of  devel- 
Co.,  49  W.  Va.  232;  38  S.  E.  Rep.  opment  or  production.  Ziegler  v. 
662;  Eymer  v.  South  Penn.  Oil  Co.,  Brenneman,  237  111.  15;  86  N.  E, 
54  W.  Va.  530;  46  S.  E.  459.  597. 

32  Ibid.  33  Ihid. 

If  one  of  two  joint  tenants  execute  34  Wettengel  v.   Gormley,   184  Pa. 

a  lease  for  the  whole  property,  the       St.   354;    39   Atl.   Rep.   57. 


RENTS    AND    UOYAI.TIES. 


301 


Lc  entitled  to  tlie  royalties,  even  though  lie  ukkIc  no  reserv:it  ion 
in  his  deed;  and  the  lessee  may  show  this  faet  when  sue<l  i)y  the 
grantee  in  the  deed  of  eonveyanee;  and  this  was  held  ]iariicn- 
larly  true  where  a  \v\i'o  and  her  hushand,  in  a  eonveyanee  of 
her  property,  at  the  time  of  such  cnnvoyancT",  expected  that  a 
mortgage  of  tJie  oil  interests  would  he  paid  off,  ami  tiiat  the 
rights  would  revert  to  ihcni.''  If  tlic  lessee  assign  the  lease, 
reserving  rent  to  himself,  then  his  ]iortion  must  he  j>aid  to  him, 
while  the  portion  to  tlie  lessor  must  lie  jiaid  to  such  lessor.'"' 


§  230a.     Payment  of  rent  to  preserve  right  to  mine. — Tender. 

The  manner  of  making  payment  of  the  money  to  be  paid  for 
the  preservation  of  the  right  of  the  lessee  to  explore  the  lands 
described  in  the  lease  does  not  differ  from  any  other  payment 


Wlien  a  lease  is  given  in  considera- 
tion of  one-fifth  of  one-eighth  of  all 
the  oil  produced,  and  in  an  order 
executed  by  all  the  interested  par- 
ties, fixing  their  relative  interests  in 
the  oil  produced,  the  lessor  agrees  to 
accept  one-fifth  of  one-sixteenth,  and 
directs  the  delivery  to  him  of  that 
amount  as  his  portion,  lie  will  bo 
estopped  to  claim  more  than  that 
amount  as  against  the  parties  to 
such  agreement  and  those  acquiring 
an  interest  in  the  Ir.ise  subsequently 
thereto.  Headley  v.  Ilnopengarner, 
60  W.   Va.   20;    55   S.   E.   744. 

In  a  deed  by  a  guardian  conveying 
the  oil  and  gas  in  certain  lands  of 
his  ward's,  it  was  provided  that  the 
lessee  should  deliver  as  royalty  the 
proportionate  share  of  one-eighth  of 
all  the  oil  produced  and  saved  from 
the  undivided  interasts  of  the  in- 
fants in  the  land  sold,  and,  if  the 
purchaser  failed  to  comply  in  all 
things  witli  llio  lonso.  llien  from 
the  time  of  so  failing  to  perform  the 
same  all  his  rights  and  interests 
under  the  decree  and  sale  should 
be  forfeited  and  revert  to  the  in- 
fants.    It  was  held   that  where,  on 


sale  of  infants'  lands,  the  purcliaser 
under  the  terms  of  the  decree  and 
tlie  deed  was  required  to  pay  to  the 
infants  four-fiftlis  of  one-eighth  of 
the  oil  produced,  and  the  guardian 
signed  division  orders  directing  that 
one-lialf  of  that  amount  be  delivered 
to  him  as  the  share  of  the  infants, 
and  that  he  accepted  for  several 
years  without  demanding  tiie  full 
share,  there  was  no  such  forfeiture 
of  the  lease  b^'  the  lessees  as  would 
cause  the  property  to  revert  to  the 
infants. 

Where  an  oil  lease  was  given  on 
two  tracts  of  land,  and  was  made 
to  extend  to  the  heirs  and  assigns 
of  the  parties,  and  difTerent  persons 
became  the  owners  of  the  two  tracts, 
each  owner  was  held  entitled  to  the 
oil  produced  on  his  tract,  and  to 
the  royalty  arising  from  such  tract. 
Northwestern  Ohio  Nat.  Cas  Co.  v. 
Ullery,  G8  Ohio  St.  250:  C7  X.  R. 
494. 

^'  Simmons  v.  Buckeye  Supply  Co., 
21  Ohio  Cir.  Ct.  Kep.  455:  11  Ohio 
C.  D.  GOO. 

36  Harris  v.  Cobb,  40  W.  Va.  350; 
38   S.   E.   Rep.   559. 


302  OIL   AND    GAS. 

of  money  due ;  and  the  same  is  true  of  a  tender.  Not  infre- 
quently the  lease  provides  for  a  payment  in  a  particularly 
named  bank ;  and  when  that  is  the  case  a  deposit  of  the  amount 
due  in  the  bank,  subject  to  the  order  of  the  lessor,  is  sufficient 
regardless  of  the  fact  that  the  payment  was  not  made  in  legal 
tender.  "It  was  not  material,"  said  the  court,  "whether  the 
deposit  was  made  in  lawful  money,  or  in  checks  or  drafts,  as 
it  was  accepted  by  the  bank,  and  the  amount  thereof  placed 
to  the  credit  of  appellee  [the  lessor],  subject  to  his  order, 
thereby  enabling  him  to  draw  the  money  from  the  bank  when 
he  desired.^""  Depositing  the  money  in  the  bank  as  a  payment 
under  the  provisions  of  the  contract,  without  any  prior  notice 
by  appellee  [the  lessor]  to  appellant  [the  lessee]  that  the 
former  would  decline  to  accept  it,  was,  under  the  circum- 
stances, in  a  legal  sense,  a  payment  to  appellee.^"''  An  aver- 
ment in  a  complaint,  in  an  action  to  recover  rents,  that  the 
rent  had  not  been  paid  includes  by  implication  a  statement 
that  it  had  not  been  deposited  in  the  bank.^"*^  But  an  averment 
that  no  rental  payments  had  been  made  since  a  certain  date 
must  be  construed  to  mean  that  no  payments  have  been  made 
to  the  plaintiff,  and  not  as  negativing  payments  to  the  original 
lessor,  when  he  is  the  plaintiff's  grantor  of  the  leased  prem- 
ises.^"'^  Where  the  lease  provides  for  payment  by  check  or 
draft,  it  is  no  ground  for  forfeiture  that  a  check  sent  had 
printed  across  its  face  "payable  only  through"  a  named 
clearing-house,  the  check  being  perfectly  good.^"*"  If  the  lessor 
indicates  a  purpose  not  to  receive  any  rent  under  a  lease,  he 
thereby  waives  any  duty  resting  on  the  lessee  to  make  a  legal 
tender  of  it ;  for  a  tender  to  one  who  announces  in  advance 
he  will  not  accept  it  is  unnecessary.^'"'^ 

In  case  of  rival   claimants   under  ^eb  Lafayette   Gas   Co.   v.   Kelsay, 

conflicting   oil    leases,   chancery   has  104  Tnd.  503;  74  N.  E.  Rep.  7. 

jurisdiction  to  decide  who  is  entitled  36c  Indiana  Natural  Gas  &  Oil  Co. 

to  the  oil   and  gas,  both  as  to  that  v.  Lee,  34  Tnd.  App.   119;   72  N.  E. 

already  produced  and  tliat  to  be  pro-  Rep.  492. 

duced   in   future.     Peterson   v.  Hall,  ssd  Indiana  Natural  Gas  &  Oil  Co. 

57  W.  Va.  535;  50  S.  E.  Rep.  G03.  v.  I^ee,  34  Ind.   App.  119;    72  N.  B. 

30a  Citing    Yoke    v.    Shay,    47    W.  Rep.  492. 

Va.    40;    34    S.    E.    Rep.    748;    and  see  Philadelphia  Co.  v.  Renncr,  222 

Friend    v.   Mallory,   52   W.   Va.   53;  Pa.  512;  71  Atl.  Rep.  1050. 

43  S.  E.  Rep.  114.  sefOillespie   v.   Fulton   Oil    &   Gas 

Co.,  230.111.  188;  80  N.  E.  Rep.  219. 


km; NTS  AM)  i;i)V.\i.rii;s.  30l!;i 

§231.     Damages  for  failure  to  deliver  lessor  his  share. 

If  a  lessee  fail  <>r  refuse  to  deliver  the  lessor  liis  share  ot'  tlic 
oil  reserved  as  royalty  he  will  W  liable  for  the  actual  market 
value  of  the  oil  at  the  date  of  refusal  to  deliver,  with  interest 
from  that  date." 

§232.     Interest  on  royalties. 

Interest  begins  to  run  on  royalties  from  the  date  they  are 
due,  or  if  a  demand  f(U-  them  is  necessary  before  suit  bniught, 
then  from  the  date  of  the  demand.  Where  a  notice  of  for- 
feiture was  of  no  effect,  for  the  reason  that  the  demand  for 
unjiaid  royalties  was  excessive,  it  was  held  that  the  lessee  was 
only  required  to  pay  with  interest  whatever  was  due  at  the 
time  the  notice  had  been  given,  and  the  royalties  on  coal  which 
had  been  actually  mined  after  the  date  of  the  demand  and 
before  suit  brought,  with  interest,  when  a  tender  had  been 
made.^* 

§233.     Waiver  —  parol  evidence. 

In  an  action  to  recover  rent  or  royalties  due  under  a  written 
lease  for  a  year,  parol  evidence  was  held  admissible  to  show  a 
written  waiver  of  such  rent  or  royalty.^" 

§234.     Surrender  —  tract  "  retained." 

A  lease  covered  several  tracts  of  land.  It  provided  that  in 
the  event  any  tract  failed  to  yield  the  lessor  a  ('(M'tniu  royalty, 
the  lessee  should  pay  a  certain  named  rental  uj)on  each  tract 
"  retained."     It  was  held  that  the  word  "  retained  "  referred 


3T  Union  Oil  Company's  Appeal,  .3  Rtorch.  .5  T.aok.  Lofr.  N.  ISO;   7  Del. 

Penny.     (Pa.)     504.     The    court    re-  Co.   Rep.  407. 

fused   to   apply   the   rule   applicable  3!*  Crawford  v.  Bellevue,   etc..  (las 

to  stocks  in  an  instance  of  a  refusal  Co..    18.T   Pa.   St.   227;    .38   All.    Rep. 

to   deliver.  ."iOS;    VVilgiis   v.    Whitehead,    89    Pa. 

38  West    Ridge    Coal    Co.    v.    Van  St.    1.31. 


302b  OIL   AND   GAS. 


to  the  right  to  operate,  which  right  continued  so  long  as  the 
lessee  had  made  no  formal  surrender.'"'  Where  the  lease  re- 
quired the  lessee  to  complete  a  well  in  every  period  of  ninety- 
days  from  the  completion  of  the  first  well,  if  it  proved  to  be  a 
paying  one,  or  surrender  the  lease,  excepting  ten  acres  for 
each  paying  well,  it  was  held  that  the  lessee  was  bound,  after 
the  first  well  proved  to  be  a  paying  one,  either  to  continue  to 
drill  wells,  or  himself  select  tracts  of  ten  acres  each  appur- 
tenant to  each  well  drilled.'*"^ 

§  235.     Interdependent  conditions. 

A  lessor  was  to  receive  one-eighth  of  all  oil  produced  under 
a  lease.  Subse(iuently  he  and  the  lessee  entered  into  a  written 
supplemental  contract  in  reference  to  an  existing  oil  well  then 
on  the  farm,  in  which  it  was  agreed  that  if  it  should  produce  a 
daily  average  of  five  barrels  of  oil  for  thirty  days,  the  lessee 
should  pay  the  lessor  $250;  if  ten  barrels,  $500;  "should  the 
second  well  provided  for  in  lease  in  like  manner  produce 
fifteen  barrels,  the  lessee  to  pay  the  lessor  the  further  sum  of 
$1,000.  Explanations:  The  understanding  and  agreement  in 
regard  to  the  test  well  being  that  plaintiff  is  in  no  event  to 
receive  exceeding  the  sum  of  $500."  The  first  well,  being  old, 
ceased  to  produce  oil ;  but  the  second  produced  more  than 
fifteen  barrels  for  thirty  days.  The  lessee  claimed  that  the 
words  "in  like  manner"  and  "further"  show^ed  that  the  sum 
to  be  paid  upon  the  production  of  the  second  well  was  de- 
pendent upon  the  production  of  the  first,  and  as  that  had 
failed,  nothing  was  payable  on  the  second.  But  the  court 
held  that  the  sums  to  l)e  paid  w^ere  in  the  nature  of  a  bonus, 
to  be  paid  upon  the  production  of  the  wells,  and  that  the 
lessee  was  bound  for  the  payment  on  the  second  well,  though 
the  first  produced  nothing.^^ 

■«o.Xamestown.   etc.,   Co.    v.    EgJ)ort,  To    escape    liability    for    rent    the 

152    Pa.    St.   53;    25   Atl.    Rep.    151;  lessee    should    surrender,    where    he 

Jackson   v.   American    Natural    Gas  has  the  right,  the  undeveloped  por- 

Co.,  31  Pa.  Super.  Ct.  Rep.  408.  tions   of  the   tract   leased.      Steel   v. 

^sa  Monaghan    v.    Mount,    30    Ind.  People's  Oil  &  Gs  Co.,  147  111.  App. 

App.   188;    74  N.   E.  Rep.  579;    Pit-  133. 

tinger  v.  Ramage,  40  Ind.  App.  486;  ^i  Brushwood    Developing    Co.    v. 

82  N.  E.  Rep.  478.  Hickey    (Pa.),    16   Atl.    Rep.   70;    2 

Men.  "(Pa.)   65. 


RENTS   AND    ROYALTIES.  302c 

§  236.     New  lease. 

If  the  lessor  give  the  lessee  a  new  lease  for  the  premises,  it 
will  amount  to  a  surrender  of  the  old  one  if  the  lessee  accept  it; 
and  Avill  release  the  lessee  from  his  ohlijjalion  to  pay  rental  or 
roj'alties  under  the  old  lease  from  the  date  of  the  surrender, 
though  not  from  those  that  had  accrued  at  the  time  of  its  ac- 
ceptance.*- In  such  an  event,  if  the  lessee  has  assigned  the 
lease,  but  a  forfeiture  had  taken  place  l^efore  the  assigiinu'iit, 
tlioui^li  not  ilcH'hirtMl  until  afterward,  iind  the  lessor  give  the 
lessee  a  new  lease,  its  acceptance  will  be  a  surrender  of  the  old 
one,  depriving  the  assignee  of  all  rights  under  it,  but  releasing 
him  from  thence  on  for  the  rents  and  royalties.''^ 

§237.     Termination  of  lease  by  failure  to  keep  its  terms.. 

Although  tlio  right  to  declare  a  forfeiture  of  a  lease  is  for 
the  benefit  of  the  lessor,  and  tlie  lessee  cannot  avail  himself  of 
an  actual  forfeiture  on  his  part,  yet  the  lease  may  be  so  con- 
ditioned that  a  failure  to  keep  tlie  condition,  even  on  the  part 
of  the  lessee,  will  torniiuate  its  existence  and  relieve  him  from 
any  liability,  or  any  fui-tlier  liability,  for  rents  or  royalties.  In 
such  instances  tlie  life  of  the  lease  is  made  to  dei>end  upon  the 
performance  of  the  condition  imposed.  Thus  where  a  grant 
was  made  of  the  oil,  gas  and  minerals  underlying  a  certain 
tract  of  land,  on  the  condition  that  the  grantor  was  to  have  a 
cert.ain  portion  of  the  product  mined;  and  the  deed  prtivided 
that  if  no  well  was  comp'leted  within  a  certain  ]>eri(Hl  of  time 
from  its  date,  the  grant  phonld  be  luill  and  void,  unless  the 
grantee  should  pay  tJie  grantor  a  s]wcified  rental  for  each  year 
the  completion  of  the  well  was  delayed,  and  it  was  also  stijv 
ulated  that  the  grantee  might  suiTcnder  the  lease  at  any  time 
by  paying  the  rental  on  the  land  to  tlie  time  of  tlie  surrender, 
it  was  held,  in  as  much  as  it  was  optional  with  the  grantee  as 
to  whetJier  he  would  do  anything,   and   as  no  well  had  beer. 

42  Smith  V.  IMunhall,   139   Pa.   St.  •»-!  Natural    Gas    Co.    v.    riiiladcl- 

253;    21    Atl.   Rep.    7.3.5;    Meeker   v.  phia   Co.,   158   Pa.  St.   317;    27  Atl. 

Browning,    D    Ohio    C.    D.    108;     17  Rep.   9.-)l;    Marks   v.    Rushville   C.aa 

Ohio  C.  C.  Dec.  548.  &  Oil  Co.,  30  Ohio  Cir.  Ct.  Hep.  798. 


302d 


OIL   AND   GAS. 


(lrill('(l,  there  was  no  oblii;at.i(Mi  resliiii:-  \\\un\  liim  to  ]>ay  any 
rent,  or  to  make  compensation  for  oil  <ir  lias/''  Where  an  oil 
or  gas  lease  was  given  for  a  ])eriocl  of  twenty  years;  and  if  gaa 
was  found  in  snffieient  qnantities,  and  was  nsed,  tliere  slionld  1)C 
paid  five  hmi(lfe(l  dolhirs  yA'V  aiiinuii  fur  each  well  drilled;  one 
well  was  to  he  eonipleted  within  six  niontlis,  and  if  it  was  not, 
then  tlie  ]esse<^  was  to  ]>ay  a  certain  snni  per  annnm  in  fnll  for 
such  yearly  delay,  until  the  well  -was  completed ;  and  a  failure 
to  complete  within  that  period,  or  pay  such  rental,  rendered 
the  lease  void  ;  and  if  neither  gas  nor  oil  was  found  on  the 
property  within  two  years  from  the  date  of  the  lease,  then  the 
lease  was  "to  expire  and  be  of  no  effect";  arid  the  lessee  per- 
manently ceased  to  use  a  gas  well  drilled  on  the  premises 
before  the  expiration  of  the  twenty  j^ears  for  the  reason  that 
the  gas  supplj'-  was  exhausted,  it  was  held  that  he  was  not 
liable  for  the  annual  rent  after  so  ceasing  to  use  the  prem- 
ises.*'' Where  a  lease  contained  no  convenant  to  pay  rent  or 
develop  the  premises,  merely  providing  that  it  should  become 


44  Brooks  V.  Kiinklo,  24  Ind.  App. 
624;  57  X.  E.  Rep.  260.  See  Snod- 
grass  V.  South  Penn.  Oil  Co.,  47  W. 
Va.  500;  35  S.  E.  Rep.  820;  Wilson 
V.  Philadelphia  Co.,  210  Pa.  484; 
GO  Atl.  Rop.  149;  Jennings-Hey- 
wood  Oil  Syndicate  v.  Houssierc- 
Latreille  Oil  Co.,  119  La.  793;  44 
So.  Rep.  481;  Dill  v.  Fraze,  1G9  Ind. 
53;  79  X.  E.  971;  Brewster  v.  Lan- 
yon  Zinc  Co.,  140  Fed.  Rop.  801; 
72  C.  C.  A.  213;  Britr.ss  v.  Elder,  22 
Pa.  Super.  Ct.  Rep.  324. 

Tliough  the  lessee  has  the  option 
to  drill  a  well  or  pay  money  in  lieu 
thereof,  the  lessor  cannot  annul  or 
revoke  the  lease  merely  on  the 
groimd  of  a  want  of  mutuality  of 
obligation.  Pyle  v.  Henderson,  G.j 
W.  Va.  39:   63  S.  E.  Rep.  762. 

45  Williams  v.  CufTey,  178  Pa.  St. 
342;   35  Atl.  Rep.  875. 

Where  nn  oil  lease  stipulated  that, 
if  no  well  was  completed  within  90 


days  from  date,  then  the  grant  s^^all 
become  void  unless  the  lessee  shall 
pay  a  certain  sum  for  each  month 
thereafter  the  com.pJetion  is  delayed, 
unless  the  lessor  waive  the  condi- 
tion that  the  rent  shall  be  paid 
monthly,  on  failure  of  the  lessee  to 
pay  the  rent  when  it  became  due, 
the  lease  became  void,  and  the 
lessor  was  entitled  to  an  injunc- 
tion to  restrain  the  lessee  from 
operating  on  the  premises.  !Meek 
V.  Cooney,  26  Ohio  Cir.  Ct.  E.  553. 
A  contract  by  the  terms  of  which 
P.  granted  to  B.,  its  successors  and 
assigns,  the  exclusive  right  to  enter 
on  land  at  all  times  for  the  pur- 
pose of  drilling  and  operating  for 
oil  and  gas,  for  the  term  of  a  year, 
or  so  long  as  gas  or  oil  is  found  on 
the  premises,  B.  to  drill  a  well  in 
six  months,  or  in  lieu  thereof  to  pay 
a  rental  of  free  gas  "till  said  well 
is  drilledj  or  the  property   *    *    *    is 


RENTS    ANP    KOYALTIKS.  303 

null  and  void,  and  all  rights  cease,  unless  a  well  should  be 
completed  on  the  premises  within  a  month,  or  unless  rent  be 
paid  in  advance  at  a  certain  i-ate  per  month,  it  was  held  that 
the  lessee  was  under  no  obligation  to  continue  his  explorations, 
and  was  under  no  obligation  to  pay  rent.'"  The  lease  or  con- 
tract does  not  terminate  at  the  death  of  the  lessor  or  grantor, 
though  possession  has  not  been  taken  by  the  lessee  or  grantee, 
and  no  development  work  had  been  undertaken/""  In 
determining  when  a  lease  expires,  its  date  must  be  excluded  in 
the  computation  of  time/*"' 

§  238.     Lessee  cannot  avoid  payment  by  taking  advantage  of 
forfeiture  clause. — Liability  for  rent. 

It  is  a  trite  rule  of  law  that  a  man  cannot  take  advantage  of 
his  OM'n  default  to  avoid  liability.  Xor  can  he  take  advantage 
of  his  default  in  the  development  of  leased  property  to  avoid 
payment  of  rent.  Where  a  twenty-year  lease  provided  that  if  a 
well  was  not  commenced  within  three  months,  the  lessee  should, 
after  that  period,  pay  a  certain  monthly  rental  until  the  work 
was  commenced ;  and  a  clause  provided  that  in  no  case  should 
the  commencement  of  the  well  be  delayed  bej'^ond  six  months, 
and  if  no  well  was  begun  within  that  period,  the  lease  should 
be  forfeited ;  it  was  held  that  the  clause  of  forfeiture  was  for 

rcconveyed,     *     *     *     or    this    lease  52    X.    E.    Rep.    782:    Van    likter   v. 

forfeited  by  its  terms,"  is  not  termi-  Kelly,    G6    Ohio    St.    005;    G4   N.    E. 

nated,    though    several    years    have  Rep.    5G0;    Indianapolis   Gas   Co.   v. 

passed  without  a  well  being  drilled,  Pierce,  36   Ind.  App.  573;   7G  X.  E. 

and  though  P.  states  to  B.,  at  a  time  Rep.   173;    Indianapolis   Gas   Co.   v. 

when   P.   is   still   receiving  a   rental  Rayle,  3G  Ind.  App.   706;   76  X.  E. 

of  free  gas,  that  the  lease   has  ex-  Rep.  176. 

pired  and  that  he  contemplates  leas-  ■•oa  Indiana  XaturaJ  Gas  &  Oil  Co. 

ing  the  property  to  others,  and  then  v.  Leer,  34  Ind.  App.  Gl;   72  X.  E. 

disconnects   his  gas   pipes;    it  being  Rep.    283. 

necessary   that    P.    first    demand    of  *oIj  Eastern   Oil    Co.    v.    Coulohan, 

B.  the  drilling  of  a  well  and  give  a  G5  W.  Va.  531 ;  64  S.  E.  Rep.  83G. 
reasonable    time    therefor.      Indiana  The   rigiits  of  the  lessee  will  not 

Rolling  Mill  Co.  v.  Gas  Supplj'  Min.  be  extended  by  a  mere  offer  to  pay 

Co.,  37  Ind.  App.  154;  76  X.  E.  640.  the  rent,  if  the  lessor  elects  to  treat 

^"Glasgow   v.    Chartiers   Gas    Co.,  tlie   lease   as   terminated.     Armitage 

152   Pa.   St.   48;   25  Atl.   Rep.   232;  v.  :\It.  Sterling  Oil  &  Gas  Co.  (Ky.)  ; 

contra,   Chamberlain    v.    Parker.   45  80  S.  W.  Rep.   177;   25  Ky.  L.  Rep. 

N.  Y.  569.   See  Diamond  Plate  Glass  2262. 
Co.   V.    Curless,   22    Ind.   App.   346; 


304 


on.    AND   GAS. 


the  benefit  of  the  lessor,  and  until  he  elected  to  enforce  it,  the 
lessee's  liability  to  pay  rent  continued. ^^  A  stronger  case  arose 
in  the  same  State.  It  was  provided  in  a  lease,  among  other 
things,  that  if  die  lessee  did  not  pay  rent  within  ten  days  after 
it  was  (hie  the  lease  should  be  void,  and  neither  party,  after 
such  failure,  sliould  have  a  liulit  (if  action  by  reason  of  the 
breach.  It  was  held  that  tJie  lessee  could  not  relieve  himself 
from  liability  for  the  rent,  or  prevent  the  lessor  from  main- 
taining an  action  therefor,  by  making  default  in  its  payment/" 
So  where  a  lease  lu'ovidcd  that  if  the  lessee  failed  to  comjilete  a 
well  within  a  month  he  sh(^uld,  after  that  time,  pay  a  certain 
rental,  until  a  well  was  completed;  and  that  a  failure  to  com- 
plete a  well  or  pay  the  rental  slionld  annul  the  lease,  the  "  lessee 
having  the  option  to  drill  said  well  or  not,  or  pay  said  r(^iital 
or  not,  as  he  may  elect,"  it  was  held  that  he  must  drill  a  \fell 
or  pay  the  rent,  and  tJiat  he  could  not  avoid  the  liability  by  re- 
fusing to  do  either.'"*  But  where  the  lessee  was  to  deliver  a 
part  of  llio  oil  and  pay  a  cert.ain  sum  for  gas,  and  the  lease  was 


4T  "Matthews  v.  TVople's.  etc.,  Gas 
Co.,  17.9  Pa.  St.  165;  39  W.  X.  C. 
544;  36  Atl.  Eep.  216;  Brown  v. 
Vandergrift,  SO  Pa.  St.  142;  Han- 
cock V.  Diamond'  Plate  Glass  Co., 
162  Ind.  146;  70  N.  E-.  Rfep.  149; 
Rawlings  v.  Armel,  70  Kan.  778; 
79  Pac.  Rep.  6.s3;  Perry  v.  Acme 
Oil  Co.,  44  Ind.  App.  207;  88  N.  E. 
Rep.  85,  reversing  80  N.  E.  Rep. 
174;  Miller  v.  Logan,  31  Pittsb.  Leg. 
J.  (X.  S.)  217;  New  American  Oil 
&.  M.  Co.  V.  Troyer,  16G  Ind.  402; 
77  N.  E.  Rep.  730  (overruling  76 
N.  E.  Rep.  253.). 

Where  a  lease  of  oil  and  gas 
lands  required  the  lessee  to  drill  one 
well  within  two  years  from  the 
date  of  the  lease,  and  to  also  drill  a 
second  well  thereafter  unless  the 
first  should  become  useless,  and  also 
provided  that,  in  case  the  wells 
were  not  drilled  or  utilized,  then, 
on  payment  of   the   stipulated   well 


rental,  <lie  agreement  sliould  con- 
tinue as  thougli  the  wells  had  l)cen 
drilled,  the  latter  clause,  though 
optional  in  form,  did  not  permit  the 
lessee  to  refuse  either  to  drill  wells 
or  pay  the  rent  and  thus  entirely 
avoid  the  contract,  and  on  failure 
to  drill,  the  lessee  was  liable  for 
the  well  rental.  Scott  v.  Lafayette 
Gas  Co.,  42  Ind.  App.  614;  86  N.  B. 
495. 

■48  Cougle  V.  National,  etc.,  Co., 
165  Pa.  St.  561;  30  Atl.  Rep.  1038; 
Roberts  v.  Bettman,  45  W.  Va.  143; 
30  S.  E.  Rep.  95. 

49  Jackson  v.  O'Hara,  183  Pa.  St. 
233;  38  Atl.  Rep.  624;  Wilson  v. 
Philadelphia  Co.,  210  Pa.  484;  60 
Atl.  Rep.  149. 

An  oil  and  gas  lease  was  for  a 
term  of  nine  months,  and  contained 
a  covenant  that  it  should  remain 
in  force  "so  long  as  oil  is  found 
in   paying   quantities,   providing   all 


RENTS    AND    ROYALTIES. 


305 


to  bo  null  and  void  unless  a  well  was  coni])lotod  within  a  yoar, 
or  unless  the  lessee  paid  a  eertain  amount  quarterly  in  advaiiee 
for  eaeli  additional  tJiree  montlis  tlie  completion  of  well  was  de- 
layed, it  was  held  that  die  lease  did  not  bind  the  lessee  to  jniy 
any  rent  for  tho  land  or  for  delay  in  oommencinc:  to  l>ore  for  oil 
or  pis,  as  tJie  only  Cimsequence  that  could  result  from  his  failure 
would  be  a  forfeiture  of  the  lease.'" 

§239.     Forfeiture  clauses  and  liability  for  rent. 

A  twenty -year  lease  recjuired  operations  U:>  \xi  l>e^un  in  ninety 
days,  to  be  prosecuted  dilia:ently  and  continuously,  and  a  well 
to  be  completed  liy  a  certain  date.  Failure  to  do  so  rendered 
the  lessee  liable  for  an  annual  sum,  payable  quarterly  in  ad- 
vance. No  work  was  done,  but  the  first  quarter  was  paid  volun- 
tarily, and  a  jud2:in('nt  recovered  fm'  tho  second  (]uarter,  wliieli 
was  paid;  and  an  action  was  broua'ht  to  recover  for  the  tliir<l 


conditions  are  complied  with."  The 
consideration  was  cash.  The  lessees 
covenanted  to  go  upon  the  ground 
and  fully  complete  one  well  within 
nine  months  from  the  date  of  the 
agreement,  and,  in  case  a  well  is 
not  drilled  and  completed  within 
nine  months,  then  second  parties 
are  to  pay  the  first  party  $25  per 
month  until  this  lease  is  surren- 
dered, or  oil  is  found  in  paying 
quantities."  The  lessees  never  en- 
tered upon  the  ground,  did  nothing 
under  the  agreement,  and  there  were 
no  further  dealings  between  the 
parties  relating  to  the  premises.  It 
was  held  that  the  lessees  could  not 
be  compelled  to  pay  .$25  per  month 
after  the  terms  of  nine  months  had 
expired,  and  until  the  written  agree- 
ment was  actually  returned  to  the 
lessors.  Briggs  v.  Elder,  22  Pa. 
Super.  Ct.  324. 

50  Snodgrass  v.  South  Penn.  Oil 
Co.,  47  \\.  Va.  509:  .35  S.  E.  Rep. 
820;  Glasgow  v.  Charticrs  Oas  Co., 
152  Pa.  St.  48;  25  Atl.  Rep.  232; 
affirming    Glasgow    v.    Griffith,     22 


Pittsb.  L.  J.  (N.  S.)  181;  Dill  v. 
Fraze,  169  Ind.  53;  79  N.  E.  Rep. 
971. 

Where,  in  an  oil  lease,  it  is  stipu- 
lated that  the  lessee  shall  complete 
one  well  within  one  year  or  pay  $4 
quarterly  in  advance  for  each  addi- 
tional three  months,  such  comple- 
tion is  delayed,  and  it  is  declared 
that  the  contract  is  made  for  the 
sole  purpose  of  operating  for  oil 
and  gas,  and  it  is  manifest  tliat  it 
was  not  the  intention  of  tlie  parties 
that  the  lessee  sliould  have  a  right 
to  liold  the  land  during  tlie  term  of 
the  lease,  but  that  he  sliould  be 
bound  to  complete  a  well  within  one 
year,  the  obligation  to  pay  $1  quar- 
terly is  a  mere  penal  chiuse,  and 
the  making  of  said  payments  will 
l>e  held  not  to  be  a  fuKillment  of 
the  principal  contract,  in  whole  or 
in  part,  but  merely  the  payment  of 
liquidated  damages.  Murray  v. 
Barnhart,  42  So.  489,  117  La.  io23,- 
.Tcnnings-IIeywood  Oil  Syndicate  v. 
Ilousslere-I.riitreille  Oil  Co.,  119  La. 
793;  44  So.  Rep.  481. 


306  •  OIL    AND    GAS. 

and  fuurtli  quarters,  to  wliicli  tlio  lessee  set  up  as  a  defense  the 
clause  in  the  lease  providing  that  if  he  failed  to  perform  all 
Uiu  covenants  of  the  lease,  sudi  failure  to  jx?rform,  or  breach 
of  tiie  covenants,  should  '^  work  an  absolute  forfeiture  of  "  the 
grajit.  It  was  held  that  this  was  no  defense ;  for  the  reason  that 
only  the  lessor  could  take  advantage  of  the  violation  of  its  pro- 
visions.^^ And  whore  tlie  clause  was  that  a  failure  to  complete 
a  well  witJiin  the  time  and  place  described  should  "  render  the 
lease  null  and  void,  and  to  remain  without  any  force  and  effect 
between  the  parties,"  a  similar  niling  was  made.^"  In  another 
case  the  lease  provided  that  work  should  begin  within  sixty 
days,  and  a  well  bo  completed  within  three  months  after  com- 
mencing it.  If  there  was  a  failure  to  complete  a  well,  the  les- 
see was  to  pay  tlie  lessor  for  such  delay  one  thousand  dollars 
annually  witliin  three  months  after  a  well  was  completed.  It 
was  also  especially  provided  that  a  failure  to  complete  one  well 
or  to  make  sucJi  payment  within,  the  time  specified  should  ren- 
der the  lease  null  and  void,  and  to  remain  without  effect  between 
the  lessor  and  lessee.  The  lessee  neither  drilled  a  well  nor  paid 
any  sum  of  money.  The  lessee,  when  sued  for  a  breach  of  tlie 
covenants  of  the  lease,  claimed  that  his  failure  to  keep  them 
avoided  the  lease  from  tlie  beginning,  and  therefore  he  was  not 
bound  by  tbem;  but  tlie  court  held  that  no  such  construction 
should  be  given  to  tJie  lease,  and  tliat  he  could  not  set  up  his 
own  default  as  a  defense.^''  A  like  ruling  was  made  where  the 
lease  provided  that  a  failure  to  keep  its  covenants  on  the  part 
of  the  lessee  should  "  render  the  agreement  null  and  void," 
and  no  jight  of  action  should  after  such  failure  accrue  to  either 
party  on.  account  of  the  breach  of  any  promise  or  agreement " 
contained  in  it.^'  Even  whore  a  lease  provided  it  should  be 
void  and  of  no  force  and  effect  witliout  tlie  consent  of  both  the 
lessor  and  lessee,  it  was  considered  that  it  was  for  the  lessor  to 

51  Wills  V.  Manufac'turin<i.  oic,  53  Galey  v.  Kellernian,  123  Pa.  St. 
Co.,    130  Pa.   St.   222;    18  Atl.   Rep.       4ni ;    16  Ail.  Rop.  474. 

721;  5  L.  R.  A.  603.  54  Qgdon    v.    Ilatry,    145    Pa.    St. 

52  Ray  V.  Western,  etc.,  Co.,  138  640;  23  All.  Rep.  3.34;  Leatlierman 
Pa.  St.  576;  20  Atl.  Rep.  l065;  12  v.  Oliver,  151  Pa.  St.  646;  25  Atl. 
L.  R.  A.  290;   Cochran  v.  Pew,  159  Rep.  309. 

Pa.  St.  184;  28  Atl.  Rep.  219. 


RENTS    AND    ROYALTIES.  307 

declare  a  forfeiture  and  not  the  lessee,  and  unless  the  former 
did  declare  one,  the  latter  was  bound.'''" 

§  240.     Surrender  of  lease  necessary  to  escape  liability  for  rent. 

So  long  as  a  lessee  holds  possession  of  the  leased  premises 
under  the  lease,  he  must  pay  rent,  even  tliough  the  lease  pro- 
vide that  in  a  certain  event  it  was  to  be  null  and  void.  Thus 
where  the  term  of  a  coal  lease  was  to  end  when  tlie  workable 
coal  on  it  was  exhausted,  but  it  gave  the  lessee  tlie  use  of  a 
part  of  the  demised  premises,  in  connection  witli  mining  of 
coal  on  adjoining  land,  the  lessee  was  required  to  pay  the 
minimum  rent  provided  for  in  the  lease,  so  long  as  he  retained 
possession  for  any  purpose  under  it,  although  the  coal  had 
been  exhausted.''"  And  if  the  lease  provide  that  its  surrender 
should  release  the  lessee  from  all  its  covenants  and  for  money 
due,  yet  he  will  not  be  released  by  the  surrender  unless  he 
pay  all  rents  due  up  to  the  time  he  gives  up  such  lease ; '"'  for 
such  a  provision  applies  only  to  future  rent,  and  not  to  rent 
due  at  the  time  of  the  surrender."''*  Where  rent  was  to  be  paid 
if  no  well  was  completed  within  the  first  year,  a  surrender 
at  the  end  of  the  first  ten  months  of  the  year  did  not  relieve 
the  lessee  for  the  year's  rent."'"  So  where  the  lessee,  on  pay- 
ment of  a  named  sum,  maj^  surrender  the  lease  and  escape 
future  liability  for  future  rent  he  cannot  escape  liability  for 
such  rent  unless  he  pays  the  money  and  makes  a  formal  sur- 
render of  the  lease.'"'' 

f'S  Phillips  V.  Vandergrift,  14fi  Pa.  don   v.   Hatry,    145   Pa.    St.   040;    23 

St.  357;   23  Atl.   Rep.  347;   Jackson  All.  Rep.  334. 

v.  O'Hara,   183  Pa.  St.  233;   38  Atl.  r.o  Breckenridge  v.  Parrott,  15  Ind. 

Rep.,«24.  App..  411;  44  N.  E.  Rep.  (i(i. 

so  Lennox    v.    Vandalia    Coal    Co.,  Whether  a  surrender  can  be  made 

66  Afo.  App.  500;    15S  Mo.  473;    59  by  answer  to  a  complaint  to  recover 

S.    W.    Rep.    242;    R<)I)orts    v.    Rett-  royalties    due    arose    in    Rettman    v. 

man,  45  W.  Va.  143;   30  S.  E.  Rep.  Shadle,  supra,  but  was  not  decided. 

95.  Sec  als;)  Douthett  v.  Cib?»on,   11   Pa. 

•'"  Douthett  V.  Cibson.  11  Pa.  Sup.  Sup.   Ct.   Rep.  543,  where   a  surren- 

Ct.  Rep.  543;    Aderliold  v.  Oil  Well  der    was    made    after    suit    brought, 

Supply    Co.,    158    Pa.    St.    401;     28  but  full  rent  recovered. 

Atl.  Ren.  22.  A   lease    that    can   be   surrendered 

ns  Edmonds    v.   Mounsey,    15    Jnd.  on    the   payment   of   a   fi.xed  sum   of 

App.  300;  44  N.  E.  Rep.  lOO;   Rett-  money,   at"  the  option   of  tlie    lessee, 

man    v.    Shadle,    22    Tml.    App.    542;  and  all  payments  and  liabilities  siib- 

53   N.   E.    Rep.   002:    Cclumbian   Oil  sequently      accruiiig     under      it     be 

Co.  V.   RIake,   13   Ind.  App.  OSO;    42  a\'V)ided    cannot    be    spe<-ificallv    en- 

N.  E.  Rep.  234:   Smilev  v.  Western,  forced.       I'lrev    v.     Keith,    237     111. 

etc.,   Co.,    138   Pa.   St.   57.0:    21    Atl.  284;  80     N.  E.  Rep.  OilO. 

Rep.    1;    Tvcatherman   v.    Oliver,    151  •'■!•"  Scott  v.  I.rfifavette  Oas  Co..  42 

Pa,  St.  646;  25  Atl.  Rep.  309;   Og-  Ind.  App.  614;  bo  N.  E.  Rep.  495. 


308  OIL   AND   GAS. 

§  241.     Eviction. 

If  the  lessor  convey  the  leased  premises,  without  any  reserva- 
tion of  the  lessee's  right  to  enter  and  drill  for  oil  or  gas,  his 
act  will  be  a  constructive  eviction,  which  will  terminate  the 
lessee's  liability  for  rent.""  Eviction  by  the  lessor,  of  course, 
terminates  the  lease."'  But  where  the  eviction  is  by  another, 
the  usual  rules  with  regard  to  the  rights  of  landlord  and  tenant 
prevail.  If  there  be  a  covenant  for  quiet  enjoyment,  either  im- 
plied or  expressed,  and  the  lessee  be  evicted  by  a  stranger,  he 
will  not  be  liable  for  rent,  thereafter  at  least."-  Where  the 
owner  of  coal  land  sold  the  coal  underneath  it,  reserving  to 
himself  the  right  to  drill  three  oil  wells  on  the  premises,  and 
then  leased  the  land  above  the  coal  for  oil  purposes;  and  the 
lessee,  to  avoid  litigation  with  the  purchasers  of  the  coal,  who 
denied  his  right  to  drill  the  wells,  jjaid  them  a  certain  sum,  it 
was  held  that,  though  the  lease  contained  words  of  grant,  this 
did  not  imply  a  covenant  for  quiet  enjoyment,  since  the  lease 
was  a  mere  right  to  operate,  and  that  the  act  of  the  lessee  in 
compromising  with  the  coal  owners  was  no  defense  to  a  suit  * 
for  the  amount  due  under  the  lease. "^  But  a  lessee  cannot  sus- 
pend the  payment  of  the  price  of  oil  because  of  a  danger  of 
eviction,  of  which  he  was  informed  at  the  time  of  the  pur- 
chase.®^* 

§  242.     Rent  to  be  paid  if  well  not  drilled. 

It  is  a  very  common  clause  in  oil  or  gas  leases  that  if  a  well 
be  not  dug,  or  if  it  be  not  dug  by  a  certain  time,  then  rent  for 
the  tract  leased  shall  be  paid,  either  after  a  certain  time,  or 

60  ;Matlio\vs     V.    People's    Natural  v.  Donat,  10  Colo.  .520.;   Ifi  Pac.  Pop. 

Gas  Co.,   179  Pa.  St.  1().5;   39  W.  N.  157. 

C.  544;   30  Atl.  Rep.  216.     What  is  esa  Jennings-Heywood    Oil    Syndi- 

not  an  eviction,  see  Tiley  v.  Meyers,  cate  v.  Home  Oil,  etc.,  Co.,   113  La. 

43   Pa.   St.   404.  383:   37  S.  E.  Rep.  1. 

Gi  Miller  v.  Michel,    13   Ind.   App.  Where    there   is   a  clause   that   it 

190;  41  N.  E.  Rep.  4(J7.  shall   be  void   if  a  well   is  not  com- 

62  Nnke's  Case,  4  Rop.  80  b.  Cro.  pleted,  or,  in  lieu  thereof,  money 
Eliz.  674.  If  the  Covenant  is  only  paid  within  a  given  time,  but  before 
for  a  quiet  enjoyment  as  a<i;ainst  the  expiration  of  the  time  it  is  found 
lessor,  see  Line  v.  Stephenson,  5  that  the  lessor's  title  is  defective, 
Bing.  N.  C.  183;  7  L.  .T.  C.  P.  and  he  agrees  to  perfect  it,  and  that 
263;  7  Scott  69;  1  Arn.  38.5;  Mer-  the  money  need  not  be  paid  when 
rill  v.  Frame,  4  Taunt.  329.  due,    and    gives    an    extension    until 

63  Chambers  v.  Smith,  183  Pa.  St.  the  title  can  be  perfected,  he  cannot 
122;  38  Atl.  Rep.  522.  For  an  evic-  declare  a  forfeiture  and  make  a 
tion  the  lessee  has  an  action  for  second  lease.  Pvle  v.  Henderson,  65 
damages.     Hoosac  Mining,  etc.,  Co.  W.  Va.  39;  63  S.  E.  762. 


RENTS    AND    R<JYALTIES.  :i09 

from  the  date  of  the  lease  if  the  well  be  not  dug  by  a  certain 
date.  Thus  where  a  lease  provided  that  the  lessee  should  have 
the  right  to  enter  on  certain  described  premises,  drill  and 
operate?  for  oil  and  gas,  erect  buildings  and  lay  all  necessary 
pipes  for  tlie  production  and  transportation  of  them  from  tlie 
premises,  reserving  a  certain  portion  of  the  gas  and  oil,  but 
provided  tliat  the  lessor  leased  "  one  acre  anywhere  out  of  tJio 
above  described  tract  for  a  test  well,  and,  if  oil  or  gas  is  found, 
then  "  the  lessee  ''  has  the  balance  of  the  alwve  land  to  drill  at 
the  same  royalty  as  tlie  within  lease,"  upon  the  condition  that 
if  gas  only  be  found  the  lessor  should  receive  one  hundred  dol- 
lars for  "  each  well  "  ;  and  tlie  lessee  was  to  commenoe  opera- 
tions within  thirty  days  from  tlie  date  of  the  lease,  and  failing 
to  do  so,  to  pay  the  lessor  annually  five  dollars  ]x^r  acre  until 
a  well  was  coni]>leted ;  it  was  held  that  the  right  granted  was 
absolute  to  take  all  the  gas  and  oil  under  the  entire  tract,  and 
failing  to  make  the  test  well,  five  dollars  per  acre  was  to  lx> 
annually  paid  the  lessor.*'*  Where  the  well  was  to  be  dug  within 
six  months,  and  on  failure  to  do  so,  a  rent  of  five  hundred  dol- 
lars a  year  was  to  be  paid  until  the  well  was  completed,  but 
the  tenant  had  the  right  to  protect  himself  from  "  further  pay- 
ments or  liabilities  "  accriiing  under  tlie  lease,  by  a  surrender 
of  it,  it  was  held  that  a  surrender  made  eighteen  montlis  after 
its  date  did  not  release  the  lessee  from  the  five  hundred  dol- 
lars' rent  for  the  previous  year."'^  Where  a  lease  provided  fr,r 
a  certain  annual  rental,  payable  quarterly,  for  the  product  of 
each  well,  and  reserving  a  right  in  the  lessee  to  put  an  end  to 
the  lease  by  a  reconveyance,  it  was  held  that  the  liability  for 

B*  Columbian  Oil  Co.  v.  Blake,  13  quarter  because  he  does  not  actually 

Ind.  App.   (iSO;    42  N.  B.  Rep.  234;  deliver  gas  to  customers  duriiif,'  that 

Crown  Oil   Co.    v.   Probert,   28   Ohio  quarter,    although    he    mines    it    and 

Cir.     Ct.     Rep.     739;     Davidson     v.  holds  it  in  reserve  in   his   lines  and 

Hughes,  70  Kan.  247;    91   Pac.  Rep.  wells    to    await    ihe    increased    con- 

913,   915.  sumj)tion  in  cold  weather.      Shrader 

Where   a   gas   lease   provides   that  v.  T.  \V.  PIniiips  Gas  &  Oil  Co.,  44 

the  rental  named  should  apply  only  Pa.  Super.  Ct.  55. 

to  a  well  "from  which  gas  is  mar-  •"  Aderhold    v.    Oil    Well    Supply 

keted,"    and    that    the    rent    named  Co.,    158   Pa.   St.   401;   33   W.  N.  C. 

was    "to    l>e    paid    quarterly    while  336;    28    Atl.    Rep.    22;    P.amagc   v. 

marketed,"  the  lessee  is  not  relieved  Wilson,    37    Ind.    App.    532;    77    N. 

from  paying  rental  during  a  summer  E.  Rep.  3G8. 


310  OIL   AND   GAS. 

pis  used  off  tho  proinisos  was  not  liinitrd  to  tlio  {KTiod  of  timo 
when  o^as  was  actually  used,  hut  if  gas  was  used  when  the  year 
coniincnccd  the  whole  amount  for  that  year  tlion  became  duo 
and  payable,  even  thouc;h  the  gas  was  not  used  for  the  entire 
year.""  If  a  lease  ])rovide  for  a  periodical  rental  until  a  well 
be  completed,  or  until  the  expiration  of  a  certain  fixed  term, 
the  lessee  is  bound  to  pay  the  rental,  even  though  he  does  not 
within  such  term  enter  on  the  land  and  complete  a  well,  unless 
tlie  lessor  prevent  him  from  doing  so."^  A  provision,  in  in- 
stances of  the  kind  given  above,  that  tlie  surrender  of  the  lease 
shall  be  a  satisfaction  of  all  damages  between  the  lessor  and 
lessee  applies  only  to  future  rent,  and  not  to  rent  due  at  the 
time  of  the  surrender."*  So  where  the  lease  contained  a  pro- 
vision that  it  should  bind  the  assignee,  and  provided  that  a  well 
should  be  completed  within  a  year,  or,  on  default  the  lessee 
pay  "  for  further  delay  a  yearly  rental "  until  the  well  was 
completed,  it  was  held  that  one  becoming  the  owner  of  a  one- 
half  interest  soon  after  the  lease  was  executed,  and  shortly  after 
the  expiration  of  the  first  year  becoming,  by  assignment  from 
the  original  lessee  of  the  remaining  interest,  the  sole  owner  of 
tJie  lease,  was  liable  for  the  rent  due  for  the  second  year,  the 
well  not  having  been  completed.""  A  lease  provided  that  the 
lessee  should  have  the  right  to  drill  for  gas  in.  three  tracts  of 
land  out  of  a  one  hundred-acre  tract,  and  bound  the  lessor  not 
to  grant  any  other  person  the  right  to  drill  on  this  one  hundred- 
acre  tract.  The  lessee  agreed  to  furnish  gas  for  a  dwelling 
house  and  the  lease  as  long  as  the  lease  was  in  force,  t-o  pay  one 
hundred  dollars  annual  rental  for  each  well,  pay  a  like  amount 
a  year  until  a  well  shouhl  l)e  drilled  ;  and  to  drill  one  well  by 
a  certain  date,  and  pay  for  it  whether  drilled  or  not.  When- 
ever gas  ceased  to  be  used  generally  for  manufacturing  pur- 
poses in  the  county,  the  lease  was  to  terminate.  It  was  held 
that  the  lessee  was  bound  to  drill  at  least  one  well,  and,  failing 
to  do  so,  he  must  pay  one  hundred  dollars  yearly  and  supply 
gas  for  tlie  dwelling  house,  for  the  reason  that,  during  the  con- 
es Coulter  V.  Conemaugh  Gas  Co.,  os  Edmonds  v.  Mounsey,  15  In<l. 
30  Pittsb.  L.J.  (N.  S.)   281.                       App.  3!)!);    44  N.   E.  P.ep.    1!)(J. 

8T  Lawson  v.  Kirchncr,  50  W.  Va.  ^^  Breckenrid{;je  v.  Parrott,  15  Ind, 

344;   40  S.  E.  Rep.  344.  App.   411;    44   N.   E.   Rep.   66. 


RENTS    AND    ROYALTIES.  IllOa 

tinuinieo  of  the  lease,  tlu^  lessor  ;uul  liis  Lii-aiitees  or  :issi<rns, 
could  not  drill  or  iK'nnit  any  one  to  drill  on  \\w  one  ImndnMl- 
aere  tract. ^"^  So  whore  a  well  was  to  be  put  douai  l>y  a  oert^iin 
time,  or  thereafter  the  lessee  must  pay  the  lessor  a  certain  sum 
annually  until  a  well  was  completed,  it  was  held  that  it  was  no 
excuse  for  the  lessee  that  "  soon  "  after  the  lease  was  execiilc'l 
it  was  discovered  that  the  territory  was  worthless  for  gas  or 
oil,  and  for  that  reason  the  well  was  not  completed.  The  lessee 
was  compelled  to  pay  the  annual  rent.'^'  Where  a  stipulated 
sum  was  to  be  annually  paid  if  there  was  delay  in  completing 
a  well,  and  no  date  was  fixed  when  the  rent  should  be  paid, 
it  was  held  that  it  fell  due  by  operation  of  law  at  the  end  of 
each  year.^-  One  dollar  was  paid  the  grantors  on  the  execu- 
tion of  a  lease ;  and  the  grantees  agreed  to  complete  three 
wells  within  twelve  months  or  pay  $500  as  a  forfeit.  The 
agreement  for  payment  on  default  was  construed  as  a  provision 
for  liquidated  damages,  and  not  a  penalty;  the  amount  of 
damage  caused  by  default  being  altogether  conjectural.'-"* 
An  oil  lease  covered  275  acres.  It  was  to  continue  for  ten 
years  and  as  much  longer  as  oil  and  gas  were  produced  in 
paying  quantities,  with  the  right  to  drill  upon  a  fixed  royalty. 
The  lease  provided  that  "in  case  no  well  is  commenced  within 
three  months  from  date,  then  this  grant  will  immediately 
become  null  and  void  as  to  both  parties,"  conditioned,  how- 
ever, that  the  lessee  might  prevent  a  forfeiture  from  quarter 
to  quarter  and  not  longer,  by  paying  a  certain  sum  per  quarter 
"until  such  well  was  commenced."  It  further  provided  that 
when  "a  well  was  completed  the  rental  should  be  reduced" 
a  certain  amount  "per  quarter,"  and  the  well  was  to  "hold 
protection  of  ninety-one  acres;"  and  when  a  second  well 
should  be  completed,  the  rental  was  to  be  further  reduced  to 
an  amount  per  quarter,  and  when  a  third  the  rental  was  to 
cease,  and  a  clause  declared,"  "and  it  is  understood  each  well 

70  Simpson  V.  Pittsburgh,  etc.  Co.,  f,>v.l.     r,'-,    Ohio    St.     101;     Hfi    <)'>io 

28    Ind.    App.    343;    62    N.    E.    Rep.  Wkly.   T,.   I'.uli.  231;   44   N.   E.  Itep. 

753.  10!):?;   34  T..  R.  A.  62,  vvhero  it   was 

Ti  Springer    v.    Citizens'    Natural  ,,^,^j   ^^^.^^   ^j^^  ^^^^   rpcoverahle   was 

Gas  Co.,   145   Pa.   St.   430;    22   Atl.  rentals  as  such,  and  the  lessor  was 

Rep.  986.  j^f^l-  limited  to  a  recovery  of  liquidat- 

T2  Lynch    V.    Versailles    Gas    Co.,  ^^  damages. 
165  Pa.   St.   518;    30   Atl.   Rep.  084.  Tin  Davidson    v.    Hughes,   76    Kan. 

See  also  Woodland  Oil  Co.  v.  Craw-  £47.  9  p^c.  Rep.  913,  915. 


310b  OIL   AND   GAS. 

holds  for  protection  one-third  of  the  275  acres."  Two  wells 
were  commenced  within  the  required  tirae^  but  the  third  well 
was  never  drilled.  It  was  held  that  the  completion  of  the  two 
wells  gave  the  lessee  an  interest  in  two-thirds  of  the  entire 
tract,  and  that  he  was  bound  to  pay  the  amount  of  the  reduced 
rental  per  quarter,  which  the  lease  provided  should  be  paid 
on  the  completion  of  the  second  well.'-''  Where  a  lease  pro- 
vided that  if  gas  was  found,  the  lessee  agreed  to  pay  fifty 
dollars  per  year  for  the  product  of  each  well  while  it  was  being 
sold  off  the  premises;  and  in  case  no  well  was  completed  "in 

years"   from  the  date  of  the  lease,  then  the  lease 

was  to  become  null  and  void,  unless  the  lessee  paid  in  bank 
for  the  lessor  fifty  cents  per  acre,  "payable  semi-annually,  in 

advance,  $ for  each  year  thereafter  such  completion 

was  delayed,"  it  was  held  that  the  lease  ran  only  one  year,  and 
no  more,  unless  the  acreage  rental  therein  fixed  was  paid 
semi-annually  in  advance.'^-''  But  where  a  lease  provided  that 
it  should  be  void  if  a  well  were  not  completed  within  three 
months,  unless  the  lessee  paid  $500  monthly  for  each  month's 
delay  in  completing  the  well,  and  each  payment  was  to  extend 
the  time  for  completion  for  one  month,  the  court  ruled  that 
the  monthly  payment  was  only  a  condition  precedent  necessary 
to  maintain  the  life  of  the  lease,  and  that  it  was  not  a  covenant 
to  pay  $500  per  month  until  the  well  should  be  completed 
or  the  lease  surrendered.'-''  Where  a  lease  was  given  for  five 
years,  wliich  required  the  lessee  to  drill  a  test  well  within 
twelve  months,  and  which  provided  that  if  no  well  was  com- 
pleted within  that  time,  he  should  pay  a  rental  of  a  specified 
sum  per  acre  "to  be  paid  annually  counting  from  the  expira- 
tion of  the  said  twelve  months,"  it  was  considered  that  it  did 
not  require  the  lessee  to  pay  any  rent  until  the  expiration  of 
the  first  year,  and  at  that  time,  if  no  test  well  was  completed, 
the  rent  commenced  to  accrue,  and,  as  the  lease  did  not  re- 
quire the  rent  to  be  paid  in  advance,  the  lessee  had  all  of  the 
second  year  in  which  to  pay  it.'-*'     A  lease  provided  for  the 

72b,Tackson    v.    Amprican    Natural  72ri  Hays  v.  Forest  Oil  Co.,  21:i  Pa. 

Gas  Co.,  31  Pa.  Super.  Ct.  Rep.  408.  55G ;   G2  All.  Rep.   1072. 

72cErie      Crawford      Oil      Co.      v.  72e  Gillespie    v.    Fulton,    236    111. 

Meeks,  40  Ind.  App.   156;    81   X.  E.  188;   86  N.  E.  Rep.  219. 
Rep.   518;    Dill    V.   Praze,    169   Ind. 
53;  79  N.  E.  Rep.  971. 


RENTS    AND    ROYALTIES.  310c 

completion  of  a  well  by  a  fixed  time,  and  that  it  should  then 
become  void  unless  the  lessee  paid  a  certain  sum  (juarterly  in 
advance  for  each  three  months  thereafter  the  completion  was 
delayed.  It  was  held  that  if,  after  having  drilled  one  uni)ro- 
ductive  well  under  the  least,  and  paid  commutation  money 
until  its  completion,  he  was  permitted  by  the  lessor  to  drill 
another  well,  without  further  pajnnent  and  without  notice  that 
compensation  would  be  demanded  for  such  further  use  and 
occupation,  none  could  be  recovered.^-*^ 

§243.     Minimum  production  allowed.  ^ 

In  inst^inces  of  niininii:  lo;i.sr>s  there  is  often  a  requireiuont 
that  not  less  than  a  certain  aiiKmnt  of  ore  shall  be  mined  and 
so  much  royalty  per  bushel  or  ton  ])aid  ainnially;  and  if  less 
than  the  amount  be, mined,  yet  tlie  gross  amount  of  royalty  shall 
be  the  same  as  if  the  requisite  amount  had  been  mined  ;  and 
if  mo)-e  than  the  requisite  amount,  then  llio  gross  sum  of  royal- 
ties shall  be  increased  by  the  suri)lns  bushels  or  tonnage.  In 
an  instance  of  this  kind,  where  the  lessor  had  the  ]X)wer  to 
terminate  the  lease  if  the  lessee  should  not  be  able  to  find  suffi- 
cient ore,  it  Avns  hold  tlint  until  tlie  lease  was  tenninatecl  liy 
the  lessor,  the  lessee  continued  liable  for  the  least  annual  sum 
provided  for  by  the  lease.J''  Occasionally  leases  of  this  char- 
acter allow  the  snrjilus  in  one  year  to  be  applied  to  the  deficient^ 
arising  in  anotJior,  in  which  event  it  is  not  necessary  for  the 
deficiency  to  occur  before  tlie  excess  is  ]iro(lueod,  aiul  an  excess 
paid  for  in  one  year  may  be  apjilied  to  the  defieiencA^  of  a  sub- 
sequent year.'*  Where  jnining  works  are  closed  a  part  of  tho 
year,  without  the  lessee's  fault,  he  must  pay  an  amount  of  the 
minimum  royalty  bearing  the  same  proportion  to  the  whole  that 

72f  Smith    V.    South,    59    W.    Va.  73  Lehigh    Zinc    and    Iron    To.    v. 

204;    53    S.   E.   Rep.    152.      The  hist  Bamford,    1.50    U.    S.    005;    14    Sii]). 

well,  in  fact,  was  not  drilled  under  Ct.  Rep.  219,  afTirminjr  3.'l  Fetl.  I\i'p. 

the  lease.  077.     This   rental    was   payahlc    aii- 

A  lessee  cannot  defend  against  his  nually,    and    not   postponed    to    tlie 

liability  for  rent  on  the  ground  that  end  of  the  term. 

the    lessor    had    declared    the    lease  ^4  Mcfntyro  v.  AfcTntyre  Coal  Co., 

forfeited.      Indiana    Natural    Gas   &  105  \.  Y.  204;   11  N.  E.  Rep.  045. 
Oil  Co.  V.  Ganiard,  45  Ind.  App.  013; 
91  N.  B.  Rep.  362. 


310d 


OIL    AND    GAS. 


the  part  of  tlic  year  mining  oix-rations  were  ciirried  on  bears 
to  tJie  whole  year.'''  In  an  inst«ance  of  the  kind  under  discu8- 
!^iun,  where  the  lease  provided  for  the  payment  of  a  certain  sum 
\)er  month  as  the  minimum  amount  of  royalty,  even  though  no 
coal  were  mined,  the  minimum  royalty  was  regarded  as  liquida- 
ted damages,  and  not  as  a  penalty.^" 

§244.     Consideration  for  lease  may  be  purchase  money. 

The  consideration  of  a  lease  or  an  instrument  giving  a  right 
to  take  mineral,  oil  or  gas  from  the  premises,  may  not  be  rent 
at  all,  but  purchase  money  for  the  mineral  or  oil  taken  out  of 
the  earth.  Thus  where  the  o\vner  of  land  sold  all  the  mineral 
under  it,  granting  to  the  vendee  the  right  to  enter  on  the  prem^- 
ises  and  dig,  explore  therein,  and  occupy  them  with  all  necessary 
stnietures,  and  mine  and  remove  all  ooal,  paying  to  the  vendor 
a  certain  price  per  ton  of  ooal  removed,  payable  quarterly,  it 
was  held  that  the  stipulated  price  was  purchase  money  of  the 
real  estate,  not  of  the  mineral  removed,  for  wliieli  the  vendor 
had  a  lien  on  the  coal  not  mined  and  removed,  the  payment  of 
so  much  per  ton  being  only  a  mode  of  determining  the  amount  of 
the  purchase  money  to  be  paid.^^  So  a  lease  of  all  the  coal  in 
a  certain  tract  of  land  until  it  should  all  Ix'  mined  and  removed, 
the  consideration  being  the  payment  of  a  royalty  and  also  a7i 
animal  minimum  rental,  whether  coal  was  mined  or  not,  and 
providing  for  a  forfeiture,  was  held  to  be  a  sale  of  the  coal  and 

75Coaldale,  etc.,  Co.  v.  Clark,  43  S.)   342;  7  W.  R.  141;  33  L.  T.  11; 

W.  Va.  84;   27  S.  E.  Rep.  21)4.  Hope's    Appeal     (Pa.),    3    Atl.    Rep. 

70  Consolidated  Coal  Co.  v.  Peers,  23;    2  Cent.   Hep.   43;    29   W.  N.   C. 

150  ill.  344;   37  N.  E.  Bep.  937.  365;   Lazarus'  Est.,   145   Pa.   St.   1; 

T7  Manning  v.  Frazier,  96  Hi.  279;  29  W.  N.  C.  36;   Hancock's  Est.,  7 

Fairchild  v.  Fairchild   (Pa.).  9  Atl.  Kulp.  36;  Kingsley  v.  Hillside  Coal 

Rep.  255;   Duflf's  Appeal.  21   W.  N.  Co.,    144   Pa.   St.  613;   29  W.  N.  C. 

C.    (Pa.)    401;    Hatherton   v.    Brad-  368;   23' Atl.  Rep.  253;   Finnog.in  v. 

bourne.   13   Sim.   599;    13  L.  J.  Ch.  Pennsylvania    Trust    Co..    144    Pa. 

171;   7  Jur.  1100;  Taylor  v.  Evans,  St.  613;   Delaware,  etc..  Co.  v.  San- 

1    H.   and   N.   101  ;    2.i   L.   J.   Exch.  derson,  109  Pa.  St.  583;  1  Atl.  Rep. 

■?69;  Foley  v.  Fletcher.  3  H.  and  N.  394. 
779:  2  L.  J.  Exch.  100;   5  Jur.    (N. 


RKNTS  AND  KOVALTIKS.  311 

the  rental  and  royalty  ])urcliasc'  nionov ;  l)ut  a  failure  to  pay  the 
rent  ended  the  lease.'** 

<^245.     Consideration  for  g^ant  part  of  minerals,  creates  an  ex- 
ception. 

It  will  ro^idily  1k^  ohscrvcd  that  when  the  fj:;rantor  or  less^tr 
reserves  a  part  of  tlie  minerals,  oil  or  gas  niincHl  or  taken  ont  of 
the  earth,  such  mineral,  oil  or  gas  tliiis  reserved  caimot  be  said 
to  be  strictly  "  rent,"  within  tlie  meaning  of  the  definition  of 
that  term  as  applied  to  letting  land  generally,  for  it  is  not  a 
profit  issuing  out  of  the  land,  but  a  part  of  tlie  land  its<'lf.  It  is 
in  fact  neitlier  a  rent  nor  a  reservation,  but  an  exception.  Tnc 
interest  in  the  part  reserved  or  rct<ained  never  passes  out  of  the 
lessor,  but  remains  in  him.^**  Thus  a  wife,  and  her  husband 
conveyed  real  estate  in  fee  simple  by  deed,  reserv^ing  by  recital 
to  themselves,  and  did  not  convey  by  the  deed,  the  equal  one- 
half  part  of  the  usual  royalty  of  one-eighth  of  all  the  oil  under- 
lying the  tract.  The  grantee  then  leased  tlie  premises,  giving 
the  exclusive  right  to  drill  and  operate  for  oil  and  gas,  reserv- 
ing one^eighth  of  all  the  oil  obtained  as  produced  in  the  crude 
state.  It  was  held  that  the  recital  in  the  lease  was  a  reserva- 
tion to  the  grantee  (or  lessor)  of  one-eighth  of  the  oil  which 
had  vested  in  him,  and  not  of  the  one-sixteenth  which  was  out- 
standing in  the  wife.  It  was  considered  that  he  had  not  reserved 
any  part  of  tlie  oil  which  was  considered  to  be  vested  in  the 
wife.'" 

^246.     One  well  draining  two  tracts  of  land. 

The  o^\'Tiers  of  two  separate  tracts  made  a  joint  lease  of  them. 
The  lessee  drilled  a  well  only  on  one  tract,  but  this  well  drained 
the  other  tract.      It  was  held   that   the  owner  of  the  tract  on 

TsLehinjh,  etc.,  Co.  v.  Wrifjlit.  177  fn  Harris  v.  Cul.b.  4!)  \V.  Va.  a^O; 

Pa.  St.  .387;   35  Atl.   Rep.  210;   I,e-  .38  S.   E.   Rep.  559;   Busbey  v.  Rus- 

high,  etc.,   Co.  V.   Wilkesbarrp.   etc.,  sell.    18   Ohio   Cir.   Ct.   Rep.    12;    10 

Co..    8    Kiiln.    (Pa.)    .'540.     But   see  Ohio  C.  D.  23. 

Barrs  v.  Lea,  33  L.  J.  Ch.  437.  so  Harris  v.  Cobb,  supra. 


312 


OIL    AND    GAS. 


U'hich  the  well  was  drilled  was  nut  entitled  to  a  royalty  on  all 
the  oil  produced  tlirough  tlic  well,  on  tlie  theory  of  confusion  of 
goods;  but  was  (Mititlcd  to  an  amount  ociual  to  the  area  his 
land  bore  to  the  entire  area  of  the  two  tracts.*^  Where  a  lessee 
took  a  separate  lease  for  oil  on  A  and  B  tracts,  which  adjoined 
eadi  oUier,  £fnd  then,  drilling  a  well  on  tract  A  near  the  line  be- 
tween the  two,  by  agi'eement  of  all  concerned,  he  gave  notice  to 
the  owner  of  tract  B  on  wliidi  he  had  drilled  no  well,  that  if  the 
well  drilled  on  tract  A  proved  to  be  a  paying  well,  he  would  ])ut 
down  another  one  on  tract  B  near  the  line  as  an  offset;  and  this 
was  done.  It  was  held  that  he  did  not  have  to  account  to  the 
o^^'ner  of  tract  A  for  the  oil  taken  from  the  well  on  tract  B.*^ 

§247.     Oral  change  of  lease  discharging  or  changing  rents. 

A  written  lease,  after  its  execution,  may  be  so  modified  by 
parol  as  to  discharge  the  lessee  from  all  liability  to  pay  rent 
that  was  duo  under  it  according  to  its  written  terms;  ^^  or  the 
amount  of  the  royalty  may  be  reduced  by  parol.  And  if  the 
reduction  be  made  in  order  to  induce  the  lessee  to  remain  in 
possession,  the  reduction  will  be  supported  by  a  sufficient  con- 
sideration to  make  it  binding  where  it  is  acted  upon  and  carried 
out  for  many  years  to  the  acceptance  of  all  concerned,  although 
the  lessee  might  have  heen  liable  for  damages  if  he  had  refused 
to  carry  out  the  original  lease.^* 

81  Kleppner  v.  Lemon,  108  Pa.  St.  83  Crawford  v.  Bollevup,  etc.,  Gas 
581;   48  Atl.  Rep.  48.3.  Co.,   183  Pa.   St.  227;   38  All.   Rep. 

82  Colgan  V.  Forest  Oil  Co.,  194  505.  See  Meeker  v.  Crowning,  9 
Pa.  St.  234;  75  Am.  St.  Rep.  C95;  Ohio  C.  D.  108;  17  Ohio  C.  C.  548. 
30  Pittsb.  L.  J.  (N.  S.)  213;  45  Atl.  An  agreement  to  pay  rent  after 
Rep.  119.  a   fixed   date  for  each   tract  of  land 

Forfeiture    of    a    lease    providing  in   wliich   wells  are  not   drilled  and 

that     a     certain     numl>cr     of     wells  operated,    is    not   affected   by   exten- 

should  be  put  down  on  tlie  land  so  sion    of  the    time    in    wliich    drilling 

as  to   affect  wells   on   the  adjoining  might  be   commenced.      Rawlings   v. 

land,  and  that  non-compliance  would  Armel,   70   Kan.   778;    79   Pac.   Rep. 

be  ground  of  forfeiture,  may  be  en-  683. 

forced  by  a  court  of  equity,  though  84  Sargent    v.    Robertson,    17    Ind. 

the   lessor  can   obtain    compensation  App.  411;  4(5  N.  E.  Rep.  925;  Mon- 

in  damages.     Powers  v.  Bridgeport,  roe  v.   Perkins,  9   Pick.   298;    Latti- 

238  111.  397;  87  N.  E.  Rep.  381.    See  more  v.  Harsen,  14  .Johns.  330.     See 

Brewster   v.    Lanyon    Zinc    Co.,    140  Hunter   v.   Apollo   Oil   and   Gas  Co. 

Fed.  Rep.  801;  72  C.  C.  A.  213.  (Pa.),  54  Atl.  Rep.  274. 


RENTS    AND    KOYALTIES.  313 

^248.     Failure  of  oil,  royalty  ceases. 

If  the  oil  is  exlinitst-CMl  \hc  i-oy:ilty  consos,  ovon  t.li(tni:h  the  ou- 
sraerenient  of  tJic  lossoc  is  to  i>av  (lurinc:  tlio  tonn  a  rovaltv  on 
so  much  oil  whether  pro<lnce<l  or  not.  Thus  wliore  an  iron 
raining  lease  was  taken  for  a  term  of  years,  the  lessee  to  mine 
annually  such  quantities  of  ore  as  mouKI  j>roduce  a  stipulated 
sum  of  royalty,  and  if  he  did  not  mine  it,  pay  the  royalty  any 
way,  and  the  ore  bocame  exhausted  before  the  end  of  the  term  — 
it  was  held  that  the  obligation  to  p'ay  royalty  ceased  with  the 
exhaustion  of  tlie  ore.^^ 

§249.     Rent  for  exhausted  well, —  flooded  well. 

So  thoroughly  embedded  in  the  law  ]K'rtaining  to  the  pro- 
duction of  oil  and  gas  is  the  idea  that  all  liabilities  and  rights 
must  turn  upon  a  productive  field  or  lease,  that  a  failure  of  a 
gas  or  oil  well  may  stop  the  accruing  of  periodical  rent, 
even  where  the  express  language  of  the  lease  makes  no  reference 
to  a  cessure  of  payment  in  case  the  well  should  become  ex- 
hausted. Thus  where  the  lease  was  to  run  twenty  years,  and 
for  each  gas  well  a  rent  of  five  hundred  dollars  per  annum  was 
to  be  paid  ;  and  before  the  end  of  the  second  year  the  well,  witJi- 
out  fault  of  the  operators,  was  flooded  with  salt  water  and  ceased 
to  produce  gas,  it  was  held  that  the  third  year's  rent  could  not 
be  collected,  for  the  reason  that  there  should  l^e  read  into  the 
lease  this  implied  agreement  or  understanding  that  the  well  to 
be  paid  for  at  the  stipulated  ))rice  was  not  oidy  to  lx>  a  gas  well 
but  to  remain  a  gas  well,  and  that  when  it  ceased  to  jiroduce  gas 
it  ceased  to  be  a  gas  well.^*"' 

8-' Hewitt  Iron  Mining  Co.  v.  De3-  Where  a  well  was  sunk  within  the 

sau   Co.,    129   Mich.   — ;    89   N.   W.  time  of  the  extension,  wiiich  proved 

Rep.  365.     See  Adams  v.  Stage,   18  to  be  a  dry  well,  and  then  after  tlie 

Pa.  Super.  Ct.  308.  lessor's  deatli  and  after  the  e\]nr.i- 

soMcConnell     v.     Lawrence,     etc.,  tion  of  the  extension  tlie  lessee  sunk 

Gas   Co.,   30   Pittsb.   L.   J.    (N.   S.)  anotlier    well,    which    proved    to    be 

346.      See   also   Williams  v.   GufTey,  very    productive,    it    was    held    that 

178  Pa.   St.   342;    35  Atl.  Rep.   875,  the' lease  had  become  void  and  that 

and    McKnight    v.    Manufacturers',  he    was     not    entitled    to     the    oil. 

etc..  Gas  Co.,    146   Pa.    St.    185;    23  Zeigler  v.  Dailev.  37  Ind.  App.  240; 

Atl.  Rep.  164;  28  Am.  St.  Rep.  790.  76  N.  E.  Rep.  819. 


314  OIL   AND   GAS. 

§250.     Instances  of  lessee's  liability. 

A  notice  of  an  election  on  the  ])art  of  the  lessee  of  his  determi- 
nation to  terminate  the  lease  at  the  beginning  of  the  next  en- 
suing year  will  not  relieve  him  from  the  payment  of  the  rent 
for  the  current  year ;  and  where  the  lease  Ijegan  from  a  certain 
day,  to  run  twenty-one  years,  on  which  day  the  lessee  paid  a 
year's  rental,  and  on  the  same  day  one  year  thereafter  he  gave 
notice  of  his  intention  to  terminate  the  lease,  it  was  held  that  he 
was  liable  for  a  second  year's  rent,  for  u]X)n  that  day  a  second 
year's  rent  was  due  and  the  notice  not  having  been  given  until 
then,  he  was  liable  for  it.^^  If  the  lessor  neglect  to  demand  rent 
for  the  lessee's  failure  to  complete  a  well  by  a  certain  time,  tliat 
will  not  defeat  its  collection  thereafter.**  Such  action  is  not 
laches.  Where  the  lessee  is  to  receive  so  much  per  well  so  long 
as  gas  is  sold  off  the  premises,  and  the  lessee  desires  to  escape  on 
the  ground  that  gas  has  not  been  sold  off  the  premises  during 
the  period  for  which  the  action  is  brought  to  recover  rent,  he 
must  show,  and  he  has  tlie  burden  to  do  so,  a  legal  excuse  why 
gas  has  not  been  sold,  to  escape  liability.*®  If  the  measure  of 
his  liability  is  to  pay  so  long  as  the  wells  produce  gas,  and  the 
flow  ceases,  he  will  be  relieved  from  his  liability;  and  if  he  was 
to  pay  an  annual  rental,  and  the  flow  ceased  during  the  year, 
he  will  be  liable  to  pay  only  such  a  portion  of  the  yearly  amount 
as  the  time  tlie  wells  produced  bears  to  the  entire  year."°  A 
payment  of  an  installment  or  installments  when  not  liable,  will 
not  prevent  the  lessee  setting  up  the  invalidity  of  the  lease  for 
installments  falling  due  thereafter."^  Somewhat  at  variance 
witli  the  case  given  above  is  an  Ohio  case.  A  lease  gave  the  right 
to  ojo^ate  for  oil  and  gas,  and  if  only  gas  was  found,  the  lessee 
should  pay  a  fixed  sum  per  year  for  each  well  "  while  the  same 
is  being  used  off  the  premises,"  but  contained  no  stipulation  in- 


87Nesbit  V.  Godfrey,   155  Pa.  St.  Ohio  Oil  Co.  v.  Lane,  59  Ohio  St 

251;   25  Atl.  Rep.  G21.  307;  52  N.  E.  Rep.  791,  below. 

88  Pittsburg  Consolidated  Coal  9"  Moon  v.  Pitt«l'urgh,  etc.,  Co., 
Co.  V.  Greenlee,  164  Pa.  St.  549;  30  24  Ind.  App.  34;  56  N.  E.  Rep.  108. 
Atl.   Rep.  489.  fli  Diamond     Plate     Glass     Co.     v. 

89  lams  V.  Carnegie,  etc.,  Co.,  194  Tennell,  22  Ind.  App.  132;  52  N.  E. 
Pa.   St.   72;    45   Atl.   Rep.   54.     See  Rep.  168. 


RENTS    AND    ROYALTIES.  315 

consistent  therewith;  it  was  held  that  tlie  lessee  was  not  liable 
to  pay  such  sum  for  a  gas  well  whose  product  was  not  so  used, 
even  though  it  might  be  used  off  the  premises  without  loss  to 
the  lessee.®-  Where  the  object  of  the  contract  w-as  to  find 
phosphate  rock  of  a  specified  character,  it  was  held  that  a 
failure  upon  a  proper  endeavor  to  find  the  rock  was  a  good 
defense  in  an  action  for  royalties.*-"  Where  the  owner  of  land, 
subject  to  an  exception  of  one-tenth  of  all  the  oil  obtained 
from  the  land,  leases  it  for  oil  and  gas,  reserving  a  one-eighth 
royalty  without  stipulating  how  the  one^tenth  reserved  is  to 
be  discharged,  his  lessee  may  deduct  the  tenth  royalty  from 
the  eighth  royalty  reserved  in  the  lease."-'' 

§251.     Account  rendered. 

Where  the  lessee  is  to  render  to  the  lessor  periodical  accounts 
of  tlie  amount  mined,  and  he  renders  such  accounts  and  makes 
payments  based  thereon,  which  are  received  without  objection, 
sudi  accounts  are  conclusive  on  the  lessor,  in  the  absence  of  full 
and  satisfactory  evidence  of  fraud  and  mistake.  They  are  re- 
garded in  the  nature  of  settlements."^ 

§252.     How  collected. 

What  kind  of  an  action  must  Ije  brought  to  recover  rent  or 
royalty  due  will  depend  on  the  circumstances  of  each  particular 
case.  Thus  if  the  amount  is  dependent  on  the  amount  of  oil 
or  mineral  tal\en  out,  a  bill  in  C(|uity  will  lie  to  comj)el  an  ac- 
counting by  tlie  lessee.^*  Where  a  lease  was  for  the  privilege  to 
bore   salt  wells    and   manufacture    salt,    the   rent  being   every 

92  Oliio  Oil  Co.  V.  Lane,  59  Ohio  if  the  rent  is  payable  in  hank  in 
St.  307;  52  N.  E.  Rep.  791;  40  cash,  payment  by  check  drawn  in 
Wkly.  L.  Bull.  404;  41  Wkly.  L.  favor  of  lessor  and  deposited  in  the 
Bull.  121.  bank,    will    operate    as    a    payment. 

92aIIiller  V.  Walter  Ray  &  Co.,  59  Friend  v.   Mallory,   52   W.  Va.   — ; 

Fla.  285;  52  So.  Rep.  G23.  43   S.   E.  Rep.   114. 

9-b  Jackson  v.  Dulancy,  G7  W.  Va.  o*  Swear inpten  v.  Steers,  49  W.  Va. 

795;  07  S.  E.  Rep.  795.  312;   38  S.  E.   Rep.  510;   Bishop  <.f 

93  SillinfTford  v.  Good,  95  Pa.  St.  Winchester  v.  Kniffht.  1  P.  Wms. 
25;  Drake  v.  Lacoe,  157  Pa.  St.  17;  400;  Clavering  v.  Westley,  3  P. 
27  Atl.  Rep.  538.  Wms.   402. 


316 


OIL   AND    GAS. 


twclftli  barrel  marmfactiircd ;  and  oil  rose  in  the  well,  which  the 
lessee  converted  to  his  own  use,  claiming  a  right  to  all  of  it,  it 
was  held  that  trover  would  not  lie  for  the  lessor  to  recover  his 
share,  for  he  had  never  had  possession  of  any  part  of  it;  but  his 
remedy  v^^as  an  action  for  an  accounting.""  If  periodical  pay- 
ments are  to  be  made  of  fixed  amounts  at  specified  times,  tlien 
the  action  must  be  upon  the  covenants  in  the  lease  when  it  is 
under  seal,  which  would  be  an  action  of  debt  or  covenant. "**  If 
the  lease  be  not  under  seal,  or  if  the  letting  he  an  oral  one,  then 
an  assu7npsit  lies  where  the  amount  is  fixed  and  definite."^  An 
allegation,  in  a  complaint  to  recover  payments  under  a  lease, 
that  such  payments  were  due  and  payable  under  its  terms  is  a 
sufficient  allegation  that  the  lease  is  still  in  force. ^®  Mere 
delay  in  bringing  an  action  if  it  is  not  barred  by  the  Statute 
of  Limitations  is  no  defense."®  In  an  action  to  recover  rental 
for  a  gas  well,  if  the  lease  be  not  between  the  plaintiff  and 
defendant  who  is  operating  under  a  lease  from  another  person, 
a  non-suit  in  an  action  of  assumpsit  is  properly  granted.®"* 


95  Kier  V.  Peterson,  41  Pa.  St. 
3.57.  See  National  Transit  Co.  v. 
Weston,  121  Pa.  485;  15  Atl.  Rep. 
56!). 

9fi  Richards  v.  Killam,  10  Mass. 
239;  Warren  v.  Ferdinand,  9  Allen 
357;  Codman  v.  Jenkins,  14  M;iss. 
93;  Boston  v.  Binney.  11  Pick.  1; 
Burnham  v.  Roberts.  103  ]\Iass.  370; 
Smiley  v.  McLauthlin,  138  Mass. 
363;  Miller  v.  Blow,  68  111.  304; 
York  V.  Jones,  2  N.  H.  454. 

37  Wills  V.  Manufacturers',  etc.. 
Gas  Co.,  130  Pa.  St.  222;  18  Atl. 
Rep.  721;  5  L.  R.  A.  602.  See 
Brown  v.  Magorty,  156  ]Mass.  209; 
30  N.  E.  Rep.  1021. 

9s  Central  Trust  Co.  v.  Bcrwind- 
White  Coal  Co.,  95  Fed.  Rep.  391. 

A  lessor  reserving  a  lien  on  "all 
ore  mined,"  for  royalties,  may  re- 
cover, in  an  action  of  tort,  of  the 
lessee  who  not  only  fails  to  pay 
royalties,    but    sells    the    ore    with- 


out reserving  the  lien.  Iron  Duke 
Mine  v.  Braasted,  112  Mich.  79;  70 
N.  W.  Rep.  414. 

99  Ahrns  v.  Chartiers  Valley  Gas 
Co.,  188  Pa.  St.  249;  41  Atl.  Rep. 
739. 

In  Greenough's  Appeal,  9  Pa.  St. 
18,  it  was  held  that  distress  lay  for 
royalty  due  from  a  coal  mine.  The 
rent  was  also  considered  a  preferred 
claim.  See  also  Oram's  Estate,  5 
Kulp.  (Pa.)  423,  and  Jones  v. 
Strong,  5  Kulp.   (Pa.)    7. 

SufTiciency  of  allegation  of  trans- 
portation of  gas  off  the  premises. 
Pittsburg-Columbia  Oil  &  Gas  Co. 
v.  Broylos  40  Ind.  App.  3),  91  N.  E. 
Rop.  754. 

99aTitley  v.  Craig,  222  Pa.  618; 
72  Atl.  Rep.  233. 

Cluincery  has  jurisdiction  to  de- 
cide between  conflicting  claims  to 
royalty  under  conflicting  oil  leases 
to  the   same  lessee  both  as  to  that 


rentI  and  royalties. 


317 


§  253.     Lien  of  royalty  accruing  during  receivership. 

If  royalty  accrue  from  an  insolvent  mining  corporation 
during  a  receivership,  it  will  be  a  first  charge  on  the  funds 
in  the  hands  of  the  receiver.^"" 

§  254.     Assignment   of  lease  does   not   carry   oil  in   tank   on 
premises. 

A  sale  of  a  lease  does  not  carry  the  oil  pumped  out  and  in 
the  tank  on  the  premises ;  and  parol  evidence  is  not  admissible 
to  show  that  it  was  intended  by  a  sale  of  the  lease  to  sell  the 
oil  that  had  been  pumped  from  the  well.'"' 


already  produced  and  that  to  be 
produced  in  future  by  the  lessee 
under  the  leases,  which  royalty  is 
to  be  delivered  to  the  credit  of  the 
lessor.  Peterson  v.  Hall,  57  W.  Va. 
535;  50  S.  E.  G03. 

A  complaint  to  recover  rent  under 
an  oil  and  gas  lease,  alleging  that 
defendant  paid  all  the  rents  to  a 
certain  day,  that  for  certain  periods 
there  became  due  as  rents  specified 
sums,  and  that  plaintilT  was  the 
owner  of  the  premises,  sulTiciently  al- 
leged that  the  rent  was  due  and 
unpaid  when  the  complaint  was 
filed.  Scott  V.  Lafa3'ette  Gas  Co., 
42  fnd.  App.  614;   80  N.  E.  495. 

A  gas  and  oil  lease  reserved  to 
the  lessor  the  right  to  use  gas  for 
domestic  purposes  in  his  residence 
on  the  premises  so  long  as  the 
lease  continued  in  force,  the  lessee 
to  pay  the  lessor,  at  the  latter's 
option,  $15  per  year  in  lieu  of  gas. 
Tlie  complaint,  in  an  action  for 
rent,  averred  that  defendant  agreed 
to  pay  plaintiff  $15  per  year  in 
lieu  of  gas,  etc.;  that  plaintiff  was, 
and  since  the  day  of  the  lease  had 
been,  the  owner  of  the  premises; 
that    defendant    continued    to    pay 


during  and  including  the  whole  of 
the  year  1004;  and  that  the  $15  for 
the  year  1905  was  due  and  unpaid. 
It  was  held  sudicicnt  on  demurrer; 
the  allegations  showing  tliat  the 
parties  had  construed  tlie  contract 
so  as  to  entitle  plaintiff  to  $15 
per  year.  Scott  v.  Lafayette  Gas 
Co.,  42  N.  E.  014;  80  N.  E.  495. 

100  Allison  V.  Coal  Creek,  etc.,  Co. 
(Tenn.),  3  Pick.  60;  9  S.  W.  Rep. 
226. 

That  the  receiver  must  pay  rent 
for  the  use  of  the  fixtures  on  the 
lease.  See  ilidland  Oil  Co.  v. 
Turner,  179  Fed.  74;  102  C.  C.  A. 
368,  modifying  Turner  v.  Seep,  167 
Fed.  Rep.  646,  and  Seep  v.  Spade, 
179  Fed.  Rep.  77. 

A  lease  may  give  a  lion  on  the 
mining  machinery  to  secure  the  pay- 
ment of  royalty.  Cherokee  Const. 
Co.  V.  Bishop,  86  Ark.  489;  112  S. 
W.  Rep.  ISO. 

loiMcGuirc  v.  Wriglit,  18  W.  Va. 
507.  Sec  Dresser  v.  Transportation 
Co.,  8  W.  Va.  553. 

As  to  the  "division  orders"  being 
a  separation  of  their  rights  as  be- 
tween partners,  see  Childers  v. 
Neeley,  47  W.  Va.  70;  34  S.  E.  825. 


CHAPTER  VIII. 

WHO  MAY  MAKE  A  LEASE. 

§255.     Owner  of  land  may  <^ant. 

§256.     Infants.—  Lunatics. 

§257.     Married  women. 

§258.     Wife  joining  liusband  in  lease. —  Homestead. 

§258a.  Administrator  or  executor. 

§258b.  Indian  lands. 

§  255.     Owner  of  land  may  grant. 

It  is  elementary  to  say  that  the  owner  of  the  fee  simple  of  a 
tract  of  land  may  give  a  lease  to  bore  for  gas  or  oil  upon  it. 
He  may  do  this  as  readily  as  he  may  sell  the  'fee ;  and  to 
discuss  the  matter  farther  would  be  a  useless  act.* 

§  256.     Infants. — Lunatics. 

Gas  and  oil  in  land  are  a  part  of  it,  and  an  infant  owning  the 
land  has  no  more  power  over  them  than  he  has  over  the  fee  sim- 
ple of  such  land.  They  are  minerals,  a  part  of  the  land.  He  can 
no  more  grant  a  lease  of  the  land  to  bore  for  oil  or  gas  than  he 
can  grant  a  lease  of  the  land  for  agricultural  purposes,  or  con- 
vey the  fee  simple  of  it.  A  lease  of  the  land  for  gas  or  oil  pur- 
poses must  be  made  by  the  infant's  guardian,  as  in  an  instance 
of  a  lease  of  an  infant's  lands  for  coal  mining.^  In  the  case  of 
a  lunatic  the  lease  must  be  executed  by  his  committee.^  Usu- 
ally the  court  will  authorize  the  execution  of  a  lease,  if  it  be 
shown  that  it  would  be  for  the  benefit  of  the  infant,^  or  the 
lunatic*    "Where  a  statute  requires  the  court  to  approve  a  con- 

a  But   a   railway   company   cannot  i  Lyddal   v.   Clavering,   Amb.   371, 

lease    its    right   of    way    for    its   de-  note;     Tullit    v.    Tullit,    Amb.    370. 

velopment  for  gas  or  oil;  because  it  Stoughton's  Appeal,   88   Pa.  St.   198 

only  owns  an  easement  for  its  road,  (oil  lease)  ;  Chamberlain  v.  Dow,  16 

and  not  the  fee  simple.     Consumers'  W.  N.  C.  532. 

Gas    Trust    Co.    v.    American    Plate  ^In  re  Smith,  L.  R.   10  Ch.  App. 

Glass   Co.,    102   Ind.    302;    08  N.   E.  79;  23  W.  R.  297. 

Rep.    1020.      In   this  case   the   land-  "'  Camden   v.  Murroy,   16  Ch.  Div. 

owner,  through  whose  land  the  rail-  161  :  .50  L.  .1.  Ch.  282;  43  L.  T,  661; 

road    ran,    was   held   entitled    to   an  29  W.  R.  190. 

injunction  against  the  lessee  of  the  *  Ex  pririe  Grinstone,   Amb.   708; 

railroad    company    who    had    an    oil  Oxenden  v.  Compton,  2  Ves.  69;   Ex 

lease  from  it  of  the  right  of  way.  parte  Tabbart,  6  Ves.  428. 

318 


wno  iMAY  :make  a  lease.  318a 

veyanoe  or  lease  of  a  ward's  lands  by  his  g^iardian,  a  loase  f(ir  «:as 
or  oil  iimst  be  approved  by  the  court,  or  it  will  Ik-  void.'"  WIhtc 
a  will  gave  seven-tenths  of  certain  real  estate  to  infants,  subji'ct 
to  a  life  estate,  giving  power  to  appoint  the  life-tenant,  it  was 
held  that  the  interest  of  the  infants  was  a  vested  one;  and  that 
anv  judicial  sale  uikUm-  a  decree  to  which  they  were  not  parties, 
except  by  representation,  was  void.  It  was  also  held  that 
neither  the  life-tenant  nor  the  owners  of  the  other  three-tenths 
had  any  right  to  drill  for  gas  or  oil ;  and  the  fact  that  the 
grantee  had  expended  large  stmis  in  developing  the  premises 
was  not  sufheient  to  estop  the  infant  reinaindermen  from  en- 
joining the  purchaser  or  his  grantee  from  taking  oil  or  gas  from 
the  land.  Nor  was  the  fact  that  they  had  not  made  themselves 
parties  to  the  suit,  or  that  they  knew  other  claimants  to  the  land 
had  been  bought  off,  sufficient  to  estop  them.®  Of  course  an  in- 
fant's conveyance  or  lease  is  voidable,  and  not  void  ;^  and  the 
same  is  true  of  an  insane  person  not  adjudged  insane  an<l  under 
guardianshi]).*  But  a  sale  by  the  guardian,  in  case  of  insanity, 
without  the  approval  of  the  court,  where  a  statute  re<piires  an 
approval,  is  void,  not  voidable;  and  this  is  true  of  a  giuirdian's 
lease  of  such  land  for  oil  purposes.®  A  father  cannot  sell  hi-i 
children's  land  nor  the  mineral  in  it ;  and  if  he  sell  the  land, 
although  he  give  his  children  other  lands  in  the  lieu  of  those 
sold,  the  title  of  the  land  still  remains  vested  in  them,  and  they 
may  recover  from  the  pureliaser  the  value  of  the  minerals 
mined.  ^° 

§257.     Married  women. 

A  married  woman  can  no  more  give  a  lease  of  her  lands  for 
gas,  oil  or  mining  purposes  without  lier  husband   joining  her 

5  Stoajjhton's  Appeal,  .supra.  **  Rippran  v.  f!ippn,  80  N.  C.  236; 

«  Williamson  v.  Jones,  39  W.  Va.  Crouse  v.  IToldman,  10  Ind.  30. 

231;  19  S.  E.  436;  25  L.  R.  A.  222;  o  South  Penn.  Oil  Co.  v.  Mclhtirp. 

Williamson    v.    Jones,    43    W.    Va.  44  W.  Va.  296;  28  S.  E.  Rep.  922; 

562;  27  S.  E.  Rep.  411;  38  L.  R.  A.  Stonjrliton's  Appeal.  88  Pa.  St.  198. 

694.  1"  Kryea   v.    Pittsburph.   eto..   Co.. 

7  Enfrleberth    v.    Troxoll.    40    Neb.  .'■)8  Ohio  St.  246;  50  N.  E.  Rep.  911; 

195;    58    N.    W.    Rep.    852;    Cole   v.  41  L.  R.  A.  681. 
Pennoyer,  14  111.  158. 


318b  OIL,   AND    GAS. 

than  slic  can  convey  sneli  lands  without  her  husband  joining  in 
the  conveyance.  I  n  tlie  case  of  a  deed,  the  separate  deed  of  tlic 
wife  is  void;  "  and  txi  make  conveyance  of  her  land  valid  her 
husband  must  join  with  her  in  the  deed  of  conveyance;  the  title 
cannot  be  conveyed  hy  their  separate  deeds.^^  The  deed  must 
conform  with  the  law  of  the  State  where  tlie  land  lies  or  it  will 
be  void."  The  same  rules  ap]dy  to  a  married  woman  execut- 
ing a  lease  on  her  lands  for  oil  or  gas  purposes.  Thus  where  all 
the  disabilities  of  a  married  woman  were  canceled  by  a  statute, 
it  being  provided  tliat  "  all  the  rents,  issues,  income  and  profits  " 
of  her  real  estate  should  "  be  and  remain  her  own  separate 
property,  under  her  control,  the  same  as  if  she  were  unmar- 
ried "  ;  but  it  was  also  provided  that  a  married  woman  should 
ftave  no  power  to  convey  or  encumber  her  property  without  her 
husband  joined  her  in  the  deed  of  conveyance  or  in  the  instru- 
ment placing  an  incumbrance  on  her  land,  it  was  held  that  her 
contract  conveying  all  the  oil  or  gas  on  a  certain  named  tract  of 
land,  and  giving  the  right  to  enter  on  the  premises  at  all  times 
for  tlie  purpose  of  drilling  and  operating  for  oil  or  gas,  and  to 
^rect  and  maintain  all  necessary  structures,  and  lay  all  pipes 
fiecessary  for  tlie  production  and  transportation  of  oil  and  gas 
taken  from  the  premises,  was  void.  This  lease  was  void,  because 
the  husband  of  tlie  owner  had  not  joined  her  in  its  execution. 
"  While  oil  and  gas,"  said  tJie  court,  "  remain  in  the  earth  with- 
in their  natural  resei'voirs  or  pockets  they  are  parts  of  the  realty 
itself  as  much  as  are  stone,  coal,  lead  or  iron  or  any  other  solid 
or  substantive  mineral,  and  the  sale  of  the  real  estate  carries 
with  it  the  owncrshi])'  to  all  that  lies  beneath  the  soil,  which,  in 
case  it  be  stone,  coal,  lead  or  iron,  vests  in  the  purchaser  the 
absolute  ownership  therein,  wdiile,  if  there  is  water,  oil  or  gas 
in  or  on  the  land  the  purchaser's  ownership  is  absolute  so  long 
as  it  remains  in  or  on  his  land,  but  when  it  escapes  therefrom 

11  Kinnaman  V.  Pyle,  44  In(1.275;  i2Stiill  v.  Harris,  51   Ark.  294;    11 

Mcttler  V.   Miller,    129   111.   630;    22  S.   W.   Rep.    104. 

N.   E.   Rep.   529;   Central  Land   Co.  13  Glidden  v.  Strupler,  52  Pa.  St. 

V.  Laidley,  32  W.  Va.  134;   9  S.  E.  400;    Central   Land   Co.   v.    Laidley, 

Rep.  61;  White  v.  Wap;er,  25  N.  Y.  ftnpra ;  Leftwich  v.  Neal,  7  W.  Va. 

328;    Winans   v.   Peebles,   32   N.   Y.  569. 
423. 


WnO    MAY    MAKE    A    LEASE.  318c 

it  is  lost  Jn  iJiis  view  of  the  case,  if  tlio.  aj){>c'lli'c  could  si-ll 
the  eras  or  oil  which  niiffht  l>e  found  in  or  under  her  real  estate 
Avithout  her  hnshand  jdiiiiiiu-  wiih  lier,  she  could  also  s<'ll  tlu- 
stone,  coal,  lead  and  iron  which  nuj^ht  he  found  there,  or  even 
the  ^oil  itself,  thus,  if  not  parting  with,  in  fact  destroyinir,  the 
real  estate  itself.  But  if  we  were  to  Ih'M  tlic  uas  and  nil  fnuiid 
heneath  the  soil  is  not  a  part  of  the  land  itaelf  tlie  result  in  tins 
case  must  be  the  same,  for  under  the  terms  of  this  contract  the 
appellant  had  the  right  to  go  upon  the  premises  not  ordy  to  sink 
gas  and  oil  wells,  but  also  to  erect  and  niaintain  iherenn  '  all 
buildings  and  structures  and  lay  all  pijies  necessary  for  the  pro- 
duction and  transjx>rtation  of  oil  taken  from  said  premises.' 
These  rights  are  of  necessity  exclusive  in  their  nature  and  would 
vest  in  the  appellant  rights  in  the  ]iroperty  or  real  estate  itself, 
and,  if  valid,  might  be  enforced  to  the  exclusion  of  the  a]>pellee. 
The  statute  esiDecially  withholds  from  married  women  the  right 
in  any  manner  to  encumber  or  convey  away  their  separate  real 
estate  excejit  their  husbands  join  with  them."  It  was  furtlier 
held,  that  inasmuch  as  li'^r  lease  was  void,  she  could  not  encum- 
her  it  against  her  lessee,  the  lease  binding  neither  the  lessor  nor 
the  lessee.^*  In  that  Strtc  an  ordinary  lease  of  agricuhufal 
lands,  for  tlie  purpose  of  cultivation,  although  canning  an  in- 
terest in  land,  has  been  hrld  not  lo  fall  within  tJie  inhibition  of 
the  statute  quoted  above.^'  And  in  a  case  by  the  Supreme  Court 
of  that  State,  decided  after  the  cr?e  was  decided  by  the  A]>]Md- 
late  Court  of  the  same  State,  from  v^hich  the  quotation  al>ove  was 
made,^®  it  w^as  held  that  a  married  ^oman  could  execute,  with- 
out her  husband  joining,  a  lease  on  her  land  for  the  purpose  of 
operating  on  it  a  gas  or  oil  well,  it  not  being  an  encund>rance  or 
conveyance  of  the  land  within  the  meaning  of  the  st-;itute  pro- 
hibiting a  married  woman  incumbering  or  conveying  her  land 

14  Columbian  Oil  Co.  v.  Blake,  13  is  The    jurisdiction    of    the    two 

Ind.  App.  USO;  42  N.  E.  Rpp.  234.  courts  depends,   in  civil  cases,  upon 

This  case  is  reviewed  in  Heller  v.  the    aniowiit    involved,    and    in    rare 

Dailey,  28  Ind.  App.  555;   03  N.  E.  instances    an   ajipeai    lies    from    the 

Rep.  400.  ApiM'llate    to    the    Supreme     Court. 

*i"' Pearcy  v.  Henley,  82  Ind.  120;  The  former  i.s  hound  l)y  tlie  law  as 

Nash  V.  Berkmeir,  83  Ind.  530.     See  declared     by     the     latter,     whether 

Indianapolis  v.  Kingsbury,  101   Ind.  there   is  an   appeal   from   one  court 

200;  51  Am.  Rep.  749.  to  the  other  or  not. 


31 8d  OIL   AND    GAS. 

Avitliout  lier  husLand  joiiiiii<r  in  tlic  execiitidii  of  t.lio  instrument 
of  wnveyanoe  or  incumbrance.  "  Lewises  of  the  eJuiraeter  of 
the  present,"  said  the  court,  "  differ  from  tlie  ordiuarj'  af»:ricul- 
tural  lease,  in  that,  the  former  may  carry  a  substantial  and  en- 
during interest  in  tlie  freehold,  while  the  latter  vests  but  a  tran- 
sient and  temiMirary  I'ntcrest,  that  of  raisini!^  and  removing  crops. 
The  former,  however,  in  their  primary  effect,  part  with  no  im- 
mediate title  or  estate,  and  c^rry  but  right  of  exploration,  any 
title  or  estate  which  may  be  contemplated  remaining  inchoate 
and  of  no  effect  until  the  oil  or  gas  is  found.'"  For  the  purposes 
of  prosjxx'ting,  such  leases  involve  a  mere  use,  and  part  with  no 
greater  interest  in  tlie  freehold  than  the  ordinary  agricultural 
lease.  We  have  here  no  question  of  the  effect  of  the  instru- 
ment of  ]\rrs.  Swain  to  carry  a  freehold  estate,  the  (piestion  being 
as  to  the  validity  of  tlie  lease  to  the  appellees  in  vesting  the  ex- 
clusive right  of  prospecting  or  operating  for  gas  and  oil.  For 
such  purposes  we  do  not' doubt  the  jMDwer  of  Mrs.  Swain  to  lease 
without  her  husband  joining."  '^  It  will  1x3  observed  that  the 
tei-ms  of  the  two  leases  drawn  in  question  were  different ;  and  on 
this  difference  the  cases  may  be  reconciled.  Where  husband 
and  wife  owned  lands  as  tenants  in  common,  and  the  lessee,  sup- 
posing that  the  husband  owned  the  entire  interest  in  them,  took 
a  lease  of  them,  wherein  he  was  to  pay  a  certain  rent  or  com]ilete 
certain  work  by  a  fixed  date,  or  rent  where  no  operations  were 
begun,  and  none  were  begun ;  and  after  the  demand  for  rent  the 
lessee  ascertained  tliat  tlie  wife  had  an  interest  in  the  premises, 
and  he  then  demanded  that  the  wife  should  join  in  the  lease,  to 
which  the  lessor  assented,  but  he  never  secured  his  wife's  signa- 
ture ;  and  the  wife  was  present  during  all  the  negotiations  for 
the  lease,  but  never  then  or  afterwards  made  objection ;  it  was 
held  that  the  lessee  must  pay  the  full  amount  of  the  rent.^° 

Inciting     Venture     Oil      Co.      v.  lo  Kunkle    v.    People's,    etc.,    Gas 

Fretts,  152  Pa.  St.  451;  25  Atl.  Co.,  165  Pa.  St.  133;  30  All.  Rep. 
Rep.  732.  719;    35    W.    N.    C.   465.     See   Sim- 

is  Heal    V.    Niacrnra    Oil    Co..    150       inons    v.    P>uckeye    Supply    Co..    21 
Ind.  483;  50  N.  E.  Rep.  482.  Ohio  Cir.  Ct.  Rep.  455;    11   Ohio  C. 

D.  690. 


WHO    MAY    MAKE    A    LEASE. 

§258.     Wife  joining  husband  in  lease  —  homestead. 


319 


A  wife  should  join  her  husband  in  a  lease  of  his  lands;  for 
upon  his  deatli,  if  she  did  not  join  him  in  its  execution,  she  could 
assort  her  marital  rii^hts,  to  tlie  probable  injury  of  an  cxistinj^ 
lease  on  tlie  land.  So  if  a  lease  is  made  of  tlie  lioiiicstead,  she 
should  join  in  its  execution,  not  only  for  tlie  reason  given,  but 
for  the  reason  that  in  those  States  requiring  her  consent  to  the 
transfer  or  encumbrance  of  the  homestead  to  make  the  transfer 
or  encumbranoe  valid  tlio  same  c^mscnt  is  rcciuircd  in  granting  a 
lease  for  mining  or  oil  pnr{M)«evS.  Thus  a  lease  of  a  homestead 
where  such  a  statute  prevails,  granting  the  privilege  for  gas,  oil, 
and  other  minerals  at  the  lessee's  pleasure,  and  to  erect  all 
derricks,  engine  houses,  and  buildings  necessary  in  mining,  ex- 
cavating mines,  and  pijiing  oil  and  gas,  is  such  an  alienation  as 
to  require  the  wife's  signature,  and  if  she  does  not  sign  it,  tlie 
lease  is  void.'""  They  must  join  in  the  same  instniment,  and 
cannot  sign  separate  instruments  so  as  to  bind  the  land  or  eitJier 
of  them."^  A  power  of  attorney  authorizing  a  sale  of  the  prem- 
ises must  be  executed  in  the  same  way.^^  A  gas  company, 
after  entering  with  the  express  consent  of  the  owners  of  prem- 
ises, and  expending  large  sums  in  laying  its  pipe  line  across 


20  Franklin  Land  Co.  v.  Wea  Gas 
and  Coal  Co.,  43  Kan.  .518;  23  Pac. 
Rep.  630;  Palmer  Oil  and  Gas  Co. 
V.  Parish,  61  Kan.  311;  59  Pac. 
Rep.  640.  See  Pilcher  v.  Atchison, 
etc.,  Ry.  Co.,  38  Kan.  51 G;  10  Pac. 
Rep.  945;  Evans  v.  Grand  Rapids, 
etc.,  Ry.,  GS  ^Vlich.  002;  3G  X.  W. 
Rep.  GS7;  Bruncr  v.  Hicks,  230  III. 
53G:  82  N.  E.  Rep.  888;  Gillespie 
V.  Fulton  Oil  &  Gas  Co.,  140  111. 
App.  147;  Poe  v.  Ulrey,  233  HI.  5G; 
84  X.  E.  Rep.  46;  Gillespie  v.  Ful- 
ton Oil  &  Gas  Co.,  230  111.  188;  SO 
N.  E.  Rep.  219. 

21  Ott  V.  Ppraguo,  27  Kan.  020; 
Wallace  v.  Travelers'  Ins.  Co.,  54 
Kan.  442;  38  Pac.  Rop.  489;  Gage 
V.  Wheeler,  129  111.  197;  21  N.  E. 
Rep.  1075. 


22  Wallace  v.  Travelers'  Ins.  Co., 
siipra. 

As  to  what  will  not  be  an  aban- 
donment of  a  homestead  leased  for 
gas,  where  husband  and  wife  remove 
from  it,  Ix^cause  of  its  undesirabil- 
ity  as  a  residence.  See  Palmer  Oil 
and  Gas  Co.  v.  Parish,  supra. 

In  Texas,  where  property  was 
held  as  community  properly,  and 
the  lessor's  husband  represented  to 
the  defendants  he  would  extend  the 
time,  and,  on  the  faith  of  such  rep- 
resentation, the  defendant?!  went  on 
to  expend  moneys  and  carry  out 
their  part  of  the  contract,  the  les- 
sor was  held  bound  by  such  waiver. 
Presido  ^Mining  Co.  v.  PuIIis  (Tex.), 
4  S.  W.  Rep.  860. 


320  OIL   AND    GAS. 

the  same,  is  entitled  to  have  its  property  protected  by  injunc- 
tion from  forcible  destruction  or  injury  by  the  owners,  whether 
the  proceedings  under  which  it  entered  amounted  in  law  to  an 
alienation  of  the  homestead  right  or  not.-^ 

§  258a.     Administrator  or  executor. 

Elsewhere  has  been  discussed  the  power  of  an  administrator 
or  executor  to  execute  a  lease  of  land  for  oil  or  gas ;  -*  and 
what  is  there  said  need  not  be  here  repeated.  The  rule  is  that 
neither  an  administrator  nor  an  executor  can  lease  the  lands 
of  the  deceased  for  either  oil  or  gas,  unless  authorized  by  will 
so  to  do.  Thus  it  has  been  held  that  a  resident  of  Ohio,  owning 
a  farm  in  Kansas  used  only  for  agricultural  purposes,  who 
provided  by  his  will  that  his  executor  should  take  charge  of 
it  and  lease  and  maintain  it  in  good  condition,  with  a  view 
to  obtaining  the  best  income,  could  not  be  leased  by  them  for 
oil  or  gas,  granting  to  the  lessee  all  the  oil  and  gas  under  the 
premises,  and  thereby  bind  the  legatees.-' 

§  258b.     Indian  lands. 

Since  oil  and  gas  has  been  developed  in  Indian  Territory 
and  the  State  of  Oklahoma,  considerable  litigation  has  arisen 
over  leases  executed  by  Indians  who  are  the  owners  of  the 
lands  leased,  little  of  which,  however,  has  reached  the  higher 
courts.  An  Act  of  Congress,-''  provides  that  lands  allotted  to 
citizens  shall  not  in  any  manner  whatever  or  at  any  time  be 
encumbered,  taken,  or  sold  to  secure  or  satisfy  any  debt  or 
obligation  nor  be  alienated  by  the  allottee  or  his  heirs  before 
the  expiration  of  five  years  from  the  date  of  the  approval  of 
this  supplemental  agreement,  except  with  the  approval  of  the 
Secretary  of  the  Interior.  Each  citizen  shall  select  from  his 
allotment  forty  acres  of  land,  or  a  quarter  section,  as  a  home- 
stead, which  shall  be  and  remain  non-taxable,  inalienable,  and 
free  from  any  encumbrance  whatever  for  twenty-one  years 
from  the  date  of  the  deed  therefor,  and  a  separate  deed  shall 
be  issued  to  each  allottee  for  his  homestead  in  which  this 
condition  shall  appear.  Another  section  of  the  same  statute 
provides  that  "Creek  citizens  may  rent  their  allotments,  for 

23  Ralston  v.  Wichita  Natural  Gag  2r,  Lanyon  Zinc  Co.  v.  Freeman, 
Co.,  81  Kan.  80;   105  Pac.  Rep.  430.       68   Kan.   G91;    75   Pac.   Rep.   995. 

24  Sec.  60.  28  32  Stat,  at  Large,  503,  504. 


WHO    M\\    MAKE    A    LEASE.  321 

strictly  mineral  purposes,  for  a  term  not  to  exceed  one  year, 
for  grazing  purposes  onlj'  and  for  a  period  not  to  exceed  five 
years  for  agricultural  purposes;  but  Avithout  any  stipulation 
or  obligation  to  renew  the  same.  Such  leases  for  a  period 
longer  than  one  year  for  grazing  purposes  and  for  a  period 
longer  than  five  years  for  agricultural  purposes,  and  leases 
for  mineral  purposes  may  also  be  made  with  the  approval  of 
the  Secretary  of  the  Interior,  and  not  otherwise.  Any  agree- 
ment or  lease  of  any  kind  or  character  violative  of  this 
paragraph  shall  be  absolutely  void  and  not  susceptible  of 
ratification  in  any  manner,  and  no  rule  of  estoppel  shall  ever 
prevent  the  assertion  of  its  invalidity."  This  agreement  was 
ratified  by  the  Creek  Council  for  July  26,  1902.  On  April 
21,  1904,  Congress  further  provided  that  "All  the  restrictions 
upon  the  alienation  of  lands  of  all  allottees  of  either  of  the 
Five  Civilized  Tribes  of  Indians  who  are  not  of  Indian  blood, 
except  minors,  are,  except  as  to  homesteads,  hereby  removed. ' ' " 
The  Creek  Nation  is  one  of  the  five  nations  mentioned  in  this 
statute.  One  Zeke  ]\Ioore,  a  negro,  but  a  member  of  the 
Creek  Nation  of  Indians,  by  enrollment  as  a  citizen  of  that 
tribe,  and  therefore  entitled  to  an  allotment  under  this  Act  of 
Congress,  on  April  12,  1906,  executed  to  one  Litchfield  an 
oil  and  gas  mining  lease  covering  his  homestead  and  also  his 
surplus  allotment,  being  120  acres.  This  lease  was  upon  a 
form  provided  for  use  at  that  time  pursuant  to  the  rules  and 
regulations  promulgated  by  the  Secretary  of  the  Interior, 
covering  leases  of  Creek  Indian  lands,  and  extended  for  a 
period  of  fifteen  years.  In  consideration  of  the  royalties  and 
other  stipulations  contained  therein,  it  purported  to  demise, 
grant,  and  let  to  Litchfield  for  fifteen  3'ears,  all  of  the  oil 
deposits  and  natural  gas  in  and  under  this  120  acres,  with  the 
right  to  prospect  for  them,  and  other  rights  nsunlly  incident 
to  such  leases.  The  lease  thus  given  was  duly  approved  by 
the  xVssistant  Secretary  of  the  Interior  on  January  9,  1907, 
and  immediately  thereafter  Litchfield  began  to  sink  Avells  on 
the  portion  of  the  land  comprising  the  homestead,  developed 
a  number  of  paying  wells  and  expended  a  large  sum  of  money 
upon  the  development.  After  the  approval  of  the  lease  Litch- 
field paid  Moore  $120,  the  bonus  agreed  upon;  and  thereafter 
from  time  to  time  paid  the  stipulated  royalties.     It  was  held 

27  33  U.  S.  Stat,  at  Large,  204. 


322 


OIL   AND    GAS. 


that  this  was  a  valid  lease.-"  Where  an  oil  or  gas  lease  is 
executed  by  an  Indian  in  tlie  Indian  Territory  on  a  form 
prescribed  by  tlie  Interior  Department,  providing  that  no  sub- 
lease or  assignment  of  any  interest  therein  can  be  made  with- 
out the  consent  of  the  lessor  and  the  Secretary  of  the  Interior, 
any  attempted  assignment  or  transfer  without  such  con- 
sent is  void.  The  Secretary  of  the  Interior  has  no  authority 
to  make  a  lease,  or  to  change  or  ignore  the  provisions 
of  one  already  made  and  submitted  to  him  for  his  approval, 
without  the  consent  of  the  lessor.-^  Where  an  allottee  of 
Indian  lands  executed  an  oil  lease  thereof  wherein  it  was 
provided  that  it  should  not  be  assignable  without  her  consent, 
it  was  held  that  a  stranger  to  the  lease  going  upon  the  land 
and  drilling  wells  which  produced  oil,  acquired  no  right  by 
the  subsecpient  assignment  to  him  of  the  lease  without  the 
lessor's  consent;  and  that  the  assignment  was  not  rendered 
valid  by  an  approval  of  the  Secretary  of  the  Interior  over  the 
lessor's  protest.  The  persons  operating  the  wells  were  consid- 
ered to  be  trespassers  and  were  enjoined  from  further 
operating  them ;  and  the  lease  was  cancelled.^" 


28  Moore  v.  Sawyer,  167  Fed.  Rep. 
826;  see  Pickering  v.  Lomax,  14.1 
U.  S.  316;  12  Sup.  Ct.  Rep.  8G0;  SC 
L.  Ed.  716.  See  also  Bay  v.  Okla- 
]ioma  Soutiiern  Gas,  etc.,  Co.,  13  Okl. 
425;   73  Pac.  Rep.  936. 

2s  Midland  Oil  Co.  v.  Turner,  179 
Fed.  Rep.  74;  102  C.  C.  A.  368  (mod- 
ifying decree  in  Turner  v.  Seep,  107 
Fed.  Rep.  646)  ;  Seep  v.  Spade,  179 
Fed.  Rep.  77. 

The  Assistant  Secretary  of  tlie 
Interior  has  power  to  approve  an 
Indian  lease  under  U.  S.  Rev.  Stat. 
Sec.  439.  Turner  v.  Seep,  1C7  Fed. 
Rep.  646. 

30  Midland  Oil  Co.  v.  Turner, 
supra. 

An  oil  and  gas  lease  is  an  "aliena- 
tion of  lands"  within  the  provisions 
of  section  7  of  the  Act  of  March  1, 
1901,  31  U.  S.  Stat,  at  L.  849,  pro- 
viding that  lands  shall  not  be  alien- 
able by  the  allottee  or  his  heirs  at 
any  time  before  five  years  from  the 
notification  of  the  agreement,  except 
with  the  approval  of  the  Secretary 
of  the  Interior;  and,  where  made  of 


the  homestead  of  a  deceased  citizen 
by  blood  of  the  Creek  Nation,  by  her 
heirs,  before  expiration  of  the  five 
3-ears,  is  void'.  So  is  an  option  to 
purchase  contained  in  such  lease. 
Barnes  v.  Stonebraker,  28  Okl.  75; 
113  Pac.  M3. 

A  tenant  of  land,  allotted  to  a 
meml)er  of  an  Indian  tribe,  under 
a  lease  providing  that  all  improve- 
ments made  upon  the  land  by  the 
tenant  should  remain  thereupon, 
and  be  considered  as  part  considera- 
tion for  the  lease,  will  be  enjoined 
from  removing  such  improvement  at 
the  end  of  his  term,  though  he  first 
entered  into  possession  of  the  land 
under  an  assignment  of  the  lease 
which  contained  such  provision, 
which  a-ssignment  was  void,  because 
not  authorized  by  the  proper  gov- 
ernmental officers,  and"  placed  the 
improvements  upon  the  land  while  in 
possession  under  tlie  void  assign- 
ment and  under  a  subsequent  valid 
lease.  KruU  v.  Rose,  88  Neb.  651; 
130  N.  W.  Rep.  271. 


CHAPTER    IX. 

TENANTS  FOR  YEARS. 

§259.     May  work  open  mines. 
§260.     When  niay  open  new  mines. 
§260a.  Tenant  by  curtesy. 

§259.     May  work  open  mines. 

Unless  restricted  by  the  teniis  of  his  lease,  a  tenant  for  years 
may  work  mines  opened  at  the  time  his  lease  was  granted ;  but 
he  may  not  open  new  mines.*  And  if  an  owner  of  land  n})on 
which  there  is  a  mine  o|X3ned,  make  a  general  lease  of  it,  without 
any  reference  to  the  mine,  the  lessee  has  a  right  to  work  the 
mine  for  he  has  a  lease  of  all  the  land,  and  it  is  intended  that 
his  interest  is  as  general  as  his  lease.^ 

§260.     When  may  open  new  mines. 

But  the  terms  of  the  lease,  tliough  for  years,  may  be  such  as 
to  exchide  tlie  right  to  mine;  or  it  may  l)c  sucli  as  to  authorize 
the  lessee  to  open  new  mines.  Thus  a  demise  for  agricultural 
purposes  only  is  such  a  limitation  as  to  exclude  the  right  of  the 
lessee  to  take  out  stones  from  a  quarry  on  the  premises,  although 
open  at  the  time  of  the  lease.'"'  And  whore  the  lease  contained 
the  following  clause:  "  To  have  and  to  hold  the  alx)ve  granted 
and  demised  premises,  with  every  privilege,  right  and  a]>])urte- 
nance  whatsoever,  to  the  said  premises  belonging  or  in  any  wise 
appertaining,  whether  ways,  waters,  water  courses,  mines,  and 

1  Harlow    v.    Lake    Superior,    etc.,  2  Ovvinf^s  v.  Emery,  0  (Jill.  2G0. 

Co.,  36  Mich.  105;  Shaw  v.  Wallace,  3  Freer  v.  Stotenbur,  2  Keyoa  407  ; 

25  N.  J.  L.  455;   Kier  v.   Peterson,  2  Abb.  Dec.  189;  reversirg  30  Barb. 

41    Pa.   St.   361;    Pennsylvania   Salt  041. 
Co.  V.  Neel,  54  Pa.  St.  0;   Guirm  v. 
Fellows,  81 1/2  Pa.  St.  114. 

323 


324 


OIL   AND    G.VS. 


minerals  of  wlixitevcr  description,"  it  was  held  that  he  was  en- 
titled to  open  and  work  new  mines.  If  there  be  a  lease  of  land 
with  the  mines  in  it,"  said  the  court,  "  and  there  be  no  open 
mines,  the  lessee  may  dig  for  mines,  otherwise  the  grant  as  to 
mines  will  not  take  effect."  *  If  the  land  be  leased  for  coal  min- 
ing purposes,  of  course  the  lessee  may  o}M?n  new  mines  and  take 
out  coal.^ 


§  260a.    Tenant  by  curtesy. 

Where  certain  coal  lands  were  unopened  at  the  time  of  the 
death  of  the  wife,  the  tenant  by  curtesy  was  held  to  have  no 
riglit  to  open  and  mine  the  coal,  though,  as  the  coal  in  place 
was  land,  he  had  a  life  estate  in  it,  with  which  estate  the 
remainderman  could  not  interfere ;  but  where  such  remainder- 
man and  tenant  by  curtesy  sold  their  interest  in  such  land, 
the  proceeds  thereof  was  held  to  take  the  place  of  the  land, 
and  the  tenant  by  curtesy  was  entitled  to  the  whole  income 
during  his  life." 


4  Griffin  V.  Fellows,  81 1/2  Pa.  St. 
114;  contra,  Harlow  v.  Lake  Su- 
perior, etc.,  Co.,  supra. 

5  Heil  V.  Strong,  44  Pa.  St.  204 ; 
Gartside    v.    Outley,    58    111.    210; 


Franklin  Land  Co.  v.  Wea  Gas  and 
Coal  Co.,  43  i\an.  518;  23  Pac.  Rep. 
630. 

c  Deffenbaugh    v.    Hess,    225    Pa. 
G38;  74  Atl.  Rep.  608.  See  Sec.  264. 


CHAPTER  X. 


TENANCIES  FOR  LIFE. -DOWER. 

§261.  May  work  mines  or  oil  wells  already  oi)en. 

§262.  Rule  concerning  life  tenants  aj)i)lies  to  oil   leases. 

§263.  May  not  open  new  mines  or  bore  new  wells. 

§264.  Curtesy   estate   of  husband. 

§265.  When  mines  may  be  opened  or  wells  bored. 

§266.  Mineral  lands  unfit  for  any  other  purposes  than  mining. 

§267.  Reversioner  or  remainderman  opening  wells. 

§268.  Life-tenant  must  account  for  waste. 

§269.  Title  to  mineral  or  oil  severed. 

§270.  Destruction  of  corpus  of  the  estate. 

§271.  Oil  or  gas  may  be  exhausted. 

§272.  Estoppel  of  remainderman. 

§27.3.  Assignment  of  dower  in  mines. 

§273a.  Remainderman   injoining  extraction  of  oil  or  gas. 

§273b.  Interest  or  royalties. 

§261.     May  work  mines  or  oil  wells  already  open. 

In  an  instance  of  ooal  and  tlie  like  minerals,  a  tenant  for 
life  may  work  mines  already  opened,  even  to  their  exhaustion, 
carrying  on  the  mining  skillfully  so  as  not  to  injure  the  inheri- 
tance; and  he  may  even  sink  new  shafts  or  wells  to  the  vein 
already  open.  This  is  also  true  of  a  widow's  dower.  She  has 
the  right  to  work  mines  that  were  open  at  her  hushand's  death, 
which  have  l>een   assigned  to  her.^      And  tlic  life  tenant  may 

1  Lemfer  v.  Henke,  73  111.  405;  Eq.  86;  Coates  v.  Checvor.  1  Cow. 
Priddy  v.  Griffith,  150  111.  500;  37  460;  Rutland  v.  Gie.  1  Sid.  ir2; 
N.  E.  Rep.  999;  Hendrix  v.  McBcth,  1  Lev.  107;  Xecl  v.  Neel.  19  Pa.  St. 
61  Ind.  473;  Elias  v.  Snowdon  State  323;  Brooks  v.  ITanna.  19  Ohio  C. 
Co..  J..  R.  4  App.  Cas.  454;  Moore  Ct.  Rep.  21 G;  10  Ohio  Dec.  480; 
V.  Rollins.  45  Me.  493;  Billings  v.  Irwin  v.  Covode.  24  Pa.  St.  163; 
Taylor,  10  Pick.  460;  Kier  v.  Peter-  Lynn's  Appeal,  31  Pa.  St.  44;  West- 
son,  41  Pa.  St.  361;  Seager  v.  JMc-  moreland  Co.'s  Appeal.  85  Pa.  St. 
Cabe,  92  Mich.  186;  .52  N.  W.  Rep.  344;  Elcy's  Appeal.  103  Pa.  St.  300; 
299;  Campbell  v.  Wardlow.  L.  R.  Savers  v.  IToskinson.  110  Pa.  St. 
8  App.  Cas.  641;  Reed  v.  Reed,  16  473;  1  All.  Rop.  308;  Fairchild  v. 
N.  J.  Eq.  248;  Gaines  v.  Mining  Co.,  Fairchild  (Pa.).  9  All.  Ror..  255; 
33  N.  J.  Eq.  603,  reversing  .32  N.  J.  Woodburn's   Est.,    138   Pa.   St.   606; 

325 


326  OIL   AND    GAS. 

even  penetrate  through  a  seam  already  open  to  a  new  seam 
lying  underneath  the  one  penetrated.-  And  if  the  owner  of  an 
entire  estate  lease  them  for  mining  operations,  and  die,  his 
widow  is  entitled  to  the  royalty  of  a  mine  thereafter  opened  on 
the  portion  assigned  to  her  under  such  lease,  it  being  consid- 
ered that  the  mine  was  practically  opened  at  the  owner's 
death.''  The  life  tenant  may  work  mines  once  opened,  although 
they  have  not  been  worked  for  many  years  before  he  acquired 
his  life  estate;  but  abandonment  of  the  mine,  for  a  day  even, 
with  the  intention  to  devote  the  land  to  other  purposes,  will  be 
fatal  to  the  tenant.^  It  is  immaterial  how  the  life  estate  has 
been  created."'  And  if  a  life  estate  be  given  in  lands  upon  which 
mines  are  already  leased,  the  life  tenant  will  be  entitled  to  the 
royalties  accruing  under  the  lease." 

§  262.     Rule  concerning  life  tenant  applies  to  oil  leases. 

The  rule  concerning  the  right  of  a  life  tenant  to  open  new 
mines  or  work  old  ones  applies  to  oil  or  gas  wells  upon  the  life 
estate."*  Thus  where  oil  wells  had  been  sunk,  in  the  testator's 
life,  under  a  lease,  and  one  was  being  sunk  when  he  died,  it 
was  held  that  the  life-tenant  was  entitled  to  the  royalties 
under  the  lease.''     But  if  no  well  has  been  sunk  in  the  land 

21     Atl.    Rep.     IG;     Clift    v.    Clift,  tion,  and  the  corpus  in  another  pro- 

3  Pickle    (Tenn.)    17;   9  S.  W.  Rep.  portion.     In  such  a  case  the  royalty 

360;     Findlay    v.    Smith,    6    Mumf.  of  a  coal  lease  is  part  of  the  princi- 

134  j   8  Am.  Dec.  733.     See  Gannon  pal,  and   is  not  income.     Brooks  v, 

V.  Peterson,   193  111.  372;    62  N.  E.  Hanna,    19    Ohio    C.   Ct.    Rep.    216; 

Rep.  210.  10  Ohio  Dec.  480. 

2  Crouch  V.  Puryear,  1  Rand.  258.  «a  Stewart  v.  Tennant,  .52  VV.  Va. 

sPriddy  v.  Griffith,  150  111.  560;  559;   44  S.   E.   223;    Bakin  v.  Haw- 

37  N.  E.  Rep.  999.  kins,  52  VV.  Va.  124;   43  S.  E.  211; 

4  Gaines  v.  Green  Pond  Iron  Min-  Eakin  v.  Hawkins,  48  W.  Va.  364; 

ing  Co.,  33  N.  J.  Eq.  603,  reversing  37   S.   E.   622 ;    Richmond  Nat.   Gas 

32  N.  J.  Eq.  86.     See  Bogot  v.  Bo-  Co.  v.  Davenport,  37  Ind.  App.  25; 

got,    32    Beav.    509;     St<jughton    v.  76  N.  E.  525;   Ammons  v.  Ammons, 

Leigh,    1    Taunt.    410;     Bartlett    v.  50  W.  Va.  390;   40  S.  E.  490;   Wil- 

Phillips,  4  De  G.  and  J.  414;  Viner  son  v.  Youst,  43  W.  Va.  563;  28  S. 

V.  Vaughan,  2  Beav.  466.  E.  781;  Williamson  v.  Jones,  43  W. 

sNeel  v.  Neel,  19  Pa.  St.  323.  Va.    563;    27    S.    E.    411;    Koen    v. 

c  Shoemaker's  Appeal,  106  Pa.  St.  Bnrtlett,   41   W.  Va.   559;    23  S.   E. 

392;  Jones  v.  Strong,  5  Kulp.  7.  664;    56  Am.    St.    884;    31   L.  R.  A. 

The  rule  that  the  devisee  of  a  life  128;   Riipel  v.  Ohio  Oil  Co.    (Ind.), 

estate    is   entitled   to   work    a   mine  95  N.  E.  225. 

alreadv  opened  does  not  applv  where  7  Woodburn's   Estate,    138  Pa.   St. 

there  "is   no    life   estate,   but  a   dia-  606;  21  Atl.  Rep.  16;  Koen  v.  Bart- 

tribution  of   income   in  one   proper-  lett,  41  W.  Va.  559;   23  S.  E.  Rep. 


TENANCIES   FOR    LIFE. — DOWER.  326a 

owner's  lifetime,  his  life-tenant  cannot  sink  an  oil  well,  nor 
lease  the  land ;  and  if  he  do  lease  it,  he  cannot  recover  the 
rent  under  the  lease."  The  life  tenant  cannot  justify  his  con- 
duct in  horing  oil  or  gas  wells  by  claiming  tliat  if  he  did  not 
take  out  the  oil  or  gas  the  neighboring  land  owners  will  drain 
the  land;  for  the  oil  or  gas  belongs  to  the  remainderman." 
Where  the  owner  of  land,  after  leasing  it  for  mining  of  oil 
and  gas,  conveyed  it  to  his  children,  reserving  to  himself  a 
life  estate  in  it,  it  was  held  that  he  was  entitled  to  the  royal- 
ties under  the  lease.'"  And  where  a  lessee  in  an  oil  lease  from 
a  life-tenant  continues  to  take  oil  after  the  death  of  the  life- 
tenant,  he  is  liable  to  the  remainderman.^"* 

§  263.     May  not  open  new  mines  or  bore  new  wells. 

A  life-tenant  may  not  open  new  mines  upon  the  life-estate; 
for  him  to  do  so  is  waste;  '^  even  though,  as  in  case  of  oil,  it 
be  necessary  to  secure  it  where  adjoining  land  owners  have 
opened  wells  on  their  own  lands,  and  the  effect  is  to  draw  the 
oil  from  the  land  in  which  the  life  estate  exists.'-  "The  fact 
that  possibly,  by  operations  upon  neighboring  lands,  all  the 
gas  will  be  taken  before  the  remainderman  came  into  posses- 

664;    31    L.    R.    A.    128;    Richmond  C.  74;   Williamson  v.  Jones,  43  W. 

Natural    Gas    Co.    v.   Davenport,   37  Va.  562;    27  S.  E.  Rep.  411:   38  L. 

Ind.  App.   25;    76  N.   E.   Rep.   525;  R.    A.    694;    Childeers   v.   Neely,   47 

Priddv  V.  Griffiths,  150  111.  560;  37  W.  Va.   70;   34   R.   E.  Rep.  828;    49 

N.   E."  Rep.   999;    41    Am.    St.    397;  L.  R.  A.  468.     See  also  Bettman  v. 

Andrews  v.   Andrews,   31    Ind.  App.  Harness,  42   W.   Va.   433;   26   S.  E. 

189:  67  N.  E.  Rep.  461.  Rep.  271. 

8  Marshall  v.  Mellon,   179  Pa.  St.  lo  Koen    v.    Bartlett,    41    W.    Va. 

371;    36   Atl.    Rep.    201;    27    Pittsb.  559;    23    S.   E.    Rep.   664;    31    L.   R. 

L.  J.   (N.  S.)  214;  35  L.  R.  A.  816;  A.  128. 

57    Am.    St.    Rep.    601;    Gerkins    v.  i"a  Crawford  v.  Forest  Oil  Co.,  208 

Kentucky    Salt    Co.,    100    Ky.    734;  Pa.  5;  57  Atl.  Rep.  47. 

39  S.  W.  Rep.  444;  Gerkins  V  Ken-  "  Priddv  v.  Griffiths,  150  111.  560; 

lucky  Salt  Co.  (Ky.),  36  S.  W.  Rep.  37  N.  E.  Rep.  999;   Coates  v.  Chee- 

1;   Kenton  Gas,  etc.,  Co.  v.  Dornoy,  ver,  1  Cow.  460:  Whitfield  v.  Bewit, 

17  Ohio  Cir.  Ct.  Rep.   101:    9   Ohio  2  P.  Wms.  240:  Clavering  v.  Claver- 

C.    Dec.    694;    Findlay    v.    Smith,    6  ing,  2  P.   Wmsj  388;   Hook   v.   Gar- 

Munf.    134:    8   Am.    Dec.   733    (salt  field  Coal  Co.,  112  la.  210:  83  X.  W. 

wells).     See  Wilson  v.  Youst,  43  W.  Rep.  963:   Ohio  Oil  Co.  v.  Daupher- 

Va.   826:   28  S.  E.  Rep.   781;    Rich-  tee,  240  111.  361;  88  N.  E.  Rep.  818. 

mond    Xatural    Gas.    Co.    v.    Daven-  12  Blakeley   v.    Marshall,    174    Pa. 

port,    37    Ind.    Rep.    25;    76    N.    E.  St.  425:  34  Atl.  Rep.  564 :  38  W.  N. 

I^eP-  525.  C.   74:    Marshall  v.  Mellon,    179   Pa. 

oBlakeley  v.  Marshall,  174  Pa.  St.  St.  371;   36  Atl.  Rep.  201;  35  L.  R. 

425;    34   Atl.    Rep.    564;    38    W.    N.  A.  816. 


326b  OIL    AND    GAS. 

sion,  cannot  affect  the  right  of  the  remainderman  to  prevent 
the  taking  by  the  lessee  or  grantee  of  the  life-tenant.  That 
such  lessee  or  grantee  will  not  derive  any  benefit  from  a 
grant  or  lease  which  the  life-tenant  had  no  right  to  make 
cannot  be  regarded  as  a  hardship  to  any  person."'-"  If  a 
stranger  dig  and  carry  away  coal  from  land  in  possession  of  a 
life-tenant,  upon  which  no  mine  has  been  opened,  the  remain- 
derman must  bring  the  action  to  recover  damages.'^ 

§  264.     Curtesy  estate  of  husband. 

The  right  of  a  husband  to  royalties  in  his  wife's  land  by  rea- 
son of  tlie  estate  in  curtesy  he  holds,  is  the  same  as  her  dower 
right  in  his  lands."  A  tenant  by  curtesy  cannot  convey  the 
right  to  a  lease  to  extract  oil  from  the  land.  Such  a  lease  or 
grant  is  void.^' 

^265.     When  mines  may  be  opened  or  wells  bored. 

There  are  circumstances  under  which  a  mine  may  \ye  opened 
or  a  well  dug,  for  the  benefit  of  the  life-tenant.  These  arise 
by  reason  of  some  act  of  the  original  owner.  Thus  where  ex- 
ecutors, under  a  power  conferred  by  the  will  of  their  testator, 

12a  Richmond   Natural  Gas  Co.  v.  k  Alderson  v.  Alderson,  46  W.  Va. 

Davenport,    37    Ind.    25;    76    N.    E.  242;   33  S.  E.  Rep.  228;   Stoughton 

Rep.  525;   Koen  v.   Bartlett,   41  W.  v.  Leigh,  1  Taunt.  410;  2  Inst.  299; 

Va.  550;   23   S.  E.  664;   50  Am.  St.  Sampson  v.   Grogan,  21   R.   I.    174; 

884;   31  L.  R.  A.  128.  42  Atl.  Rep.  712;   44  L.  R.  A.  711. 

13  Franklin  Coal  Co.  v.  McMillan,  But  see  Sec.  260a. 

49    ^Id.    549.      Marshall   v.    Mellon,  Where  there  had  been  a  demise  of 

supra.  all    the    coal    under    the    surface   of 

A  testamentary  trustee  holding  a  certain  described  tract  of  land,  it 
land  on  which  there  are  no  oil  wells  was  held  to  be  a  sale  of  the  coal, 
in  trust  for  the  benefit  of  a  bene-  and  the  amounts  due  from  the  lessee 
ficiary  for  life  with  remainder  over  to  the  lessor  as  royalties  were  not 
cannot  operate  for  oil  for  the  bcmefit  rents,  but  the  purchase  money  of 
of  the  life  beneficiary,  and  the  tak-  real  estate.  Such  royalty  was  held 
ing  out  of  oil  is  waste  which  equity  to  be  collectible  by  the  legal  rep- 
will  enjoin.  Ohio  Oil  Co.  v.  Daughre-  resentatives  of  the  deceased  owner 
tee,  88  N.  E.  818,  240  111.  361;  as  personal  property,  was  not  profits 
Williamson  v.  Jones,  43  W.  Va.  503;  of  the  real  estate,  and  was  not  the 
27  S.  E.  411;  Richmond  Nat.  Gas  subject  of  curtesy.  Fairchild  v. 
Co.  V.  Davenport,  37  Ind.  App.  25;  Fairchild  (Pa.),  9  Atl.  Rep.  255. 
76  N.  E.  525.  is  Barnsdall    v.    Boley,    119    Fed. 

Rep.  191. 


TENANCIES    FOR    LIFE. — DOWER.  326c 

cxocnted  a  coal  lease  on  tiie  testator's  land,  it  was  held  that  th(» 
royalties  rcecived  were  iiieome,  distributable  as  such,  ami  not 
as  a  part  of  the  corpus  of  the  estate.  And  it  was  also  held  that 
where  the  chief  or  sole  value  of  lands  is  for  coal  mining:,  and 
the  only  profit  to  be  derived  from  them  is  by  sale  or  lease  of  the 
coal,  which  the  executors  may  do,  as  they  see  fit,  the  executor 
may  claim  the  royalties  of  a  lease  they  make  as  income  of  the 
estate."  The  royalties,  of  course,  eventually  went  to  the  liie- 
tenants.^"  Where  land  was  valuable  only  as  coal  land,  and  the 
executors  were  to  collect  and  give  all  the  income  of  the  estate 
to  the  testator's  wife,  and  were  given  power  to  sell  or  lease  the 
lands,  as  they  thought  best,  it  was  held  that  the  power  to  "  lease  " 
gave  them  power  to  lease  the  land  for  mining  purposes,  although 
no  mine  had  ever  been  oiiened  on  them ;  and  that  the  rental 
arising  from  such  a  lease  went  to  the  life-tenant  as  income.'* 
Where  a  testator  bequeathed  one-half  of  his  residuary  estate  to 
his  daughter,  and  directed  the  rest  to  be  invested  for  her  use 
during  life,  giving  to  his  executors  power  "  to  sell  and  convert 
my  estate  into  money,  or  to  lease  my  coal  interest,"  and  to  invest 
the  proceeds  of  the  coal  lands  so  as  produce  a  permanent  revenue, 
the  income  from  which  was  to  be  ])ai(l  to  the  daughter;  and  after 
making  his  will  he  leased  the  land,  receiving  a  royalty  for  the 
lease,  it  was  held  as  this  royalty  was  a  part  of  the  residuary 
estate  one-half  of  it  went  to  the  daughter,  and  the  other  half 
must  be  invested  for  her  nse.'"  So  wlioi-e  husl)and  and  wife 
conveyed  unojiencd  coal  lands  to  trustees,  with  |X)wer  to  ''  con- 
trol, lease,  demise,  and  to  mine-let "  such  lands,  and  to  collect 
and  pay  over  to  the  wife  the  income  from  the  same,  with  re- 
mainder over,  it  was  held  that  at  his  death  the  trustees  could 
grant  a  lease  of  the  lands,  and  the  income  from  the  lease  was 
payable  to  the  wife.^"  So  where  the  owner  of  land  having  on  it 
a  salt  well  provided  by  his  will  as  follows :  "  During  the  life  of 
my  wife  it  is  my  intention  and  re(]uest  that  A,  V>  and  her  do 

i«  Reynolds    v.    Ilanna,    55     Fed.  isWentz's    Appeal,     106    Pa.     St. 

Eep.    783.     See    Rankin's   Appeal,    1  301. 

Mong.  308   (Pa.),  2  L.  R.  A.  420.  lo. Tones  v.  Strong,  5  Kulp.  7. 

i^Eley's  Appeal,   103   Pa.  St.   300  ^o  Bedford's    Appeal,    12G    Pa.    St. 

(a  like  case)  ;   McClintock  v.  Duna,  117;   17  Atl.  Rep.  538. 
lOG   Pa.   St.    3SG;    Slioemaker's   Ap- 
peal, 106  Pa.  St.  392. 


326d  OIL   AND    GAS. 

carry  on  nij  business  in  jnirtncrslii]),  Ixjtli  salt  works  and  inor- 
fihandising,  equal  shares;  and  that  in  consideration  of  the  nse  of 
my  capital  they  pay  out "  certain  named  legacies,  it  was  held 
that  the  life-tenants  might  sink  new  salt  wells,  even  to  the  ex- 
haustion of  the  salt  veins;  and  that  they  had  the  right  of  wood, 
from  the  testator's  Avood  land  in  an  uidiiiiitcd  amount,  to  carry 
on  the  works  which  he  had  used  for  that  puq)ose  in  his  life 
time."^ 

§266.     Mineral  lands  unfit  for  any  other  purposes  than  mining. 

The  rule  that  a  life-tenant  may  not  open  a  mine  and  work 
it  upon  the  life  estate,  has  been  denied  in  cases  where  the  lands 
were  only  fit  for  mining  p'urposes.^"  And  it  has  been  held  that 
the  rule  not  |:>ermitting  a  life-tenant  to  open  new  mines  has  no 
application  to  this  country."^ 

§267.     Reversioner  or  remainderman  opening  wells. 

The  right  of  possession  of  land  is  in  the  life-tenant.  The 
reversioner  or  remainderiTian  has  no  right  of  possession  as  long 
as  the  life  tenancy  is  in  existence.  lie,  therefore,  has  no  right, 
without  the  consent  of  the  life-tenant,  to  enter  on  the  premises 
to  sink  oil  or  gas  wells;  and  if  he  do,  without  such  consent,  the 
product  of  the  wells  will  belong  to  the  life-tenant,  who  may 
thereafter  work  them.  By  the  severance  of  the  oil  or  gas  from 
the  soil  they  become  profits  arising  from  the  land  ;  and  as  all 
profits  belong  to  the  life-tenant,  he  is  entitled  to  take  such  oil 
or  gas.'* 

ziFindlay  V.  Smith,  6  Munf.  134;  N.   W.    Rep.   528;    Melms   v.   Pabst 

8  Am.  Dec.   733.  Brewing  Co.,  104  Wis.  7;  79  N.  W. 

22Wentz's    Appeal,     lOG    Ta.    St.  Rep.   738,  and  Dislicr  v.  Dishcr,  45 

301;    Reynolds   v.    Ilanna,    55    Fed.  Xcb.  lOO;  03  X.  W.  Rep.  3G8,  wliicli 

Rep.   783.  are  other  instances  of  statutorj'  life 

23  Seager    v.    McCabe,    92    Mich.  estates,     but     not     cases     involving 

186;  52  N.  W.  Rep.  299;  10  L.  R.  A.  mines. 

247.     This  was  a  statutory  life  es-  24  Koen    v.    Bartlett,    41    W.    Va. 

tate.      See    St.    Paul    Trust    Co.    v.  559;  23  S.  E.  Rep.  004;  31  L.  R.  A. 

Mintzer,   65   iVlinn.    12"4;    67   N.   W.  128;   Rupol  v.  Ohio  Oil  Co.    (Ind.)^ 

Rep.  057;   32  L.  R.  A  750;   Wilkin-  95  N.  E.  225. 
son  V.   Wilkinson,  59   Wis.  557;    IS 


TENANCIES    FOU    LIFE. DOWER.  327 

^268.     Life-tenant  must  account  for  waste. 

Tnasiiuicli  MS  the  ()|K'iiiii_ii"  df  iiiincs  or  Imii-iiii;  (>{  oil  ;ui<l  ijas 
wells,  and  taking;  tJieir  product  by  the  life-tenant  from  the  soil 
is  a  waste,  such  tenant  must  account  to  the  renniindemien,  not 
on  the  basis  of  an  annual  rental  but  on  the  basis  of  rents  and 
profits.  And  if  llicrc  be  several  of  the  reuiaiiMleniien,  each  i.-- 
entitled  to  his  share.  And  if  the  tciu\nt  for  life  is  one  of  three 
tenants  in  the  remainder,  and  he  ousts  his  co-tenants  in  such 
remainder,  claiming:  the  entire  title,  he,  having  notice  of  their 
title,  is  not  entitled  to  couijKMisation  for  iuipi'ovcnients  he  has 
made  upon  the  laiul,  under  a  statute  allowing;  oomix^nsation  to 
those  who  make  improvements  on  land,  under  the  l)elief  that 
thej  have  a  good  title.  In  such  an  instance  when  the  remain- 
dermen call  for  an  accounting  they  must  allow  the  life-tenant  all 
the  costs  of  production,  which  includes  the  cost  of  boring  the 
well.-' 

§269.     Title  to  mineral  or  oil  severed. 

If  the  lifc^tenaut  open  mines  or  bore  oil  or  gas  wells  without 
right,  the  mineral,  oil  or  gas  taken  out  will  belong  to  the  re- 
maindermen, the  title  thereto  being  in  liim.-*^  By  the  sever- 
ance they  become  personal  property ;  and  the  remaindermen  may 
replevin  them  from  whomever  may  come  into  possession  of 
them." 


§270.     Destruction  of  corpus  of  the  estate. 

The  life-tenant  has  no  right  t-o  destroy  the  conms  of  the 
estate.  Such  is  the  case,  as  we  have  seen,  where  he  opens  new 
mines  or  bores  new  oil  or  gas  wells;  and  what  he  may  not  do 
directly,  he  cannot  do  indirectly,  as  by  giving  the  right  to  others 

25  Williamson  v.  Jones,  43  W.  V".  2«  Williamson  v.  Jones,  43  W.  Va. 

5G2;  27  S.  E.  r.op.  411;  3S  L.  R.  A.  5G2 ;  27  S.  E.  Rop.  411;  3S  L.  R.  A. 

G94.     See  Williams  v.   Bolton,  3   P.  G94. 

Wms.  2G8;   1  Cox.  Ch.  Cas.  72;  Fos-  27  Omaha,   etc.,    Co.    v.   Talwr,    13 

ter  V.  Weaver,    118  Pa.   St.   42;    12  Colo.  41;  21  Pnc.  Rep.  925;  ITuglios 

Atl.   Rep.   313;    Ward   v.   Ward,    40  v.    United    Pipe    Lines,    119    N.    Y. 

W.  Va.  611;   21  S.  E.  Rep.  740;   29  423;  25  N.  E.  Rep.  1042. 
L.   R.  A.   449;    Effinger  v.   Hall,   81 
Va.  94. 


328  OIL    AND    GAS. 

by  the  way  of  lease  or  otherwise.  Ami  if  he  give  a  lease  on 
undeveloped  territory,  lie  cannot  collect  the  rent  or  royalty;  for 
that  belongs  to  the  reversioner  or  remaindermen.^* 


§271.     Oil  or  gas  may  be  exhausted. 

]^o  limitation  can  be  placed  npon  the  right  of  a  life-tenant 
to  use  gas  or  oil  wells,  or  mines,  already  bored  or  open ;  and  the 
same  is  true  if  he  had  the  right  to  bore  wells  or  open  mines. 
He  may  exhaust  the  oil  or  gas  in  the  entire  tract  of  land  subject 
to  the  life  estate,  or  all  the  ore  that  can  be  found  in  the  mine; 
and  the  reversioner  or  remainderman  cannot  complain,  although 
thereby  the  land  may  be  rendered  practJjLil;)  worthless.""  Xor 
is  tlie  life-tenant  confined  to  the  exact  method  pursued  by  the 
original  grantor.  Thus  if  such  origiuifJ  owner  used  the  gas  or 
oil  for  his  own  use  only,  that  does  not  prevent  the  life-tenanL 
selling  the  gas  or  oil  he  pumps  out.^*^ 

§272.     Estoppel  of  remainderman. 

In  rare  instances  a  remainderman  may  be  estopped  in  an  at- 
tempt to  restrain  the  taking  of  ore,  gas  or  oil  from  the  land  in 
which  he  has  a  remainder.  An  instance  arose  in  Kentucky, 
where  the  life-tenant  gave  a  lease  to  bore  for  oil  and  gas  upon 
land  not  theretofore  developed.  The  lessee  under  this  leaso 
drilled  a  well  at  great  expense,  wdth  the  knowledge  of  some  of 

28  Marshall  v.  Mellon,  179  Pa.  St.  liamson  v.  Jones,  43  W.  Va.  562;  27 

371;   27   Pittsb.  L.   J.    (N.  S.)    214;  S.   W.  Eep.  411;    38   L.  R.  A.   694; 

36  Atl.  Rep.  201;   57  Am.  St.  Rep.  Childers   v.    Xeely,   47    W.    Va.    70; 

601;    36   L.   R.   A.   816;    Gerkins   v.  34    S.    E.    Rep.    828;    49    L.    R.    A. 

Kentucky  Salt  Co.,  100  Ky.  734;  39  468. 

S.   W.   Rep.    444;    Gerkins    v.    Ken-  29  Koen    v.    Bartlett,    41    W.    Va. 

tucky   Salt  Co.,   36   S.    W.   Rep.    1;  559;  23  S.  E.  Rep.  664;  31  L.  R.  A. 

Kenton  Gas,  etc.,  Co.  v.  Dorney,  17  128;    Shoemaker's   Appeal,    106   Pa. 

Ohio  Cir.   Ct.   Rep.    101;    9    Ohio   C.  St.    392;    Sayers    v.    Hoskinson,    110 

Dec.  604;   Woodburn's  Est.,  138  Pa.  Pa.  St.  473;   1  Atl.  Rep.  308;   Ran- 

St.  606;    21  Atl.   Rep.   16;    Koen  v.  kin's    Appeal,    1    Monaghan     (Pa.) 

Bartlett,  41   W.   Va.  559;    23   S.   E.  308;   2  L.  R.  A.  429. 

Rep.  664;  31  L.  R.  A.  128;  Blakeley  so  Neel   v.   Neel,    19   Pa.   St.  323; 

V.    IMarshall,    174    Pa.    St.    425;    34  Irwin    v.    Covode,    24   Pa.    St.    162; 

Atl.  Rep.  564;  38  W.  N.  C.  74;  Wil-  Holman's  Appeal,  24  Pa.  St.  174. 


TENANCIES    FOR    LIFE. DOWKli.  329 

tlio  rcniaiiulcniK'H,  who  wdiild  net  be  liriieiitcd  l)_v  linviiiii'  tli;' 
v.H'U  closed.  Tt  was  held  that  llic  lessee  was  entitled  to  he  com- 
jiensated  for  his  iniproveiiicnts,  that  he  might  eontimic  tx>  work 
under  the  lease,  btit  must  pay  the  remaindermen  a  fair  royalty 
for  all  salt  water  he  took  out  after  they  had  brought  their  action 
to  restrain  him.'' 

^273.     Assignment  of  dower  in  mines. 

In  assigiiino;  dower  there  should  bo  taken  into  considcrat.ion 
the  value  of  the  mines  so  far  as  opened  during  the  hnsl)an(rs 
life,  and  tJie  admeasures  may,  in  their  discretion  assign  the 
dower  in  lands  by  metes  and  bounds  containing  the  mines  or 
not,  by  directing  a  separate  alternate  enjoyment  of  the  whole  for 
]icriods  proportioned  to  the  share  of  the  parties,  or  by  giving 
the  widow  a  part  of  the  profits.  But  there  can  be  no  account 
taken  of  the  mines  opened  since  the  death  of  the  husband  by  hie 
alienee,  nor  of  the  improvements  made  therein  by  such  alienee.^* 
"  Tt  is  not  necessary,"  says  a  standard  English  authority,  "  that 
the  widow  should  have  a  third  or  other  proportion  of  each  part 
of  the  estate;  and  if,  therefore,  the  husband  be  ]iossessed  of 
divers  mines,  the  sheritt'  may  assign  such  a  numlxn-  ot  tlunn  as 
will  amount  to  one-third  in  value  of  the  whole;'''  and,  in  fact, 
the  sherilf  need  not  assign  to  her  any  mines  at  all  —  acil,  be- 
cause the  widow's  part  may  consist  wholly  of  surface  lands  set 
out  by  metes  and  bounds;  or  the  sherilf  may  divide  the  ])rotits 
of  the  mines  between  the  ])arties,  by  directing,  for  cxaiuplc,  the 
alternate  enjoyment  of  the  mines,  or  by  giving  the  widow  a  ]):irt 
of  the  profits  —  especially  where  the  mines  ai-c  in  the  hands 
of  the  other  persons."  ■'■*  In  a  New  Jersey  case  it  was  said: 
"  The  only  question  that  can  arise  will  be  in  regard  to  the  mode 
of  assignment,  whether  by  metes  and  bounds  or  by  a  share  of 
the  profits.      That  course  will  be  adopted  which  will  l)e  most 

31  Gerkins  v.  Kentucky  Salt  Co.,  276;  Stoughton  v.  I^oigli,  1  Taunt. 
100   Ky.   734;    30    S.   W.   Rep.   444;        402,  410. 

Gerkins  v.  Kentucky  Salt  Co.,  36  S.  ■''"  Citing      Stoughton      v.      Leigh, 

W.  Rep.  1.  supra. 

32  Coates  V.  Chcevcr,  1  Cow.  460.  34  Baitihridge  on  Klines  (5lh  ed.), 
See  Dicken  v.  Ilamer,  1  Drew  and  p.  30,  citing  Stoughton  v.  Leigh, 
Sm.  284;   30  L.  J.  Ch.  778;   2  L.  T.  supra. 


330  OIL   AND   GAS. 

favorable  to  the  widow,  and  wliicli  will  most  cflFcctiially  secure 
the  enjoyment  of  her  right.  There  can  be  no  difficulty  in  taking 
an  account  of  the  profit.  It  a]>]>ears  fi'om  the  answer  that  the 
clay  banks  have  been  w^orked  in  connection  with  the  farm,  thus 
tlie  profits  of  the  clay  may  he  ascertained  as  well  as  of  any  other 
part  of  the  property.  Working  banks  is  a  mere  mode  of  enjoy- 
ment." '' 

§  273a.     Remainderman  enjoining  extraction  of  oil  or  gas. 

If  the  life-tenant,  or  any  one  by  his  authority  or  under  a 
lease  from  him,  extracts  the  oil  or  gas  from  the  land  of  the 
life  estate,  the  remainderman  may  enjoin  him,  or  the  person 
acting  under  him  or  under  the  lease.  The  taking  of  the  oil 
or  gas  without  such  remainderman's  consent  is  waste.^" 

§  273b.     Interest  or  royalties. 

Although  the  life-tenant,  or  the  owner  for  years,  cannot 
open  wells  and  extract  oil  or  gas,  yet  if  the  remainderman 
takes  out  the  oil  or  gas  such  tenant  or  owner  for  years  wuU  be 
entitled  to  interest  on  the  value  of  the  oil  and  gas  thus  taken 
out,  and  he  may  enforce  his  right  by  a  bill  in  equity  for  an 
accounting.'''  So  a  widow  entitled  to  dower  in  oil  lands  is 
entitled  to  interest  on  one-third  of  the  royalties  taken  out.^'* 

35  Rockwell    V.    Morgan,    2    Beas.  W.  Va.  29G;    28   S.  E.  922;   Wilson 

(N.  J.)   Ch.  384.  V.  Youst,  43  W.  Va.  826;;   28  S.  E. 

Until  assigned  to  her  a  widow  is  781;    Blakeley  v.  Marshall,   174  Pa. 

not  seized  of  any  part  of  the  land.  425 ;  34  Atl.  5G4 ;  Appeal  of  Stough- 

Haskell  v.   Sutton,  53  W.  Va.  20G;  ton,  88  Pa.  198;   Haskell  v.  Sutton, 

44   S.   E.   533.      If   oil   be   extracted  53  W.  Va.  206;  44  S.  E.  533. 

from   land   in  which  the  widow  has  37  Wilson    v.    Youst,    43    W.    Va. 

a  dower   interest  she   is   entitled  to  826;     28     S.     E.     78;     Blakeley     v. 

interest  on  one-third  of  the  amount  Marshall,  174  Pa.  425;  34  Atl.  564; 

taken  out.     Stewart  v.  Tcnnant,  52  Eakins  v.  Hawkins,  52  W.  Va.  124; 

W.  Va.  559;   44  S.  E.  223;   Findlay  43   S.   E.  211;    Stewart  v.  Tennant, 

V.   Smith,   6   Munf.    134;    Lenfers  v.  52  W.  Va.  559;   44  S.  E.  223;   Am- 

Henke,  73  111.  405;  24  An.  Rep.  263.  mons  v.   Ammons,   50   W.  Va.   390; 

30  Williamson  v.  Jones,  39  W.  Va.  40  S.  E.  490. 

231;    19    S.   E.   436;    Williamson   v.  ss  Stewart  v.  Tannant,  52  W.  Va. 

Jones,  43  W.  Va.  562;  27  S.  E.  411;  559;  44  S.  E.  223. 
South  Penn.  Oil  Co.  v.  Mclntire,  44 


CHAPTER  XI. 

CO-TENANTS. 

§274.  One  co-tenant  may  operate  land  of  co-tenancy  for  oil  or  gas. 

§275.  Lease  or  license  granted  by  co-tenant. 

§276.  Partition  of  mines  or  mineral  lands. 

§277.  Partition  of  oil  or  gas  lands. 

§278.  Accounting  between  co-tenants. 

§279.  Accounting  when  tenant  excludes  co-tenant. 

§280.  Owner    of    surface    not    co-tenant    with    owner    of    mineral    beneath 

surface. 

§281.  Purchase  by  tenant  of  co-tenant's  interest. 

§282.  Equity  jurisdiction  of  an  accounting. 

§283.  E.\pense  of  working  joint  property. 

§284.  When  a  tenant  bound  by  co-tenant's  act. 

§285.  Injunction. 

§286.  Surrender  of  lease  by  co-tenant. 

§287.  Payment  of  rent  or  royalties. 

§288.  Fidelity  relation  between  members  of  a  mining  partnership. 

§274.     One  co-tenant  may  operate  land  of  co-tenancy  for  oil 
or  gas. 

One  co-tenant  of  land  has  the  right  himself  to  operate  the 
land  for  oil  or  gas  without  the  consent  of  his  co-tenant ;  and 
this  includes,  of  course,  the  right  to  sink  wells  and  erect  plants 
for  that  purpose.  Ilis  fellow-tenant  cannot  prevent  his  operat- 
ing the  joint  property,  by  refusing  to  join  him  in  the  enter- 
prise.   This  is  true  of  coal  or  other  ore  lands ;  ^  and  the  same 

1  Coleman's    Appeal,    62    Pa.    St.  Fulmer'a  Appeal,  128  Pa.  St.  24;  18 

252,  affirming  1  Pearson  470;   Clow-  Atl.  Rep.  493;  contra,  Childs  v.  Kan- 

ser   V.   Joplin  Mining  Co.,   reported  sas  City,  etc.,  Co.,   117  Mo.  414;   23 

in  note  to  Bly  v.   Unitetl   States,  4  S.  W.  Rep.  373;  Murray  v.  Haverty, 

Dill.  409;  Marsh  v.  Holley,  42  Conn.  70   111.   318;    Hook  v.  Garfield   Coal 

453;  HufT  V.  McDonald,  22  Ga.  131;  Co.,    112    la.    2:C;    83    N.    W.    Rep. 

McCord  V.  iNlining  Co.,  04  Cal.  134;  !)03. 

Watson  V.  U.  R.  and  G.  Gravel  Co.,  If  a  lease  held  by  two  tenants  be 

50  Mo.  App.  035;   Kahn  v.  Old  Tele-  forfeited,    one    of    the    tenants    may 

graph  Mining  Co.,  2  Utah  13;  Blew-  then  take  a  new  lease  on  the  prem- 

ett  V.  Coleman,  40  Pa.  St.  45;  Cole-  ises  without  being  held  as  a  trustee 

man    v.    Blewett,    43    Pa.    St.,    176;  for    his    fellow    tenant.      Westerman 

Grubb's    Appeal,    66    Pa.    St.    117;  v.  Dinsmore,  68  W.  Va.  594;   71   S. 

Grubb    V.    Grubb,    74    Pa.    St.    25:  E.  250. 
Grubb's    Appeal,    90    Pa.    St.    228; 


331 


332  ouj  and  gas. 

is  true  of  oil  or  gas  lauds.-  AVliere  a  widow  executed  au  oil 
and  gas  lease  on  lands  on  which  she  owned  an  undivided  one- 
half  and  the  other  half  belonged  to  her  children,  a  subsequent 
lease  of  the  same  lands  to  a  third  party  by  the  children  after 
the  youngest  child  had  reached  the  majority  conveys  their 
undivided  interest,  it  w'as  held  that  each  lessee  is  entitled  to 
the  possession  of  the  premises  to  mine  for  oil  and  gas,  but 
neither  is  entitled  to  exclusive  possession.-^ 

§  275.     Lease  or  license  granted  by  co-tenant. 

One  co-tenant  may  grant  a  license  or  lease  to  dig  in  the 
joint  property,  but  the  right  extends  only  to  his  interest; ''  and 
if  the  lessee  takes  out  ore  he  must  account  to  the  other 
co-tenant  for  the  value  of  his  share  of  the  mineral  taken  out, 
less  the  expense  of  digging  and  removing  it  from  the  mines.* 
The  tenant  not  joining  in  the  license  or  lease  is  not  bound  to 
accept  his  share  of  the  royalty  reserved,  but  may  insist  upon 
an  accounting  by  the  licensee  or  lessee  according  to  the  rule 
just  stated.^  The  licensee  or  lessee  of  one  tenant  cannot  be 
considered  a  trespasser  as  to  the  other  tenant ;  for  he  simply 
succeeds  to  the  right  of  possession  in  his  licensor  or  lessor, 
who  had  a  right  of  possession  equal  to  that  of  his  fellow- 
tenant.    Exclusion  by  the  licensee  or  lessee  of  the  other  tenant 

2  Williamson  v.  Jones,  39  W.  Va.  75  Kan.  572;  89  Pac.  Rep.  1039;   10 

231;    19   S.   E.   Rep.   436;    25   L.   R.  L.  R.  A.  (N.  S.)   787. 

A.  222;   Enterprise,  etc.,  Co.  v.  Na-  3  Chnaha,    etc.,    Co.    v.    Tabor,    13 

tional  Transit  Co.,  172  Pa.  St.  421;  Colo.  41:   21  Pac.  Rop.  925;  5  L.  R. 

33    Atl.    Rep.    G87;     Harrington    v.  A.  230;  Tipping  v.  Robbins,  71  Wis. 

Florence   Oil   Co.,    178   Pa.   St.   444;  507;  37  X.  W.  Rep.  427;  Job  v.  Pot- 

35  Atl.  Rep.  855;  Williams  v.  South  ton.   L.   R.   20  Eq.   84;    44  L.  J.  Ch. 

Penn.  Oil  Co.,  52  W.  Va.  181;  43  S.  202;    23   W.  R.   588;    32  L.  T.    110; 

E.  Rep  214.  Zeigler   v.    Brenneman,   237    111.    15; 

See    where    it    is    held    that    one  86  X.  E.  Rep.  507    (lease  void  as  to 

tenant    cannot    operate    oil    or    gas  tenants  not  joining  therein), 

lands    without    the    other's    consent.  *  Tipping  v.  Robbins,  64  Wis.  546; 

Zeipler  v.   Brenneman.   237   111.    15;  25  X.  W.  Rep.  713;    Job  v.  Potton, 

86  1^.   E.   Rep.  597;    Watford   Oil   &  supra:    Cregg    v.    Roaring    Springs, 

Oas    Co.    V.    Shipman.    233    111.    9;  etc.,  Co.,  97  Mo.  App.  44;   70  S.  W. 

84  X.  E.  Rep.  53.     Spp.  also,  Murray  Rep.  920;   Waterford  Oil  &  Gas  Co. 

V.  Haverty,  70  111.  318.                     '  v.    Shipman,   233    111.   9;    84    X.    E. 

2a  Compton    V.    People's   Gas    Co.,  53. 

5  .Tob  V.  Potton,  supra. 


CO-TENANTS.  333 

might  destroy  his  rights,  in  Avhich  event  such  licensee  or  lessee 
would  not  be  required  to  account."  Each  tenant  may  execute 
a  separate  lease,  which  will  bind  his  interest ;  and  the  several 
lessees  Avill  each  be  entitled  to  operate  the  premises."" 

§  276.     Partition  of  mines  or  mineral  lands. 

In  a  case  of  an  attempted  partition  of  a  mine,  Justice  Brewer 
used  the  following  language:  "The  mere  fact  of  joint  owner- 
ship in  a  mine  does  not  give  an  equitable  right  to  a  partition. 
Seldom  can  a  division  of  a  mine  be  made.  Generally  partition 
must  result  in  a  sale.  To  such  property  there  is  an  unknown 
value ;  and  a  chancellor  may  well  require  full  information  as  to 
all  the  relations  of  the  parties  to  the  property  before  decreeing 
any  partition  which  will  practically  result  in  dispossessing  one 
of  the  parties  entirely."  '  And  in  a  dictum  in  an  Illinois  case 
it  was  s:iid :  ''  The  mines,  when  opened,  in  tlieir  nature  were 
indivisible.  Xeither  partition  could  be  niade?at  law,  nor  dower 
assigned  by  nictes  and  bounds.  The  only  ]>artition  that  can  bo 
made  is  to  order  a  sale  of  the  mines  and  divide  the  ]>roeeeds."  " 
These  were  instances  where  the  mines  had  been  o^x^ned.  Where 
the  mine  has  not  l)eon  0])<?nc(l,  the  right  to  partition  of  land 
having  u]K)\\  it  solid  minerals  has  l)cen  recognized;"  and  it  will 
be  decreed  unless  the  mineral  is  so  situated  that  a  probably  fair 
division  of  it  cannot  be  made  by  dividing  the  surface  of  tho 
land.^*'     All  things  being  equal,   as  between  a  partition  and  a 

6  Denys  v.   Shuckburgh,  4  Y.  and  sees  had  a  riglit  to  operate  without 

C.   Exch.  42;   5  Jur.  21;    Ziegler  v.  the     other's     consent.       Zcigler     v. 

Brenneman,   237    111.    15;    8G   N.    E.  Brcnncman,    237   111.    15;    SG   N.    E. 

597.  Rep.  597. 

A   statute   may,    however,   give   a  ca  Compton  v.  People's  Gas  Cd.,  75 

tenant  a  right  of  action  against  his  Kan.  572;  89  Pac.  1029;  10  L.  R,  A, 

fellow  tenant  for  mining  ore   with-  (X.  S.)    758. 

out  his  consent.    Murray  v.  Ilavcrty,  ^  Aspen      Mining,      etc.,      Co.      v. 

70    III.    318.      See    Childs    v.    Kan-  Rucker,  28   Fed.  Rep.   220. 
sas    City,    etc.,    Co.,    117    Mo.    414;  s  Lcmfcrs  v.  Henkc,  73  111.  405. 

23  S.  W,  Rep.  373.  n  Hughes  v.  Devlin,   23   Cal.  501 ; 

Where  a  tenant  in  common  leased  Rainey   v.   Frick   Coke  Co.,   73   Fed. 

the  lands  hold  in  common  to  another  Rep.   389. 

to  drill  and  operate  for  oil  and  gas,  i<^  Wilson  v.  Bogle,  95  Tenn.  290; 

and  thereafter   i.ie  cotcnants  joined  32  S.  W.  Rep.  3SG;  Conant  v.  Smith, 

in  a  like  lease  to  a  diH^erent  person,  1   Aiken  67;    Kemble  v.   Kcmbie,  44 

it  was  held  that  neither  of  the  les-  N.  J.  Eq.  454;    11  Atl.   Rep.  733. 


334  OIL    AND    GAS. 

pale,  a  portitidii  wU\  lx»  docrood.'^  By  agreement,  not  to  apjily 
for  a  j)artition,  the  owners  may  bar  their  riirht  to  it.'"  The  in- 
terest of  the  several  owners  of  a  mine  may  be  snch,  however, 
as  to  prohibit  a  partition,  in  which  event  a  sale  is  the  only  relief. 
Thus  in  an  Illinois  case  it  was  said:  "  If  these  two  separate 
interests  and  titles  were  united  in  one  jierson  .  .  .  the 
owner  would  have  the  right  to  sever  the  two  estates  by  deed  or 
devise.  Where  the  owner  would  have  that  right  there  is  no  in- 
lierent  difficulty  in  a  court  of  chancery  severing  the  two  estates 
in  a  partition  proceeding,  where  it  is  rendered  necessary  in 
the  interest  of  justice,  and  decreeing  the  dominant  estate  to  one 
and  the  servient  estate  to  another.  In  recognizing  this  principle 
we  are  applying  it  to  the  facts  of  the  particular  case  before  us, 
where  the  defendants  in  error  consented  to  accept  the  servient 
estate.  We  do  not  at  tliis  time  determine  the  question  whether 
a  person  not  conversant  with  the  management  of  the  mine  could 
be  compelled  to  accept  as  his  share  a  mine  thus  set  off  to  him 
against  his  consent,  or  whether  a  mine  could  be  set  off  to  a 
minor."  "  Thus  where  the  owner  in  fee  simple  of  certain  lands 
granted  an  interest  in  them,  in  the  following  language :  "  An 
undivided  third  interest  in  a  certain  piece  of  mining  ground," 
describing  it,  *'  together  witli  the  water-rights,  reservoirs,  and 
tale-race  belonging  to  the  same,  and  it  is  expressly  conditioned 
that  this  instiiiment  conveys  no  other  right  except  a  mining 
right  on  the  premises  above  to  the  said  party  of  the  second  part, 
his  heirs  and  assigns,"  it  was  held  that  there  could  be  no  parti- 
tion as  between  the  grantor  and  grantee.  ''  The  grant,"  said  the 
court,  "  does  not  convey  the  exclusive  dominion  of  any  }M)rtion 
of  the  ground  so  as  to  make  the  gi-antee  a  joint  tenant  or  in  com- 
mon witli  tlie  grantor.  It  conveys  only  a  partici;lar  estate  or 
incorporeal  hereditament  in  land  of  which  the  grantor  held  the 
general  estate."  ^*  Thus  water  right.s  l)olonging  to  a  mining 
claim  cannot  be  partitioned. ^°     "  Supposing  that  tliere  may  be 

uBoyston  v.  Miller,  supra.  is  Ames  v.  Ames,  supra. 

12  Ames  V.  Ames,  160  111.  599;  43  i«  Smith  v.  Cooley,  65  Cal.  46;  2 

N.   E.   Rep.   592;    contra,   Haeussler  Pac.  Rep.  880. 

V.  Missouri  Iron  Co.,   110  :Mo.   188;  i-- McGillivray   v.    Evans,   27   Cal. 

19  S.  W.  Rep.  75;  16  L.  R.  A.  220.  92. 


CO-TENANTS.  334a 

p  riixlit  and  osteite  in  a  mine,"  said  the  Snj>n'iii('  ('ourt  of  ^fassii- 
chiisetts,  "  distinct  from  that  of  the  s<iil  in  which  it  lies;  diere 
seems  to  be  a  ]x>cnliar  fitness  in  n's<irtini!:  t<i  equity  to  adjust 
and  regulate  tlie  mutual  rij:;ht^  of  tlie  ])arties.  It  is  manifest 
that  partition  cannot  be  made  by  settinir  off  the  surface  by 
metes  and  bounds,  because  the  quantity  and  value  of  the  mines 
and  ores,  and  the  capacity  and  facility  of  access  for  working 
them,  bear  no  proixirtion  to  the  area  of  the  surface  under  which 
they  lie.  Indeed,  in  niakinii:  jiartition  at  law,  it  has  been  found 
necessary  to  make  sjwcial  partition,  directing  the  division  of  the  • 
profits,  or  tlie  alteniate  enjoyment  of  the  common  property,  as 
circumstances  may  require."  ^^ 

§277.     Partition  of  oil  or  gas  lands. 

Discussion  at  length  of  partition  of  mines  and  mineral  lands 
has  been  made  in  order  to  throw  some  light  upon  t^ie  right  of 
partition  of  oil  or  gas  lands.  There  is  no  doubt  that  an  action 
of  partition  lies  to  divide  undeveloped  and  sui)i)()sal>lc  oil  or 
gas  lands,  just  as  it  does  in  case  of  lands  containing- solid  min- 
erals; for  it  cannot  be  kno\VTi,  owing  to  the  ])ecnliar  ctiaracter 
of  gas  or  oil  as  a  mineral  whether  the  land  to  1k>  divided  is  actual 
gas  or  oil  lands ;  and  to  refuse  partition  on  the  theory  that  it 
may  be,  would  be  for  tJie  court  to  enter  u|X)n  the  domain  of 
mere  speculation  or  supposability.  But  after  gas  or  oil  has  been 
discovered  on  the  land,  an  entirely  diifercnt  question  is  pre- 
sented. If  the  entire  tract  has  been  developed,  and  the  wells 
are  so  distributed,  and  their  production  is  well  kno\\'Ti  so  thai 
their  respective  values  can  bo  determined,  then  a  division  might 
possibly  be  decreed;  but  it  would  be  almost  im]>ossible  to  find 

18  Adams    v.    Briggs    Iron    Co.,    7  to  put  all  buildings  and   to  use  all 

Cush.    3G1;    Boston    Franklin.,    etc.,  lands    necessary    for    that    purpose, 

Co.  V.  Con-ditt,  10  X.  J.  Eq.  304.  and  the  right  of  ingress  and  egress 

In  Canfickl  v.  Ford,  28  Barb.  33G,  for    that    purpose,"    words    of    in- 

a    conveyance    to    one    of    "all    the  heritancc   being  added,  was  held  to 

mines,    ores,    minerals    and    metals  pass   a    corporeal    hereditament,    an 

lay.ing  or  being  in  or   upon"   a  cer-  estate  of  inheritance,   for  a   part  of 

tain    described    tract    of    land,    "to-  which  an  action  of  partition  would 

gether  with  the  right  to  raise,  work  lie. 
and  carry  away  the  same,  the  right 


334b 


OIL    AND    GAS. 


an  instance  of  tJiis  kiml.  And  tlicii,  too,  otlier  jiowerful  wells, 
in  spite  of  tJie  suj>])cxsition  that  tlie  land  had  h<'('n  fully  devel- 
oped, might  l)c  sunk  ii]X)n  one  ])ai't.  <it"  the  divided  tract  and  all 
attempts  to  find  other  productive  \vells  <.)h  tJie  other  tract  might 
be  failures.  In  such  an  cvcMit  tlic  j>artition  proceedings  would 
result  in  an  uncipial  division  in  value,  a  tiling  studiously 
avoided  in  partition  proceedings.  The  pearest  approach  to 
the  question  is  one  relating  to  a  partition  of  water  rights  con- 
nected with  a  mining  claim,  which  cannot  be  done ;  ^^  or  of  a 
running  stream  of  water  flowing  tlirough  the  joint  property,  or 
of  streams  under  ground.^*'  Es]XH?ially  can  there  be  no  parti- 
tion of  the  right  to  take  oil  or  gas  from  l)cneath  a  tract  of  land, 
the  surface  Iwing  owned  by  a  third  person ;  and  an  attempt  of 
the  court  to  make  partition  of  such  a  right  is  void.^" 

§278.     Accounting  between  co-tenants. 

If  one  tenant  work  a  mine,  he  must  account  to  his  co-tenant ; 
and  if  he  lease  tlie  premises,  his  co-tenant  may  exact  his  share 
of  the  rent  or  royalty,""  or  he  may  resort  to  the  lessee  and  re- 
quire him  to  jKiy  the  value  of  his  share  of  ore  taken  out  the 
same  as  he  could  do  if  his  fellow-tcntmt  had  taken  out  the  ore 
instead  of  leasinc;  the  ria;ht  to  do  so.-^      If  the  one  tenant  work 


"McGillivray  v.  Evans,  27  Cat. 
92. 

18  Willis  V.  Perry,  92  la.  297;  60 
N.   W.  Rep.   727;   26  L.   R.  A.   124. 

10  Hall  V.  Vernon,  47  W.  Va.  295; 
34  S.  E.  Rep.  764;  ^g  L.  R.  A.  464; 
Christy's  Appeal,  110  Pa.  St.  538; 
5  Ail.  Rep.  205  (coal);  9  Morr. 
Min.  Rep.  42. 

The  Kansas  statutory  provisions 
(Gen.  Stat.  1901,  §5101),  do  not 
apply  to  the  partition  of  developed 
oil  or  gas  lands.  Beardsley  v.  Kan- 
sas Natural  Cas  Co.,  78  Kan.  r)71; 
96  Pac.  Rep.  859. 

Where  a  tenant  in  common  leased 
the  lands  held  in  common  to  another 
to  drill  and  operate  for  gas  and  oil, 


and  thereafter  all  the  tenants  joined 
in  a  like  lease  -to  a  different  person, 
it  was  held  that  neither  of  the  les- 
sees could  maintain  partition  to  se- 
cure the  interest  so  granted  hin*. 
Zeigler  v.  Brenneman,  237  111.  15; 
80  N.  E.  Rep.  597.  See  also  Water- 
ford  Oil  &  Gas  Co.  v.  Shipman, 
233  111.  9;   84  N.  E.  53. 

20  Job  v.  Potton,  L.  R.  20  Eq.  84 ; 
44  L.  J.  Ch.  262;  23  W.  R.  588;  32 
L.  T.  110;  Denys  v.  Shuckburgh,  4 
Y.  and  C.  Exch.  42;  5  Jur.  21;  En- 
terprise Oil  and  Gas  Co.  v.  National 
Transit  Co.,  172  Pa.  St.  421;  33 
Atl.  Rep.  687. 

-1  Mercur  v.  State  Lime,  etc.,  Co., 
171   Pa.   St.    12;   32  Atl.   Rep.   1126. 


co-TEN.ysrTS.  334c 

the  mine  he  iimst  ;u*<'<>uiit  to  his  ei)-teii:mt  f(ir  his  just,  sliare  of 
the  proceeds.  In  c^ise  of  a  ix^AA  mine  where  one  tenant  took 
more  tlian  his  share  of  tJie  jn-oceecls  it  was  said  he  nuist  aecount 
to  his  oo-tenant  for  the  siirphis  and  for  all  the  jvrofits  Tna<le 
out  of  such  surplus;  and  if  there  be  no  proof  that  he  us<'d  sneh 
surphis,  and  no  ]iro<if  as  t<»  wlu^ther  he  made  any  profits  out  of 
it,  tlie  law  will  raise  a  presum])tion  that  he  did  make  a  profit 
out  of  it,  and  that  the  ]>r()tiis  were  ecjnal  to  the  leG:al  rate  of 
interest  on  the  valn(>  of  such  surplus.""'  If  there  he  no  dispute 
as  to  the  amount  mined,  and  the  only  question  is  tlie  projwrtion 
of  that  amount  the  co-tenant  is  entitled  to  receive,  assumpsit 
lies  to  determine  that  question."^  Where  the  oo-tenants  were 
lessees  of  the  mine  from  different  owners  of  undivided  ]x>rtions 
of  certain  ore  beds,  it  was  held  not  to  be  a  ^ood  defense  f)n 
that  part  of  the  defendant  tenant  that  he  had  accounted  to  his 
landlord  for  all  he  had  taken  out;  for  if  he  account  for 
more  tJian  his  junportion,  he  did  so  at  his  jwi'il.'"''  In  a  case 
where  the  fellow  tenant  had  worked  a  coal  mine,  it  was  held 
that  his  co-tenant  was  entitled  to  recover  the  value  at  the  pit's 
mouth  of  his  share  of  the  eoal  raised,  less  all  cfists  of  getting 
and  raising  it."''  This  might  he  termed  the  net  profits;  and 
this  amount  is  reasonable."'''  This  rule  is  applicable  to  the 
production  of  gas  and  oil.  In  a  Pennsylvania  case,  in  speak- 
ing with  reference  to  a  coal  mine  operated  by  one  of  the  co- 
tenants,  the  Supreme  Court  said : 

"  It  is  urged,  however,  that  before  any  liability  to  account 
can  arise,  it  must  appear  that  the  co-tenant  upon  whom  the  de- 
mand for  an  account  is  made  has  actually  taken  out  more  than 
his  just  share  or  projiortion  of  the  entire  nuiss  of  ore   in   the 

22nulT  V.  McDonald,  22  Ga.  131;  23  Winton    Coal    Co.    v     Pancoast 

Coleman's   Appeal,   02  Pa.   St.   252;  Coal   Co.,   170   Pa.  St.   437;    33  Atl. 

Grubb   V.    Grubb,    101    Pa.    St.    11;  Rep.  110. 

Fulmor's   Appeal,    128    Pa.    St.    24 ;  24  Barnum    v.    Landon,    25    Conn. 

18  Atl.  Rep.  493;  Goller  v.  Fett.  30  137. 

Cal.  481;  McCord  v.  Mining  Co.,  64  2.-.  job  v.   Potton,  supra. 

Cal.    134;     r.arnum    v.    Landon,    25  2c  Enterprise  Oil  &.  Gas  Co.  v.  Xa- 

Conn.    137;    Harrington    v.    Florence  tional  Transit  Co.,  172  Pa  St.  421; 

Oil   Co.,    178    Pa.   St.   444;    35   Atl.  33    Atl.    Rep.    687;    Williamson    v. 

Eep.  855.  Jones,  39  W.  Va.  231;   19  S.  E.  Rep. 

436;  38  L.  R.  A.  694. 


334d  OIL   AND   GAS. 

beds  or  banks.  It  niii>lit  bo  onoiijili  to  say  tliat  the  Act  of 
Assciiibly  makes  no  such  ]>i'ovisi(in.  It  ajiplics  to  any  ease 
where  coal,  iron  ore,  <ir  dihci-  iniiuMal  has  l)oen  or  shall  l)e 
taken  from  the  common  proj)erty.  ]t  does  not  say  or  iiii])ly 
more  tlian  a  just  hsare  or  pro]X)rtion.  The  remedy  would  be 
illusory  if  such  a  construction  should  ]>rovail.  No  one  can  tell 
what  the  just  share  or  proportion  of  each  tenant  will  1k'  until 
the  whole  mine  or  bank  is  exhausted  of  its  entire  de{)osit.  In 
such  a  mass  —  practically  inexhaustible  for  generations  to  come 
—  it  would  make  the  one  ninety-sixth  part  equal  to  the  other 
ninety-five,  and  really  destroy  to  that  extent  their  proportionate 
value.  Here  a  tenant  in  common  exercisCvS  his  undoubted  ri_<iht 
to  take  common  property,  and  he  has  no  other  means  of  obtain- 
ing his  own  just  share  than  by  taking  at  the  same  time  the 
shares  of  his  companions.  The  value  of  the  ore  in  place  is 
therefore  the  only  just  basis  of  account.  This  is  the  same  as 
the  value  of  what  is  called  ore  leave  —  that  is,  what  the  right 
to  dig  and  take  the  ore  is  worth.  Indeed  all  parties,  as  well 
as  the  master  and  court  below,  seem  eventually  to  have  settled 
upon  this  basis.  But  how  is  the  value  of  ore  leave  to  be  ascer- 
tained ?  It  is  evident  in  the  nature  of  things  that  it  can  have 
no  general  market  price.  It  will  depend  necessarily  upon  the 
position  and  circumstances  of  each  particular  mine,  as  well  as 
on  the  character  of  the  ore.  The  value  of  it  at  the  pit's  fnouth 
depends  upon  its  quality  and  its  proximity  to  the  furnace 
where  it  is  to  be  used,  and  on  the  means  of  transportation.  In 
addition  to  this,  the  price  of  ore  leave  will  be  influenced  by 
the  expense  and  risk  of  process  of  mining  or  taking  it  from  its 
place  to  the  pit's  mouth.  It  is  evident  that  the  price  given  for 
ore  leave  in  other  mines  or  beds  can  afi'ord  no  safe  criterion, 
•"inless  tliey  should  be  precisely  similar  in  all  respects  to  the 
one  in  question.  As  to  the  Cornwall  ore  banks,  no  sale  had 
ever  been  made  of  ore  leave.  No  evidence  was  laid  before  the 
master  as  to  what,  in  the  opinion  of  the  experts,  ore  leave  in 
these  banks  would  have  commanded  in  the  market.  The  mas^ 
ter  arrived  at  it  by  ascertaining  the  market  value  of  the  ore  at 
the  }>it's  mouth,  and  then  <leducting  from  that  the  cost  of  min- 
ing. We  cannot  see,  under  all  the  circumstances,  that  any 
more  just  and  equitable  mode  could  have  been  adopted.     We 


CO-TENANTS.  335 

do  not  mean  to  say  that  it  wdiild  hold  in  aiiv  other  casi-  tliaii 
the  one  now  Iwfore  tiie  cdurt  —  eertainly  not  where  the  mining 
is  exjK'nsive  and  hazardous.  When*  the  tenant  in  e.nnmon  of  a 
coal  mine,  for  examjile,  must  with  o:reat  outhiy  of  ('a|)ital  con- 
struct exjXMisive  machinei-y,  and  incui'  all  the  risks  of  such  an 
iindertiiking,  tJie  vahie  of  ore  leave  or  coal  in  ])lace  could  n«).t  \x-. 
ascertained  by  so  simple  a  calculation.  The  usual  profits  em- 
barked in  such  a  hazardous  enterprise,  with  the  pro]x>r  allow- 
ance for  personal  skill  and  attendance,  would  seem  to  bo  more 
than  fair  and  reasonable  deductions.  Certainly  any  business 
man,  sitting  dowTi  to  calculate  wdiat  he  ought  to  give  for  ore 
leave,  would  take  all  these  elementi?  into  consideration.  Otlier- 
wise,  with  his  own  capital  and  at  his  own  risk,  he  would  sepa- 
rate tlie  ore  from  its  natural  ]T<:)sit.ion  and  place  it  on  tlie  sur- 
face, enhanced  in  value  for  the  benefit  of  a  stranger.  We  leave 
the  rule  in  such  a  case  to  be  determined  when  it  arises."  ^^ 

Where  a  fellow  tenant  has  made  an  express  promise  of  a  cer- 
tain sum  as  his  co-tenant's  share  of  operating  gas  or  oil  terri- 
tory, assumpsit  by  the  latter  will  lie  against  the  former;  but  if 
no  such  promise  has  been  made,  then  the  only  remedy  is  by 
account  for  a  share  of  the  profits.  Under  no  circumstances  in 
such  a  case  is  the  co-tenant  entitled  to  a  share  of  the  product 
taken  out  of  the  ground.  Thus  where  all  but  one  of  several  co- 
tenants  of  an  oil  lease  assie^ied  the  entire  lease  for  a  share  of  the 
oil  produced,  to  be  delivered  to  a  ]>i])e  line  com]xniy  to  the  crcnlit 

27  Coleman's    Appeal    62    Pa.    St.  recover  the  product  of  the  well,  and 

252;    Williamson    v.    Jones,    43    W.  a  receiver  was  ajjpointed  by  mutual 

Va.  562;   27  S.  E.  Rep.  411;   Early  agreement,  without  prejudice  to  the 

V.  Friend,  16  Gratt.  21;  78  Am.  Dec.  contentions  of  either  party,  to  oper- 

649;    Graham    v.    Pierce,    10    Gratt.  ate  the   well.      The   lessee    recovered 

28;    100   Am.    Dec.   658;    McGord   v.  on    the    basis    of    the    contract;    the 

Oakland    Quick    Silver    Mining   Co.,  lessor  being  allowed  the  cost  of  drill- 

64   Cal.    134;    Trees   v.    Eclipse   Oil  ing  the  well.     It  was  held  that  since 

Co.,  47   W.  Va.   107;   34  S.  E.  Rep.  the  lessee  based  its  suit  on  contract, 

933.  and   the   lessor   did   not   occupy  the 

An  oil  lease  gave  the  lessee  tlie  position  of  a  mere  tres])asser  in  the 
exclusive  right  to  drill  on  the  land  action,  the  costs  of  the  receiversliip, 
during  a  certain  period,  and  gave  the  being  the  expenses  of  production, 
lessor  a  one-sixtli  interest  in  the  oil  should  be  charged  against  the  les- 
produced;  the  lessee  to  bear  the  see's  share  of  the  proceeds  of  the 
cost  of  production.  The  lessor,  with-  oil,  so  as  to  make  tlie  recovery  eon- 
out  the  lessee's  consent,  drilled  a  form  to  the  terms  of  the  contract, 
producing  well  on  the  tract,  and  the  O'Neil  v.  Sun  Co.  (Tex.  Civ.  App.), 
lessee    sued    upon    the    contract    to  123  S.  W.  172. 


336  OIL   AND    GAS. 

of  tliusc  assi<riiing ;  and  one  of  the  juint  owners  of  tlic  lease,  who 
did  not  join  in  tlie  assignment,  notified  tlie  pipe  line  company 
not  to  deliver  or  \r,\\  fur  aiiv  of  the  oil  so  received  bv  it  to  the 
assignors,  it.  \vas  held  that  the  assignors  were  entitled  to  all  the 
oil  delivered  to  the  })ijw'  line  conipanv,  and  that  the  remaining 
joint  owner  could  claim  no  part  of  it.'"'*  Three  persons  were 
joint  owners  of  a  lease.  Two  of  them  agreed  that  one  of  the 
two  should  work  the  oil  well  on  it  in  ])lace  of  a  former  employee 
employed  by  the  owner  of  the  third  part.  The  owner  of  the 
third  part  did  not  assent  to  the  arrangement,  but  received  his 
share  of  the  product.  It  was  held  that  the  latter  was  not  liable 
to  the  part  owner  working  the  oil  well  for  his  share  of  the  ex- 
pense;  but  it  was  said  that  he  might  be  liable  to  his  co-tenants 
for  the  necessary  expense  and  care  of  the  oil  ])roduced,  but  not 
to  tlie  part  owner  working  the  well,  because  he  had  not  employed 
him.^''  Xor  can  a  joint  tenant  recover  from  his  co-tenants  the 
expense  of  pumping  an  oil  well  pumped  against  their  consent, 
even  though  a  statute  gives  a  right  of  action  by  assumpsit 
against  ''  any  joint  owner,  joint  tenant  or  tenant  in  common, 
holding  an  interest  in  and  operating  "  an  oil  well  for  his  share, 
unless  a  ci)ntract,  eitlier  express  or  implied,  be  shown  as  the 
basis  of  the  claim. ^°  Where  the  lease  is  worked  under  an  agree 
ment,  each  owner  must  bear  the  loss  of  working  it  in  proportion 
to  their  interests.^^  In  a  case  where  a  co-tenant  had  expended 
a  large  sum  of  money  in  working  an  oil  lease,  the  court  said  : 
"  I  should  think  that  a  co-owner  who  has  expended  so  large  a 
sum,  entirely  at  his  own  risk,  but  with  the  knowledge  of  the 
other  co-owners,  in  so  hazardous  enterprise  as  developing  oi). 
in  an  unexplored  field,  ought  not  to  do  more  than  account  for 
their  ])roportion  of  a  customary  royalty,  proper  and  fair  under 

28  Enterprise    Oil    &    Gas    Co.    v.  20  Thompson  v.   Xcwton    (Pa.),    7 

National   Transit    Co.,    172    Ta.    St.  All.  Rep.  G4. 

421;   33  Atl.  Rep.  687;   Johnston  v.  soMurtland   v.   Callihan,  2   Super. 

Price,  172  Pa.  St.  427;  33  Atl.  Rep.  Ct.    (Pa.)    340;    Johnston  v.   Price, 

688;  37  W.  N.  C.  387;  26  Pitts.  L.  supra. 

J.    (N.  S.)    357;   Murtland  v.  Calli-  si  Harrington  v.  Florence  Oil  Co., 

han,  2  Super.  Ct.  (Pa.)  340.  178  Pa.   St.  444;   35  Atl.  Rep.  855. 


CO-TENANTS. 


337 


the  circumstances."^-  The  basis  of  accounting,  however,  be- 
tween tenants  in  commion  and  joint  tenants,  for  waste,  caused 
by  the  extraction  of  oil  or  gas  from  tlie  common  property, 
under  circumstances  which  make  it  reasonably  certain  that 
the  party  so  taking  the  oil  or  gas,  acted  without  fraud  and 
under  the  belief  of  good  title  to  himself  to  the  whole  of  the 
property,  though  not  without  notice  of  defect  of  title,  is  the 
value  of  all  oil  produced  from  the  land,  less  the  whole  cost 
of  its  production,  including  the  cost  of  drilling  producing 
wells.  But  if  one  co-tenant  has  executed  a  lease  under  which 
he  has  received  rent  for  delay  in  beginning  operations,  he  is 
not  required  to  account  to  his  fellow-tenant  for  such  rents; 
for  by  their  receipt  the  joint  estate  has  not  been  impaired.^-* 


32  Williamson  v.  Jones,  supra. 

Whore  several  owners  joined  in  a 
mining  lease,  reserving  royalty,  and 
one  of  them  thereafter,  in  considera- 
tion of  $50,  disclaimed  any  interest 
in  and  tr»,  or  advancement  of  royalty, 
amounting  to  $900,  paid  by  the 
managers  of  the  lessee  company  to 
the  lessors,  it  was  held  that  each 
owner  did  not  thereby  disclaim  all 
interest  in  future  accruing  royal- 
ties. Hatfield  V.  Falloway,  113  S. 
W.  Rep.  853. 

The  Texas  statute  governing  des- 
cent and  distribution  provides  (Rev. 
St.  1895,  art.  1689)  that  a  surviv- 
ing spouse  shall  be  entitled  to  an 
estate  for  life  in  the  lands  of  an 
intestate  leaving  issue,  remainder  to 
such  issue.  The  grantees  of  remain- 
dermen, occupying  in  severalty  by 
virtue  of  the  fee  title  of  their 
grantors  to  two-thirds,  but  to  tlie 
entire  exclusion  of  the  life  tenant, 
prospected  for  and  discovered  oil. 
It  was  held  that  the  life  tenant  was 
entitled  to  an  interest  in  the  oil 
produced,  though  at  the  time  of 
descent  cast  the  lands  were  farm 
lands. 


The  life  tenant's  right  in  the  oil 
would  extend  only  to  interest  on 
one-third  of  the  proceeds  of  its  sale, 
the  principal  to  go  to  the  remainder- 
men. Lone  Acre  Oil  Co.  v.  Swayne 
(Tex.  Civ.  App.),  78  S.  W.  380. 

3-'a  McXeely  v.  South  Penn.  Oil 
Co.,  58  W.  Va.  438;  44  S.  E.  508; 
Stewart  v.  Tennant,  52  W.  Va.  559; 
44  S.  E.  223;  Pyle  v.  Henderson, 
G5  W.  Va.  39;  G3  S.  E.  620;  Wil- 
liamson V.  Jones,  43  W.  Va.  562; 
27  S.  E.  411. 

If  a  cotenant  ratify  the  lease  of 
his  fellow  tenant,  the  accounting 
should  include  all  money  received 
by  a  fellow  tenant  for  such  lease, 
by  way  of  bonus  money  or  commu- 
tation money,  and  from  royalty  oils 
and  gas  rentals,  or  otherwise  accru- 
ing under  such  lease.  Summers  v. 
Bennett   (W.  Va.),  69  S.  E.  690. 

If  two  persons  jointly  hold  a  lease, 
and  it  is  forfeited,  and  one  of  them 
then  take  a  new  one,  he  does  not 
become  a  trustee  for  the  other  one. 
Westerman  v.  Dinsmore,  68  W.  Va. 
594;  71  S.  E.  250. 


338  OIL    AND    GAS. 

§279.     Accounting  when  tenant  excludes  co-tenant. 

Wliere  one  tenant  excludes  kis  co-teiiaiit  under  a  claim  of 
ownership  of  the  entire  tract,  and  then  works  the  tract  for  the 
oil  or  gas  that  is  in  it,  lie  nnist  account  to  his  co-tenant  for  his 
share  of  the  product  t^ikeii  out,  and  will  not  he  allowed  to  de- 
duct therefrom  any  part  of  the  expenses  necessarily  incurred  in 
ojierating  the  wells  on  the  tract.^*  In  this  case  the  defendant 
purchased  of  liIs  co-tenant,  by  fraudulent  representations,  his 
interest  in  an  oil  lease;  and  upon  demand  for  a  reconveyance, 
the  former  offered  to  do  so  if  the  latter  would  pay  his  share  of 
all  the  operating  expenses  incurred  after  the  conveyance  was 
nuide.  This  offer  was  refused;  and  in  an  acti(m  to  recover  his 
full  share  of  the  entire  product  it  was  held  that  no  cost  of  se- 
curing it  sliould  l>e  deducted.  ''  Is  the  wrong-doer,"  asked  the 
court,  ''  entitled  in  such  a  suit  to  recoup  from  the  value  of  a 
mineral  as  a  cliattel,  the  expense  of  mining  or  producing  it  ? 
The  mere  statenuMit  of  the  proposition  in  this  form  suggests 
the  only  answer  that  can  be  given,  unless  it  is  the  policy  of  the 
law  to  make  tlie  way  of  the  transgressor  easy  and  secure.  The 
relation  of  the  parties  to  each  other,  as  co-tenants  of  the  lease, 
and  the  fact  that  two  of  them,  after  fraudulently  dispossessing 
the  other,  may  have  continued  to  use  the  property  as  it  would 
probably  have  been  used  if  they  had  all  remained  in  possession, 
does  not  mitigate  the  tort  nor  (pialifv  the  ordinnry  rule  of  dam- 
ages. Co-tenants  are  bound  to  respect  the  rights  of  each  other 
quite  as  mudi  as  if  they  were  strangers  in  title."  This  rule 
was  applied  where  a  life  tenant,  who  was  also  a  co-tenant  in  com- 
mon, lK)red  wells  on  the  land,  claiming  it  as  his  own.  Tt  was 
considered  that  he  was  a  trespasser,  and  should  not  Ix^  allowed 
anything  for  the  cost  of  production."^ 

33  Foster  v.  Weaver,  118  Pa.  St.  694.  See  also  Omaha,  etc.,  Co.  v. 
42;   12  Atl.  Rep.  31.3.  Tabor    1.3    Colo.    41;    21    Pac.    Rep. 

34  Williamson  v.  .Tones,  43  W.  Va.  92.5;  5  L.  R.  A.  236. 
562;  27  S.  E.  Rep.  411;  38  L.  R.  A. 


CO-TENANTS.  339 

§280.     Owner  of  surface  not  co-tenant  with  owner  of  mineral 
beneath  surface. 

If  one  jx^rson  o\\ni  the  surface  and  anothor  the  ininerala 
beneath  it,  tliere  is  no  oo-tenaney  existing  between  them.  There- 
fore, tliero  is  not  that  rohitioii  betwoon  tliem  that  forbids  one  of 
tliera  purchasing  an  outstaiuling  title  rohiting  to  the  other's  in- 
terest, and  hohling  it  adversely  to  hiin."'^  Thus  where  th(! 
owner  of  land  conveyed  it  to  his  grantee,  hut  reserved  all  the 
minerals  beneath  the  surface,  it  was  held  that  he  could  purchase 
the  title  of  his  grantee  at  a  tax  sale,  and  in  that  way  acquire  the 
title  to  the  entire  land.^*^ 

§281.     Purchase  by  tenant  of  co-tenant's  interest. 

In  the  purchase  of  his  co-tenant's  interest,  a  tenant  is  not 
bound  to  reveal  to  him  the  value  of  the  interest  he  is  purchas- 
ing, nor  the  fact  that  valuable  minerals,  or  oil  or  gas  exist  u]wn 
the  land  they  jointly  own.  There  is  no  such  relationship  be- 
tween them  as  requires  him  to  disclose  such  facts.  They  deal 
with  each  other  at  arm's  length. '"'^ 

§282.     Equity  jurisdiction  of  an  accounting. 

Under  a  contract  specifying  their  individual  interest  in  a 
lease  held  and  the  business  of  operating  it  by  tenants  as  co-part- 
ners in  pumping  and  selling  the  oil  produced  from  a  well 
thereon,  a  bill  for  an  accounting  is  the  exclusive  remedy  for  the 
settlement  of  their  accounts.^'*  So  equity  has  jurisdiction  nf 
suit  for  an  accounting  by  the  o\vners  of  an  interest  in  an  oil 
lease  against  the  owner  of  the  remaining  part,  although  each 
party  ran  their  own  share  of  oil  to  their  own  credit  and  sold  it, 

35  Viin^inia  Coal   Co.  v.  Kelley,  93  from  the  vendor  on  liis  interest  did 

Va.  3.32;   24  S.   E.  Rep.  1020.  not    alter   their    relations,    so   as    to 

•■'«  Hutchinson    v.    Kline,    190    Pa.  require  a  disclosure  of  the  value  of 

St.  564;   49  Atl.  Rep.  312.  the  interest  purchased. 

sTNeill  V.  Shamburg,  1.58  Pa.  St.  ss.Tohnston   v.   Price,   172   Pa.   St. 

263;  27  Atl.  Rep.  092.     In  this  case  427:    37   W.   N.   C.   3S7;    2(5   Piltsh. 

it  was  further  held  that  the  fact  L.  J.  (N.  S.)  3i37;  33  Atl.  Rep.  6SS. 
that  the  purchaser  had  a  mortgage 


340  OIL   AND    GAS. 

where  tlie  latter  kept  account  of  all  expense  of  operating  the 
leasehold,  under  a  statute  giving  courts  jurisdiction  in  all 
cases  where  an  action  of  "  account  rendered  "  would  lic.^"  So 
equity  has  jurisdiction  of  a  bill  of  discovery  to  ascertain  the 
rights  and  relations  of  all  the  parties  to  an  oil  lease,  and  sub- 
lease thereunder,  and  for  an  accounting  for  the  profits  from  the 
eale  of  gas/" 

§283.     Expense  of  working  joint  property. 

One  tenant  is  not  comj)elled  to  contribute  to  the  working  of 
gas  or  oil  land  *^  unless  he  agree  to  do'  so;  although  a  refusal 
to  do  so  will  not  deprive  Jiim  of  a  right  to  demand  an  account- 
ing, as  we  have  seen,  elsewhere,  for  the  oil  or  gas  taken  out.*^ 
To  permit  one  tenant,  against  the  desires  of  his  co-tenant,  to 
engage  in  the  operation  of  oil  or  gas  lands ;  and  charge  him  with 
a  share  of  tlie  operating  expenses,  might  bring  the  latter  to 
bankruptcy',  or  compel  him  to  dispose  of  his  land  at  a,  great 
saci'ifice.  And  where  a  statute  provided  that  any  one  perform- 
ing labor  in  pumping  an  oil  well  might  recover  from  any  tenant 
in  conmion  of  the  premises,  not,  however,  requiring  the  latter 
to  pay  any  share  of  tlie  expenses  of  operation  commenced  and 
carried  on  without  his  autliority  and  consent,  it  was  held  that 
a  tenant  in  common  was  not  liable  to  pay  for  labor  performed 
in  pumping  an  oil  well,  where  he  offered  to  fiirnisli  a  capable, 
and  competent  person  to  do  the  work ;  and  his  co-tenant  refused 
to  accept  the  services  of  sucli  person  or  permit  him  to  do  the 
work.*^  • 

30  Ilarrin^on  v.  Florence  Oil  Co.,  Atl.  Rep.  64.     As  has  been  said,  Uie 

178  Pa.  St.  444;    .35  Atl.  Rep.  85.5.  amount    allowed   on   an   accounting, 

40  Akin   V.   Marshall   Oil   Co.,   188  where  no  other  question  is  involved, 
Pa.  St.  614;  41  Atl.  Rop.  748.  is  generally  the  usual  royalty.  Will- 

41  Taylor  v.  Fried.  Ifil   Pa.  St.  53;  iamson  v.  Jones.  43  W.  Va.  562;  27 
28    Atl.    Rep.    993;    Baker   v.    Bren-  S.   E.  Rep.  411;   38  L.  R.  A.  694 
nan.  12  Ohio  C.  D.  211;  22  Ohio  C.  43  Murtland     v.    Callahan,    2     Pa. 
C.  Dec.  241.  Sup.   Ct.   340. 

42Tlionp-son   v.    Newton    (Pa.),    7 


CO-TENANTS.  340a 

§284.     When  a  tenant  bound  by  co-tenant's  act. 

As  a  rule  a  tenant  is  not  Ixiund  by  his  co-tenant's  act  concern- 
ing the  joint  i>rennses.  But  there  may  \>e  instances  in  which 
he  will  be,  aside  from  tlie  question  of  partnership.  Tlius  if  it 
be  necessary  that  certain  work  be  done  for  the  presei'vation  of 
the  joint  premises,  and  his  co-tenant  do  it  or  have  it  done, 
the  other  tenant  will  he  liable  for  his  proportionate  share  of 
the  ex|')enses,  which  is  a  lien  on  his  interest."*^  So  if  one  ten- 
ant have  a  valid  lien  on  the  joint  estate,  the  other  must  contribute 
a  share  proportionate  to  his  interest.'*^  So  if  one  of  several 
joint  lessees,  with  intent  to  surrender  the  lease  as  to  all,  and 
with  the  knowledge  of  liis  cotenants,  surrender  the  lease  his 
co-tenants  will  be  bound  by  his  act.*"  So  one  of  several  joint 
lessors  may  accept  a  surrender  of  their  lease  so  as  to  relieve 
the  lessee  from  the  payment  of  the  rent.*^ 

§285.     Injunction. 

One  co-tenant  may  maintain  an  action  for  an  injunction 
against  a  trespassing  stranger  to  preserve  the  joint  property; 
and  so  he  may  maintain  an  action  against  his  co-tenant  who  has 
taken  possession  of  the  joint  property  to  his  exclusion,  is 
denying  his  title,  and  is  working  the  joint  property,  on  the 
ground  that  sucli  act  is  one  of  waste.** 

§286.     Surrender  of  lease  by  co-tenant. 

One  co-tenant  in  cmnmon  cannot,  witliout  the  consent  of  liis 
fellow   tenants,    l)ind    tlK>ir    interests   by    a    surrender   <>f    ihcir 

44  Beck     V.     O'Connor,     21     Mont.  4G  Hooks    v.    Forst,     Ifl')     Pa.    St. 

TOO;     53    Pac.    Kep.    04;    Haven    v.  23S ;    ,30  All.   Hep.  840. 

Mehlwarten,    19    111.    90;    Alexander  -it  Chnrchill    v.    Lamniers,    CO    Mo. 

A-.  Ellison,  79  Ky.  148.  App.  244. 

■'•"'Eads     V.    Retherford.    114     Ind.  4s  Williamson  v.  Jones.  43  W.  Vm. 

273;   16  N.  E.  Rep.  .587.     See  Pren-  .562;    27    S.    E.   Rep.   411;    3S   L.   R. 

tice    V.     .Janssen.     79    N.     Y.    478;  A.    G94.     See    Trees    v.    Eelinse    Oil 

Holbrooke     v.     TTarrinj^ton     (Cal.),  Co..  47    W.   Va.    107;    34  S.   E.   Rci). 

36    Pac.    Rep.    305.  933. 


340b  OIL   AND    GAS. 

lease,^"  unless  he  is  given  express    (or  perhaps  implied)    au- 
thority so  to  do.^** 

§287.     Payment  of  rent  or  royalties. 

^Vllere  joint  owners  of  land  give  an  oil  lease  upon  it,  tlie 
lessee  may  pay  the  royalties  or  rent  to  both  or  either  one  of 
them ;  and  if  one  of  them  convey  his  interest  in  the  land  or 
assign  his  interest  in  the  lease,  then  payment  may  be  "made  to 
the  remaining  lessor  or  to  the  assignee,  and  either  can  receipt 
for  it." 

§288.     Fidelity  relation  between  members  of  a  mining  partnership. 

There  is  not  that  relationship  existing  between  tenants  in 
common  or  partners  of  a  mining  partnership  which  forbids  one 
tenant  or  one  partner  demanding  and  receiving  a  higher  sum 
for  his  interest  in  the  property  than  is  paid  therefor  to  his  co- 
workers, as  exists  between  members  of  an  ordinary  partnership 
and  prevent.s  such  a  transaction.^'  Thus  where  it  appeared  that 
tenants  in  common  of  a  mine  had  formed  a  mining  partnership 
to  develop  the  mine,  showung  profits  and  losses  in  proportion  to 
their  resjjective  losses ;  but  there  was  no^  such  paiiiuership 
formed  for  the  ])urpose  of  selling  the  property;  and  the  part- 
ners had  settled  up,  and  there  was  no  further  agreement  to 
develop  the  mine ;  it  w^as  held  that  one  partner  who  had  sold 
his  interest  for  more  than  his  co-partners  had  received  could 
not  be  made  to  account  to  thcni  for  the  surplus,  for,  as  to  the 
mine,  they  were  only  tenants  in  common. ^^  A  partnership 
agreement  to  locate  a  mining  claim  is  within  the  Statute  of 
Frauds  and  mnst  be  in  writing  to  bind  tlie  partners;  and  if  it  is 
not  in  writing,  the  remaining  partners  ai'c  without  a  remedy  if 
one  of  their  number  takes  title  to  a  claim   in  his  own  name, 

<9  Edmonds    v.    Mounsey,    \^^    Ind.  184  Pa.  St    202;    41   W.  N.  C.  491; 

App.   399:    44  N.    E.   Rep.    190   Wil-  38    Atl.    Pxep.    1021. 

liams  V.  Vanderbilt,  14.5  ill.  238;  34  As    to    release   of    royalty   by    one 

N.  E.  Rep.  476;  Hooks  v.  Forst,  165  tenant,     see    Hatfield    v.     Fallowav, 

Pa.  St.  247;  30  Atl.  Rep.  846.  113   S.  W.  Rep.   853. 

50  Hooks  V.   Forst,  supra.  •''' 2  Harris  v.  Lloyd,  11  Mont.  390; 

51  Swint    V.    McCalmont    Oil    Co.,  28  Pac.  Rep.  736. 

53  Harris  v.  Lioyd,  supra. 


CO-TENANTS.  340e 

to  their  exclusion,  unless  jwirtiicrsliip  funds  have  Ikhmi  ex- 
pended in  its  ;u'(inisiti(>n,  in  wliicli  event  equiUible  relief  will 
be  given,  on  the  ground  of  a  re.^ulting  tnist.'*''  Where  four 
purchased  inining  land  from  the  State,  only  two  giving  lM)nds, 
with  sureties,  for  the  pur(']ias<'  nioncv  ;  and  all  Imt  one  left  the 
State,  abandoned  the  work,  gave  tJie  remaining  one  no  aid,  al- 
lowing him  to  be  pressed  for  money ;  and  he  surrendered  the 
land  to  the  State,  and  afterwards  repurchased  it  in  his  own 
nrfme,  and  sold  it  at  a  proiit,  it  was  held  that  he  was  not  Ixmnd 
to  account  to  his  partners  for  tlie  profit.^"  It  was  considered 
that  the  three  partners  had  abandoned  the  enterprise.^"  Where 
certain  parties  purchased  land  for  themselves,  and  represented 
to  a  company  to  be  formed  that  they  had  ]>urehased  such  lands 
for  tJie  proposed  company,  they  having  been  obt^ained  at  first 
cost  from  the  vendors ;  it  was  held  to  be  a  fraud  upon  those 
interested  in  the  company  tO'  allow  such  ])nrehasers  to  put  them 
into  the  company  at  a  price  in  advance  of  the  actual  cost  price, 
without  first  in^fomiing  such  associates  of  the  actual  advance. 
They  were  required  to  account  for  the  profi'ts  they  had  made 
in  the  transaction.^^  In  a  case  of  this  character  this  language 
was  used : 

"  There  are  two  principles  applicable  to  all  partnerslii]is  or 
associations  for  a  common  pur'jwse  of  trade  or  business  which 
appear  to  be  well  settled  on  reason  and  authority.  The  fii-st  is, 
that  any  man  or  number  of  men,  who  are  the  o\\mcrs  of  any 
kind  of  property,  real  or  porsoual,  may  form  a  ]xirtnership  or 
association  with  others,  and  sell  that  property  to  the  association 
at  any  price  which  may  be  agreed  u|X)n  between  them,  no 
matter  what  it  may  have  ordinarily  cost,  provided  there  be  no 
fraudulent  misrepresentation  made  by  the  vendors  to  their  as- 
sociates. They  are  not  iKiund  to  disclose  the  ]irofit  wliicli  lliey 
may  realize  by  the  transaction.  They  were,  in  no  sense,  agents 
or  trustees  in  the  original  purchase,  and  it  follows,  that  there 

5<Craw  V.   Wilson,    22   Nov.   385;  so  Rhea    v.    Vannoy.    1    Jones    Eq. 

40  Pao.  Rop.  1070.  282. 

55  Rhea    v.    Tatlicm,    1    Jones    Fj\.  ■^•"Simons  v.  Vulcan  Oil.  etc..  Co., 

290.  61    Pa.    St.    202.     See    McKllicuny's 

Appeal,  61  Pa.  St.  188. 


340(1  OIL   AND    GAS. 

is  no  confidential  relation  between  parties,  which  affects  them 
witli  any  trnst.  It  is  like  any  other  case  of  vendor  and  vendee. 
They  deal  at  arm's  length.  Their  ])artn('rs  are  in  no  Ix^tter 
position  than  strangers.  They  must  exercise  their  own  judg- 
ment as  to  the  value  of  what  they  buy.  As  it  is  succinctly  and 
well  stated  in  Foss  v.  ITarbottle,''*  *  A  party  may  have  a  clear 
right  to  aay,  I  begin  the  transaction  at  this  time.  I  have  pur- 
chased land,  no  matter  how  or  from  whom,  or  at  Avhat  price.  I 
am  willing  to  sell  it  at  a  certain  price  for  a  given  pur]X)se.' 
This  principle  was  recognized  aiul  apirlKM!  by  this  court  in  tlio 
recent  case  of  McElhenny  v.  IIul)ort  Oil  Co.^"  '  It  nowhere 
appears,'  said  the  present  Chief  Justice,  '  that  McElhenny,  the 
purcliaser  from  Ilulwrt,  the  original  owner,  did  it  as  the  agent 
of  Messrs.  Baird,  Boyd  &  Co.  and  others,  though  he  bought  it 
to  sell  again,  no  doubt;  he  had  a  pei'fect  right,  therefore,  to 
deal  with  them  at  arm's  length,  as  it  seems  he  did.'  And, 
again :  '  If  the  .property  was  not  purchased  by  ^IcElhenny  fur 
tlie  use,  and  as  agent  for  the  com])any,  but  for  his  own  use,  he 
might  sell  it  at  a  profit,  most  assuredly.  Xo  subsequent  pur- 
cliasers  from  his  vendees  would  have  any  right  to  call  upon 
him  to  account  for  the  profits  made  on  his  sale.'  In  that  case, 
McElhenny,  being  the  owner  of  pro]>erty  which  had  cost  him 
only  $1,000,  sold  it  to  Baird,  Boyd  &  Co.  and  others,  who  asso- 
ciated with  him  to  form  an  oil  company,  for  $12,000,  and  it 
was  decided  that  the  company  could  not  call  him  in  (^(piity  to 
account  for  the  profit  he  had  made.  The  second  principle  is, 
that  where  persons  form  such  an  association,  or  begin  to  start 
the  project  of  one,  fi'om  that  time  thoy  do  stand  in  a  confiden- 
tial relation  to  each  other,  and  to  all  others  who  may  subse- 
quently become  members  or  suW-ribers,  and  it  is  not  competent 
for  any  one  of  them  to  purchase  pro]>erty,  for  the  purpose  of  such 
a  company,  and  then  sell  it  at  an  advanee,  without  a  full  dis- 
closure of  the  facts.  Tlicy  must  account  to  tli(>  eom]K)iiy  for 
the  profit,  because  it  legitimately  is  theirs.  It  is  a  fimiliar 
principle  of  the  law  of  partnership  —  one  pnrtner  cannot  buy 
and  sell  to  the  partnership  at  a  profit;  nor  if  a  partnership  is 

5«2  Hare  489.  sod   Pa.  St.  188 


CO-TENANTS.  341 

in  eontcnii)lati(in  incrfly,  can  lie  pnrcliaso  witli  a  view  to  a 
future  sale,  without  accounting  for  the  profit,  Witliin  the 
scope  of  tJie  partnership  business,  each  associate  is  the  general 
agent  of  tiie  others,  and  he  cannot  divest  himself  of  that  char- 
acter without  their  laiowledge  and  consent.  This  is  the  prin- 
ciple of  Ilichens  v.  Congrove,""  Fawcett  v.  Wliitehouse,*''"' 
and  the  other  cases  which  liave  l)eon  relied  on  by  the  ap- 
peUants.  It  was  recognize<l  in  ]\rcElhenny  v.  ITulwrt  Oil 
Co.,  just  cited,  and  idso  in  Simons  v.  The  Vulcan  Oil 
Co/'^  Both  of  thes-i  cases  were  complicated  with  evidence 
of  actual  misrepresentations  as  to  the  original  cost  of  the 
property  to  tlie  vendors.  In  the  opinion  of  the  court  in 
the  last  case,  delivered  by  Thomjison,  C.  J.,  it  is  said' 
'  If  the  defendants,  in  fact,  acted  as  tlie  agents  of  the  company 
in  acquiring  the  property,  they  could  not  charge  a  profit  a* 
against  their  principal.  Xor  was  their  position  any  better  i( 
they  assumed  so  to  act  without  ]>reccdont  authority,  if  their 
doings  were  accepted  as  tlie  acts  of  agents  by  the  association  or 
company.  If  in  order  to  get  up  a  company,  they  re]>resented 
tliemselves  as  having  acted  for  the  association  to  be  formed, 
and  proposed  to  sell  at  the  same  price  they  ])aid,  and  their  ]»u''- 
chases  Avere  taken  on  these  representations,  and  st^ickliolders  in- 
vested in  a  reliance  upon  them,  it  would  be  a  fraud  on  the 
company,  and  all  those  interested,  to  allow  them  to  retain  the 
large  profits  paid  them  by  the  company,  in  ignorance  of  the 
true  sums  actually  advanced.'  The  defendants  in  that  case 
were  subserilx^rs,  with  others,  to  the  stock  of  a  jirnicctcil  nil 
company,  and,  after  the  ])lan  had  been  fcniicd,  scvured  to  them- 
selves by  contract  the  refusal  of  the  projierty,  which  they  after- 
wards sold  to  the  company  at  a  greatly  advanced  price."  *'* 

fio  4    Russ.    562.  "-  Donsinoip  Oil  Co.  v.  Densinore, 

♦o  1   Russ.   and   M.   132.  64  Pa.  St.  43. 

6161    Pa.    St.   202. 


CHAPTER  XH. 

CONTRACTS  FOR  A  LHASE. 

§289.  Not  often  drawn  into  controversies. 

§290.  Indefiniteness. 

§291.  What  is  a  sufficient  writing. 

§292.  Effect  of  taking  possession  under  contract. 

§293.  Specific  performance  of  contract  for  lease. 

fl294.  Damages  for  breach  of  contract  to  give  lease. 

-'289.     Not  often  drawn  into  controversies. 

Contracts  for  leases  of  gas  or  oil  lands  are  not  often  broiiglit 
6efore  the  courts;  but  such  contracts  with  reference  to  mining 
leases  are  not  uncommon,  and  from  these  analogous  cases  we 
will  draw  a  few  illustrations. 

§290.     Indefiniteness. 

If  a  contract  for  a  lease  be  indefinite  or  uncertain  in  its 
{^irms,  it  cannot  be  enforced.^  It  nmst  l>e  an  actual  indefinite- 
jicss,  and  not  an  apparent  one  which  can  be  removed  by  parol 
(••videncc.^  Where  the  description  is  so  indefinite  as  to  not  de- 
•jcribe  the  premises,  the  contract  cannot  be  enforced,  even 
though  the  lessee  be  put  into  a  possession  of  a  part  of  them,  in 
connection  with  another  person  asserting  similar  rights  to  a  part 
of  it ;  and  if  the  lessee  has  not  complied  with  all  the  agreements 
on  liis  part,  he  is  without  a  remedy.''  Mined  pr(»(hicts  are  con- 
tinuously fluctuating  in  value,  and  for  that  reason  time  is  of 

1  Lancaster  v.  DeTrafford,  31  L.  Cope.  2.5  Beav.  140;  27  L.  J.  Ch. 
J.  Ch.  .554;  7  h.  T.  40;  10  W.  H.  468;  4  ,Tur.  (N.  S.)  227;  31  L.  T. 
474;  8  Jur.    (N.  S.)   873.  (O.  8.)   48;  0  W.  R.  304. 

2  Shardlow  v.  Cotterell,  20  Ch.  3  Lancaster  v.  DeTrafford,  31  L. 
Div.  90;  .51  L.  .L  Ch.  353;  45  L.  T.  ,T.  Ch.  5.54;  7  L.  T.  40;  10  W.  R. 
572;    30    W.    R.    143;    Haywood    v.  474;    8  Jur.    (N.   S.)    873. 

342 


CONTRACTS    FOR    A    LEASE.  343 

the  essence  of  all  contracts  for  a  mining  lease;  and  Uic  contract 
in  tliis  resj)Oct  must  be  defiiiito.'' 

§291.     What  is  a  sufficient  writing. 

As  an  oil  lease  is  an  interest  in  lands,  a  contract  to  give  one 
must  be  in  writing  in  order  to  bind  the  owner  of  the  land,  the 
Statute  of  Frauds  requiring  this.  The  writing,  to  be  a  bind- 
ing contract,  must  be  signed  by  the  owner  of  the  land,  but  need 
not  be  by  the  person  to  receive  the  lease,  though  that  is  the 
nsual  practice.^  A  formal  agreement  is  not  necessary,  it  is 
sufhcient  if  there  be  a  note  or  memorandum  of  the  agreement 
containing  the  names  of  the  parties,  the  consideration,  and  tlie 
subject  matter.'^  The  contract  may  be  embraced  in  two  or 
more  pajoers ;  and  the  langinige  used  in  the  several  ])a]>ers  may 
be  such  as  connect  them  without  further  evidence;^  but  if  the 
language  used  does  not  so  connect  them,  parol  or  other  evi(kmce 
is  admissible  for  that  purjx)se.^  The  contract  may  be  signed 
by  the  agent  of  the  property  owner,  without  having  lx>en  au- 
thorized in  writing  so  to  do ;  and  if  the  person  siii,niing  had  no 
authority  so  to  do,  yet  his  act  may  be  ratified  and  thus  becf)me 
binding. **  An  agreement  for  a  lease  must  be  an  actual  agree- 
ment, and  merely  drawing  u]>  a  written  ]>a]icr  and  signing  it, 
when  in  fact  there  is  no  agreement  will  not  make  an  agreement 

4Pendergast   v.   Turton,    13    L.   J.  48   L.  J.   Cli.    10;    ,39   L.  T.    173;   -JO 

Ch.   268;    5  Jur.    1102;    8  Jiir.  205;  W.  K.  8(lo. 

Huxhan  V.  Llewellyn,  21  \V.  R.  570;  ^  Boydell   v.   Duinmond,    11    Kast. 

Walker  v.  Jefi'reys,   1    Ha.   341;    II  142. 

L.  J.  Ch.  209;   6  Jur.  336;    London  »  Nene   Valley    v.    Dunkley.    4   C'l. 

V.   Mitford,   14  Ves.  58;   Aloway   v.  Div.  1;  Lonu  v.  Millar,  4  C.  P.  Div 

Braine.  26  Beav.  .575;  33  L.  T.  100  4.50;    48   ]>   .J.   C.    P.   .596;   41    L.  T. 

5  Laytlioarp  v.  Bryant,  2  Binjif.  N.  306;  27  W.  R.  720;   IVtirce  v.  C.ard- 

C.  735;    5  L.  J.  C.  P.  217;    3   Scoi  t  pgr    [1897].    1    Q.   B.   688;    66   L.  .T. 

2.38;  2  Hodges  25;  Seton  v.  Slade,  7  Q.  B.  457:    76   L.   T.  441;   45  W.   R. 

Ves.  274.  518;     Cochrane    v.     Justice    Mining 

G  Williams  v.  Lake,  2  Kl.  and  Kl.  Co.    (Colo.),    26    Pae.    Rep.    7S0. 

349;    29   L.  J.   ().    15.    1;    6  Jur.    (X.  !'  Dickinson  v.  Doodds.  L.  R.  2  Ch. 

S.)    45;    1    L.   T.   56;    8    W.    R.    41;  Div.  463;  45  L.  J.  Ch.  777;  34   L.  T. 

Sale  V.  Lan-bert  L.  R.   18  Eq.   I:   43  607;    24    W.    R.    594:    Bd    v.    Bills 

L.  J.  Ch.  470;  22  W.  R.  478;   Ros-  [18971.    1    Ch.    663;    66    L.    J.    Ch. 

siter   V.   Miller,   3   App.   Cas.    1124;  397;  76  L.  T.  254;  45  W.  R.  37S. 


344  OIL    AND    GAS. 

that  can  be  enforced.^"  Part  performance  will  dispense  wnth 
a  reduction  of  tlie  agi-eement  to  writing;  and  sucli  a  part  per- 
formance is  where  possession  has  been  given  and  taken  under 
the  oral  contract,"  not  where  it  has  been  taken  witJiout  an  agree- 
ment —  or  where  possession  has  been  continued  by  agreement^ 
followed,  in  either  instance  by  expenditures  made  upon  the  faith 
of  the  contract/^  But  a  mere  understanding  is  not  sufficient, 
nor  is  what  may  be  termed  an  "  inchoate  "  agreement,  as  where 
the  contract  is  not  complete,  one  or  more  of  the  essential  parts 
yet  to  be  supplied.  Such  would  be  tlie  case  where  the  price^ 
in  an  instance  of  a  sale  or  lease,  was  not  definitely  fixed, 
even  though  all  the  other  essentials  were  ocjntained  in  the  writ- 
ing. But  even  in  an  instance  of  this  kind,  such  an  vmderstand- 
ing  may  be  rendered  valid  when  w'orks  of  an  ex]>ensive  character 
have  been  built  upon  tlie  premises  by  the  prospective  grantee 
or  lessee  wdth  the  full  knowledge  of  the  grantor  or  lessor,  upon 
the  faitli  of  the  understanding  being  carried  out  by  both  par- 
ties," or  if  the  inchoate  agreement  Ix^ing  completed,^*  and  the 
works  so  constructed  would  be  useless  by  the  determination 
of  the  understanding  or  inchoate  agreement;  but  if  there  would 
be  no  such  loss,  then  the  understanding  or  inchoate  agreement 
would  not  be  carried  out."  It  is  not  uncommon  for  parties  ta 
make  a  note  or  memorandum  of  a  contract  from  whicli  a  formal 

10  May  V.  Thompson,  20  Ch.  Div.  303;  Dawson  v.  iVIcFaddin,  22  Neb. 
705;  51  L.  J.  Ch.  917;  47  L.  T.  131;  34  N.  W.  Rep.  338;  Truman 
295;  Bellany  v.  Debenham  [1891],  v.  Truman,  70  la.  500;  44  N.  W. 
1  Ch.  412;  60  L.  J.  Ch.  166;  64  L.  Rep.  721;  Moore  v.  Small,  19  Pa. 
T.  468;  39  W.  R.  257.  Of  course  a  St.  461;  Freeman  v.  Freeman,  43  N. 
contract  otherwise  illegal  cannot  be  Y.  34;  3  Am.  Rep.  657;  Hardesty 
enforced;  and  the  mere  fact  that  v.  Richardson,  44  Md.  617;  22  Am. 
it  is  put  in  writing  will  not  render  Rep.  57  ;  Manly  v.  Howlett,  55  Cal. 
it  enforceable.  South  African  Ter-  !i4 :  Langston  v.  Bates,  84  111.  524; 
ritories  v.  Wallington  [1898],  A.  C.  25  Am.  Rep.  466;  Murphy  v.  StelU 
309;  67  L.  .J.  Q.  B.  470;  78  L.  T.  43  Tex.  123;  Lester  v.  Lester,  28 
426;   46  W.  R.  545.  Gratt.  737. 

11  Surcomlie  v.  Pinniger,  3  De  G.  i' Jackson  v.  Cator,  5  Ves.  687. 
M.  and  G.  571;  22  L.  J.  Ch.  419.  n  Powell  v.  Thomas,  6  Ha.  306. 

i2Hodson   V.   Heuland    [1896],    2  is  Bankart  v.   Tennant,   L.   R.    10 

Ch.  428;  65  L.  J.  Ch.  754;  74  L.  T.  Eq.  141  ;   39  L.  .T.  Ch.  809;  23  L.  T. 

881;  44  W.  R.  684;  Neale  v.  Neale  137;   18  W.  R.  6.39. 
9  Wall  1  ;  Seavev  v.  Drake,  62  N.  H. 


CONTRACTS    FOR    A    LEASE.  345 

contract  is  to  be  drawn  up.  This  occurs  also  often  in  instances 
of  negotiations  bv  corn^sj^ondonco.  Usually,  if  not  always, 
these  notes  or  memoranda  contemjdate  the  drawing  up  of  a 
formal  contract  before  there  is  a  binding  obligation  between  the 
parties.  When  such  is  the  ease,  tlie  failure  to  execute  s\ich  a 
formal  contract  may  or  not  terminate  tli(>  rchition  (d'  the  juir- 
ties  or  the  enforceability  of  tlie  negotiations  or  agreement.  If 
the  note,  instniment  or  writings  cont<ain  their  final  agreement 
it  may  be  enforced,  notwithstanding  the  fact  that  no  formal 
agreement  has  ever  been  drawn  u]>,  for  such  note,  instniment 
or  writings  contain  their  contract.^"  If  it  does  not  contain  the 
final  agreement,  it  cannot  \k'  enf(.irced.''  Of  course,  in  all  such 
instances  the  question  is  one  of  construction  of  the  written  note 
or  memorandum. ^^  Where  the  contract  arises  out  of  an  offer 
and  acceptance,  the  acceptance  must  be  as  broad  as  the  offer  and 
not  exceed  it;  for  if  the  acceptance  contain  any  qualification  of 
the  offer  it  will  be  regarded  as  a  counter  offer  which  will  re- 
quire the  acceptance  of  tlie  party  making  the  first  offer ;  in 
which  instance  the  offer,  counter  offer  and  acceptance  will  con- 
stitute the  contract  for  the  lease.^"  Thus  in  answer  to  an  ad- 
vertisement for  bids  for  a  lease  of  a  mine,  a  mining  couijiany 
received  a  letter  in  which  the  writer  offered  "  to  take  lease  on 
the  whole  ]>ro])erty  at  thirty-five  per  cent  royalty  at  eighteen 
months,  and  agree  to  expend  at  least  five  thousand  dollars  every 
month  in  development  work ;  T  to  have  thirty  days  to  begin  work, 
in  order  to  make  cxaminatiou  of  property,  and  put  machinery 
in  place.  Lease  to  date  from  time  of  commencement  of  work. 
Settlement  as  usual."  Th(>  oificers  of  the  mining  company 
voted  to  accept  the.  offer,  and  empowered  its  ])resident  to  draw 
up  a  lease  in  conjunction  with  the  person  making  the  offer,  and 
present  it  to  the  board  of  directors  for  their  consideration.     The 

16  Rossitcr  V.   :Millor.  :?  App.  C^as.  's  Rossiter    v.    Miller,    siipni 
1124;  48  L.  J.  Ch.  10;  39  L.  T.  173;  in  Pattle  v.  Hornibrook   [1897],  1 
26    W.    R.    865;    North    v.    Peroival  Ch.  2r> ;   0(5  L.  .T.  Ch.    144;   7.>  L.  T. 
[1898],    2    Ch.    128;    67    L.    J.    Ch.  475;    4.3    \V.    R.    123;    Routled^e   v. 
321;  78  L.  T.  61.5;  46  W.  R.  r,'y2.  Crant.    4    Bin?.    660;    South    Tloton 

17  Lloyd  V.  Newell  [189.'>].  2  Ch.  Coal  Co.  v.  ITaswell  Co;-)  ("<>. 
744;  64  L.  J.  Ch.  744;  73  L.  T.  [18981.  1  Ch.  465;  67  L.  J.  Ch. 
154;  44  W.  R.  43.  238;    78  L.  T.  .366;  46  W.  R.  355. 


346  OIL   AND    GAS. 

president  at  once  telegraphed  the  bidder  that  the  lease  had  been 
awarded  to  him;  and  this  was  hchl  to  eonstitute  a  binding  con- 
tract for  a  lease,  and  the  coni|);niy  could  not  insist  that  he  ac- 
cepted a  lease  which  required  him  to  do  certain  work  regardless 
of  its  productiveness,  and  give  it,  the  company,  privileges, 
under  certain  contingencies,  to  dispose  of  the  ore  mined."" 

§292.     Effect  of  taking  possession  under  contract. 

Usually  one  put  into  possession,  under  a  contract  for  the 
purchase  of  real  estate,  before  the  actual  completion  of  the  pur- 
chase, waives  the  right  to  object  to  the  vendor's  title  and  for 
that  reason  refuse  to  complete  the  purchase.  Care,  however, 
must  be  observed  in  this  connection.  Thus  there  is  a  broad 
difference  between  a  possession  taken  under  a  contract  which 
provides  that  the  title  shall  be  a  good  one,  and  also  provides 
that  possession  may  be  taken  before  the  purchase  is  completed ; 
and  one  under  which  possession  is  taken  makes  no  provision 
for  such  a  title.  And  where  it  is  claimed  that  there  was  a 
waiver  of  a  right  to  insist  that  a  good  title  be  shown  before  the 
purchase  shall  be  completed,  the  distinction  between  instances 
where  the  vendor  can  remove  the  objections  to  tlie  title,  and 
those,  to  the  knowledge  of  the  vendee  that  they  are  not  remov- 
able, must  be  borne  in  mind.  And  the  reason  for  this  is  that 
\vhere  a  vendee  knows  of  defects  in  the  title  or  conditions  af- 
fecting it,  and  that  the  vendor  has  no  control  over  them,  by 
taking  or  remaining  in  possession  of  it,  ho  waives  his  right 
to  insist  on  the  particular  irremovable  objections  of  which  he 
had  knowledge  before  he  took  possession.'^  Those  rules,  how- 
ever, are  not  applicable  in  their  full  force  to  sales  or  leases  of 
mines ;  for  as  their  time  is  often  of  the  essence  of  a  contract, 
one  who  has  f.greed  to  accept  the  lease  of  a  mine  may  take  pos- 
session of  it  before  the  lease  is  gi'anted,  and  his  entrance  wnll 

2f' Cochrane  v.  Jivstioo  I\Iinin<f  Co.  Bown     v.    Stenson,    24     Beav.    f):n  ; 

(Colo.),  20   Pac.   Rep.   780.  Burnell  v.  Brown,   1  J.  and  W.  168; 

21 /«   re  Gloacr  and  Miller's  Con-  Stevens  v.  Ouffy.  .3  Russ.  171:   6  L. 

tract.  2,3  Ch.  Div.  320;  .52  L.  .T.  Cb.  J.    (O.  S.)    1(54. 
654;   48  L.  T.  629;    31    W.  R.   GOl ; 


CONTRACTS   FOR    A    LEASE.  347 

not  be  considered  as  an  acceptance  of  the  title  of  the  lessor  to 
grant  the  lease. ''^ 

^293.     Specific  performance  of  contract  for  lease. 

Where  a  valid  contract  for  a  lease  has  bcK-n  executed,  a  court 
of  equity  will  decree  a  specific  ]ierfoniianee,  and  compel  the  ex- 
ecution of  a  lease  in  accordance  with  the  terms  of  the  contract, 
but  tlie  court  will  not  decree  a  working  of  the  premises  to  which 
the  contract  relates,  leaving  the  parties  to  their  action  for  dam- 
ages."^ xVnd  where  damages  will  afford  adequate  relief,  or 
there  is  an  uncertainty  in  the  contract,  specific  performance  will 
not  be  decreed."*  If  the  contract  for  a  lease  is  not  complete, 
then  specific  j^erformance  will  not  be  deci^eed  nor  damages 
^warded ;  and  an  absence  of  any  essential  part  in  the  contract 
will  be  fatal  to  tlie  j^rson  claiming  under  it"^  But  mere  un- 
certainty as  the  identity  of  the  land  referred  to,  which  may  be 
removed  by  parol  evidence,  will  not,  however,  defeat  tlie  action 
either  for  damages  or  for  specific  perfonnance."'^  Only  such 
a  lease  will  be  decreed  as  the  contract  calls  for,  witliout  any 
variation  from  it.'"  If,  pending  the  suit  for  a  specific  perform- 
ance, the  owner  lessen  the  value  of  the  lease-to-be,  by  extracting 
tlie  thing  for  which  the  lease  was  granted,  the  court  will  award 
damages  in  tliat  suit,  or  if  they  be  not  discovered  until  after 
the  decree,  in  a  supplemental  action."^  If  there  has  been  inad- 
vertent misrepresentation  on  the  part  of  the  owner  of  the  land, 
specific  performance  at  his  instance  will  not  lie  to  comi3el  the 


22Hapvood  V.  Cope,  27  L.  J.  (N.  24  Ricketts  v.  Bell,   1  Ue  G.  and 

S.)    Ch.  4G8;    25  Beav.    140;    4  Jiir.  Sm.  335;   10  L.  T.  105;  11  Jur.  !>ls; 

(N.  S.)    227;   31  L.  T.    (0.  S.)    48;  Price  v.  Griffith,  De  G.  M.  and   G. 

6   W.   R.   304.      See   Davis   v.   Shop-  80;  21  L.  J.  Ch.   78;   15  Jur.   U);!3; 

hard,  L.  R.   1   Ch.  App.  410;    35  L.  18  L.  T.    (O.  S.)    100. 

J.  Ch.  581:    15  L.  T.  122;    Smith  v.  2'- Maynell    v.   Surtees,   3  Sni.  and 

Root,    GO    W.    Va.    033;    GC    S.    E.  G.  101. 

Rep.   1005.  20  Doe    v.    Martin.    4    B.    and    Ad. 

23  Wol-vcrhampton     K.    R.    Co.     v.  785 ;  Price  v.  (Jrillitli.  .>.•»/<;>;. 

London,  etc.,  R.  R.  Co.,  L.  R.  10  Eq.  2- Parne  v.  Milclicll.   15  L.  J.    (N. 

433;  43  L.  J.  Ch.  131;  Powell  Duf-  S.)    Ch.  287. 

fryn  Coal  Co.  v.  TaflF  Vale  Rail  Co.,  2s  Noison  v.  Bridges,  2  Beav.  23!»; 

L.  R.  0.  Ch.  App.  331;  43  L.  J.  Ch.  3   Jiir.    1098. 
675;   30  L.  T.  208. 


348  OIL   AND    GAS. 

aewptance  of  the  lease  made  pursuant  to  the  terms  of  tlie  con- 
tract,'" and  the  same  is  much  more  so  where  both  wilful  mis- 
representation and  fraud  have  been  used  to  induce  the  execution 
of  the  contract.'"  But  mere  vague  commendation  or  puffing  is 
not  enough  to  defeat  sjx^cific  ])erformance ;  ^^  nor  is  glowing  de- 
scri])tions  of  the  probable  success  of  an  adventure.^"  Nor  is 
there  any  misrepresentation  such  as  will  avoid  tlie  contract  if 
the  person  complaining  of  them  relied  upon  his  own  examina- 
tion of  the  premises,  or  was  not  misled  by  them.^^  Occasionally 
a  specific  ]x^rformance  of  a  contract  will  not  be  decreed  where 
the  owner  of  the  land  has  not  been  apprised  of  the  value  of  the 
lease  he  has  contracted  to  grant,  as  where  he  has  been  "  sur- 
prised," as  it  were,  into  signing  the  contract.  Thus  where  tlie 
plaintiff  knew  all  alx)ut  the  value  of  the  mining  privileges, 
and  the  defendant  did  not,  having  recently  purchased  the  land, 
and  he  hurried  the  defendant  into  signing  the  agreement,  the 
court  refused  to  decree  a  specific  performance  of  the  agreement, 
on  the  ground  that  an  undue  advantage  had  been  taken  of  tlie 
defendant,  and  also  on  the  suspicion  that  the  royalties  were 
grossly  inadequate,  as  was  alleged. '"'*  By  delaying  his  action 
for  specific  performance  —  as,  for  instance,  three  years  and  a 
half  —  the  person  insisting  u|X>n  a  decree  for  it  may  lose  his 
right  to  it.^^  Delay  on  the  part  of  the  owner  in  tendering  a 
coal  lease,  until  much  of  the  coal  has  l>een  taken  out  of  the 
premises,  will  defeat  his  right  to  a  decree  for  specific  perform- 
ance.'" 

29Higgins  V.  Samels.  2  J.  and  H.  6  CI.  and  F.  232;   2  L.  J.  Exch.  1; 

460;    7   L.  T.  240;    Ricketts  v.   Bell,  1  Younge  407;  Colby  v.  Gadsden,  34 

supra.  Beav.  416;   11  Jur.    (N.  S.)    760;   12 

30  Powell  V.  Elliott,   L.  R.   10  Ch.  L.  T.  197. 

App.  424;    33  L.  T.   110;    23   W.   R.  34  Walters  v.  Morgan.  3  De  G.  F, 

777.  and  J.  718;  4  L.  T.  758. 

31  Jennings  v.  Broughton,  5  De  3.';  Eads  v.  WilliaTiis.,  24  L.  J.  (N. 
G.  M.  and  G.  126;  Higgins  v.  Sam-  S.)  Ch.  531;  4  De  G.  M.  and  G. 
els,  supra.  674;    11  Jur.    fX.  S.)    193;   3  W.  R. 

32  .Jennings  v.  Broughton.  17  98;  24  L.  T.  162;  Maebride  v. 
Beav.  234;  22  L.  J.  Ch.  585;  17  Weekes.  22  Beav.  533;  2  Jur.  (N. 
Jur.  305;    1  W.  R.  441.  S.)   918;  28  L.  T.    (O.  S.)    135;   Gee 

33  Jennings    v.    Broughton,    5    De  v.  Pearse,  2  De  G.  and  Sm.  325. 

G.  M.  and  G.  126;  Small  v.  Attwood,  36  Kille   v.   Reading   Iron    Works, 


CONTRACTS    FOK    A    LEASE. 

§294.     Damages  for  breach  of  contract  to  give  lease. 


349 


Wliere  a  person  enters  into  a  contract  to  give  a  lease,  and  he 
has  neidicr  title  to  the  land  to  Ix'  leased  nor  power  to  execute  a 
lease,  the  person  contracting  with  liiui  has  a  right  to  and  may 
recover  substantial  <laniagos  fr<iui  liini  for  the  hi'each  of  the 
contract. '^^  Such  is  not  the  case,  however,  wliere  the  title  is 
merely  defective,  or  where  the  lessor  has  some  title;  for  there 
only  nominal  damages  are  recoverable.  If  the  lease  be  granted 
and  possession  be  taken  or  attempted  to  be  taken  under  it,  but 
the  lack  of  title  or  defect  in  it  be  not  discovered  until  after  the 
lease  be  executed  and  such  ]X)ssession  be  taken  or  attempted,  the 
lessee  may  recover  substantial  damages  under  the  covenant  for 
quiet  enjoyment;  and  the  same  is  true  if  there  be  an  express 
covenant  for  title.^** 


141  Pa.  St.  440;  21  Atl.  Rep.  666. 
Where  a  contract  for  a  "mining 
lease  contained  a  clause  permitting 
a  surrender  by  the  proposed  lessee 
at  any  time  on  giving  notice,  it  was 
held  that  a  statute  authorizing  spe- 
cific performance  of  an  agreement 
for  a  lease  did  not  authorize  spe- 
cific performance  of  such  an  agree- 
ment entered  into  without  a  valu- 
able consideration,  the  lessee  having 
nothing  that  would  entail  a  loss 
on  his  part  in  case  of  its  non-en- 
forcement. Grummett  v.  Gingrass, 
77  Mich.  369;  43  N.  W.  Rep.  009; 
Watford  Oil  &  Gas  Co.  v.  Shipman, 
233  111.  9;  84  N.  E.  Rep.  53;  Ulrey 
V.  Keith,  237  111.  284 ;  86  N.  E.  Rep. 
696. 


37  Robinson  v.  Hurman,  1  Exch. 
850;  18  L.  J.  Exch.  202;  Hopkins  v. 
Grazebrook,  6  B.  and  C.  31 ;  9  D. 
and  R.  22;  5  L.  J.   (O.  S.)   K.  B.  65. 

•■*»'  Fhireau  v.  Tliornhill.  2  W.  Bl. 
1078;  Walker  v.  Moore,  10  B.  and 
C.  416;  8  L.  J.  (0.  S.)  K.  B.  159. 
See  Engel  v.  Fiteh.  L.  R.  3  Q.  B. 
314;  9  B.  J.  S.  85;  37  L.  J.  Q.  B. 
145;  18  L.  T.  318;  16  \V.  R.  785. 
Where  the  vendor  of  an  interest  in 
a  lease  retained  the  possession  of  it 
without  being  obliged  to  make  a  re- 
sale of  it  at  a  lower  price,  and  he 
made  no  tender  of  a  conveyance  of 
it.  it  wiis  held  that  he  could  rofovcr 
only  noininnl  damages.  Cnrnor  v. 
Potors.  9  P;).  Super.  Ct.  Rep.  29; 
43  \V.  N.  C.  201. 


CHAPTER  XIII. 


ADVERSE  POSSESSION-STATUTE  OF   LIMITATIONS. 

§295.  Peculiarities  of  oil  and  gas. —  Possession  of  surface. 

§2<JG.  Rule  as  to  oil  and  gas. 

§297.  Possession  of  surface  not  adverse  to  owner  of  oil  or  gas. 

§298.  Possession  of  oil  operator  not  adverse  to  owner  of  surface. 

§299.  Acquiring  right  to  oil  or  gas  under  Statute  of  Limitations. 

§300.  Receiver. —  Title  in  dispute. —  Injunction. 

§301.  Accounting. 

^295.     Peculiarities  of  oil  and   gas. —  Possession  of  surface. 

In  discussing  the  question  of  adverse  possession  and  the 
Statute  of  Limitations  in  regard  to  natural  gas  and  oil,  care 
must  be  taken  to  bear  in  mind  the  peculiar  character  of  this 
fluid  and  this  gas,  and  the  ownership  in  them.  The  owner 
cannot  claim  tliem  as  his  absolute  property  until  he  has  re- 
duced thorn  t-o  actual  possession.  While  u]x>n  his  territory  he 
has  a  qualified  property  in  them ;  but  as  soon  as  they  pass  from 
beneath  the  surface  of  his  land,  even  that  limited  ownership 
is  gone.^  If  the  land  has  been  leased  for  oil  or  gas  purposes,  it 
cannot  be  said  merely  because  the  lessor  occupies  the  surface  he 
has  adverse  possession  of  the  oil  and  gas.  The  same  rule  ap- 
plies to  coal  or  any  other  mineral.^ 

1  Westmoreland,    etc..    Co.    v.   De-  760;   Armstrong  v.  Caldwell,  53  Pa. 

Witt.  130  Pa.  St.  235;   18  Atl.  Rep.  St.    284;    Plummer   v.   Hillside  Coal 

724;   5  L.  R.  A.   731;   29  Amer.  L.  &,  Iron  Co.,  IGO  Pa.  St.  483;  28  Atl. 

Reg.  93.  Rep.   853;   Moreland  v.   Frick  Coke 

2Catlin    Coal    Co.    v.    Lloyd.    170  Cc,    170   Pa.   St.   33;    32   Atl.   Rep. 

111.  275;  52  N.  E.  Rep.  144;  Catlin  6.34;   Lulay  v.   Barnes,    172  Pa.   St. 

Coal  Co.  v.  Lloyd.    180  111.  398;    54  331;   .34  Atl.  Rep.  .52;   37  W.  N.  C. 

N.   E.  Rep.  214;   Caldwell   v.  Cope-  409;     McBee    v.     Loftis,     1     Strob. 

land,  37  Pa.  St.  375;  72  Am.  Dec.  Eq.  90. 

350 


ADVERSE   POSSESSION.  350a 

§296.     Rule  as  to  oil  and  gas. 

What  is  tnie  of  coal  or  other  mineral,  is  also  true  of  oil  and 
gas.  It  is  Tiot  sufRcdent  to  show,  where  title  by  adverse  pi^^isses- 
sion  is  claimed  by  tlie  surface  owner  as  against  the  claimant 
or  owner  of  tlie  gas,  that  such  sui-faco  owner  has  had  ]X)Ssession 
for  a  period  equal  in  length  to  the  period  required  to  establish 
title  to  land  by  adverse  ]x>ssession,  where  there  has  l)een  a 
severance  of  tJie  ownership  of  the  oil  and  gas  from  land.^  In 
speaking  of  adverse  possession  in  such  an  instance,  the  Supreme 
Court  of  Pennsylvania  said  : 

"  They  had  put  down  a  well,  which  had  tapped  the  gas- 
bearing  strata,  and  it  was  the  only  one  on  the  land.  They  had 
it  in  their  control,  for  they  had  only  to  turn  a  valve,  to  have  it 
flow  into  their  pipe,  ready  for  use.  The  fact  that  they  did 
not  keep  it  flowing,  but  held  it  generally  in  reserve,  did  not 
affect  their  possession  any  more  than  a  mill  owner  affects  tlic 
continuance  of  his  Avatcr  right  when  ho  shuts  his  sluice  gates. 
On  tlie  other  hand,  BroA\ni  had  no  ]X)ssession  of  the  gas  at  all. 
His  possession  of  the  soil  for  purposes  of  tillage,  etc.,  gave  him 
no  actual  possession  of  the  gas;  and  ho  had  no  legal  possession 
for  his  lease  had  conveyed  that  to  another.  I  low,  then,  had 
he  taken,  '  full  and  absolute  possession  ()f  tlio  ]>remises  and 
rights,'  as  found  by  the  master;  apparently,  ho  had  asserted  to 
the  complaints  his  claim  that  the  lease  was  forfeited.  In  addi- 
tion, on  one  occasion  when  the  agent  of  complainants  was  at 
their  well  for  a  specific  pur|X3se,  Browni  had  ordered  liim  off 
the  land;  but  there  is  uo  ovidouco  that  lie  wont  iiulil  lie  lind 
finished  his  business  there.  Shortly  before  this  the  complain- 
ants had  sent  men  on  the  land  to  Ix^gin  the  erection  of  a  der- 
rick for  a  second  well,  and  Brown  had  ordered  them  off.  This, 
which  is  the  strongest  item  in  tho  proof,  is  really  no  ovidonce 
at  all  of  dispossession  of  conijilninanls.  Tlioy  si  ill  remain  in 
possession  of  their  well,  whioh  gave  them  the  sole  control  of 
the  gas,  so  far  as  its  utilization  was  concerned,  and  the  sole  pos- 

s  Murray  v.  Allurd,  100  Toiin. 
100;  43  S.  W.  Rep.  .3.55;  .3!)  L.  H.  A. 
24!):   fifi  Aim.  St.  Rep.  740. 


350b  OIL   AND    GAS. 

session  of  which  it  was  ciipable,  apart  from  the  land,  from 
wliich  it  had  been  legally  severed  by  the  lease.  The  utmost 
that  can  bo  said  of  snch  an  occurrence  is  that  it  was  a  violent 
and  temporary  interference  witli  that  jxirtion  of  complainant's 
rights  which  authorized  them  to  put  down  a  second  well.  This 
was  no  more  a  disix)ssession  of  complainants  from  their  occu- 
pation of  tli6  gas  than  blocking  up  one  of  a  farmer's  roads  to 
his  house  would  be  an  ouster  from  his  farm.  We  are  there- 
fore of  opinion  that  the  master  was  wrong  in  finding  as  a  fact 
that  complainants  were  out  of  possession,  and  should  be  remitted 
to  an  ejectment  to  establish  their  title  at  law,"  * 

§297.     Possession  of  surface  not  adverse  to  owner  of  oil  or  gas. 

Possession  of  the  surface  is  not  an  adverse  possession  of  the 
oil  or  gas  beneath  it  where  such  oil  or  gas  is  owned  by  another 
or  rather  where  such  other  has  a  right  to  reduce  it  to  possession. 
Such  occupation,  and  even  cultivation,  is  not  even  evidence  of 
adverse  enjoyment  of  the  right  to  take  oil  or  gas ;  and  the  mere 
non-user  for  a  long  period  —  as  forty  years  —  of  the  right  to 
take  it  will  not  extinguish  it,  although  it  may  work  a  forfeiture. 
"  As  the  right  was  neither  acquired  nor  evidenced  by  use,  so  we 
think  it  cannot  be  lost  by  misuse.  And  as  there  was  no  adverse 
enjoyment  to  raise  tlie  presumption  of  a  conveyance  or  release 
of  it,  the  right  of  tliose  holding  the  "vvi-itten  title  remains  unim-' 
paired."  ^  In  speaking  of  adverse  possession  of  coal  beneath 
the  surface  of  a  tract  of  land,  the  Supreme  Court  of  Pennsyl- 
vania used  the  following  language: 

'"  It  is  no  doubt,  the  general  presumption  that  a  party  who 
has  jx)s.session  of  the  surface  of  land  has  possession  of  the  sub- 
soil also,  because,  ordinarily  the  right  to  the  surface  is  not 
severed  from  the  right  to  the  strata  below  tlie  surface.  But 
this  presumption  does  not  exist  when  these  rights  are  severed. 

4  Westmoreland,  etc.,  Co.  vs.  Do-  106;  Davis  v.  Clark,  2  Mont.  310; 
Witt,  130  Pa.  St.  23.5;  18  Atl.  Ap.  Kinsrsley  v.  Hillside  Coal  &  Iron 
724;   29  Am.  L.  Rejj.  93.  Co.,   144   Pa.   St.  613;    23   Atl.   Rep. 

5  Said    of    coal    beneath    the    snr-  250. 
face.     Arnold    v.    Stevens,    24    Pick. 


ADVERSE   POSSESSION.  350c 

Each  tlien  booames  a  distinct  {XKSscs.sion.  Tn  sucJi  a  c^iso,  tho 
]x>ssessi()ii  of  tJie  surface,  f(»ll(i\viiig-  the  right,  is  as  distinct 
from  tJie  jx>ssession  of  tho  minerals  or  subsoil  strata  wliicii 
have  been  severed  in  right,  as  is  the  possession  of  one  tract  of 
land  from  that  of  another  not  in  contact  with  it.  Hence  it  is 
settled  that  when  bv  a  conveyance  or  reservation  a  separation 
has  been  made  of  the  ownorshij)  of  the  surface  from  that  (if  tlic 
underground  minerals,  the  owaier  of  the  former  can  ac(piire  no 
title  by  the  Statute  of  Limitations  to  the  minerals,  by  his  exclu- 
sive and  continual  enjoyment  of  the  surface.  Xor  does  the 
owTier  of  the  minerals  lose  his  right  or  his  possession  bv  any 
length  of  non-user.  He  nuist  1x3  disseised  to  lose  his  right ;  and 
there  can  be  no  disseised  by  act  that  does  not  actually  take  the 
minerals  out  of  his  possession.  There  seems  to  be  no  reason  why 
the  Statute  of  Limitations  should  not  be  held  applicable  t<i  all 
corporeal  hereditaments,  including  those  that  are  only  subsurface 
rights.  ...  In  Caldwell  v.  Copeland  "  it  was  said  that 
adverse  possession  of  the  mine  by  the  owners  of  the  surface  for 
the  statutory  period  would  avail  as  title.  But  such  possession 
must  be  distinct  from  that  of  the  surface.  It  is  unaided  by 
surface  rights  or  surface  occupancy.  What,  tlien,  is  adverse 
possession  of  the  coal  in  a  tract  of  land,  in  a  case  whore  the 
o\vner  of  tlie  land  has  by  deed  severed  the  ownership  of  the 
coal  from  tlie  ownership  of  the  surface  ?  Its  nature  cannot  be 
changed  by  tlie  fact  that  it  is  more  difficult  of  enjoyment.  Like 
adverse  possession  of  every  other  cor]>oreal  hereditament,  it  must 
be  actual  (as  distinguished  from  constructive),  exclusive,  con- 
tinued, peaceable  and  hostile  for  twent_N'>-one  years  in  order  to 
give  title  under  the  Statute  of  Limitations.  There  is  no  rea- 
son for  adopting  a  less  stringent  rule.  The  ovvnier  of  the  sur- 
face can  acquire  title  against  tbe  owner  of  the  minerals  under- 
neatli  by  no  acts  or  continuous  series  of  acts  that  would  not  give 
title  to  a  stranger.  If  the  o^vner  of  a  coal  mine  is  not  in  aotual 
possession,  and  the  owner  of  the  surface,  or  any  other  jx^rson, 
digs  pits  or  drives  adits  into  tho  minerals,  and  carries  on  min- 
ing operations  there  continuously  for  the  stiitutury  jjeriod  ad- 

«  37  Pa.  St.  427. 


350d  OIL   AND    GAS. 

versely  to  the  right  of  any  other,  he  may  acquire  a  right.  In 
such  a  ciise  he  takes  actual  possession  of  tlie  entire  body  of 
minerals  in  the  tract  of  land.  He  may  therefore  acquire  a 
title  to  the  whole.  But  inasmuch  as  there  cannot  be  any 
residence  upon  the  coal,  or  cultivation  without  continual  pedis 
possessio,  or  retention  of  tlie  hold  upon  the  mine,  tlicre  can  be 
no  ouster  of  the  owner,  and  consequently  no  acquisition  of  a 
ri<iht.  If  one  digs  turves  or  cuts  wood  upon  another's  land  for 
his  own  use,  and  if  he  sells  some  of  the  turves  he  dug  or  tlie 
wood  he  cut  to  tlie  neighbors,  it  is  not  pretended  that  he  can 
acquire  title  to  tlie  land  by  such  conduct,  though  repeated  at 
intervals  through  the  whole  period  of  twenty-one  years.  .  .  . 
The  court  below,  therefore,  erred  in  leaving  to  the  jury  to  find 
that  the  plaintiff  had  acquired  title  to  the  coal  by  having  taken 
out  some  of  it  for  family  and  neighborhood  uses,  at  intervals 
during  twenty-one  years,  without  any  evidence  tliat  tlie  taking 
had  Ijeen  constant  and  continuous."  ^ 

§298.     Possession  of  oil  operator  not  adverse  to  owner  of  surface. 

The  lessee  or  the  ojx^rator  of  oil  wells  under  a  lease  does  not 
have  adverse  possession  of  so  much  of  the  surface  as  he  actually 
occupies  with  his  machinery,  wells,  derricks,  pipe  lines,  oil 
tanks  and  the  like,  as  against  the  owner  of  the  surface;  and  he 
cannot  in  that  way  obtain  title,  at  least  so  long  as  there  is  oil 
to  be  pumped.^ 

§299.     Acquiring  right  to  oil  or  gas  under  Statute  of  Limitation. 

Title  may  l)e  acquired  by  adverse  possession  of  solid  mineral, 
but  the  possession  must  be  of  the  actual  mineral  and  not  of  the 
surface  under  which  it  lies  where  a  severance  of  the  mineral 
from  the  surface  has  taken  place."  But  if  one  take  possession 
of  the  surface,  where  no  severance  of  tJie  mineral  has  even 
taken  place,  adverse  possession  against  the  owner  of  the  land 
will  give  title  to  tlie  mineral  beneath  it ;  and  a  conveyance  of 

T  Armstrong   v.    Caldwell,    .53    Pa.  «Dietz    v.    Mission    Transfer    Co. 

St.  284;  Wallace  v.  Elm  Grove  Coal  (Cal.),  2.5  Pac.  Rep.  423. 

Co.,  58   W.   Va.  440;    52   S.   E.  485.  sArmstronj?    v.    Caldwell,    53    Pa. 

How  possession  is  averred.     Plant  v.  St.    284;    Caldwell    v.    Copeland,    37 

Humphreys,  06  W.  Va.  88;  66  S.  E.  Pa.  St.  427. 
94;    Riser    v.   ^McLean,    67    W.   Va. 
294;  67  S.  E.  725. 


ADVERSE   POSSESSION.  351 

the  mineral  by  the  rightful  owner  befure  the  statute  has  run  will 
not  be  such  a  resumption  of  possession  as  will  stop  tlie  runninj^ 
of  the  statute  —  it  is  not  an  entry  upon  the  laud.'"  This  must  bo 
an  open  and  not  a  secret  entry."  Sup|xjse,  however,  tliat  tho 
owner  of  tlie  surface  should  exclude  the  owner  of  the  oil  or  p^as 
beneath  the  surface  from  entering  on  such  surface  and  drilliui^ 
for  the  oil  or  gas  for  a  j^eriod  equivalent  to  the  Statute  of  Lim- 
itations, and  during  that  period  such  owner  of  the  oil  or  gas 
had  endeavored  —  either  once  or  more  than  once  —  ineffectually 
to  enter  on  the  surface  for  the  pur]K)se  of  drilling  —  would  not 
such  acts  be  such  an  adverse  possession  as  to  defeat  tlie  right  of 
the  owner  of  the  oil  or  gas?  It  seems  to  us  it  would.  The 
rule  applicable  to  tenants  in  common  is  probably  the  true  one 
in  such  an  instiince.  The  o\vner  of  the  oil  has  no  power  to 
secure  it  unless  he  can  enter  upon  the  surface ;  and  if  he  is  de- 
nied that  right  and  excluded  for  the  usual  period  of  tlie  Statute 
of  Limitations  applicable  to  adverse  possession,  it  seems  that 
he  has  lost  his  right  to  drill  for  and  take  the  oil.*^ 

§300.     Receiver  —  title  in  dispute  —  injunction. 

A  receiver  will  be  ap]X)inted  to  operate  gas  or  oil  wells  when 
the  title  to  the  land  is  in  dispute,  in  order  to  prevent  a  waste 
during  litigation,  or  where  the  person  taking  the  oil  or  gas  is 
insolvent.^^  So  if  one  invade  the  premises  of  anotlier  and  be- 
gin taking  oil  or  gas,  an  injunction  will  be  issued  u|>on 
proper  application,  to  restrain  hiin.^*  Where  the  claim  of  own- 
ership of  a  person  in  possession  dated  back  to  a  time  prior  to 
the  right  of  entry,  by  parties  who  were  out  of  possession,  and 
the  person  in  possession  was  solvent,  and  to  issue  an  injunction 
would   stop  o]")erations   and    the    land   during   such    cessure   of 

loCatlin   Coal    Co.   v.   Lloyd,    ISO  Co.,    144    Pa.   St.  613;   2.3  All.   Rep. 

Til.  398;   .54  N.  E.  Rop.  214;   Catlin  250. 

Coal  Co.  V.   Lloyd,  176  111.  275;   52  12  See  Erskine  v.   Forest  Oil   Co., 

N.   E.    Rep.    144;    Kingsley   v.   Hill-  SO  Fed.  Rep.  .5S3. 

side   Coal    Co..   144   Pa.   St.  613;    23  i'»  Nevada  Sierra  Oil  Co.  v.  Home 

Atl.    Rep.    250;    Delaware,   etc.,   Co.  Oil  Co..  98  Fed.  Rep.  673. 

V.  Hughes,  183  Pa.  66;  38  Atl.  568;  i4  Indianapolis    Natural    Oaa    Co. 

63   Am.  St.   743.  v.    Kihl)y,    135   Ind.   357;    35   N.   E. 

11  Finnegon  v.  Steinner,  28  Pittsb.  Rep.  392. 
L.  J.    (N.  S.)    68;   5  Pa.  Super.  Ct. 
Rep.  127;   Kingsley  v.  Hillside  Coal 


352  OIL   AND    GAS. 

operations  would  be  drained  by  operations  on  other  lands,  the 
court  refused  to  issue  an  injunction,  and  sent  the  parties  to  a 
court  of  law  to  establish  their  title  to  the  land.^^  Where  in  a 
bill  to  quiet  title,  it  appeared,  though  the  complainant  claimed 
title,  that  the  defendant  was  in  possession,  had  drilled  wells,  re- 
moved oil  from  the  premises,  and  was  drilling  more  wells,  the 
court  refused  to  grant  relief,  sending  the  parties  to  a  court  of 
law  to  bring  an  ordinary  action  of  ejectment.^® 

§301.     Accounting. 

Mere  delay  by  the  lessor  in  bringing  a  suit  against  the  lessee 
for  an  accounting  will  not  bar  a  recovery,  if  the  action  is  not 
barred  by  the  Statute  of  Limitations ;  ^^  and  color  has  been  lent 
to  the  claim  that  even  the  Statute  of  Limitations  will  not  bar 
the  right  to  an  accounting.^®  But,  on  the  other  hand,  it  has 
been  held  that  the  statute  begins  to  run  from  the  time  an 
accounting  can  be  demanded.^^ 

15  Erskinc  v.  Forest  Oil  Co.,  80  erty  after  the  death  of  his  co-part- 
Fed.  Rep.  583.  ner  is  not  barred,  as  a  rule,  by  the 

16  California  Oil  and  Gas  Co.  v.  Statute  of  Limitations,  from  an  ac- 
Miller,  9G  Fed.  Rep.   12.  counting.     Thomas  v.  Hurst,  73  Fed. 

17  Ahrns  v.  Chartiers  Valley  Gas  Rep.  372.  Secretly  extracting  min- 
Cc,  188  Pa.  St.  249;  41  Atl.  Rep.  eral  prevents  the  Statute  of  Limita- 
739;  Akin  v.  Marshall  Oil  Co.,  188  tions  running  until  the  extracting  is 
Pa.  St.  602;  41  Atl.  Rep.  748.  discovered.      Lewey    v.    H.    C.    Frick 

18  Williams  v.  Short,  155  Pa.  St.  Co.,  160  Pa.  St.  536;  31  Atl.  Rep. 
480;  26  Atl.  Rep.  662.     A  widow  of  261;   28  L.  R.  A.  283. 

a  partner,  where  a  managing  part-  i!' Summers  v.  Bennett   (W.  Va.), 

ner  continues  to   manage  the   prop-       69  S.  E.  690. 


CHAPTER  XIV. 

RESERVATION   AND  EXCEPTION. 

§302.  Distinction,  between  reservation  and  exception. 

§303.  Severance  of  mineral  by  reservation  or  exception. 

§304.  Reservation  of  "  all  minerals  "  includes  oil  and  gas. 

§305.  Keservation  of  right  to  drill  for  oil  restricted. 

§306.  Ownership  of  gas  or  oil  beneath  public  highways,  rivers  or  sea. 

§307.  Reservation  or  exception  subject  to  lien  of  judgment. 

§308.  Wife's  interest  in  reservation. —  Construction. 

§309.  Location  of  oil  claim  on   public  lands. 

§302.     Distinction  between  reservation  and  exception. 

The  distinction  l)otweon  a  reservation  and  an  exception  should 
be  borne  in  mind.  '"  A  reservation  is  a  chiuse  in  a  deed  whereby 
the  grantor  doth  reserve  some  new  thing  to  himself  out  of  that 
which  he  granted  before.  This  doth  differ  from  an  exception, 
which  is  ever  a  part  of  the  thing  granted,  and  of  a  thing  in  esse 
at  the  time:  but  this  is  of  a  thing  newly  created,  or  reserved 
out  of  a  thing  demised,  tluU  was  not  in  esse  before."  ^  "  A 
reservation  is  something  taken  from  the  whole  thing  covered  by 
the  general  terms  making  the  grant,  and  cuts  down  and  lessens 
the  grant  from  what  it  would  be  except  for  tlie  reservation."  ^ 
"  An  exception  is  something  reserved  by  the  grantor  out  of  that 
w^hich  he  has  before  granted.  Tt  is  indispensable  to  a  good  ex- 
ception that  the  tiling  excepted  should  be  a  part  of  the  thing 
previously  granted,  and  not  of  any  other  thing."  ^  "  An  excep- 
tion is  always  a  part  of  the  thing  granted,  and  of  a  thing  in 
being;  and  a  reser\%ation  is  of  a  thing  not  in  l)eing,  but  newly 
created  out  of  lands  and  tenements  demised ;  though  exception 
and  reservation  have  often  been  used  promiscuously."* 

1  Craig  V.  Wells,  11  X.  Y.  315,  3  Case  v.  Haight,  3  Wend.  (132; 
quoting  Shep.  Touch   80.  Darling  v.  Crowell,  G  N.  H.  421. 

2  ■Miller  v.  I^pham,  44  Ct.  p.  434;  ^  St:itt>  v.  Wilson,  42  Mo.  9;  Cun- 
Parsell  v.  Stryker,  41  N.  Y.  480;  ningham  v.  Knight,  1  Barb.  399; 
Ryckman   v.   Gillis,   6    Lans.   p.   79.  Gould  v.  Class,   19  Barb.   179. 

353 


354  OIL    .VND    GAS. 

^303.     Severance  of  mineral  by  reservation    or  exception. 

A  reservation  or  exception  of  all  the  mineral  in  a  tract  con- 
veyed is  a  separation  of  the  estate  in  the  mineral  from  the 
estate  in  the  surface.  "  A  reservation  of  minerals  and  mining 
rights  is  construed  as  is  an  actual  grant  thereof."  "  A  reser- 
vation of  mineral  and  mining  rights  from  a  grant  of  the  estate, 
followed  by  a  grant  to  another  of  all  tliat  which  was  lirst  re- 
served, vests  in  the  second  grantee  an  estate  as  broad  as  if  the 
entire  estate  had  first  been  granted  to  him  with  a  resei*vation 
of  the  surface."  ^  Of  course,  what  is  true  of  a  reservation  is 
also  true  of  an  exception.*'  In  case  of  either  a  reservation  or 
an  exception,  the  gi*antor  has  a  right  to  enter  on  the  surface, 
with  all  the  usual  necessary  appliances,  tO'  remove  the  mineral, 
without  any  express  authority  reserved  to  that  effect.^  In  case 
of  a  reservation  of  minerals,  such  mineral  descends  to  the 
grantor's  heirs.*  A  reservation  as  large  as  the  grant  itself  is 
void,  and  the  grant  is  valid. ^ 

§304.     Reservation  of  "  all  minerals  "  includes  oil  and  gas. 

A  clause,  in  a  deed  of  conveyance  resenting  "  all  minerals  " 
has  been  held  not  to  include  ]Tetroleum,  and  by  analogv'  not  to  in- 
clude natural  gas.^**     But  tliis  decision  has  been  greatly  shaken 

A  deed  had  the  following  cl.ause:  8  Snoddy  v.   Bolen,   122  Mo.  479; 

"Reserving   to    said    parties    of    the  24  S.  W.'Rep.   142;    25   S.  W.  Rep. 

first   part   all   the   rights,  privileges  932;   J^orton  v.  Snyder,  2   Hun  82; 

and  benefits  secured     .     .     .     under  Sloan  v.   Furnace   Co.,   29   Ohio   St. 

an   oil    and    gas    lease    executed    by  568;   Baker  v.  McDowell,  3  W.  and 

said   parties   of   the   first    part,   the  S.  358 ;    Shoenberger  v.  Lyon,  7  W. 

full    power    and   right   to   renew   or  and  S.   184;   Whitaker  v.  Brown,  46 

extend,    exchange    or    modify    said  Pa.  St.   197;  Alden's  Appeal,  93  Pa. 

lease     ...     as    fully    and    to   the  St.    182;    Foster    v.    Runk,    109    Pa. 

same  extent  as  though  this  convey-  St.  291;    Lillibridge  v.   Lackawanna 

ance  had  not  been  executed.      It  "is  Coal   Co.,    143   Pa.  St.  293;    22  Atl. 

intended    hereby    to    reserve    all    oil  Rep.   1035. 

and    gas    privileges    in   and    to    said  ^  Wardell  v.  Watson,  supra.    Wil- 

premises."      This    was    held   to   con-  Hams    v.    Oibson,    84    Ala.    228;    4 

stitute  an  exception,  and  not  a  res-  So.     Rep.     350;     Dietz     v.     Mission 

ervation;  and  tne  title  to  the  oil  and  Transfer    Co.    (Cal.),   25   Pac.    Rep. 

gas    in    the    land    remained    in    the  423. 

grantors.     Moore  v.  Griffin,  72  Kan.  «  Whitaker   v.   Brown,  46   Pa.   St. 

Ib4;   83  Pac.  395.     See  also  Murray  197. 

V.  Allred,  100  Tenn.   100;   43  S.  W.  »  Shoenberger     v.     Lyon,     supra; 

355;    66  Am.  St.  740.  Foster  v.  Runk,  supra." 

5  Marvin  v.  Brewster,  etc.,  Co.,  55  lo  Dunham  v.  Kirkpatrick,  101  Pa, 

Ohio   St.   538;    Farnum   v.   Piatt,   8  St.   36;    47   Am.    Rep.   696;    Suit   v. 

Pick.   339;    Munn  v.  Stone,  4  Cush.  Hochstetter  Oil'Co.,  63  W.  Va.  317; 

146;    Wardell    v.    Watson,    93    Mo.  61   S.  E.  307. 
107;  5  S.  W.  Rep.  60<5. 


RESERVATION    AND    EXCEPTION.  355 

ill  the  State  where  it  was  rendered,  by  a  subsequent  decision 
lidding  that  ]x^troleuin  is  a  iiiiiioral  sul>stanco  obtained  from 
the  earth  by  process  of  mining  and  hinds  from  wdiicli  it  is  ol)- 
tained  may  be  designated  as  mineral  lands.^^  In  another  case 
in  another  State,  a  reservation  in  deed  of  conveyance  of  "  all 
mines,  minerals  and  inotais  in  and  under  the  land  ''  was  held 
to  include  petroleum.  "  The  first  question  to  l)c  determined," 
said  the  court,  "  is  whether  petroleum  oil  is  included  within 
the  language  of  reservation  of  '  mines,  minerals  and  metals.'  " 
Clearly,  from  this  description  of  the  substance,  it 
could  not  in  any  sense  fall  under  the  terms  '  metal '  or  '  metal- 
lic' The  question,  then,  to  Iw  determined  is,  does  it  fall 
within  the  term  '  mines  and  mineral '  ?  .  .  .  In  the  most 
general  sense  of  the  term,  minerals  are  those  parts  of  the  earth 
which  are  capable  of  being  got  from  underneath  the  surface 
for  the  purpose  of  profit.  The  term,  therefore,  includes  coal, 
metal,  ores  of  all  kinds,  clay,  stone,  slate  and  coprolites.  .  .  . 
The  term  is  not  limited  to  metallic  substances,  but  includes  salt, 
coal,  paint,  stone  and  similar  substances.  .  .  .  Wo  think, 
however,  that  the  tiaie  meaning  of  the  word  '  mineral,'  as  well 
as  its  meaning  among  the  bulk  of  iiKinkind,  must  be  deterniined 
from  dictionaries  and  other  similar  authorities.  We  do  not 
think  that  the  bulk  of  mankind  could  l)e  regarded  as  holding 
that  the  word  '  mineral '  applied  only  to  metals."  After  re- 
viewing a  number  of  cases  from  other  States,  and  esjiecially 
Pennsylvania,  the  court  concludes:  "We  are  liound  to  hold 
that  petroleum  is  a  mineral  and  that  it  falls  within  the  terms 
of  the  reservation  in  the  deed.  .  .  .  The  same  is  true  of 
natural  gas."  ^^      In  Ohio,  liowever,  in  a  case  of  a  conveyance  of 

1^  Gill     V.    Weston,    110     Pa.    St.  lanfjuage   was   used   in  a   West   Vir- 

305;   1  Atl.  Rep.  921.  fjfnia    case     in    defining    petroleum. 

12  Quoting  Century  Dictionary.  Williamson    v.    Jones,    39    \\'.    Va. 

13  Murray    v.    Allard,    100     Tonn.  231;    19   S.   E.   TJcp.   436;    25    L.   R. 
100;  43  S.  W.  Rep.  355;  39  L.  R.  A.  A.  222. 

249;  66  Am.  St.  Rep.  740.  Under  a    railroad   irrant  reserving 

In  an  early  Pennsylvania  case   it  minerals,    it    was    decided    that    pe- 

was  said  "Oil  is  a  mineral,  and  be-  troleuni    was    included,     l^nion    Oil 

ing   a  mineral,   is  part  of  the   real-  Co..  25  Land.  Dec.   351. 

ty."     Funk  v.  Haldeman.  53  Pa.  St.  The  ITnited  States  land  laws  pro- 

229,      249.     Practically      the      same  vide   that   "  Any   person   authorized 


356 


OIL    AND    GAS. 


"  all  the  coal  of  every  variety,  and  all  tlie  iron  ore,  fire  clay,  and. 
other  valuable  minerals,"  in  and  under  a  certain  described  tract, 
giving'  the  grantee  in  perpetuity  the  right  ''  of  mining  and  re- 
moving such  coal,  ore,  or  other  minerals  "  and  ''  right  to  the 
use  of  so  much  of  the  surface  of  the  land  as  may  be  necessary 
for  pits,  shafts,  platforms,  drains,  railroads,  switches,  side 
tracks,  etc.,  to  facilitate  the  mining  and  removal  of  such  coal, 
ore,  or  other  minerals,  and  no  more,"  it  was  held  that  the  deed 
did  not  pass  the  title  to  the  petroleum  oil  and  natural  gas  in 
such  lands.  "  The  words  '  other  minerals,'  or  '  other  valuable 
minerals,'  taken  in  their  broadest  sense,  would  include  petro- 
leum oil ;  but  the  question  here  is,  did  the  parties  intend  to  in- 
clude such  oil  in  the  mining  right  ?  Taking  all  the  terms  of  the 
conveyance  in  the  light  of  the  surrounding  circumstances,  and  in 
view  of  the  above  rule  of  constrnction,^*  and  upon  the  authority 
of  the  case  of  Dunham  against  Kirkpatrick,^^  we  conclude  that 
the  title  to  the  oil  did  not  pass  under  said  conveyance,  but  re- 
mained in  the  owner  of  the  soil,  and  upon  his  death  passed  to 


to  enter  lands  under  the  mining 
laws  of  the  United  States  may  en- 
ter or  obtain  patent  to  lands  con- 
taining petroleum  or  other  mineral 
oil,  and  chiefly  valuable  therefore, 
under  the  provisions  of  the  laws  re- 
lating to  placer  and  mineral 
claims."  Act  approved  Feb.  11, 
1897,  29  Stat,  at  Large  526;  2 
Supp.   R.  S.  U.  S.  .549. 

The  Supreme  Court  of  the  United 
States  has  held  that  salt  is  not  a 
mineral,  within  the  meaning  of  the 
mineral  statutes,  but  in  so  doing  it 
calls  attention  to  the  well  known 
practice  of  the  government  in  re- 
serving salt  springs  from  sale.  ]\Ior- 
ton  v.  Nebraska.  21  Wall.  600.  A 
recent  act  of  Congress  classes 
saline  lands  as  mineral  lands  and 
locatable  as  placer.  Act  of  Janu- 
ary 31,  1901,  21  Stat,  at  Large 
145.  In  Texas  the  opposite  is  held. 
State  v.  Parker,  61   Tex.  265. 


1*  Referring  to  Barringer  and 
Adams  on  the  Law  of  Mines  and 
Mining,  p.  131,  where  it  is  said: 
"  In  determining  what  is  included 
in  a  lease,  the  familiar  rules  of 
construction  are  applied.  The  giant 
is  construed  most  strongly  against 
the  grantor.  The  whole  contract 
must  be  considered  in  arriving  at 
the  meaning  of  any  of  its  parts. 
Terms  are  to  be  understood  in  tiieir 
plain,  ordinary,  and  popular  sense, 
unless  they  have  acquired  a  par- 
ticular technical  sense  by  the 
known  usage  of  trade.  They  are  to 
be  construed  with  reference  to  their 
commercial  and  their  scientific  im- 
port. This  rule  is  of  especial  im- 
portance when  the  question  arises 
whether  a  specific  mineral  is  in- 
cluded in   a  general  designation." 

15  101   Pa.  St.  36. 


RESERVATION    AND   EXCEPTION.  356a 

his  heirs.  There  is  nothing  to  show  that  it  was  tlie  intention 
of  the  parties  that  oil  should  be  included  in  the  word  'min- 
erals,' and  the  easements  granted,  in  connection  with  the 
mining  right,  are  not  applicable  to  producing  oil  '"  and  show 
that  oil  was  not  intended  to  be  included  in  the  conveyance. 
If  it  had  been,  apt  words  would  have  been  used  to  express 
such  intention."'"  Where  a  contract  was  to  convey  the  land 
but  reserving  all  oil  and  gas  in  or  under  the  said  lands,  with 
free  mining  privileges  of  all  kinds,  it  was  held  that  a  deed  of 
conveyance  containing  a  clause  "excepting  and  reserving  all 
gas,  oil,  coal,  ores  and  other  mineral  deposits  in,  under  or  on 
the  said  premises,"  was  not  a  compliance  with  the  contract; 
for  by  the  contract  the  agreement  was  to  convey  the  "coal, 
ores  and  other  mineral  deposits,"  as  distinguished  from  "gas 
and  oil."  '^  A  deed  contained  this  clause:'  'But  it  is  expressly 
understood  and  agreed  that  there  is  reserved  from  and  not 
included  in  the  above  sale  or  conveyance  seven-eighths  of  all 
and  any  oil  and  gas  that  may  be  on,  in  or  under  said  land, 
with  full  right  and  privilege  to  the  grantor,  his  heirs  and 
assigns,  to  develop  and  operate  the  same  "  This  w^as  held  to 
except,  and  did  not  pass  to  the  grantee,  the  oil  and  gas  placed 
on  the  land,  and  the  oil  and  gas  remained  vested  in  the  grantor 
as  an  actual  vested  estate  and  property,  and  was  not  an 
incorporeal  hereditament  in  him  nor  a  mere  license  to  pro- 
duce oil  and  gas,  and  the  title  in  him  to  the  oil  and  gas  was 
not  in  obeyance  to  vest  when  the  oil  and  gas  should  be 
developed  and  brought  to  the  surface  for  the  grantor.  Con- 
sequently, a  subsequent  conveyance  by  the  grantor  of  such 
oil  and  gas  vested  in  the  grantees  like  estate  and  property 
in  the  oil  and  gas  as  Avas  vested  in  such  grantor.     This  excep- 

10  "Xothing    is     said     aliout     der-  carry    away    the    mineral    thereon," 

ricks,    pipe   linos,    tanks,  the   use   of  covers  only  "mines  and  ores  of  metal 

water  for  drillinfi;,  or  the  removal  of  and    minerals    in    common    use,    and 

machinery  used  in  drilling  or  opera-  commonly  known  as  sucli,"  does  not 

ting  oil  or  gas  wells."'  cover    marble,    serperttine,    or    other 

17  Detlor  V.   Holland,   57   Ohio   St  building    material,     whicli,     at    the 

492;  49  N.  E.  Rep.  GOO;  40  L.  R.  A  time  the  reservation  was  made,  was 

266.  not  known  to  exist  in   the  country. 

A    reservation   of   "all    mines   and  Deer  Lake  Co.  v.  ^fiehigan,  etc.,  Co., 

ores  of  metal  tliat  are  or  may  here-  89  Mich.  180;  50  N.  \V.  Rep.  807. 

after   l)e    found    on    the    said    lands,  i«Moody     v.    Alexander,     145    Pa. 

with  the  right     .     .     .     to  mine  and  St.  571 ;  23  Atl.  Rep.  161. 


356b  OIL   AND    GAS. 

tion  had  the  same  effect  as  a  reservation.""*  In  the  grant  of 
land,  an  exception  of  the  oil  and  gas  and  the  right  to  go 
upon  the  land  for  them,  is  not  defeated  by  the  covenants  for 
quiet  possession  of  the  land  and  freedom  from  encumbrances 
thereon.  Such  covenants  relate  only  to  the  thing  conveyed — 
the  land  without  oil  and  gas — the  land  burdened  with  the  right 
to  operate  for  the  oil  and  gas  retained.''"'  A  conveyance  of 
land  ])ut  excepting  and  reserving  out  of  and  from  the  grant 
at  all  times  thereafter  and  forever,  unto  the  grantor  and  his 
heirs  and  assigns  one-tenth  of  all  the  mineral  oil  that  may  be 
obtained  by  the  grantee,  his  heirs  or  assigns,  from  the  land 
granted,  to  be  delivered  on  the  land  to  the  grantor,  his  heirs 
or  assigns,  free  of  expense,  except  the  furnishing  of  barrels  or 
other  means  of  transportation,  is  an  exception  and  reserva- 
tion in  the  grantor,  his  heirs  or  assigns,  to  be  delivered  as 
stipulated,  a  royalty  of  one-tenth  of  all  the  oil  produced, 
possessing  the  same  quality  of  estate  as  royalty  reserved  in  an 
ordinary  lease  for  oil  and  gas  purposes.  So  that  if  the  owner 
of  the  land  lease  it  for  oil  and  gas,  reserving  one-eighth  royalty, 
without  stipulating  how  the  one-tenth  of  all  the  oil  reserved 
in  the  prior  grant  is  to  be  discharged,  his  lessee  will  be  entitled 
to  deduct  the  same  from  the  one-eighth  royalty  oil  reserved 
in  the  lease.' ^'^ 

§  305.     Reservation  of  right  to  drill  for  oil  restricted. 

Under  a  reservation  of  a  right  to  drill  for  oil  or  gas,  the 
grantor,  his  heirs  or  assigns  have  a  right  to  drill  wells  to 
prospect  for  oil  or  gas,  even  though  there  is  no  surface  indica- 
tion of  either  of  them;  but  the  lands  cannot  be  used  for  the 
development  of  other  lands,  nor  machinery  used  on  other  lands 
be  stored  on  it,  nor  oil  taken  from  other  lands  be  stored  on 
or  transported  over  it.'^  A  conveyance  of  oil  in  land  "except 
a  well  now  producing  oil,"  does  not  prevent  the  grantor  sink- 
ing the  well  to  a  lower  strata  when  it  ceases  to  produce  oil.'''* 

18a  Preston   v.   White,   57   W.   Va.  isc  Jackson  v.  Dulaney,  07  W.  Va. 

278;  50  S.  E.  236;  Peterson  v.  Hall,  309;   G7  S.  E.  7n5. 

57  W.  Va.  5.35;  50  S.  E.  603;  Tooth-  i9  Dietz  v.  Mission  Transfer  Co., 
man   v.    Courtney.    02    W.   Va.    107;  95  Cal.  92;   30  Pac.  Rep.  380;  Dietz 

58  S.  E.  915;  Carrett  v.  South  Penn.  v.  Mission  Transfer  Co.  (Cal.),  25 
Oil   Co.,   06  W.   Va.   587;    00    S.   E.  Pac.  Pep.  423. 

741.  '9a  Amnions   v.  Toothman,   59   W. 

isbKiser   v.   McLean,    67    W.   Va.       Va.  165;  53  S.  E.  13. 
294 ;  67  S.  B.  725. 


RESERVATION    AND    EXCEPTION. 


356c 


§  306.     Ownership  of  gas  or  oil  beneath  public  highways,  rivers 
or  sea. 

If  the  public  own  the  fee  in  a  public  highway,  then  it  may 
take  all  mineral  beneath  the  surface  of  such  highway,  as  in  an 
instance  of  cx)al,"°  or  of  petroleum.'^  If  the  public  highway 
or  street  be  abandoned,  tlie  fee,  being  a  base  fee,  reverts  to  the 
person  who  dedic^ited  it,  in  case  of  a  dedication,"  or  if  taken 
by  right  of  eminent  domain,  to  the  abutting  property  owners, 
but  such  abutting  lot  owner  cannot  take  the  mineral  from 
beneath  tlie  highway  so  long  as  it  remains  a  public  one.^*  In 
the  Missouri  case  just  cited  it  was  said :  ''  The  street  having 
been  dedicated  to  public  use  as  a  tlioroughfare,  no  private  party 
(not  even  the  city  itself)  had  any  autliority  or  right  to  use  it 
for  any  otlier  purpose."  '""  If  tlie  public  have  a  mere  easement, 
then  the  abutting  land  owner  owns  the  minerals  beneath  tho 
highway ;  "®  and  the  same  is  true  where  the  public  acquire  only 
an  easement  by  the  right  of  eminent  domain."^  Yet  it  would  seem 
that  the  owner  of  mineral  l)enoath  a  highway  may  remove  it, 
if  he  can  do  so  without  interfering  with  the  public  in  the  use 
of  such  highway."^     But  this  is  a  rule  of  little  if  any  practical 


20  Union  Coal  Co.  vs.  City  of  La 
Salle,  136  111.  119;  26  N.  E.  Rep. 
506;  12  L.  R.  A.  326,  an  action  to 
recover  damages  brought  by  a  city 
against  one  taking  the  coal  from 
beneath  a  street  of  the  city.  Des 
Moines  v.  Hall,  24  la.  234;  Hawes- 
ville  V.  Hawes,  6  Bush.  232. 

21  Ontario  Natural  Gas  Co.  v. 
Gasfip.ld,  IS  Ontario  App.  626. 

23  Matthiesson,  etc.,  Co.  v.  La 
Salle,  117  111.  411;  2  N.  E.  Rep. 
406;  8  N.  E.  Rop.  81. 

24  Matthiesson,  etc.,  Co.  v.  La 
Salle,  supra;  Friend  v.  Porter,  50 
Mo.  App.  89. 

2f>  In  Union  Coal  Co.  v.  City  of 
La  Salle,  supra,  the  court  declin('<l 
to  pass  on  the  right  of  the  city  to 
sell  the  coal  beneath  the  street.  In 
Ontario  Natural  Gas  Co.  v.  Gos- 
field,  supra,  a  statute  autliorizod  a 
township  to  sell  or  lease  the  gas  or 
oil  beneath  the  siirface  of  any  pub- 
lic highway. 


ac  Tousley  v.  Galena,  etc.,  Co.,  24 
Kan.  328;  Smith  v.  Rome,  19 
Ga.  89. 

2T  Smith  v.  Holloway,  124  Ind. 
329;  24  N.  E.  Rep.  886;  Kelly  v. 
Donahoe,  2  Mete.  (Ky.)  482;  Evans 
V.  Haefner,  29  Mo.  141;  Goodtitle 
V.  Alker,  1  Burr.  143;  Holmes  v. 
Bellingham,  7  C.  B.  (N.  S.)  329; 
Berridge  v.  Ward,  10  C.  B.  (N.  S.) 
400;  30  L.  J.  C.  P.  218;  7  Jur.  (N. 
S.)  876;  2  F.  and  F.  208;  Lyman 
V.  iVrnold,  5  Mason  195;  Fisher  v. 
Rochester.  6  Lans.  225;  Robert  v. 
Sadler,  104  N.  Y.  229;  10  N.  E. 
Rep.  428. 

-s  R(jbcrt  V.  Sadler,  supra  .  Pcrl.-y 
V.  Chandler,  6  Mass.  453;  Old  Town 
V.  Dooley,  81  111.  255;  Winchester  v. 
Capron,  63  N.  H.  605;  Williams  v. 
Kenney,  14  Barb.  629.  But  of  this 
the  laws  are  conflicting  as  can  be 
-seen  in  citation  24. 


356d  OIL   AND    GAS. 

value  in  cases  of  oil  and  gas.  For  an  oil  or  gas  well  must 
necessarily  be  an  obstruction  of  the  highway  when  sunk  in  it, 
and  especially  the  machinery  used  in  sinking  and  operating 
it ;  -°  and,  therefore,  it  is  practically  impossible  to  make  use  of 
a  highway  in  order  to  extract  the  oil  or  gas  beneath  its  sur- 
face. As  the  public  authorities  only  have  the  right  to  use  the 
highway  for  the  purposes  of  the  public  in  traveling,  they  have 
no  power  to  let  any  part  of  it  for  oil  or  gas  operations,  unless 
especially  authorized  by  a  statute  to  do  so,  and  then  only  when 
the  public  own  theiee.  The  owner  of  land  dedicating  it  to  the 
public  for  a  highway  may  reserve  the  mineral  beneath  its  sur- 
face ;  and  in  such  an  instance  he  may  remove  it ;  •''°  and  if  he 
convey  the  abutting  property,  his  grantee  is  the  owner  of  the 
mineral. ^^  Mineral  beneath  a  navigable  river  or  the  sea 
belongs  to  the  State."*^  Oil  or  gas  beneath  a  railroad's  right 
of  way  belongs  to  the  adjoining  landowner  or  landowner 
through  whose  land  it  runs,  when  such  right  of  way  is  only  an 
easement.^^* 

§  307.     Reservation  or  exception  subject  to  lien  of  judgment. 

A  reservation  or  exception  of  the  gas  or  oil,  or  other  mineral, 
beneath  the  surface  of  a  tract  of  land  conveyed  is  subject  to  a 
lien  of  a  judgment  taken  against  the  grantor  after  the  convey- 
ance containing  the  reservation  or  exception  has  been  made.^^ 

§  308.     Wife 's  interest  in  reservation. — Construction. 

Husband  and  wife  conveyed  by  deed  certain  real  estate  in  fee 
simple,  reserving  to  themselves  the  equal  one-half  part  of  the 
usual  royalty  of  one-eighth  of  all  the  oil  underlying  the  tract 
conveyed.  In  the  deed  it  was  expressly  stated  that  they  did 
not  convey  thereby  such  one-eighth  of  the  oil.     The  grantee  of 

20  State  V.  Berdetta,  73  Ind.  185;  many  oil  wells  have  been  drilled  in 
38  Am.  Rep.  117;  20  Amcr.  L.  Reg.  the  ocean,  some  as  far  as  two  hiin- 
342.  dred  yards  from  the  shore.  In  the 
30  Dubuque  v.  Benson,  23  Iowa  Gulf  of  ^Mexico,  off  the  Texas  coast 
248.  many  miles,  it  is  said  that  oil  float- 
si  Tousley  v.  Galena,  etc.,  Co.,  24  ing  on  the  water  can  be  readily  dis- 
Kan.  328;   Snoddy  v.  Bolen,  122  Mo.  cerned. 

470 ;  25  S.  W.  Rep.  932.  32a  Consumers'  Gas  Trust  Co.  v. 
32  2  Bl.  Com.  p.  18.  See  Pitts-  American  Plate  Glass  Co.,  1G2  Ind. 
burgh,  etc.,  Co.  v.  Lake  Superior  3fl2;  G8  X.  E.  Rep.  1020. 
Iron  Co.,  118  Mich.  109;  70  K.  \V.  33  First  National  Bank  v.  Dow,  41 
Rep.  395.  Hun.  13.  See  Thompson  v.  Mat- 
In    Ventura    County,    California,  tern,  115  Pa.  St.  501;  9  Atl.  Rep.  70. 


RESERVATION    AND   EXCEPTION.  357 

the  tract  of  land  afterwards  leased  it  with  die  exclusive  right 
to  drill  and  operate  for  oil  and  gas,  reserving  ono-eighth  jxirt 
of  all  the  oil  obt^iined  from  tlic  j)remises  as  produced  in  the 
cnido  statx?.  It  was  held  that  the  resen^ation  in  the  lease 
vested  in  the  lessor  one-eightli  of  tJie  oil,  but  did  not  include  tlie 
one-eighth  which  was  outstanding  in  the  wife  of  the  original 
grantor.^* 

§309.     Location  of  oil  claim  on  public  lands. 

Lands  of  the  United  States  cont«aining  oil  is  subject  to  loca- 
tion the  same  as  any  other  mineral  hmd.''^  To  render  the  land 
subject  to  location  under  the  mining  laws,  the  locator  must 
know  that  oil  exists  on  the  land,  the  fact  tliat  surface  indica- 
tions were  such  as  to  point  to  the  fact  that  oil  might  exist  not 
being  sufficient,  or  a  mere  conclusion,  drawn  from  other  facts, 
that  it  does  exist  is  not  a  sufficient  discovery.  Nor  is  it  suffi- 
cient that  oil  is  known  to  exist  in  a  nearby  territory ;  or  that 
another  person  other  than  the  locator  knows  it  exists;  but  tlie 
locator  may  so  acquire  his  knowledge  of  the  existence  of  oil,  and 
so  step  into  his  shoes,  as  it  were,  as  to  render  his  title  by  loca- 
tion valid. ^° 

34  Harris  V.  Cobb,  49  W.  Va.  350:  oral  oil  chiefly  valuable  therefor, 
38  S.  E.  Eep.  559.  may  be  entered  and  patent  obtained 

35  Act  of  February  11,  1897,  29  under  Act  February  11,  1897,  re- 
Stat.  at  Large  526;  2  Supp.  R.  S.  lating  to  placer  mining.  Bay  v. 
U.  S.  549.  Oklahoma  Southern  Gas,  Oil  &  Min- 

36  Nevada  Sierra  Oil  Co.  v.  Home  ing  Co.,  73  P.  93G;  13  Okl.  425. 
Oil  Co.,  98  Fed.  Rep.  673;  Nevada  Under  the  laws  of  Congress  and 
Sierra  Oil  Co.  v.  Miller,  97  Fed.  proclaipation  of  the  President  open- 
Rep.  681;  Gird  v.  California  Oil  ing  lands  acquired  by  treaty  from 
Co.,  60  Fed.  Rep.  531 ;  Olive  Land,  the  Indians  in  Oklahoma,  none  other 
etc.,  Co.  v.  Olmstead,  103  Fed.  Rep.  than  one  who  has  been  awarded  the 
568;  Cosmos,  etc.,  Co.  v.  Gray  Eagle  riglit  to  make  tlie  liomestoad  entry 
Oil  Co.,  104  Fed.  Rep.  20;  Bay  v.  after  August  6,  1901,  was  permitted 
Oklahoma  Southern  Gas,  etc.,  Co..  to  occupy  any  of  sucli  lands,  for 
13   Okl.   425;    73   Pac.   Rep.   936.  tlie    purpose    of   discovering   oils   or 

I  give  a  digest  of  the  cases  relat-  making  mineral  locations,  until  after 

ing  to  oil  claims  in  this  connection:  October   5,    1901,   and  any  entry  or 

Public  lands  of  the  United  States,  occupation  prior  to  such  date  con- 
subject  to  settlement  and  occupancy,  ferred  no  rights  on  the  claimant, 
containing  potrnlcum   or  other  min-  Bay  v.  Oklahoma  Southern  Gas,  Oil 


358 


OIL    AND    G-iS. 


&  Mining  Co.,  73   P.   93G;    13   Okl. 
425. 

Act  Congress  February  11,  1807,  c. 
216,  20  Stat.  526  (U.  S.  Comp.  St. 
1901,  p.  1434),  provides  that  the 
location  of  oil  claims  shall  be  gov- 
erned by  the  mineral  laws  of  the 
United  States  applicable  to  the  lo- 
cation of  placer  mining  chiims.  Rev. 
St.  U.  S.  §2324  (U.  S.  Comp.  St. 
1901,  p.  1426),  provides  that  the 
location  of  any  mining  claim  must 
be  distinctly  marked  on  the  ground, 
and  there  must  be  a  discovery  of 
minerals  within  the  limits  of  the 
land  located.  It  was  held  that  to 
constitute  a  valid  location  of  an  oil 
claim  the  locator  must  have  actually 
discovered  oil  within  the  limits  of 
the  claim.  Miller  v.  Chrisman,  73 
P.    1083;    74   P.    444;    140   Cal.   440. 

A  fraudulent  and  clandestine  en- 
try on  the  oil  claim  of  another  with 
knowledge  of  the  latter's  occupancy 
of  the  territory  cannot  be  made  the 
basis  of  any  right.  Miller  v.  Chris- 
man,  73  P.  1083;  74  P.  444;  140 
Cal.  440. 

Where  a  location  of  an  oil  claim 
was  made  by  an  association  of  per- 
sons, the  associates  acquired  a  right 
to  the  claim  tefore  the  location  was 
perfected,  which  they  could  convey. 
Miller  v.  Chrisman,  73  P.  1083;  74 
P.  444;   140  Cal.  440. 

Where  &■  location  of  an  oil  claim 
was  invalid,  the  abandonment  and 
relinquishment  thereof  by  the  gran- 
tee of  the  locator  did  not  invalidate 
a  location  subsequently  made  by  the 
grantee.  Miller  v.  Chrisman,  73  P. 
1083;  74  P.  444;  140  Cal.  440. 

It  is  a  condition  precedent  to  the 
location  of  a  mining  claim  that  a 
discovery  must  be  made,  and  in  the 
case  of  petroleum  or  mineral  oils 
the  deposit  from  which  the  oil  is 
drawn    must    be    discovered    before 


a  valid  location  can  be  made.  Bay 
V.  Oklahoma  Southern  Gas,  Oil  & 
Mining  Co.,  73  P.  936;    13  Okl.  425. 

A  location  of  an  oil  claim,  embrac- 
ing IGO  acres  of  land,  made  by  an 
association  of  persons,  is  but  a  single 
location,  covering  160  acres,  and  not 
eight  locations,  each  covering  20 
acres,  and  therefore  a  single  discov- 
ery of  oil  is  sufTicient  to  support  it. 
Miller  v.  Chrisman,  73  P.  1083;  74 
P.   444;    140   Cal.  440. 

It  is  not  essential  to  the  validity 
of  an  oil  or  mineral  claim  that  the 
discovery  of  oil  or  mineral  within 
its  limits  shall  have  preceded  or 
shall  coexist  with  the  posting  of  the 
notice  and  the  demarkation  of  the 
boundaries,  but  the  discovery  may 
be  made  subsequently,  and  when 
made  operates  to  perfect  the  location 
against  the  world,  save  those  whose 
hona  fide  rights  have  intervened. 
Miller  v.  Chrisman,  73  P.  1083;  74 
P.  444;    140  Cal.  440. 

Where  no  discovery  of  oil  is  made 
under  an  oil  claim,  the  locator  is  not 
in  the  actual  bona  fide  possession  of 
the  claim,  and  therefore  the  same  is 
open  to  peaceable  entry  by  others. 
Miller  v.  Chrisman,  73  P.  1083;  74 
P.  444;    140  Cal.  440. 

Where  defendants  entered  upon 
unappropriated  land,  and  performed 
all  the  acts  necessary  for  the  loca- 
tion of  an  oil  placer  mining  claim, 
except  discovery,  by  staking  the 
land,  putting  up  notice,  and  record- 
ing the  claim,  while  they  were  in 
actual  possession,  plaintiffs  could  not 
claim  the  land  so  held  b}'  defend- 
ants, and  it  was  immaterial  that 
the  discovery  under  which  defend- 
ants claimed  was  on  the  boundary 
line  of  their  claim,  and  they  had 
also  claimed  title  to  another  claim 
on  the  strength  of  the  same  well, 
since  the  only  question  was  whether 


RESERVATION    AND    EXCEPTION. 


330 


defendants'  location  and  jidsscssimi 
was  prior  to  tnat  of  plaintitTs.  Pliil- 
lips  V.  Brill,  17  Wyo.  26;  95  P.  S5(!. 

It  is  a  general  rule  that  a  niiniiifx 
loeation,  to  bo  valid,  must  be  good 
when  made,  and  that  a  right  cannot 
be  initiated  by  a  trespass.  Piiillips 
V.  Brill,   17  Wyo.  2G;   05  P.  850. 

Where  defendants  entered  upon 
vacant  and  unappropriated  land, 
and  performed  all  acts  necessary  for 
the  location  of  an  oil  placer  mining 
claim,  except  discovery,  by  staking 
the  land,  putting  up  notice,  and  re- 
cording the  claim,  they  had  a  right 
to  take  actual  possession,  and  con- 
tinue therein  for  a  reasonable  time, 
while  exploring  the  land  for  the  pur- 
pose of  discovery;  and  the  acts  of 
location  would  indicate,  not  only  the 
extent  of  the  surface  intended  to  be 
appropriated,  but  the  extent  of  such 
possession,  and  the  locators  would 
be  protected  against  the  forcible, 
fraudulent,  or  surreptitious  intru- 
sion of  others;  and  a  delay  in  taking 
possession  would  not  afTcct  the 
rights  of  the  locators,  if  at  the  com- 
mencement of  their  possession  the 
rights  of  otliers  had  not  intervened. 
Phillips  V.  Brill,  17  Wyo.  2G;  95  P. 
856. 

An  oil  placer  mining  claim  will 
not  be  invalidated*by  the  fact  that 
the  discovery  shaft  or  well  bisects 
the  boundary  line  of  a  claim  and 
is  partly  on  the  claim  and  partly  on 
another.  Phillips  v.  Brill,  17  Wyo. 
26;  95  P.  856. 

In  an  action  to  establish  an  oil 
placer  mining  claim,  the  fact  that 
one-half  of  the  diameier  of  the  tccll 
is  on  the  claim  was  a  sufficient  show- 
ing of  discovery  within  the  claim; 
and  it  may  not  be  inferred  that  the 
well  deviated  away  from,  the  claim 
in  its  descent,  in  the  absence  of 
evidence  to  the  contrary.  Phillij)s 
V.  Brill,  17  Wyo.  26;   95  P.  856. 


Where  ])laintiirs  located  eiglity 
acres  of  public  oil  land,  and  niado 
a  discovery  thereon,  and  thereafter 
located  160  acres,  which  included 
the  eighty  acres  first  located  and  an 
eighty-acre  tract  adjoining,  then  in 
the  possession  of  another,  plaintifTs' 
prior  discovery  on  the  first  eighty 
acres  was  unavailable  for  the  j)ur- 
pose  of  perfecting  a  consolidated 
claim  to  the  IGO-acre  tract.  Weed  v. 
Snook,  77  P.  1023;    144  Cal.  439. 

The  discovery  of  oil  in  public  land 
located  as  a  jjlacer  oil  mining  claim, 
after  the  posting  of  notice  and  the 
marking  of  the  claim,  is  available 
for  the  purpose  of  perfecting  the  lo- 
cator's claim  thereto,  in  the  absence 
of  intervening  rights  of  third  per- 
sons. Weed  V.  Snook,  77  P.  1023; 
144   Cal.   439. 

Where  a  lessee  of  a  placer  oil  min- 
ing location  was  in  possession,  and 
was  actively  at  work,  and  expending 
money  for  the  purpose  of  sinking  an 
oil  well  and  discovering  oil  on  the 
claim,  the  rights  of  such  lessee  could 
not  be  forfeited  to  third  persons 
during  the  progress  of  such  work, 
who  attempted  to  relocate  the  land 
on  the  ground  that  the  original  lo- 
cator or  such  lessee  had  not  actually 
discovered  oil  in  the  land  prior  to 
such  location.  Weed  v.  Snook,  77 
P.  102.3:  144  Cal.  439. 

Where  public  land  wa.s  located  as 
oil  lind,  failure  of  the  locators  to 
discover  oil,  in  the  absence  of  a  re- 
tention of  possession  and  a  prosecu- 
tion of  the  work,  was  fatal  to  the 
validity  of  .such  location  under  Act 
February  11,  18S7,  c.  210,  29  Stat. 
52G  (U.  S.  Comp.  St.  1901,  p.  1434), 
providing  that  the  entry  of  pi>tro- 
loum  lands  sliall  l)e  governed  by  the 
law  relating  to  placer  claims.  New 
England  &  Coalinga  Co.  v.  Congdon 
152  Cal.  211;   92  P.  180. 


360 


OIL   AND   GAS. 


There  can  be  no  valid  location  of 
petroleum  lands,  under  the  mineral 
laws  relating  to  placer  claims,  with- 
out a  prior  valid  discovery  of  min- 
eral within  the  limits  of  the  claim. 
Nevada  Sierra  Oil  Co.  v.  Miller,  97 
Fed.  Rep.  1581. 

Even  as  between  rival  mineral 
claimants  to  petroleum  lands,  there 
must  have  been  such  a  discovery, 
in  order  to  sustain  a  location,  as 
would  justify  a  prudent  person  in 
the  expenditure  of  money  and  labor 
in  exploitation  for  petroleum.  73 
P.  1083;  140  Cal.  440;  98  Am.  St. 
Rep.  63,  and  -74  P.  444;  140  Cal. 
440;  98  Am.  St.  Rep.  63,  affirmed. 
Chrisman  v.  Miller,  25  S.  Ct.  468; 
197  U.  S.  313;   49  L.  Ed.  770. 

A  provision  in  a  lease  conferring 
"such  other  rights  and  privileges  as 
are  vested  in  mines  under  the  laws 
of  the  United  States  and  of  the 
state,"  rather  than  be  treated  as 
meaningless,  will  be  construed  as  if 
it  read  "miners"  in  place  of  "mines." 
70  P.  470,  reversed  on  rehearing. 
Swift  V.  Occidental  Mining  &  Pe- 
troleum Co.,  74  P.  700;  141  Cal. 
161. 

Where  the  terms  of  a  lease  are  not 
clear  as  to  the  right  of  the  lessee 
to  use  petroleum  from  the  land  as 
fuel  without  accounting,  but  the 
lessors  acquiesced  in  such  use,  this 


is,  at  least,  a  waiver  by  them  of 
tlieir  right.  70  P.  470,  reversed  on 
rehearing.  Swift  v.  Occidental  Min- 
ing &  Petroleum  Co.,  74  P.  700;  141 
Cal.   101. 

Evidence  held  insufficient  to  sus- 
tain findings  that  the  lessees  of  land 
containing  petroleum  had  prosecu- 
ted the  work  of  developing  the  mines 
during  the  term,  as  required  by 
covenants  in  the  lease.  70  P.  470, 
reversed  on  rehearing.  Swift  v.  Oc- 
cidental Mining  &  Petroleum  Co.,  74 
P.   700,   141   Cal.   101. 

On  the  issue  whether  a  lessee  had 
performed  its  covenant  to  explore 
and  develop  an  oil  claim,  evidence 
of  the  amount  expended  for  that 
purpose  was  properly  admitted,  but 
not  to  excuse  a  subsequent  cessa- 
tion of  the  work.  70  P.  470,  re- 
versed on  rehearing.  Swift  v.  Occi- 
dental Mining  &  Petroleum  Co.,  74 
P.  700;   141  Cal.  161. 

For  cases  of  solid  mineral,  on 
this  point,  see  Dower  v.  Richards, 
151  U.  S.  658;  14  Sup.  Ct.  Rep. 
452;  McCormick  v.  Sutton,  97  Cal. 
373;  32  Pac.  Rep.  444;  Francoeur 
V.  Newhouse,  ^3  Fed.  Rep.  236; 
Xor^^hern  Pacific  Ry.  v.  Walker,  47 
Fed.  Rep.  681;  Schendell  v.  Rogan, 
94  Tex.  585;  63  S.  W.  Rep.  1001; 
]\IcShane  v.  Kenkle,  18  Mont.  208; 
44  Pac.  Rep.  979;   33  L.  R.  A.  851. 


CHAPTER  XV. 

PARTNERSHIPS. 

§310.  Mining  partnerships  applicable  to  gas  and  oil  operations. 

§311.  Tenants  in  common  not  partners. 

§312.  By    agreement    a    mining   association    becoming    an    ordinary    part- 

nersliip. 

§313.  Mining  agreements   that  create  ordinarj'   partnerships. 

§314.  Working  a  mine  together  creates  a  mining  partnership. 

§315.  Selection  of  a  partner. —  Sale  of  interest. 

§316.  Tenants  in  common  usually  do  not  become  partners. 

§317.  Illustration  of  what  makes  a  mining  partnership. 

§318.  Promoters. —  Prospectors. 

§319.  Life  of  mining  partnership. —  Dissolution. 

§320.  Partition  and  accounting  works  a  dissolution. 

§321.  Majority  control. 

§322.  Power  of  partner  in  mining  or  oil  enterprise. 

§323.  Partner's  lien. 

§324.  Liability  of  incoming  partner. 

§325.  Each  partner  liable  for  all  partnership  debts. 

§326.  Limited  partnerships. 

§326a.  Division  of  royalty. — Damages. 

§326b.  Accounting. — Dissolution. 

§310.     Mining  partnerships  applicable  to  gas  and  oil  operations. 

A  mining  partnership  in  many  things  is  radically  different 
from  an  ordinary'  partnership.  As  this  kind  of  a  partnersliif*' 
has  been  expressly  held  applicable  to  oil  or  gas  adventnres,' 
althongh,  not  recognized  in  Pennsylvania,*^  it  will  be  necessary 
in  this  connection  to  discuss  tlie  nilf>s  (vf  law  a]>i>lical)le  t<>  them 
generally.  In  discussing  the  law  with  reference  to  mining  ]iart- 
nerships,  the  subject  must  be  approached,  as  it  were,  from  two 
directions:  One  where  joint  owners  of  gas  or  oil  lands  operate 
them  in  order  to  extract  gas  or  oil ;  and,  second,  where  two  or 
more  jointly  accept  a  lease  of  oil  lands,  or  become  jointly  in- 

iChilders  v.  Neeley,  47  W.  Va.  70.        I)orne,   159   Pa.  St.   10;    28  Atl.  Rep. 

34  S.  E.  Rep.  828;  49  L.  R.  A.  408.       103;   Dunham  v.  lx)verock,   15  8  Pa. 

•i  Butler    Savings    Bank    v.    Os-       179;    27  Atl.  990;   38  Am.  St.  838. 

361 


362  OIL   AND   G.VS. 

terested  in  one,  and  ojx?rate  the  lands  leased  with  a  view  to 
extract  the  gas  or  oil. 

g311.     Tenants  in  common  not  partners. 

As  between  themselves,  co-tenants  are  not  partners,  whatever 
they  may  be  to  the  outside  world.  A  standard  authority  has 
made  this  comparison  between  co-ownership  and  co-partnership: 
"  Speaking  generally,  and  excluding  all  exceptional  cases,  the 
principal  difference  between  co-ownership  and  partnership  may 
be  stated  as  follows:  (1)  Co'-ownership  is  not  necessarily  the 
result  of  agreement.  Partnership  is.  (2)  Co-ownership  does 
not  necessarily  involve  community  of  profit  or  loss.  Partner- 
ship does.  (3)  One  co-owner  can,  without  tlie  consent  of  the 
others,  transfer  liis  interest  to  a  stranger,  so^as  to  put  him  in 
tlie  same  position  as  regards  the  other  owners  as  the  transferer 
himself  w^as  before  the  transfer.  A  partner  cannot  do  this. 
(4)  One  co-owmer  is  not  as  such  the  agent  real  or  implied  of 
the  others.  The  piartncr  is.  (5)  One  co-owner  has  no  lien  on 
the  thing  owned  in  common  for  outlays  or  expenses,  nor  for 
what  may  be  due  from  the  others  as  their  share  of  a  common 
debt.  A  partner  has.  (6)  One  co-owner  of  land  is  entitled 
to  have  it  divided  between  himself  and  co-o^vners,  but  not  to 
have  it  sold  against  their  consent.  A  partner  has  no  right  to 
partition  in  specie,  but  is  entitled,  on  a  dissolution,  to  have 
the  partnership  property,  whether  land  or  not,  sold  and  tJie 
proceeds  divided.  (7)  As  between  the  real  and  personal  rep- 
resentatives of  a  deceased  co-owner  of  freehold  land,  tlie  equita- 
ble as  well  as  the  legal  intcTest  in.  his  share  is  real  estate ;  whilst 
as  between  the  real  and  personal  representatives  of  a  deceased 
partner  the  equitable  interest  in  his  share  of  partnership  free- 
hold property  is  treated  as  personal  estate,  although  the  legal 
interest  in  it  is  real  estate.  (8)  Co-ownership  not  necessarily 
existing  for  the  sake  of  gain,  and  partnership  existing  for  no 
other  purpose,  the  remedies  by  way  of  account  and  otherwise 
which  one  co-owner  has  r^gainst  the  others,  are  in  many  impor- 
tant respects  diffor(>iit  and  less  expensive  than  those  which  one 
partner  has  against  his  co-yiartners."  ^ 

2  Lin d ley   on   Partnership   58. 


PARTNERSHIPS.  3G:^ 

§312.     By  agreement  a  mining  association  becoming  an  ordinary' 
partnership. 

Bj  agreeinont  tlio  owners  of  a  iiiiiic  or  of  miiiiii<5  lands,  or 
the  owners  of  a  leiise  of  a  mine  or  mining  lands,  may  become 
partners  in  the  ordinary  sense  of  the  term,  not  only  as  to  them- 
selves but  as  to  strangers.  The  conduct  of  the  parties  may  bo 
such  as  to  crejite  such  a  jxirtnershi]).  Thus  where  certain  min- 
eral land  had  been  held  in  co-ownership,  and  large  (juantities 
of  iron  ore  had  been  extracted  from  the  mines  upon  it ;  and 
extensive  iron  works  had  been  erected  by  tlie  owners  of  the  land 
upon  it,  which  were  conducted  as  a  trading  concern,  not  only  in 
the  product  of  the  mines,  but  of  foreign  iron  and  iron  ore^ 
manufactured  at  the  works ;  it  was  held  that  the  owners 
were  a  trading  concern,  and  an  ordinary  partnership.*'^  The 
terms  of  the  agreement  may  be  varied  from  time  to  time  by 
the  conduct  of  the  parties."''  Such  a  partnership  is  governed 
by  tlie  ordinary  incidents  of  a  partnership.  There  is  nothiui: 
in  the  mining  business  to  forbid  the  creation  of  such  a  pirt- 
nership.  The  confidential  relations  of  an  ordinary  partner- 
ship, exist  between  the  partners;  and  the  withdrawal  of  one 
partner  dissolves  the  partnership.  The  partners  are  strictly 
partners;  not  because  of  their  common  o^\^^ership  of  tlie  mine, 
but  as  a  result  of  their  own  agreenient.*  ''  Tenanrs  in  com- 
mon," said  the  Supreme  Court  of  Illinois,  "  or  joint  tenants  of 
a  mine  or  quarry  may  or  may  not  be  partners,  and  the  mine  or 
quarry  itself  may  or  may  not  be  a  part,  of  the  common  stock. 
But  it  is  highly  inconvenient,  if  not  altog-etJier  impossible,  for 
co-o^^^lers  of  a  mine  or  quariy  to  work  it  tliemselves  without 
becoming  partners,  at  least  in  tlie  ]>rofits  of  the  mine ;  and 
persons  who  work  a  mine  or  quarry  in  common  are  regarded 
ratlier  as  partners  in  trade  tlian  as  mere  tenants  in  couiuKin  of 

•2  Crawshay   v.   Maule,    1    Swanst  Pac.  Rep.   970;   Lawrence  v.  Robin- 

521;    1  Wils.  181;   Bradley  v.  Hark-  son,    4    Colo.    5G7;     State    National 

ness,  26  Cal.   69;   Walker  v.  Bruce,  Bank  v.  Butler,   149  111.  575;   .30  N. 

44  Colo.   109;   97  Ac.  Rep.  250.  E.    Rep.    1000;    Judge    v.    Braswcll, 

3  Smith  V.  Jeyes,  4  Beav.  503.  13    Bush.    60;    20    Am.    Rep.     185; 

4  Decker  v.  Howell,  42  Cal.  636;  Burgan  v.  Lyell,  2  Mich.  102;  Jel- 
Stuart  V.  Adams,  89   Cal.  367 ;    26  f rey  v.  Smith,  1  Jac.  and  W..  298- 


364  OIL   AND   GAS. 

land.  The  co-owners  of  mines  may  l)e  partners,  not  only  in  tlie 
profits,  but  also  in  the  mines  tliemsclves.  The  co-owners  are 
then  partners  to  all  pur]X)s'es,  and  tlieir  nmtnal  rights  and  obli- 
gations are  determined  by  tlie  law  of  partnership  as  distinct 
from  the  law  of  co-o^v^lership."  ^ 

§313.     Mining  agreements  that  create  ordinary  partnerships. 

If  two  or  more  persons  agree  to  engage  in  a  mining  adven- 
ture, to  purchase  a  mine  and  share  the  gains  and  profits  equally, 
they  are  ordinary  trading  partners.  In  such  an  instance  each 
exercises  his  choice  in  selecting  co-partners ;  and  if  any  one 
sells  out  his  interest,  the  partnership  is  dissolved,  the  purchaser 
and  remaining  partners  becoming  tenants  in  common  of  the 
mine  and  its  working,  subject  to  the  rules  applicable  to  mining 
partnerships."  A.,  the  owner  of  a  coal  mine,  entered  into  an 
agreement  with  B.  as  follows:  (1)  A.  was  to  have  a  royalty  on 
over)'  bushel  of  coal  hoisted  and  sold,  to  be  paid  before  any- 
thing else  was  paid,  at  the  end  of  each  month;  (2)  A.  to  have 
all  control  of  the  mine  and  the  workings  connected  with  it;  (3) 
settlements  to  be  made  each  month  and  profits  divided  or  losses 
to  be  paid,  one-fourth  to  or  by  B.,  the  remainder  to  or  by  A. ; 
(4)  A.  was  to  have  an  option  on  B.'s  interest,  if  he  desired  to 
sell ;  (.5)  if  at  any  time  it  should  he  considered  by  the  parties  ad- 
visable to  connect  tile  works  with  the  mines,  the  expense  of  doing 
so  to  be  in  the  proportion  of  one  to  three,  the  profits  or  losses 
therefrom  to  be  divided  on  the  same  basis.  As  to  third  parties 
who  gave  credit  to  the  firm  with  notice  of  the  agreement,  A.  and 
B.  were  held  to  l^e  partners.^  Where  the  own^r  of  a  mining 
right  agreed  with  owner  of  a  mill  for  the  reduction  of  ores  tliat 
if  the  latter  would  reduce  the  ores  taken  out  of  the  mining  right, 
a  certain  proportion  should  vest  in  such  mill  owner  and  both 
should  bear  the  costs  of  the  expense  of  mining,  melting  and 
shipping,  each  to  bear  a  certain  proportion,  the  profits  of  the 


n  State   National    Bank   v.   Butler,  c  Decker    v.   Howell,   42   Cal.   636; 

149   111.   .575;    .30   N.   E.   Bep.    1000;  Quinn  v.  Quinn,  81  Cal.  14;  22  Pac. 

Snvder    v.    Biirnham,    77    Mo.    52;  Bep.  264;    Lawrence  v.   Bobinson,   4 

Smith  V.  .Teres,  4  Beav.  50.3;   Free-  Colo.   567. 

man    v.    ]\Teniemwav,    75    Mo.    App.  ^  State   Kational   Bank   v.    Butler, 

611;  Berentz  V.  Kern  Kinjr  Oil,  etc.,  149    111.   575;    36   N.    E.    Bep.    1000, 

Co.,    14S    Cal.    577;    84    Pac.    Rep.  reversing  48  111.  App.  648. 
45,   47. 


PARTNERSHIPS.  -^tJ-la 

enterprise  to  be  shared  bciwecn  Uieiu  —  it  was  held  tliat  llu 
agreement  constituted  tliem  ]\irtners.^ 

§314.     Working  a  mine  together  creates  a  mining  partnership. 

If  two  or  more  owners  of  a  mine  nnite  in  working  it,  witliout 
any  iwrtnei-sliip  agrwment,  the  act  of  working  it  together 
creates  a  mining  partnership;  and  the  same  is  true  of  two  or 
more  holding  interests  in  a  lease  of  mining  property.  "  What- 
ever may  be  the  rights  and  liabilities,"  of  tenants  in  common 
of  a  mine  not  being  worked,  said  the  Supreme  Court  of  Cali- 
fornia, ''  it  is  clear  that  when  the  several  owners  unite  and  co- 
operate in  working  the  mine,  then  a  new  relation  exists  between 
them,  and,  to  a  certain  extent,  they  are  governed  by  the  rules 
relating  to  ]>artnership.  They  form  what  is  termed  a  mining 
partnership,  which  is  governed  by  many  of  the  rules  relating  to 
ordinarv^  partnerships,  but  which  has  also  some  rules  jx^culiar 
to  itself,  one  of  which  is  that  one  person  may  convey  his  interest 
in  a  mine  and  business  without  dissolving  the  partnership. 
Still  there  may  be  a  partnership  in  the  working  of  a  mine,  sub- 
ject to  tlie  rules  relating  to  an  ordinaiw  partnershi])  in  trade. 
And  this  relation  may  be  constituted  either  by  exjjress  stipula- 
tion or  by  implication  deduced  from  the  acts  of  the  parties. 
But  in  Ciise  of  an  ordinary  mining  partnership,  something  more 
will  be  required  to  raise  the  presumptic^n  of  liability  arising 
from  persons  holding  tliemselves  out  to  the  woi'ld  as  partners, 
than  would  be  necessary  in  the  case  of  an  ordinary  partner- 
fchip."  " 

8  Ashenfelter  v.  \Yilliams,  7  Colo.  inp  4  Fed.  Rep.  094;  2  McCrary,  73; 

App.  332:  43  Piic.  Rep.  6G4 ;  Contra  Cliailcs    v.    Eslilcriian,    5   Colo.'   107; 

Vietti    V.   Nosbitt,   22  Nev.    390;    41  Maiiville    v.    I'arks,    7    Colo.    12S;    2 

Pac.   Rep.    151.  Pac.  Rep.  212;    Hawkins  v.   Sixikan, 

An    agreement    between    two    per-  etc.,  Co.,  2  Idaho  070 ;  28  Pac.  Hep. 

sons  whereby  each  is  to  have  a  one-  433;     Nolan    v.    Lovelock,    I     Mont, 

half   interest    in  any   mining  claims  224;    Anaconda,    etc.,    Co.    v.    Ruttc, 

which    might    thereafter    be    located  etc.,  Co.,  17  Mont.  519;  43  Pac.  Rep. 

by  either,  or  in  which  eitiier  might  924;    Randall    v.    Meriik'tii,    7(5    Tex. 

obtain  an   interest — eacli    to   furiiisli  009;    13  S.  \V.  Rej).  570. 

labor   and   supj)lies   in   perfecting  of  PlaintilF    and    defendant    ol)tained 

claims — is  not  within  tlie  statute  of  a   lease    of    mining    property    ami    a 

frauds.      Doyle   v.    Rurns,    123   Iowa  bond    for    its    conveyance    ufxin    ])ay- 

488;  99  N.  W.  Rep.  195.  nient  of   a    sum    by    a    certain   <hitc, 

sSkillman    v.    Lachman..    23    Cal.  wliich  was  extended  for  a  consi(h'ra- 

199;  Kahn  v.  <'entral   Smelting  Co.,  lion,   each    paying   half.      Under   the 

102  U.  S.  641;  Bissell  v.  Foss,  114  U.  bond    and    lease,    tiie    parties    agreed 

S.  252;  5  Sup.  Ct.  Rep.  851,  allirm-  to   work   the   property  jointly,   eacii 


364b  OIL   AND    GAS. 

§315.     Selection  of  a  partner. —  Sale  of  interest. 

It  is  a  cardinal  rule  <>f  all  or'liiiary  ])artnerships  that  oiio 
about  to  engage  in  a  jKirtiiersliijn  entor])riso  has  tlie  right  to 
select  his  partners ;  in  sncli  a  partnorshi])  the  delectus  pcrsoime 
has  a  part.  Bnt  such  is  not  the  case  in  a  mining  partnership.  In 
an  ordinary  partnership,  if  a  new  partner  has  been  introduced, 
the  old  partnership  is  dissolved  as  to  all  tlie  partners,  where 
tliere  is  no  agreenient  that  it  shall  be  continued."  The  convey- 
ance of  one  partner  of  his  interest  to  a  stranger  works  a  disso- 
lution of  the  partnership.  But  sucli  is  not  the  case  with  a  min- 
ing partnership,  for  a  member  of  it  may  convey  his  interest  to 
a  stranger  without  dissolving  the  partnership,  and  the  piirdiaser 
will  Ijocome  a  partner  in  the  enterprise,  as  much  so  as  his 
vendor.^^  After  referring  to  tlie  case  just  cited,  Justice  Field 
of  the  Supreme  Court  of  the  United  States,  said :  "  This  case 
settles  two  propositions:  first,  that  the  members  of  a  mining 
association  have  no  right  to  object  to  the  admission  of  a  stranger 
into  the  association  w^ho  buys  the  share  of  one  of  the  associates ; 
and,  second,  that  the  sale  and  assignment  by  one  of  tlie  asso- 
ciates of  his  interest  does  not  dissolve  the  mining  partnership. 
It  follows  from  these  propositions,  that  one  member  of  a  min- 
ing partnership  has  the  right,  without,  consulting  his  associates, 
to  sell  his  interest  in  the  partnership  to  a  stranger,  and  that  such 
a  sale  injures  no  right  of  property  of  the  other  associates.  Much 
less  does  a  purchase  by  one  associate  of  the  share  of  another  in- 
flict any  wrong  upon  the  other  members  of  the  partnership. 
.There  is  no  reiauon  of  trust  or  confidence  l^etween  mining  mem- 
bers which  is  violated  hy  tJie  sale  and  assignment  by  one  partner 


to    bear    one-half    the    expense;    de-  Boyles,    G6    W.   Va.   327;    6fi    R.   E. 

fendant    puttinj:^    in    his    own    work  474. 

and  plaintiff  furnisliing  a  man  to  do  The  law  with  reference  to  mining 

his  share  of  the  work.     It  was  held  partnerships     has    been    codified    in 

that  the  parties   were  enfjaged  in  a  some  States,  as  in  California.     Civil 

joint   enterprise   for   the   purpose   of  Code  1885.     Sees.  2.511-2.520;   Idaho, 

carrying   out   the   provisions   of  the  Rev.    Stat.    Sees.    .3301 -,3.30!);    Mon- 

bond  and  lease,  and  were  equal  part-  tana.     Civil  Code   189.5,   Sees.   3350- 

ners    in    that    respect.      Walker    v.  3359. 

Bruce,   44    Colo.    109;    97   Pac.   250;  lo  Heath  v.  Sanson,  2  P..  and  Ad. 

•Childers    v.   Neelv,    47    W.   Va.   70;  291;    Morss    v.    Gleason,    64    N.    Y. 

34   S.   E.   828;    81    Am.   St.    777;    49  204. 

L.    P.    A.    468:     Blackmarr    v.    Wil-  n  Kahn   v.   Central    Smeltinjr  Co., 

liamson.   57    W.    Va.   249;    50   S.    E.  102    U.    S.    641;    Childers    v.    Neely, 

254;    Greenlee  v.   Steelsmith,   64  W.  47    W.    Va.    70;    34    S.    E.    628;    81 

Va.  353;    62  S.  E.  459;    Burtlett  v.  Am.    St.   777;    49   L.   R.   A.   468. 


PARTNERSHIPS.  3G4c 


to  a  stranger,  or  to  one  of  the  associates  of  his  share  in  the 
property  of  the  association."  '-  Therefore,  the  death  of  one  of 
the  partners  does  not  dissolve  the  partnersliip ;  liis  heirs  snc 
ceeding  to  liis  rights  and  phice  the  same  as  a  vendee  of  tlio  in- 
terest, althongh  they  take  no  part  in  the  management  of  partner- 
ship affairs,  and  do  not  hohl  themselves  ont  as  partners.^^ 

§316.     Tenants  in  cominon  usually  do  not  become  partners. 

There  is  no  presumption  where  tenants  in  cx^mmon  work 
mines  or  mining  territory  together  (and  the  same  is  true  of  oil 
territory)  that  they  have  created  an  ordinary  co-partnership, 
either  by  their  acts  or  by  an  agreement.  If  the  conrse  of  deal- 
ings among  co-tenants  is  naturally  referable  to  the  relation 
already  existing  among  them,  they,  in  the  working  of  the  mine 
or  development  of  the  mining  territory,  will  be  considered  as 
co-tenants  rather  than  partners.^*  Thus  where  two  joint  owners 
of  a  lease  of  oil  lands  agi*ee  to  carry  on  o{>erations  upon  such 
land,  each  contributing  a  proportionate  share  of  the  expenses, 
they  are  not  only  between  themselves  not  partners,  but  are  not 
so  as  to  third  parties.  They  are  simply  working  their  own 
shares,  responsible  for  their  own  acts,  and  are  not  subject  to 
the  laws  of  partnership.^^  In  the  distribution  of  ])roc.eeds  of  an 
oil  or  mining  adventure  in  the  hands  of  a  receiver,  derived  from 
an  oil  lease  in  the  hands  of  tenants  in  oommon,  they  will  he 
deemed  such  tenants,  and  no  preference  wnll  be  given  creditors 
of  the  enterprise  over  individual  creditors  of  either  tenant, 
unless  there  was  a  partnership  in  fact,  or  by  holding  out.^°     And 

izBissell  V.  Foss,  114  U.  S.  252,  5  Walker  v.  Tupppr,  152  Pa.  St.  1:  25 

Sup.  Ct.  Rep.  851,  affirming  4  Fed.  Atl.    Rep.    172;    Brown   v.   Jaquette, 

Rep.    694;     2    McCrary    7.3;     Santa  94  Pa.  St.   113;    Neil!   v.  Shamhurg, 

Clara,     etc.,     Assn.     v.     Quicksilver  158  Pa.  St.  20.3;   27  Atl.  Rep.  992; 

Mining  to.,    17   Fed.  Rep.  G57 ;    Set-  Taylor  v.  Fried,   IGl   Pa.  St.  53;   28 

tembre  v.  Putnam,  30  Cal.  490;  Mc-  Atl.  Rep.  993.     See  Childers  v.  Xee- 

Connell     v.     Denver,    35     Cal.    305;  ley,    47    W.   Va.    70;    34   S.    E.    Rep. 

Jones  V.  Clark,  42  Cal.   180;    Smith  828;   49  L.  R.  A.  408. 
V.   Cooley,   05   Cal.   40;    2    Pae.   Rep.  i' Butler     Savings     Bank     v.     Os- 

880;    Chung    Kee    v.    Davidson,    102  borne.   159  Pa.  St.   10;    28  Atl.  Rep. 

Cal.    188;    30    Pac.    Rep.    519;    Hig-  103;    Dunham   v.   Loverock,    158    Pa. 

gins   V.   Armstrong,   9    Colo.   38;    10  197;   27  Atl.  990;   Johnson  v.  Priee, 

Pac.  Rep.  232.  172  Pa.  427;  33  Atl.  (iSS.     It  should 

13  Taylor   v.   Castle,   42   Cal.   307;  be    observed    that    in    Pennsylvania 

Nisbet  v.  Nash,  52  Cal.  540;   Clark  such  a  thing  as  a  "mining  partner- 

V.    Ritter,    59    Cal.    009;    Charles    v.  ship"  is  unknown. 
Eshleman,  5  Colo.    107.  '«  Meridian  National  Bank  v.  Mc- 

!•»  Dunham    v.    Loverock,    158    Pa.  Comica,  8  Ohio  Cir.  Ct.  Rep.  442. 
St.    197;     27    Atl.    Rep.    990.       See 


364dl  OIL   AND    G.\S. 

whore  coal  lands  descended,  one-third  to  the  widow  and  two- 
thirds  to  children  of  the  deceased,  and  the  latter  entered  on  the 
premises  and  worked  the  mines  thereon  nntil  nearly  exhausted, 
it  was  held  that  the  widow  cdiild  not  hftld  the  children  liahle  to 
her  as  partners  or  trespassers,  they  at  no  time  having  excluded 
her  from  the  premises ;  but  could  hold  them  as  co-tenants/^ 
Where  leases  were  taken  in  the  individual  names  of  the  several 
lessees,  it  was  said  that  ''  if  the  parties  by  parol  associated  them- 
selves as  partners,  for  the  purpose  of  developing  and  operating  it 
for  the  production  of  oil,  it  might  thereby  be  converted  into 
partnership  assets,  for  the  payment  of  partnership  debts."  ^® 

§317.     Illustration  of  what  makes  a  mining  partnership. 

A.  owned  a  tract  of  undeveloped  coal  land.  lie  agreed  with 
B.  and  C.  that  they  might  prospect  for  coal  until  they  struck  a 
particular  seam,  they  two  doing  all  the  work,  and  to  have  two- 
thirds  of  the  claim.  After  the  seam  was  struck,  the  three, 
jointly,  were  to  prosecute  the  work,  A.  paying  one  and  B.  and  C. 
two-tliirds  of  the  expenses.  It  was  held  that  this  was  a  mining 
partnership;  and  did  not  create  the  relation  of  landlord  and 
tenant.^**  The  proprietors  of  ditches  in  mining  districts  are 
tenants  in  common  of  real  estate,  and  the  rights  in  the  ditch 
and  in  the  profits  arising  from  the  sales  of  water  are  governed 
by  the  law  of  tenancy  in  common. '°  Two  persons,  being  the 
owmer  of  a  two-thirds  interest  in  a  mine,  verbally  agreed  with 
the  ]>laintiff  that  they  would  furnish  the  t^ols  and  provisions 
and  he  should  explore  and  develop  the  mine ;  and  if  it  should 
prove  valuable,  they  would  give  him  an  equal  share  of  their  in- 
terest. This  was  held  to  make  a  mining  partnership.^^  "  The 
working  of  a  mine  under  a  bare  mining  right  has  been  uniformly 
considered  by  courts  of  equity  as  a  species  of  trade.  Hence  the 
legal  relations  existing  between  two  or  more  persons  interested 

"  McGowan    v.    Bailey,     179    Pa.  lo  Henderson    v.    Allen.    23     Cal. 

St.  470;  .36  All.  Rep.  325.  510. 

18  Blown  V.   Beecher,   120   Pa.  St.  20  Bradley    v.    Harkness,    26    Cal. 

500;     15    Atl.    Reii.    608.     See    Pat-  GO;    McConnell    v.    Donver,    35    Cal. 

rick  V.  Weston,  22  Colo.  45;  43  Pac.  365. 

Rep.  446.  21  Settembre    v.    Putnam,    30    Cal. 

490. 


P^UITNERSIIIPS. 


365 


in  such  a  right  is  that  of  a  qualified  partnership,  and  tlie  reme- 
dies relating  to  a  mining  jxirtnership  are  available  for  tlie  asser- 
tion or  violation  of  any  right  arising  out  of  it."  ""  A  prospector 
and  a  hotel  keei")er  agreed  in  writing  '*  to  share  equal  in  any 
mine  which  we  may  buy  or  find  from  this  date.  I,  B.,  offset 
my  time  against  my  board  with  ^1."  It  was  held  that  this 
made  them  tenants  in  common  of  any  mine  bought  at  their 
common  ex]x?nse,  or  disa)vered  and  located  jiending  this  writ- 
ten agreement,  and  while  it  was  performed  by  M.  M.  having 
failed,  he  went  out  of  the  hotel  business,  and  did  not  and  could 
not  board  B.  It  was  also  held  that  he  was  not  entitled  to  any  in- 
terest in  mines  purchased  by  B,  with  his  own  individual 
money.^^  A  contract  to  work  a  mine,  pay  one-half  of  the  e.v 
penses,  and  receive  one-half  of  the  product  for  the  labor,  does 
not  make  a  mining  partnership;  it  is  simply  a  contract  for  ser- 
vices."* So  where  A.  agreed  with  B.  that  if  the  latter  w^ould 
go  to  a  certain  county  and  produce  a  paying  quartz  mine,  A. 
would  pay  his  expenses  and  big  wages,  and  if  the  mine  jiroved 
to  he  a  paying  one,  would  give  him,  in  addition,  an  interest  in 
it,  this  was  also  held  to  be  a  mere  contract  of  hiring  and  not  a 
mining  partnership."^  Merely  agreeing  to  work  a  mine  to-* 
gether  constitutes  those  thus  agi'eeing  merely  mining  partners, 
whether  they  own  the  mine  ""  or  only  a  right  to  work  it."^  So  an 
association  of  persons  merely  for  the  purpose  of  operating  mines 
and  smelting  works  at  a  certain  place  is  merely  a  mining  part- 
nership.*^ An  agreement  by  four  ])ersons  to  secure  a  lease  to 
a  certain  mining  property,  to  work  it  jointly,  each  to  have  a 
one-fourth  interest,  and  to  share  the  exjx^nses  and  profits  equally, 
constitutes  a  mining  partnership,  and  is  not  dissolved  by  the 
sale  of  his  share  by  one  of  their  number.'-"  So  the  same  is  true 
if  they  jointly  employ  a  manager  to  run  the  mine  and  account 

22  Smith  V.  Cooley,  65  Cal.  46;   2  20  Charles    v.    Eshleman,    5    Colo. 
Pac.  Rop.  880.                                               107;    Nolan    v.    Lovelock,    1    Mont. 

23  Miller    v.    Butterfield,    79    Cal.       224. 

62;   21   Pac.  Rep.  543.  27  Manville  v.  Parks.  7  Colo.  128; 

24  Stuart  V.  Adams,  89  Cal.  307;  2   Pac.   Rep.    212;    Harris  v.   Lloyd, 
26  Pac.  Rep.  970.  11   Mont.  390;   28  Pac.  R^p.   7.36. 

25  Berry    v.    Woodhurn,    107    Cal.  2n  Hipfrins  v.    Armstrong,   9  Colo. 
504;   40  Pac.   Rep.  802.  38;   10  Pac.  Rep.  232. 

29Meaglier  v.  Reed,  14  Colo.  335; 
24  Pac.  Rep.  GSi;  9  L.  R.  A.  455. 


366  OIL   AND   GAS. 

to  them  for  the  proceeds  of  it.^"  So  where  one  individual  owned 
seven-eighths  of  a  mine  and  another  tlie  remaining  eighth,  and 
die  latter  worked  the  mine,  practically  excluding  the  former, 
except  inviting  him  to  take  part  as  a  worker  simply ;  it  was 
held  that  they  constituted  a  mining  partnership  under  a  statute 
providing  tliat  "  those  owning  a  majority  of  die  shares  or  in- 
terests in  a  mining  partnershi])  have  the  right  to  control  its 
methods  of  working,"  and  that  the  former  was  entitled  to  an 
injunction  restraining  the  latter  from  working  the  mine,  except 
as  he  should  direct.'"  Where  a  statute  provided  if  two  or  more 
persons  should  own  or  acquire  a  mining  claim  for  the  purpose 
of  working  it  and  extracting  the  ore  therefrom ;  and  if  they 
should  actually  engage  in  working  the  mine,  the  transaction 
should  constitute  a  mining  partnership ;  it  was  held  that  where 
one  individual  owned  three-fourths  and  another  one-fourth  in- 
terest in  a  mining  claim,  and  the  latter  had  alone  worked  the 
mine,  that  there  was  no  mining  partnership  created.^'  So 
taking  a  mortgage  on  a  mine  and  the  mining  tools,  the  mort- 
(^agor  to  remain  in  possession,  and  at  the  time  of  each  ''  clean 
up  "  the  proceeds  to  be  applied  to  pay  tlie  running  expenses  and 
the  mortgage  debt,  will  not  make  a  mining  partnership.^^  An 
agreement  between  two  tenants  in  common  of  an  oil  lease  to 
drill  an  additional  well  on  the  leased  premises  at  the  common 
cost  of  the  co-tenants,  will  not,  as  between  themselves,  create  a 
partnership.^"^** 

§  318.    Promoters. — Prospectors. 

Promoters  are  not  partners :  ^*  nor,  generally,  are  provi- 
sional subscribers  to  a  proposed  partnership.^^    Nor  are  pros- 

3"  Slater   v.    Haas.    15   Colo.   574;  "No    presumption    of    partnership 

25      Pac.      Rep.      10S9;      Lyman    v.  arises   from   the  operation  of  an  oil 

Schwartz,    13    Colo.    App.    31S;     57  well  hv  tenants  in  common."     Neill 

Pac.  Rep.  735.  v.   Shamburg,   158   Pa.   263;    27  Atl. 

31  Hiwkins   v.    Spokane,   etc.,   Co.,  992. 

2    Idaho    070;    28    Pac.    Rep.    433;  •"■4  Doubleaav   v.   Miiskett,   4  Moo. 

Hawkins    v.    Spokane,    etc.,    Co.,    3  and   P.   750;  '7    Bin,?.    110;    9   L.   J. 

Idaho  n.50;  3;  Pac.  Rep.  40.  (os)    C.  P.  35;   Atwood   v.  Small,  7 

32  Anaconda,  etc.,  Co.  v.  Butte,  B.  and  C.  390;  Hip;pins  v.  Hopkins, 
etc.,  Co.,  17  Mont.  519;  43  Pac.  Rep.  3  Exeh.  103:  18  L.  J.  Kxch.  113:  6 
924.  Ry.  Cas.  75;  Wilson  v.  Holdon   (oth- 

33  Chungkee  v.  Davidson,  102  Cal.  erwise  Bailev  v.  Hiines),  15  0-  B. 
188;  3fi  Pac.  Rep.  519.  533;  19  L.  J.  Q.  B.  73;  14  Jur.  835; 

33a  Dunham  v.  Loverock,  158  Pa.  Sylvester  v.  McCuaig,  28  Up.  Can. 
197;    27  Atl.  990;   38  Am,  St.  838.       C".  P.  443. 

35  Dickinson  v.  Valpy,  10  B.  and 


PARTNERSHIPS.  3tJ'( 

peetor&,  joining  in  a  joint  enterprise  strictly  i>artners;  and  their 
transactions  are  not  governed  by  the  hiw  of  strict  partnersliip."" 

§319.     Life  of  mining  partnership  —  dissolution. 

A  mining  partnershi]>  will  continue  for  the  length  of  time 
agreed  upon,  or  so  long  as  the  parties  act  together  as  a  ]>artner- 
ship.  If  no  limit  is  fixed  in  the  articles  of  agreement,  it  is  de- 
terminable, under  equitable  restrictions,  at  pleasure ;  bnt  tlie 
determination  cannot  defeat  rights  accrued  under  it  ^vhile  it 
was  in  force.^^  So  if  the  partnership  sell  or  otherwise  dis]K)se 
of  all  its  property  it  is  by  the  act  of  sale  or  dis]wsition  dis- 
solved.''^ Thus  where  a  co-partnership  was  formed  to  drill  a 
gas  well  and  supply  its  members  witli  gas;  and  at  the  request  of 
the  defendant  it  disposed  of  its  gas  well  to  a  third  party,  and 
tlie  defendant  agreed  to  furnish  gas  to  its  members  at  certain 
schedule  prices,  it  was  held  that  the  sale  of  the  property  of  the 
co-partnership  worked  tlie  dissolution  thereof,  and  that  the  indi- 
vidual members  had  not  such  a  community  of  interest  as  to  en- 
title tliem  to  sue  jointly  or  as  partners  for  the  breach  of  the 
contract,^^  Quarrels  and  dissensions  among  the  mcnihcrs  of  a 
partnership  to  an  extent  which  prevents  the  harmonions  working 
of  the  joint  enterprise,  is  good  ground  for  the  dissolution  of  the 
partnership;  and  pending  the  action  for  a  dissolution  a  receiver 
should  be  appointed  for  the  ])artnorshi]) ;  for  the  court  cannot 
put  one  partner  or  set  of  partners  in  ])ossession  to  the  exclusion 
of  the  other  partner  or  set  of  partners.'*^  In  an  action  for  a 
dissolution  of  a  mining  partnership  the  court  will  ])resume  that 
all  the  partners  have  an  equal  share  ;*^  and  if  it    a}>]X'ar  that  one 

C.  128;   5  M.  and  Ry.   126;   8  L.  J.  183;   Thompson  v.   Bowman.  G  Wall 

(OS)    K.    B.    51;    Fox   v.   Frith,    10  316;   Konnody   y.   Porter,  100  N.   Y. 

M.  and  W.  131;  Car  and  M.  .502;   11  526;    17  N.  E.  Rep.  426;   Theriot  v. 

L.  J.   Exch.   336.  Jliohel,  28  T>a.  Ann.  107. 

36  Boucher  v.  Mulvcrhill,   1   Mont.  3«  Pennville.   cte..   Co.   v.    Thomas, 

306.  21   Tnd.   A  pp.  1  ;   51   N.  E.  Rep.  351. 

s' l^wrence  v.    Robinson.   4   Colo.  ■♦"Childers   v.   Neeley,   47    W.   Va. 

567.  70;   .34  S.   E.  Rep.  828;  49  L.  R.  A. 

3«  Wells    V.   Ellis.   68   Cal.   243;    0  468. 

Pae.   Rep.    80;    Blaker  v.   Sands.   20  4i  Clnik    v.    Browi.,    83    Cal.    181; 

Kan.  551 ;   Wilson  v.  Davis,  1  Mont.  23   Pao.   Rep.   280. 


368  OIL   AND    GAS. 

partner  disposed  of  his  interest  it  will  be  presumed  that  the 
purchase  became  a  member  of  the  partnership,  and  was  as 
much  so  as  his  vendor.*- 

§  320.     Partition  and  accounting  works  a  dissolution. 

A  member  of  a  mining  partnership  can  not  have  a  partition 
of  the  mining  property  without  a  dissolution  of  the  partner- 
ship;  nor  can  he  have  an  accounting  without  the  same  result.'" 

§  321.     Majority  control. 

In  a  mining  partnership  the  majority  in  interest  in  the 
property  control  the  enterprise,  and  may  bind  the  property  by 
contracts  within  the  legitimate  scope  of  the  business;  and  all 
the  partners  will  be  bound  by  their  acts/*  Such  would  not  be 
the  case,  however,  if  the  object  of  the  partnership  was  per- 
verted and  a  business  entered  upon  not  within  its  legitimate 
scope.'*'  The  majority  in  interest,  however,  are  not  empowered 
to  sell,  without  his  consent,  a  co-partner's  interest  in  the 
enterprise.*""^ 

§  322.     Power  of  partner  in  mining  or  oil  enterprise. 

Partnerships,  whether  mining  partnerships  or  ordinary  part- 
nerships, are  not  commercial  or  trading  partnerships ;  and  one 
partner  does  not  have  the  power  to  bind  the  partnership  that  he 
would  have  if  they  were  commercial  or  trading  partnerships.** 
He  cannot  bind  the  partnership  except  upon  such  contracts  as 
are  usual  and  necessary  in  the  ordinary  prosecution  of  the  work, 
unless  expressly  authorized.*'  There  is  no  presumption  that 
he  can  bind  the  firm  by  the  execution  of  a  promissory  note ;  and 
to  render  such  an  instrument  binding  on  the  firm,  his  power  to 
bind  it  must  be  shown.   This  is  true  even  though  he  be  the  man- 

42Tavlor   v.   Castle,   42   Cal.   367;  Lovelock.   1    Mont.   224;    Childers  v. 

Xisbet  V.  Nash,  r2  Cal.  540;   Black-  Neelev,  47  W.  Va.  70;  34  R.  E.  Rep. 

marr  v.  Williamson,  57  W.  Va.  249;  828;   49  L.  R.  A.  468;    Hawkins  v. 

50    S.    E.    254;    Greenlee    v.    Ste  1-  Spokane,  etc.,  Co.,  2  Idaho  970;   28 

smith,    64    W.   Va.    353;    62    S.    E.  Pac.  Rep.  433. 

459.       Of    course    no    such    a    pre-  ■»•"'  Chihh-rs      v.      Neelev,      supra; 

sumption  would  prevail  with  respect  Blaekmarr  v.  Williamson,  57  W.  Va. 

to  an   ordinarv   partnershin.  249:     50     S.     E.     254;     Bartlett    v. 

4^Nisbet    v."   Nash,    52    Cal.    540;  Bevies,    66    W.    Va.    327;    66    S.    E. 

Clark   V.    Ritter.   59  Cal.   669;    Hall  474. 

V.  Vernon,  47  W.  Va.  295:  34  S.  E.  *-«  Edinger    v.    Southern    Oil    Co. 

764;    Preston   v.   White,   57   W.  Va.  (W.  Va.),  71  S.  E.  266. 

278;   50  S.  E.  236.  48  .Jones  v.  Clark,  42  Cal.  180. 

44  Dougherty    v.    Creary,    30    Cal.  47  Jones  v.  Clark,  supra. 
290;    89    Am.    Dec.    116;'   Nolan    v. 


PARTNERSHIPS.  369 

aging  partner  or  agent  of  the  iinu/""  Tint  if  a  partner  gives  a 
promissory  note  for  money  loaned  the  partnership,  the  person 
loaning  may  usually  recover  for  the  amount  loaned  from  the 
]>artnersliip,  if  he  can  show  that  it  was  used  for  the  legitimate 
purposes  of  the  partnership;  but  the  cause  of  action  is  not  based 
upon  the  note  —  the  action  is  for  money  paid  to  the  partnership 
use,  and  only  so  much  can  be  recovered  as  was  used  by  the  part- 
nership, at  least  this  is  true  for  the  purpose  of  reimbursing 
the  partner  out  of  the  partnership  assets  who  signed  the  note 
and  had  it  to  pay.*^  One  partner  cannot  borrow  money  u]X)n 
the  faith  of  the  partnership  credit,  even  upon  the  most  urgent 
occasions,^"  unless  expressly  authorized  so  to  do,  or  such  is  the 
usage ;  ^^  and  such  authority  must  be  more  than  inferential  —  it 
must  be  specific.^"  Money  borrowed  by  a  partner  without  au- 
thority, and  accepted  and  used  by  the  partnership,  or  used  with- 
out any  specific  act  of  aceej>tance,  may  be  recovered  from  such 
partnership.^^  But  one  partner  has  power  to  bind  the  corpo- 
ration by  buying  materials  to  be  used  in  its  legitimate  business, 
such  as  tools,  fuses,-  powder,  and  tlie  like,  or  in  selling  its  prod- 
ucts. So  the  sui">erintendent  of  a  mine  may  purchase  such  arti- 
cles as  are  necessary  for  the  conduct  of  the  mine  in  the  usual 


48  Skillman  v.  Lachman,  23  Cal.  man  Mining  Co.,  4  D.  G.  M.  and  G. 
109;  Dickinson  v.  Valpy,  10  B.  and  19;  24  L.  J.  Ch.  41;  18  Jur.  710;  23 
C.  128;  Brown  v.  Kidger,  3  H.  and      L.  T.   (os)   200;  2  W.  R.  543. 


N.  853;  Jones  v.  Clark.  42  Cal.  180 
Decker  v.  Howell,  42  Cal.  636 
Charles   v.   Eshelman,   5   Colo.    107 


5''  Hawtayne  v.  Bourne,  7  M.  and 
W.  595;  10  L.  J.  (N.  S.)  Exoh. 
224;   5  Jur.   118;   Sims  v.   Brittain. 


Manville   v.   Parks,   7   Colo.   128;    2  4  B.  and  A.  .375;  2  N.  and  M.  594; 

Pac.    Rep.    212;    Higgins    v.    Arm-  Randall   v.   Merideth.   76  Tex.   660; 

strong,    9    Colo.    38;    10    Pac.    Rep.  13  S.  W.  Rep.  576. 

232;    Judge   v.    Braswell,    13    Bush.  oi  Ricketts    v.    Bennett,    4    C.    B. 

69;  26  Am.  Rep.   185;    Shaw  '.  :\Ic-  686;    17  L.  J.    (N.   S.)    C.  P.  17  :    1 1 

Gregory,  105  Mass.  90   (a  quarrying  Jur.    1002. 

firm);      Pooley     v.     Whitmore,     10  C2  Burmester  v.   Norris,   21    L.   •!. 

Heisk.  629;   27  Am.  Rep.  733;  Green-  (X.    S.)     Exoh.    43;    6    Exch.    796; 

slade  V.  Dower,  7  B.  and  C.  635;   1  17  L.  T.  232;  Randall  v.  Merideth. 

M.  and  Ry.  640;  6  L.  J.   fos)   K.  B.  76  Tex.  669;   13  S.  W.  Rep.  576. 

155.  .'.rt  Trrdwen    v.    Bourne,    6    M.    and 

40  Brown  v.  Kidger.  3  H.  and  N.  W.    461;    9    L.    J.     (X.    S. )     Exch. 

853;  28  L.  J.  Exch.  66;   in  re  Ger-  290;   4  Jur.   747. 


370 


OIL   AND   GAS. 


manner,  without  expacss  authority.''*  But  one  partner  cannot 
bind  his  pailnership  by  the  employment  of  an  attorney  to  pro- 
tect the  mine's  interest,^^  unless,  perhaps,  in  a  case  of  emergency 
where  he  had  no  time  to  consult  his  partners.  Yet  one  partner 
may  bind  his  firm  by  agreeing  to  pay  for  labor  in  the  partnership 
enterprise,^"  unless  there  is  an  express  agreement  between  the 
partners  that  he  should  have  no  such  ]X)wer  and  of  which  tlie  era- 
ployed  person  had  due  notice  at  the  time  of  the  employment.''^ 
The  power  to  bind  die  partnership  by  a  purchase  does  not  ex- 
tend so  far  as  to  authorize  a  partner  of  a  firm  engaged  in  operat- 
ing coal  lands  to  purchase  additional  coal  lands ;  for  it  cannot 
be  said  that  such  power  falls  within  the  scope  of  the  partnership 
business.^**  Mining  partnerships,  in  the  strict  meaning  of  the 
term,  except  so  far  as  is  the  general  usuage  of  persons  engaged  in 
similar  pursuits,  or  the  particular  company  has  established  a 
diiferent  rule,  are  governed  by  the  law  of  ordinary  partner- 
ships.^**  These  rules  are  applicable  to  oil  or  gas  partnerships 
formed  for  the  purpose  of  developing  oil  or  gas  lands  or  operat- 
ing gas  or  oil  wells. "^^ 


r'^  Stuart  v.  Adams,  89  Cal.  367 ; 
26  Pac.  Rep.  970;  Roberts  v.  Eber- 
hart,  1  Kay.  148;  23  L.  J.  Ch.  201; 
22  L.  T.  253;  2  W.  R.  12.5. 

55  Charles  v.  Eshleman,  5  Colo. 
107. 

5  6  Burgan  v.  Lyell,  2  Mich.  102; 
5.5  Am.  Dec.  53 ;  Potter  v.  Moses,  1 
R.  I.  430;  Nolan  v.  Lovelock,  1 
Mont.   224. 

57  Nolan  V.  Lovelock,  1  Mont.  224. 

58  Judge  V.  Braswell,  13  Bush. 
69;  26  Am.  Rep.  185.  Nor  to  the 
development  of  a  mine  to  which  he 
did  not  assent.  Chase  v.  Savage, 
etc..   Co.,   2    Nev.  9. 

50  .Jones  V.   Clark,  42   Cal.    180. 

GoChilders  v.  Neeley,  47  W.  Va. 
76;  34  S.  E.  Rep.  828;  49  L.  R. 
A.  468.  Same  points  noted  above 
are  made  in  this  case.  See  also 
Ervin   v.   Masterman,    16    Ohio  Cir. 


Ct.  Rep.  62;  8  Ohio  Dec.  516;  Baker 
V.  Brennan,  12  Ohio  C.  D.  211;  22 
Ohio  C.  C.  241. 

Several  persons  entered  into  a 
written  agreement  to  sink  a  gas 
well,  each  to  pay  a  certain  sum 
which  was  stated  in  the  agreement. 
One  of  their  number  was  author- 
ized to  let  the  contract  for  the  well, 
which  he  did.  The  funds  thus  sub- 
scribed were  exhausted  in  the  work, 
and  no  gas  found.  Some  of  the 
subscribers  increased  their  sub- 
scriptions, and  the  well  sunk  deep- 
er, but  no  gas  found.  It  was  held 
that  those  who  did  increase  their 
subscriptions  were  not  liable  beyond 
the  amount  of  such  subscriptions. 
Clark  V.  Rumsey,  59  N.  Y.  App. 
Div.  435;  69  N.  Y.  Supp.  102;  52 
N.  Y.  Supp.  417. 


PARTNERSHIPS.  371 

§323.     Partner's  lien. 

A  partner,  whetlicr  he  be  a  nieml)er  of  a  mining  partnershi]> "' 
or  an  ordinaiy  piartnersliip,  who  advances  more  than  his  share 
of  money  to  operatx^  or  develop  the  mine,  or  the  gas  or  oil  lands, 
has  a  lien  on  his  partner's  share  to  the  extent  of  his  over-advance- 
ment, on  final  accounting. **"  And  where  the  partners  are  as- 
signees of  a  lease,  the  same  rule  prevails,  although  the  assign- 
ment be  void,  because  not  recorded  according  to  the  requirements 
of  a  statute.*'^  Tenants  in  common  have  a  like  lion."*  Even 
though  a  note  be  given  individually  for  the  partnership  indebt- 
edness, the  lien  is  not  lost."'^  If  the  partnership  property  be 
divided,  the  partner's  lien  is  lost.  And  this  was  held  true  where 
the  oil  pumped  was  run  into  tanks  of  a  pipe  line  company, 
and  separate  certificates  of  the  amount  of  each  partner  was  given 
him  by  the  pipe  lino  company,  as  per  agreement;  for 
in  that  instance  the  pipe  line  company  was  simply  the 
agent  of  tlie  partners  to  make  the  division. °®  So  if  a 
joint  certificate  of  the  amount  received  be  issued,  and  one  of 
the  partners  sell  his  share  in  it,  he  will  lose  his  lien,  esiiociallv 
if  there  is  an  agreement  each  may  dis{X)se  of  his  sliare."^  Where 
two  partners  excluded  their  fellow  partner  and  leased  tJie  mine, 
it  was  held  that  the  latter  had  a  lien  on  the  ore  mined  by  the 
lessee  for  his  share,  although  not  on  ore  mined  before  the  lessee 
acquired  posscv'ssion  of  the  mine.*^^ 

«i  ]\rorfranRtcrn  v.   Thrift,  66   Cal.  divided,  but  the  lien  remains  valid 

577 ;    G   Pac.   Rep.   689.  on  tlie  social  property  used  in  oper- 

62  Ervin    v.    Masteinian,    16    Ohio  ating    tlie    said    leaseholds.      Green- 

Cir.  Ct.  Rep.  62;   S  Ohio  Dec.  516;  lee   v.   Stcelsmith,    64    \V.   Va.    .353; 

Childers   v.  Xeeley,   47   W.   Va.   70;  62    S.    E.    459;    Bartlelt    v.    Bovles, 

34  S.  E.  Rep.  828;  49  L.  R.  A.  468:  66  W.  Va.  327;  66  S.  E.  474;  Kireh- 

Burdon   v.   Barkas,   3   GifT.   412;    31  ner    v.    Smith,   61    W.    Va.   434;    58 

L.  J.  Ch.  521:   8  Jur.   (X.  S.)    1.30;  S.   E.    614;    Ciiiidcrs   v.   Xeelev.    47 

5  L.  T.  573;  Duryea  v.  Burt,  28  Cal.  W.   Va.   70;    34   S.  E.   628;   8l"  Am. 

569.  St.   777;    49    L.   R.  A.   468. 

Mining     partners,     operating     oil  c.-i  Ervin  v.   Mastorman,  supra, 

leases,    have    a    lien    on    the    social  04  Ervin  v.   ilasterman,  supra. 

property    for    advances    or    balances  or.  Brown   v.   Beecher,   120  Pa.   St. 

due   them   after    payment   of    debts;  590;    15   Atl.    Rep.   608. 

but,    havinjo:  divided   tlie   product   of  ««  Cliildors  v.  Xeeley,  sw/)ro. 

the   business   by  giving  to  each    Iiis  «"  Ervin   v.  ^Masterman,  supra. 

share   of    the    product    in    severalty  «s  G.  V.  B.  Mine  Co.  v.  First  Xa- 

and  separating  it  from  tlie  balance,  tional  Bank,  95  Fed.  Rep.  23;  36  C. 

no  lien  exists   on    the   product    thus  C.  A.  633. 


372  Olli    AND    GAS. 

§324.     Liability  of  incoming  partner. 

An  incoming  partner  in  an  ordinary  partncrslii]>  is  not  ]X'r- 
sonally  liable  for  tlie  doUt.s  of  the  partnershi])  ci-eatod  ])efore 
his  connection  with  it;  unless  he  agreed  to  he  Ixinnd  for  tliera.^* 
But  a  purchaser  of  a  partner's  share  in  a  mining  partnership 
takes  it  subject  to  the  remaining  partner's  lien  for  moneys  ad- 
vanced, unless  he  is  a  purchaser  in  good  faith,  without  notice, 
and  for  a  valuable  consideration.  It  will  be  presumed  he  had 
notice  of  the  lien  at  the  time  ho  made  the  purchase;  because 
the  existence  of  the  partnership  puts  him  on  notice.^"  And 
such  new  purchaser  is  liable  for  the  debts  of  a  mining  partner- 
ship before  he  became  a  member ;  for  his  admission  to  the  firm 
did  not  dissolve  the  firm,  it  continuing  the  same  as  it  was  be- 
fore,—  he  simply  taking  his  vendor's  place.^^  His  liability 
is  for  the  entire  amount  of  the  indebtedness.''" 

§325.     Each  partner  liable  for  all  partnership  debts. 

In  a  mining  partnership,  a  partner  is  liable  the  same  as  in 
an  ordinaiy  partnership  —  each  partner  is  personally  liable  for 
the  entire  indebtedness  of  the  firm.^^ 

§326.     Limited  partnerships. 

Statutes  have  been  enacted  providing  for  limited  partner- 
ships, which  are  made  applicable  to  mining  adventures.      It  does 

0"  Patrick  v.  Weston,  22  Colo.  45;  Contra,  Patrick  v.  Weston,  22  Colo. 

43  Pac.  Pop.  440;    ShirofT  v.  Wilks,  45;    43    Pac.   Pep.    446. 

1    East.    48 ;     P.abcock    v.    Stewart,  "2  Stuart  v.  Adams,  89  Cal.  3G7 ; 

58  Pa.  St.  179;  Wright  v.  Brosseau,  20  Pac.  Rep.  970. 

73  111.  381;  Waller  v.  Davis,  59  la.  73  Stuart  v.  Adams,  89  Cal.  307; 

103;    12  N.  W.  Eep.   798;   Guild  v.  20  Pac.  Rep.  970;  Childera  v.  Neeley, 

Cclcher    119    Mass.    257;    Fagan    v.  47    W.    Va.    70;    34    S.    E.    828;    81 

Long,  30  Mo.  222;  Brown  V.  Becchcr,  Am.    St.    777;     49    L.    R.    A.    468; 

120  Pa.  St.  590;   15  Atl.  Rep.  008.  Kirchner  v.  Smith,  01  W.  Va.  436; 

The    retiring    partner    will    con-  58  S.  E.  614;  Jones  v.  Clark,  42  Cal. 

tinue  to  be  liable  for  the  old  debts,  425;  Taylor  v.  Castle,  42  Cal.  367; 

the  same  as  if  he  had  not  retired.  Scttembre  v.  Putnam,  42  Cal.  490; 

ToDuryea  v.  Burt,  28  Cal.  569.  Decker  v.  Howell,  42  Cal.  636;  Dur- 

71  Jones    V.    Clark,    42    Cal.    180;  yea   v.   Burt,   28  Cal.   569. 


PARTNERSHIPS.  373 

not  fall  within  the  scope  of  this  volume  to  discuss  the  law  re- 
lating to  limited  partnerships,  and  therefore  no  farther  notice 
will  be  taken  of  such  statutes  or  decisions  relating  to  them.'* 

§  326a.     Division  of  royalty. — Damages. 

Several  co-tenants  of  an  oil  lease  assigned  it  to  an  operator 
who  was  to  deliver  to  them  a  part  of  the  product ;  but  one 
of  the  joint  owners  did  not  join  in  the  assignment,  and  noti- 
fied the  assignee  not  to  deliver  any  oil  to  his  co-tenants.  It 
was  held  that  the  non-joining  owner  was  not  entitled  to  his 
share  of  the  oil  without  proving  that  his  co-tenants  had  re- 
ceived more  than  their  share ;  that  if  he  choose  to  affirm  it, 
he  must  take  his  share  with  the  others  upon  a  distribution  of 
the  roj'alty  after  deducting  all  proper  charges  and  expenses; 
and  that  if  he  did  not  affirm  the  lease,  he  had  no  claim  to 
any  share  in  the  royalty,  and  could  only  look  to  the  lessee  as 
a  co-tenant  who  had  not  acquired  his  title.'^^  A  tenant  in 
common  who  has  tortiously  been  deprived  by  the  fraud  of  his 
co-tenant  of  his  interest  in  an  oil  lease  may  bring  suit  for  his 
share  of  the  oil  produced  and  converted  by  such  co-tenant 
while  in  possession.  He  may  recover  as  damages  the  value 
of  the  oil  in  the  tank,  without  deduction  for  the  expenses  of 
production.'® 

74  Pennsylvania    Act    of    June    2,  337;    17   W.    R.   G2;    Gilbert's   case, 

1874,   P.  L.   271;    English   Acts,   2.5  L.    R.    5   Ch.    App.    550;    18   W.   R. 

and  26  Vict.  c.  89;   30  and  31  Vict.  938;    Lumsden  s    case,   L.   R.   4    Ch. 

c.   131;   33  and  34  Vict.   c.   104;    40  App.    31;    17    W.   R.   65;    Cumming 

and  41  Vict.  c.  26;  42  and  43  Vict.  v.  Prescott,  2  Y  and  C.  Exch.  488; 

c.   76,    43    Vict.    c.    19;    46    and    47  Snell's  case,   L.   R.   5   Ch.   App.  22; 

Vict.  c.  30;   49  Vict.  c.  23;   53  and  Poole   v.   Middleton,   29    Beav.   646; 

54  Vict.  cc.  62,   63,  64;    56   and   57  9   Jur.    (N.   S.)    1262;   4  L.  T.  631, 

Vict.  c.  58;   and  61   and  62  Vict.  c.  9   W.  R.   758;    Nation's  case,   L.   R. 

26.      See   Carter   v.   Producers,   etc.,  3  Eq.  77;  36  L.  J.  Ch.  112;  15  L.  T. 

Oil   Co.,    164   Pa.   St.   463;    30   Atl.  308;    15  W.  R.   143. 
Eep.  391;  Ferguson  v.  Wilson,  L.  R.  7r>  Enterprise  Oil  &  Gas  Co.  v.  Xat- 

2  Ch.  App.  77;  15  W.  R.  27;  Hunt's  ural   Transit   Co.,    172   Pa.   421;    33 

case,  37   L.  J.   Ch.  278;    16  W.  R.  Atl.  6S7. 

472;     Weston's    case,    L.    R.    4    Ch.  'o  Fosior  v.   Weaver,   118  Pa.  42; 

App.  20;   38  L.  J.  Ch.  49;    19  L.  T.  12  Atl.  313. 


374  OIL   AND    G/VS. 

§  326b.    Accounting. — Dissolution. 

If  the  members  of  a  mining  partnership  are  .discordant  and 
at  ill  will,  and  the  partnershi])  liopeless  of  prosperity,  a  court 
of  equity,  upon  a  bill  filed  for  that  purpose,  will  dissolve  the 
partnership,  appoint  a  receiver  for  the  property,  and  not  leave 
the  assets  in  the  possession  and  control  of  one  member  of  the 
partnership,  to  the  exclusion  of  others.  In  such  an  instance 
it  will  decree  an  accounting  between  the  partners.  But  a 
court  of  equity  will  not  decree  an  accounting  between  the 
partners  of  a  mining  partnership  without  a  dissolution."  But 
where  one  tenant  had  kept  the  accounts  pertaining  to  the  lease, 
had  purchased  the  supplies,  paid  the  bills  and  furnished  his 
co-tenant  statements  from  time  to  time,  deducting  such  co- 
partner's proportion  of  the  expense,  it  was  held  that  such 
co-tenant  could  maintain  a  bill  in  equity  for  an  accounting 
against  such  tenant.^*  If  the  partners  .cannot  agree,  the  ma- 
jority may  conduct  the  mining  operations ;  and  if  they  do  they 
Avill  be  liable  in  accounting  only  for  culpable  negligence  or 
breach  of  duty,  or  wrongful  conduct,  or  diversion  of  the  prop- 
erty from  the  business  of  the  partnership.  On  decreeing  a 
dissolution,  it  is  error  on  a  partial  settlement  for  the  court  to 
give  a  personal  judgment  against  one  partner  in  favor  of 
another  for  a  balance  found  due  him  on  such  partial  settle- 
ment. The  social  property  must  first  be  reduced  to  money 
and  applied  to  discharge  partnership  liabilities,  including  any 
balance  found  due  on  final  settlement  from  one  partner  to 
another,  and  then  a  decree  over  on  final  settlement  for  any 
balance  that  may  remain.  If  one  member  has  advanced  money 
or  property  to  pay  the  share  of  another  in  the  operating  ex- 
penses, he  is  entitled  to  interest  thereon,  as  against  the  delin- 
quent partner  on  dissolution  and  final  settlement  and  winding 
up  of  the  partnership.''^ 

TTChilders   v.   Neeley,  47   W.  Va.  79  Bartlett  v.   Boylea,   66    W.   Va. 

70;   34  S.  E.  628;   81  Am  St.  777;  327;  66  S.  E.  474. 

49  L.  Pi.  A.  468.  Rules    stated    for    accounting. 

78  Harrington  Bros.  V.  Florence  Oil  Edinger    v.    Southern    Oil    Co.    (W. 

Co.,  178  Pa.  444;  35  Atl.  855.  Va.),  71  S.  E.  266. 


CHAPTER  XVI. 

MECHANIC'S  LIENS. 

§327.  Lubricating  oil. 

§328.  Labor  or  material  must  be  furnished    under   a   contract. 

§329.  For  what  material  furnished  a   lien  may  be  obtained. 

§330.  For  -what  labor  a  lien  may  be  obtained. 

§33 L  Overseer,  custodian  or  superintendent  entitled  to  a  lien. 

§332.  Upon  what  interest  in  land  lien  may  be  acquired. 

§332*,.  Oil  or  gas  leased  premises. 

i333.  Lien  on  oil  well. 

j334.  Forfeiture  of  lease. 

§.33.5.  Retroactive  effect. 

§336.  Priority  of  liens. 

§337.  Notice  of  claim  of  lien. —  Description  of  land. 

§338.  Assignment  of  claims. 

§339.  On  plant  of  public  gas  company. 

§340.  Oil  refinery. —  Paraffine  works. 

§327o     Lubricating  oil. 

Oil  furnished  with  which  to  oil  machinery  nsed  in  a  mine  or 
manufactory  does  not  enhance  the  value  of  the  mine  or  manufac- 
tory, nor  add  any  value  to  it;  so  that  a  person  funiishing  oil  of 
that  kind  cannot  obtain  a  lien  by  virtue  of  the  terms  of  a  statute 
j/iving  lien  for  material  furnished  such  structures.^ 

«j328.     Labor  or  material  must  be  furnished  under  a  contract. 

The  foundation  of  the  riulit  to  secure  a  lien  for  labor  por- 
fonned  or  material  furnished  must  be  a  contract  with  the  owner 
of  the  land  upon  which  the  lien  is  sought  to  be  enforced  ;  and  if 
there  does  not  exist  such  a  contract  express  or  implied,  the  per- 
son claiming  it  must  fail.^     A  contract  ^nth  one  not  the  owner 

1  Standard    Oil    Co.    v.    Lane,    75  land  v.   Callihan,   2   Pa.   Super.   Ct. 

Wis.  63G;  44  N.  W.  Rep.  644;    7  L.  Rep.  340;   38  W.  N.  C.  512;    Littler 

R.  A.    191;    The   Princess,   185   Fed.  v.   Robinson,  38   Ind.   App.   104;    77 

218.  X.  B.   Kep.    1145;    Windfall   Natural 

2jur^enson  v.  Diller,  114  Cal.  Gas,  etc.,  Co.  v.  Roe,  42  Ind.  App. 
491;  46  Pac.  Rep.  610;  Wilkins  v.  278;  84  N.  E.  Rep.  996.  It  must  be 
Abell,  26  Colo.  462;  58  Pac.  Rep.  shown,  it  is  held  in  tlie  last  case, 
612;  Davidson  v.  Jennings,  27  Colo.  tiiat  the  person  employing  the  plain- 
187;  60  Pac.  Rep.  354;  48  L.  R.  A.  tiff  had  authority  from  tlie  owner 
340;  Rico,  etc.,  Co.  v.  Musgrave,  14  of  the  land  authorizing  him  to  em- 
Colo.   79;   23  Pac.  Rep.  458;   Murt-  ploy  such  plaintiff. 

375 


376  OIL   AND   GAS. 

or  his  agent  does  iiot.'bind  the  land  or  the  improvements  upon 
it ;  nor  entitle  a  laborer  to  a  lien  for  work  done  for  a  person  he 
did  not  know  to  bo  the  owner,  and  nnt  to  be  working  the  mine 
as  a  representative  of  the  owner.^  So  a  laborer  employed  by  the 
owner's  hnsband  and  another,  who  was  not  the  wife's  agent,  and 
upon  the  assurance  of  the  wife  that  her  husband  wanted  the 
mine  worked,  and  he  would  see  that  he  was  paid,  is  not  entitled 
to  a  lien  as  against  the  wife  under  a  statute  giving  a  laborer  a 
lien  for  work  done  on  real  estate  under  a  contract  with  the 
owner  of  it.*  So  a  laborer  working  on  a  mine  for  one  who  has 
ousted  the  true  owner  can  acquire  no  lien.^  Where  the  owner 
of  a  mine  entered  into  a  contract  with  an  operator  to  operate 
the  mine  and  make  certain  improvements  on  it,  -svith  the 
privilege  of  buying  it,  a  certain  percentage  of  the  pro- 
ceeds to  be  paid  him,  and  to  be  credited  on  the  pur- 
chase price  in  case  the  operator  purchased  the  mine;  and 
if  he  did  not  pay,  the  improvements  and  payments  to  be  for- 
feited, wdiich  was  in  fact  done  and  the  mine  turned  back ;  it  was 
hekl  that  the  operator  was  the  "  agent "  of  the  owner,  and  per- 
sons working  for  him  or  furnishing  him  materials  for  use  in 
the  mine  were  entitled  to  a  lien.^  The  amount  to  be  paid  for 
services  need  not  be  definitely  agreed  upon,  if  there  is  an  agreer 
ment  to  pay.^ 

§329.     For  what  material  furnished  a  lien  may  be  obtained. 

Under  the  California  statute  the  material  furnished  must  be 
used  on  the  mine  to  entitle  the  material  man  to  a  lien  foi  its 
value.®     So  the  vendor  of  machinery  for  boring  wells  to  a  oon- 

3  Jurgenson  v.  Diller,  114  Cal.  where  the  operator  was  considered 
491;  40  Pac.  Rep.  410:  WindfaH  to  be  the  tenant,  and  therefore  no 
Natural  Gas,  etc.,  Co.  v.  Roe,  42  lien  accrued.  Jordan  v.  Mvers,  126 
Ind.  App.  278;  84  N.  E.  Rep.  996;  Cal.  565;  58  Pac.  Rep.  106*1;  Block 
Nerentz  V.  Kerr,  etc..  Oil  Co.  (Cal.),  v.  Murray,  12  Mont.  545;  31  Pac. 
84  Pac.  Rep.  45,  47;  Littler  v.  Rob-  Rep.  550.*  But  see  Maher  v.  ShuU, 
inson,  38  Ind.  App.  104;  77  N.  E.  11  Colo.  App.  322;  52  Pac.  Rep. 
Rep.  1145.  1115,    where    a    lien    was    enforced; 

4  Folsom  V.  Cragen,  11  Colo.  205;  and  so  Hines  v.  Miller,  122  Cal. 
17  Pac.   Rep.   515.  517;    55    Pac.    Rep.   401.     None   en- 

5  Idaho  Gold  Mining  Co.  v.  Win-  forced  in  Skvm  v.  Weske,  etc.,  Co. 
chell,  3  Idaho  — ;  59  Pac.  Rep.  533.  (Cal.).   47    Pac.   Rep.    110. 

eEanian   v.  l>ashford    (Ariz.),   37  7  Bewick  v.  Muir,  83  Cal.  373;   23 

Pac.   Rep.   24.      See   a    similar   case       Pac.  Rep.  390. 

8  Bewick    v.    Muir,    83    Cal.    373; 


mechanic's  liens.  376a 

tractor  sinking  such  wells  is  not  entitled  to  a  lion  on  the  well  he 
bores  for  such  machinery's  price,  the  machinery  not  Ix'ing  in- 
tended to  become  a  part  of  the  well,  and  in  fact  not  becoming 
so.*  Bat  one  furnishing  pijw  for  an  oil  well  is  entitled  to  a 
lien  ;^°  and  so  one  furnishing  material  for  an  oil  tank."  One 
furnishing  cars  to  be  used  in  a  coal  mine  is  entitled  U^  a  lieu 
tinder  a  statute  giving  any  one  a  lien  furnishing  "  any  material, 
fixtures,  engine,  boilers,  or  machinery  for  any  building  or  im- 
provement on  land."  "  A  going  coal  mine  is  not  merely  a  hole 
in  the  ground.  It  is  made  up  <<i  shafts,  drifts,  slopes,  engines, 
machinery,  platforms,  cars,  tracks,  scales,  etc.,  and  taken  as  a 
thing,  if  not  a  building,  it  is  unquestionably  an  improvement, 
and  an  improvement  on  land."^^ 

So  a  lien  may  be  had  for  tools  furnished  to  be  used  in  a  mine 
in  CalifoiTiia ;"  or  for  materials  furnished  to  build  a  dwelling 
house  on  the  claim, ^^  even  though  built,  in  case  of  a  shop,  upon 
land  contiguous  to  the  mine  if  for  the  use  of  such  mine,  and  a 
part  of  the  mining  company's  property.  The  shop  may  be  sold 
with  the  mine  for  the  purpose  of  enforcing  the  lien.^*  Where  a 
statute  gives  a  lien  on  a  mine  for  ''  timbers  or  other  material  to 
be  used  in  the  mine  "  furnished  by  a  nuiterial  man,  a  lien  may 
be  taken  for  powder,  steel,  and  candles  furnished  to  be  used  in 
it.^^  But  a  boiler,  pump,  engine,  and  machinery  not  situated 
in  or  in  any  way  connected  with  the  improvement,  or  a  coal 
mine  lease,  used  only  for  the  purpose  of  drawing  up  coal  ^nd 

2.3  Pac.  Rep.  390;  Hamilton  v.  Del-  i*  Malone    v.    Bi<r   Flat,   etc.,   Co., 

hi,  etc.,  Co.,   118  Cal.   148;   50  Pac.  7G  Cal.   578;    18  Pac.  Rep.   772.     A 

Rep.  378.  pump    fastonod   to   works  furnish   a 

9  Jareki  Mfg.   Co.   v.    Struther,   8  good  claim  for  a  lien.     Goss  v.  Hel- 

Ohio    Cir.    Dec.    5;    14    Ohio    C.    C  bing,  77  Cal.  190;  19  Pac.  Rep.  277. 

400.  15  Dickenson     v.    Bolyer,    55     Cal. 

K'Devine  v.  Taylor,   12  Ohio  Cir.  285. 
Ct.  Rep.  723;   4  Ohio  Cir.  Ct.  Dec.  is  Keystone    Mining    Co.    v.    Cal 
248.    1    Ohio   Dec.    153;    Haskell    v.  lagher,    5    Colo.    23.     Lumber    fur- 
Gallagher,  20  Ind.  App.  224;  50  N.  nished   for  an  oil   refinery.        Short 
E.  Rep.  485;   67  Am.  St.  Rep.  250.  v.  Miller,   120  Pa.  St.  470;    14  Atl. 

11  Parker  Land  &  Oil  Co.  v.  Red-  Rep.   .S74. 
dick.    18    Ind.    App.    61G;    47    N.    E.  it  Keystone    Mining    Co.    v.    Gal- 
Rep.  848.  lagher,  supra. 

13  Central  Trust   Co.  v.   Sheffield, 
etc.,  Co.,  42  Fed.  Rep.  106. 


376b  OIL   AND    GAS. 

water,  will  not  fasten  a  lien  on  the  mine.^^  One  furnishing 
natural  gas  to  run  an  engine  used  in  drilling  an  oil  well  is  such 
a  material  man  as  gives  him  a  lien  for  it  as  furnished;  ^®  but  a 
statute  providing  for  a  lien  for  materials  furnished  for  any 
structure,  will  not  authorize  a  lien  on  the  interest  of  a  lessee 
under  an  oil  lease  for  coal  furnished  the  lessee's  contractor 
and  used  by  him  in  drilling  a  well  on  the  leased  premises.^®* 

§  330.     For  what  labor  a  lien  may  be  obtained. 

Aside  from  the  question  who  or  what  employee  is  entitled 
to  a  lien,  and  not  discussing  the  right  to  a  lien  by  an  overseer, 
a  superintendent,  a  manager  or  foreman,  we  will  discuss  in  this 
section  what  services  will  entitle  an  employee  or  servant  to  a 
lien  for  labor  rendered ;  premising  our  discussion  by  the  remark 
that  local  statutes  wholly  govern  the  right  One  working  upon 
a  house  situated  on  a  mining  claim  has  been  held  entitled  to  a 
lien  on  the  whole  mine.-°  So  upon  a  shop.'^  A  statute  provid- 
ing that ' '  all  persons  performing  labor  for  carrying  on  any  mill 
shall  have  a  lien  on  such  mill  for  such  work  or  labor,"  gives  a 
teamster  a  lien  who  hauls  quartz  to  a  quartz  mill.^-  One  work- 
ing on  an  oil  tank,  having  a  capacity  of  two  or  three  hundred 
barrels,  placed  on  a  foundation  built  expressly  for  it,  out  of 
earth  and  lumber  on  the  land  of  the  person  ordering  it,  is  enti- 

18  Meistrell  v.  Reach,  56  Mo.  App.  ment.  It  was  held  that  no  lien 
243.  could  be  acquired  for  gas  and  elec- 

19  Haskel  v.  Gallagher,  20  Ind.  trie  fixtures  furnished  for  a  house 
App.  224;  '50  N.  E.  Rep.  485;  67  because  they  did  not  constitute  an 
Am.  St.  Rep.  250.  improvement  of  real  property,  they 

19a  Niagara  Oil  Co.  v.  McBee,  45  not  being  permanently  aflbced  to  the 
Ind.  App.  570;  91  X.  E.  Rep.  250.  building,  but  were  merely  for  the 
.A  statute  gave  a  lien  for  materials  temporary  use  of  the  occupant,  sub- 
used  in  improving  or  equipping  a  ject  to  removal  by  him.  Caldwell 
house  with  any  fixtures  for  supply-  v.  Glazier,  138  N.  Y.  App.  Div.  826; 
ing  gas  or  electric  light;  but  it  123  N.  Y.  Supp.  622. 
was  repealed  by  a  subsequent  stat-  20  Dickenson  v.  Bolyer,  55  Cal. 
ute  which  gave  a  lien  for  material  285.  See  Hamilton  v.  Delhi  Min- 
furnishcd  for  the  improvement  of  ing  Co.,  118  Cal.  148;  50  Pac.  Rep. 
real    property,    and    the    word    "im-  378. 

provement"    was    defined    so    as    to  -1  Keystone    IVIining    Co.    v.    Gal- 
include    the    erection,    alteration    or  lagher,    5     Colo.    23;     Meistrell    v. 
repair   of     any    structure   on,     con-  Reach  50  Mo.  App.  243. 
nected  with,  or  beneath  the  surface  -~  In  re  Hope  Mining  Co.,  1  Sawy. 
of  any   real   property,   or   materials  710. 
furnished  for  its  permanent  improve- 


mechanic's  liens.  376c 

tied  to  a  lien  under  the  general  nieehanic's  lien  law  giving  a 
lien  upon  any  structure  built  upon  llie  land,  such  oil  tank  being 
a  fixture.-^  A  statute  giving  a  lien  for  work  performed  in 
making  shafts,  drifts,  etc.,  for  a  mine  does  not  give  a  lien  for 
work  performed  in  building  a  wagon  road.-*  A  blacksmith 
sharpening  tools  and  drills  and  making  pipes,  and  other  neces- 
sary and  like  work  on  a  mine,  is  entitled  to  a  lien  on  the  mine ; 
for  such  tools  and  niaeliinery  used  in  developing:  a  mine  are  to 
be  considered,  while  so  used,  as  affixed  to  it  under  the  Code  of 
California."'*  In  California  a  contractor  for  the  labor  of  others 
in  a  mine  at  a  fixed  rate  for  each  man  per  day  is  entitled  to  a 
lien  for  their  labor.-*"'  One  hauling  pipe  to  be  used  in  an  oil 
well  is  entitled  to  a  lien.^^  But  a  statute  giving  a  lien  upon  all 
tools,  machinery  and  stock  located  in  or  about  a  mill  or  shop,  to 
all  labors  employed  in  and  about  it,  in  case  of  insolvency,  will 
not  give  a  lien  upon  a  boiler,  engine,  shafting,  beam,  derrick, 
reel,  ropes  and  drill,  when  put  in  place  and  action,  but  not  con- 
nected with  any  mill  or  shop.^^ 

§331.     Overseer,  custodian  or  superintendent  entitled  to  a  lien. 

Under  the  statute  providing  that  "  every  person  jx^rforniing 
labor  "  for  a  mining  company  doing  business  in  the  State  shall 
be  entitled  to  a  lien  on  all  its  property,  taking  precedence  over 
all  other  debts  or  judgnnents  against  the  company,  an  overseer 
and  custodian  of  the  mine  and  property  of  such  a  company  is 
entitled  to  a  lion  for  his  services.-®  So  it  has  been  held  that  a 
sujx'rintendent  of  a  mine  rendering  service  in  planning  and 
superintending  development  of  mines,  and  in  planning  and  sup- 

23  Parker  Land  &  Oil  Co.  v.  Red-  25  ]\iialone    v.    Big    Flat,    etc.,    7G 
dick,    18   Ind.   ^pp.    G16;    47   N.    E.       Cal.  578;   18  Pac.  Rep.  772. 

Rep.  848;   Standard  Oil  Co.  v.  Sow-  20  Malone  v.  Rig  Flat  Gravel  Co., 

den,  55  Oiiio  St.  332;  45  N.  E.  Rep.  76   Cal.   578;    18   Pac.   Rep.   772. 

320;    3(!    Wkly.    L.    Bull.    306;    37  27  McElwaine   v.   Hosey,    135   Ind. 

Wkly.    L.    Bull.   3;    Contra    Seiders,  481;  35  N.  E.  Rep.  272. 

etc.,    Works   v.    Lewis,    etc.,    Co.,    7  ^»  Ihid. 

Pa.  Dist.  Rep.  278;   21   Pa.  Co.  Ct.  29  :McLaren    v.    Byrnes,    80    Mich. 

Rep.   80.  275;  45  N.  W.  Rep.  143. 

24  Williams  V.  Toledo  Coal  Co.,  25 
Ore.  420;  30  Pac.  Rep.  159. 


376d  OIL   AND    GAS. 

criiitciidinpf  the  erection  of  a  iiiill  and  niacliinery  for  them,  per- 
fonuod  work  and  labor  in  or  npon  tho  property  of  a  mining 
company,  such  as  entitled  him  to  a  lien  for  his  services,  but  not' 
for  services  in  keeping  books  and  disbursing  funds. ^°  Of  a 
foreman  it  is  said :  "  He  cert-ainly  did  work  in  the  mine, 
though  not  with  his  hands,  and  it  is  clear  that  the  direct  ten- 
dency of  his  work  was  to  develop  the  pro|>erty.  We  think  the 
foreman  of  work  in  the  mine  is  as  fully  secured  by  the  law  aa 
the  miners  who  work  under  his  directions."  ^^  Of  a  similar  in- 
stance the  Supreme  Court  of  the  United  States  said :  "  He 
was  not  the  general  agent  of  the  mining  business  of  the  plaintiff 
in  error.  That  office  was  filled  by  Patrick.  He  was  not  a 
contractor.  The  sei*vices  rendered  by  him  were  not  of  a  pro- 
fessional character,  such  as  those  of  a  mining  engineer.  He 
was  the  overseer  and  foreman  of  the  body  of  miners  who  per- 
formed the  manual  labor  upon  the  mines.  He  planned  and 
personally  superintended  and  directed  the  work,  with  a  view  to 
develop  the  mine  and  make  it  a  successful  venture.  He  apj)ears 
from  the  findings,  to  have  performed  services  similar  to  those 
required  of  the  foreman  of  a  gang  of  track  hands  upon  a  rail- 
road, or  a  force  of  mechanics  engaged  in  building  a  house. 
Such  duties  are  very  different  from  those  which  belong  to  the 
general  superintendent  of  a  railroad,  or  the  contractor  for  erect- 
ing a  house.  Their  performance  may  well  be  called  work  and 
labor ;  they  require  the  personal  attention  and  supervision  of 
the  foreman ;  and  occasionally  in  an  emergency,  as  for  example, 
it  becomes  necessary  for  him  to  assist  with  his  own  hands. 
Such  duties  cannot  be  performed  without  much  physical  exer- 
tion, which,  while  not  so  severe  as  that  demanded  of  the  work- 
men under  the  control  of  the  foreman,  is  nevertheless  really 
work  and  labor.  Bodily  toil,  as  well  as  some  skill  and  knowl- 
edge in  directing  the  work,  is  required  for  their  successful  par- 
se Kara  Avis'  Gold  &  Silver  Min-  who  performs  labor  in  a  mining 
ing  Co.  V.  Bouscher,  9  Colo.  385;  12  claim,  or  upwn  real  property  worked 
Pac.  Rep.  433;  Palmer  v.  Uncas  as  a  mine,  either  in  its  development 
Mining  Co.,  70  Cal.  614;  11  Pac.  or  in  working  it  by  subtraction 
Rep.  6G6.  process,   has   a  lien   upon   the   land. 

A  mere  watchman  upon  an  idle  DonaiQSon  v.  Orchard  Crude  Oil 
oil  claim  cannot  successfully  claim  Co.,  6  Cal.  App.  641;  92  Pac.  Rep. 
a    lien;    but    for    services    rendered       1046. 

in    pumping    oil    he    can,    under    a  si  Capron  v.  Strout,  11  Nev.  304. 

statute    providing   that   any    person 


mechanic's  liens.  377 

formance.  We  tliink  that  the  discliarge  of  sucli  duties  may 
well  be  called  work  and  labor,  and  tliat  tlie  District  Court  right- 
fully declared  the  person  who  performed  them  entitled  t/)  a 
lien,  under  the  law  of  the  Territory."  "^  So  the  RUjx^rinteudent 
of  the  construction  of  a  gas  pipe  line,  having  full  su]>er\'ision  of 
tJie  digging  of  the  trenches,  the  laying  of  gas  pipes,  etc.,  with 
full  autliority  to  hire  and  discharge  employees,  being  required 
to  walk  along  the  pipe  lines,  test  the  wells,  which  required  him 
to  handle  wrenches  and  tools  for  short  periods  of  time,  was  held 
entitled  to  a  lien  under  a  statute  giving  "  lalx)rers  and  em- 
ployees "  liens  on  the  property  of  an  insolvent  corporation.^^ 
On  the  other  hand  it  has  been  held  that  a  general  manager  and 
superintendent  of  a  mine  who  does  not  perform  bodily  toil  is 
not  entitled  to  a  lien  upon  it  under  a  statute  giving  a  lien  to 
one  "who  performs  labor  in  any  mining  claim. "^* 

§  332.     Upon  what  interest  in  land  a  lien  may  be  acquired. 

In  Indiana  the  lien  attaches  only  to  the  interest  the  person 
against  whom  it  is  sought  to  enforce  has  in  the  land.  This  is 
made  so  by  the  express  words  of  the  statute.  It  may  be  en- 
forced against  the  lessee's  interest,  when  the  work  is  per- 
formed for  him;  but  does  not  bind  the  lessor's  interest.^"  In 
Missouri  a  laborer  for  a  mere  licensee,  to  operate  on  land, 
does  not  get  a  lien  on  the  land.^"  In  Montana  the  employee 
on  a  leasehold  cannot  acquire  a  lien  against  the  mining  prop- 
erty.^^    In  Iowa  he  can ;  ^*  so  in  Pennsylvania, ^''  and  in  Ohio.*" 

32  Flagst<aflr,  etc.,  Co  v.  Cullins,  Ore.  584;  41  Pac.  Rep.  116;  form- 
104  U.  S.  176,  affirming  Cullins  v.  erly  so  in  Colorado;  Wilkins  v. 
Flagstaff,  etc.,  Co.,  2  Utah  219;  Abell,  26  Colo.  462;  58  Pac.  Rep. 
Stryker  v.   Ca.ssidy,   76  N.  Y.  50.  612:   Little  Valeria,  etc.,  Co.  v.  In- 

33  Pendergast  v.  Yandes,  124  Ind.  gersoll,  14  Colo.  App.  240;  59  Pac. 
159;  24  N.  E.  Rep.  724.  Rep.  970;  Schweizer  v.  Mansfield.  14 

34  Boyle    V.    Mountain,    etc.,    Co.  Colo.  App.  236;  59  Pac.  Rep.  843. 
(N,  'SI),  50  Pac.   Rep.  347.      Same  37  Pelton    v.   Minali,    etc.,    Co.,    11 
result.       Smallhouse     v.     Kentucky,  Mont.  281 ;  28  Pac.  Rep.  310;  Block 
etc.,  Co.,  2  Mont.  443.  v.   Murray,    12   Mont.    545;    31    Pac. 

35  Hopkins    v.    Hudson,    107    Ind.  Rep.  550. 

191;    8    N.    E.    Rep.    91;    St.    Clair  38  Mitchell  v.  Burwell,  110  la.  10; 

Coal  Co.  V.  Martz,  75  Pa.  St.  384;  81  N.  W.  Rep.  193. 

United    Mines    Co.    v.    Hatcher,    79  so  McElwaine  v.  Brown   (Pa.),   11 

Fed.   Rep.  517;    25  C.   C.  A.   4^.  Atl.    Rep.    453;    Thomas    v.    Smith, 

30  Springfield    Foundry,    etc.,    Co.  42  Pa.  St.  68. 

V.  Cole,   130  Mo.   1;    318.  \V.  Rep.  ^o  Acklin  v.  Wolt«rm?:er,  19  Ohio 

922,  reversing  57  Mo.  App.  11.  So  C.  C.  Rep.  372;  10  Ohio  C.  D.  629. 
in    Oregon.      Stinson    v.    Hardy,    27 


378  OIL   AND   GAS. 

In  the  case  of  a  mine,  a  lien  does  not  attach  to  tlie  interest 
of  the  lessee  if  no  minerals  be  found.** 

§  332a.     Oil  or  gas  leased  premises. 

In  order  to  secure  a  lien  on  the  premises  for  which  material 
is  furnished  or  upon  which  labor  is  performed,  it  is  necessary 
that  the  person  purchasing  the  material  or  employing  the 
laborer  should  be  the  owner  or  have  some  interest  in  the  land 
against  which  it  is  sought  to  enforce  the  lien.**"  This  rule  is 
applicable  to  oil  and  gas  leases  or  options.  The  usual  so-called 
lease  or  option  merely  gives  the  person  taking  it  the  right  to 
explore  on  the  land  for  oil  or  gas,  or  both  ;  and  until  he  finds 
either  one  or  the  other  he  has  no  interest  in  such  land,  and 
consequently  no  mechanic's  lien  can  attach  thereto  or  be 
enforced  against  it.  Nor  can  a  lien  be  enforced  against  the 
w^ell  casing  or  tubing  nor  against  any  of  the  personal  property 
used  by  the  lessee  on  the  land.**''  If  the  lessee  find  oil  or  gas, 
then  his  so-called  lease  has  ripened  into  an  interest  in  the 
land,  and  to  that  interest  the  lien  may  attach.  But  here  the 
terms  of  the  contract  between  the  landowner  and  the  so-called 
lessee  must  be  carefully  scrutinized;  for  its  terms  may  be 
such  as  to  give  him  a  present  interest  therein  regardless  of 
the  fact  whether  or  not  the  land  is  developed,  and  when  that 
is  the  case,  such  interest  may  be  subjected  to  the  lien.**<= 

§  333.    Lien  on  oil  well. 

In  Indiana  a  statute  provided  that  "all  persons  performing 
labor  or  furnishing  material  or  machinery  for  erecting,  alter- 

41  Blindert    v.    Kreiser,    81     Wis.  (complaint  failed  to  show  authority 
174;   51  N.  -W.  Rep.  324;   Colvin  v.  to  develop  the  mine).     • 
Weimer,    G4    Minn.    37;    65    N.    W.  4i.aOf   course    purchases   and    cm- 
Rep.  1079.  ploymcnt     tlirough     an     authorized 

If  the  person  purchasing  the  ma-  agent  is  the  same  as  purchases  and 

terial     or    employing    the    plaintiff  employment    by    the    landowner    or 

(aside  from  the  question  of  agency)  principal. 

had  no  interest  in   the  land,   a  lien  -iH)  Ea'^torn  Oil  Co.  v.  McEvoy,  75 

cannot  be  enforced  against  it.     Lit-  Kan.  515;   89   Pac.  Rep.   1048.     See 

tier  V.  Robinson,  38  Ind.  App.  104;  also    Littler    v.    Robinson,    38    Ind. 

77  N.  E.  Rep.  1145    (defective  com-  App.  104;   77  X.  E.  Rep.  1145. 

plaint);   Windfall  Natural   Cas  Co.  4ic  Blindert    v.    Kreiser,    81    Wis. 

V.  Roe,  42  Ind.  App.  278;   84  N.  E.  174;   51  N.  W.  Rep.  324;   Colvin  v. 

Rep.  996;   Brentz  v.  Kerr  Oil,  etc.,  Weimer,    64   Minn.    37;    65    JN.    w. 

Co.  (Cal.  App.),  84  Pac.  Rep.  45,  47  Rep.  1079. 


mechanic's  liens.  379 

ing,  repairing,  or  removing  any  house,  mill,  manufactory,  or 
other  building,  reservoir,  system  of  waterworks,  or  other  struc- 
ture,"  might  have  a  mechanic's  lien.  It  was  held  that  this 
statute  gave  a  lien  for  work  performed  in  drilling  an  oil  well, 
and  for  natural  gas  furnished  the  contractor  as  fuel  with  which 
to  run  the  engine  by  which  power  was  supplied  for  drilling 
the  well.  It  was  considered  that  the  oil  well,  boilers,  engine, 
shafting,  beam,  derrick,  reel,  ropes  and  drill  when  put  in  place 
and  action,  in  drilling  a  gas  well,  constituted  a  "structure" 
within  the  meaning  of  the  statute.  "If  such  appliances  for 
making  a  gas  well  be  a  structure,  it  would  seem  that  a  com- 
pleted oil  well  with  all  its  appliances,  including  the  drilled 
hole  in  the  earth,  with  its  tubing,  should  also  be  regarded  as 
within  the  meaning  to  which  the  language  of  the  statute  may 
legitimately  be  expanded  in  the  application  by  the  courts."" 

§334.     Forfeiture  of  lease. 

A  lien  for  Avork  and  labor  in  putting  up  a  structure  for  a 
lessee  on  his  lease,  to  be  used  in  the  operation  of  a  gas  and  oil 
well,  is  not  impaired  by  the  forfeiture  of  the  lease,  where  t"lie 
lien  attaches  prior  to  the  forfeiture,  nor  by  the  failure  of  the 
lessee  to  drill  a  well  in  accordance  with  the  tenns  of  the  lease, 
where  a  statute  provides  that  "  where  the  owner  has  only  a  lease- 
hold interest,  or  the  land  is  incumbered  by  mortgage,  the  lien 
so  far  as  concerns  the  buildings  erected  by  said  lien  holder  is 
not  impaired  by  forfeiture  of  the  lease  for  rent  or  foreclosure  of 
mortgage ;  but  the  same  may  be  sold  to  satisfy  the  lien  and  re- 
moval within  "  a  certain  specified  number  of  days  after  the 
sale.*' 

<2  Haskell    v.    Gallagher,    20    Ind.  v.   \Valterniior,   19  Ohio   C.   C.  Rep. 

App.   224;    50   N.   E.   Rep.   485;    G7  .372;    10  Ohio  C.  D.   629.     Doubted 

Am.    St.    Rep.    250;    McElwaine    v.  in  Orth  v.  West  &  East  Oil  Co.,  159 

Hosey,  1.35  Ind.  481;  .35  N.  E.  Rep.  Pa.  St.  388;   28  Atl.  Rep.  180.       In 

272;    Hoppes  v.   Bale,    105    la.   648;  drilling  a  well  to  find  minerals,  and 

75  N.  W.  Rep.  495    (a  water  well).  no  minerals  were  found,  it  was  held 

Contra,  Omaha,   etc.,  Co.  v.   Burns,  tliat  no  lien  attached  to  the  lessee's 

49    Neb.   229;    68   N.   W.   Rep.   492;  interest.        Colvin     v.    Woimer      04 

Vandergrift's    Appeal,    83    Pa.    St.  Minn.  37:   05  N.   \V.  Rep.    1079. 
126;  Devine  v.  Taylor,  12  Ohio  Cir.  •«"•  Montpolior.  etc.,  Co.  v.  Stephen- 

Ct.   Rep.    723;    1   Ohio  Dec.   153;    4  son,    22    Ind.    App.    175;    53    N.    E. 

Ohio  Cir.  Ct.  Dec.  248.     See  Acklin  Rep.  444.     Unless  the  statute  gives 


380  OIL   AND    GAS. 

§335.     Retroactive  effect. 

A  law  giving;  a  lien  will  not  be  so  construed  as  to  give  a  retro- 
active effect.  Thus  where  a  statute  did  not  give  a  lien  against 
a  leasehold  interest  in  the  land,  hut  was  so  amended  as  to  give  a 
lien  to  laborers  working  for  the  lessee  against  the  lessor's  in- 
terest in  the  land,  it  was  held  that  the  statute  as  amended  did 
not  apply  to  work  performed  before  it  was  amended.** 

§336.     Priority  of  liens. 

Statutes  giving  mechanics  and  laborers  liens  often  provide 
that  no  lien  on  a  structure  shall  have  preference,  when  tlie 
several  holders  contributed  to  the  same  results  and  their  labors 
all  contxibuted  to  it.  In  Ohio  a  statute  provided  that  where 
several  persons  obtained  liens  on  the  same  "  job,"  they  should 
have  no  priority  among  each  other.  It  was  held  that  the  construc- 
tion of  an  oil  well  was  a  "  job,"  and  all  lien-holders  thereon 
were  on  an  equality.*^  In  Midiigan  a  miner's  lien  accrues  as 
the  labor  is  performed ;  and  where  labor  has  been  performed 
before  the  levy  of  a  writ  of  attachment,  the  laborer  is  entitled  to 
priority  over  it,  although  he  did  not  file  his  notice  of  a  claim 
until  after  the  levy.***  But  a  mortgage  recorded  before  the  con- 
tract for  labor  has  been  made  takes  precedence  of  the  labor's 
lien.*''     A  statute  may  provide  that  a  labor's  or  material  man's 

a   Henholder   the   right   to   sell    and  ^s  Devine  v.  Taylor,   12   Ohio  Cir. 

remove  the  fixtures   he  places  upon  Ct.  Rep.  723;   4   Ohio  Cir.  Ct.  Dec. 

the    leased    premises,    he   cannot    do  248;    1    Ohio   Dec.    153. 

so,  and   his  only  remedy  is  against  ^^  McLiiren    v.    Byrnes,    80    Mich, 

the    premises    and    fixtures    or    real  275;   45  N.   W.  Rep.   143;   Peatman 

estate.    Chicago  Smokeless  Fuel  Gas  v.   Centerville,  etc.,    Jo.,    105  la.   1 ; 

Co.  V.   Lyman,  02   111.   App.  538.  74   X.   W.    Rep.   089    (a  judgment); 

But   in   Kansas  a   lien   cannot   be  Standard  Oil  Co.  v.  Sowden,  55  Ohio 

acquired    on    the    personal    property  St.  332 ;  45  X.  E.  Rep.  320   ( a  mort- 

of  the  lessee  if  he  fails  to  find  oil  gage)  ;   Sicardi  v.  Keystone  Oil  Co., 

or    gas.      Eastern    Ohio    Oil    Co.    v.  149  Pa.  St.  039;   24  Atl.  Rep.  103; 

McEvoy,  75  Kan.  515;  89  Pac.  Rep.  Trust  v.  IMiami  Oil  Co.,  10  Ohio  C. 

1048.  D.  372;    19  Ohio  C.  C.  Rep.  727. 

4-»  United    Mines    Co.    v.    Hatcher,  4-  l\)lsom  v.  Cragen,  11  Colo.  205; 

79   Fed.  Rep.   517;   25   C.   C.  A.  40;  17   Pac.   Rep.   515;    Rawlins  v.   Xew 

Gardner    v.    Resumption,    etc.,    Co.,  Memphis,  etc.,   Co.,   105  Tenn.   208; 

4  Colo.  App.  271;  35  Pac.  Rep.  674;  60  S.  W.  Rep.  206. 
Hunter  v.  Savage,  etc.,  Co.,  4  Xev. 
153. 


mechanic's  liens.  381 

lien  shall  take  precedence  of  a  prior  recorded  mortgage.*''  The 
lien  attaches  when  the  work  is  commenced  or  the  material  fur- 
nished." 

§337.     Notice  of  claim  of  lien  —  description  of  land. 

The  notice  of  the  lien,  or  of  an  intention  to  claim  one,  must 
so  describe  tlie  property  upon  which  the  lien  is  claimed  as  to 
identify  it,  or  the  lien  will  be  void.^**  An  incorrect  description 
of  metes  and  bounds  will  render  the  notice  invalid. °^  The  pre- 
cise words  of  the  statute  need  not  be  followed ;  substantially 
equivalent  expressions  "wall  suffiee.^^  Where  a  statute  required 
among  other  things,  "  the  name  of  the  owner  or  reputed  owaier, 
if  known,  and  also  the  name  of  the  person  by  whom  he  was 
employed,"  to  be  stated,  a  failure  to  insert  in  the  claim  a  state- 
ment by  whom  the  claimant  was  employed  renders  it  fatally 
defective.^^  But  a  statement  that  the  claimant  w-as  employed 
by  the  defendant  company  without  naming  the  company's  agent, 
is  sufhcient.^*  Where  a  statute  requires  "  a  statement  of  the 
terms,  time  given,  and  conditions  of  the  labor  contract^  and  also 
a  description  of  the  proj)ert_y  to  be  charged  with  the  lien  suffi- 
cient for  identification,"  to  be  inserted  in  the  claim,  if  there  is 
set  forth  in  the  claim  the  kind  and  number  of  days  of  labor  per- 
formed, the  dates  between  which  it  was  performed,  wath  the 
aggregate  sum  then  due,  and  "  that  the  terms  of  payment  for 
said  labor  were  cash,  as  soon  as  said  lalwr  was  performed,"  and 
a  description  of  the  property  by  name  and  the  district,  where  it 
is  well  known,  that  will  be  sufficient.""  Under  the  statute  just 
referred  to  as  against  the  interest  of  one  who  enters  and  operates 

^''Warren  v.  Sohn,  112  Ind.  213;  si  Fernandez  v.   Burleson,  supra. 

13  N.  E.  Rep.  863.  52  Aseha  v.  Fiteh    (Cal.),  4G  Par. 

*o  Bristol,     etc.,     Co.     v.     Bristol,  Rop.  208;    Bewick  v.  Muir,   83  Cal. 

etc.,   Co.,   99   Tenn.    371;    42   S.   W.  373;   23  Pac.  Rep.  300. 

Rep.  19.  53  Asolia  v.   r-'tch.  supra. 

60  Fernandez  V.  Burleson,   110  Cal.  54  Malone  v.  Bif^  Flat  Gravel  Co., 

164;   42  Pac.   Rep.   566;    Rico,   etc.,  76  Cal.  578;   18  Pac.  Rep.  772. 

Co.    V.    Mustrrave,    14    Colo.    70;    23  s.-;  Tredinnick    v.    Red    Cloud,    etc., 

Pac.    Rep.    4.58;    Tredinniek    v.    Red  Co.,  72  Cal.  78;  13  Pac.  Rep.  152. 
Cloud,  etc.,  Co.,  72  Cal.  78;   13  Pac. 
Rep.  152. 


382  OIL   AND   G.VS. 

several  claims  as  one  mine,  thoy  may  be  treated  as  a  single 
claim,  and  declared  ujwn  as  sucb.^° 

§338.     Assignment  of  claims. 

A  claim,  secured  by  a  meebanic's  lien,  may  be  assigned ;  and 
the  assignment  will  carry  tbe  lien  so  that  tlie  assignee  can  en- 
force it/^  And  if  the  statute  provide  for  a  penalty  and  attor- 
ney's fees,  the  assignee  may  also  recover  these.^® 

§339.     On  plant  of  public  gas  company. 

A  lien  may  be  acquired  on  the  plant  of  a  gas  company  fur- 
nishing gas  to  a  municipality  for  work  and  materials  furnished 
as  readily  as  upon  an  entirely  private  concern.  And  the  fact 
that  the  public  might  be  inconvenienced  is  not  a  bar  to  the  en- 
forcement of  the  lien.^^  The  entire  plant  of  the  company  is 
subject  to  the  lien,  including  pipes  laid  in  the  streets  of  the 
municipality  and  on  the  interest  of  the  company  in,  the  prem- 
ises.®" By  special  agreement,  one  furnishing  machinery  for  a 
gas  plant  may  retain  a  lien  on  the  machinery'  he  furnishes,  for 
its  price,  after  it  is  affixed  to  the  company's  premises, '^^  And 
even  where  it  is  held  that  a  lien  cannot  be  acquired  upon  the 

56  Hamilton  v.  Delhi  Mininj?  Co.,  Water  Co.,  .52  Fed.  Rep.  4.3;  Oconto 

118  Cal.  148;  50  Pac.  Rep.  378.  Water  Co.  v.  National  Foundry,  59 

s^Malone  v.  Big  Flat  Gravel  Co.,  Fed.  Rep.  19;  7  C  C.  A.  603;  Bris- 

76  Cal.  578;   18  Pac.  Rep.  772.  tol    Goodson,    etc.,    Co.    v.    Bristol, 

58  Mitchell    V.    Burwell,     110    la.  etc.,   Co.,   99   Tenn.   371;    42   S.   W. 
10;    81   N.'W.  Rep.   193.  Rep.    19;    Rawlings    v.    New    Mem- 

59  Wood  V,  Holly  Mfg.  Co.,  100  phis,  etc.,  Co.,  105  Tenn.  268;  60  S. 
Ala.  660;  13  So.  Rep.  948;  Badger  w.  Rep.  206;  Goss  v.  Helbing,  77 
Lumber  Co.  v.  Marion,  etc.,  Co.,  48  Cal.  190;  19  Pac.  Rep.  277;  Light 
Kan.  187;  30  Pac  Rep.  117;  affirm-  Co.  v.  Gill,  14  Pa.  Co.  Ct.  Rep.  6; 
ing  29  Pac.  Rep.  476;  Oconto  Water  McNeal,  etc.,  Co.  v.  Howland,  111 
Co.  V.  National  Foundry,  59  Fed.  N.  C.  615;  16  S.  E.  Rep.  857;  20 
Rep.  19;  7  C.  C.  A.  003;  National  L.  R.  A.  743.  But  see  Eufaula 
Foundry  Co.  v.  Oconto  Water  Co.,  Water  Co.  v.  Addystone  Water  Co., 
52  Fed.  Rep.  43;  Steger  v.  Artie  89  Ala.  522;  8  So.  Rep.  25. 
Refrigerator  Co.,  89  Tenn.  453;  14  6 1  Wood  v.  Holly  Mf.  Co.,  100 
So.  Rep.   1087;   11  L.  R.  A.  580.  Ala.  326;   13  So.  Rep.  948. 

eo  National    Foundry    v.    Oconto 


mechanic's  liens.  383 

premises  of  a  gas  company  supplying  a  city  with  gas,  a  lien  may 
be  retained  on  machinery  sold  conditionally  to  the  gas  cdui- 
pany.''"  Where  a  lien  cannot  be  obtained  on  the  plant  itself, 
because  of  the  fact  that  the  company  has  no  interest  in  tiie 
premises  sufficient  for  a  lien,  and  a  .statute  gives  the  person  fur- 
nishing machinery  a  lien  on  such  machinery  and  the  right  to 
remove  it,  yet  he  cannot  acquire  a  lien  on  the  pipes  in  the  street 
connect-ed  with  the  plant,  they  not  being  subject  to  a  lien ;  for 
the  plant  is  an  integer,  and  cannot  be  separated  under  a  lien.®^ 
Yet  when  a  company  was  conducting  a  plant  for  a  city,  and  gave 
a  trust  deed  on  the  machinery  to  the  vendor  of  it,  providing 
that  the  machiner\'  should  not  be  considered  as  fixtures  until 
it  was  paid  for ;  it  was  held  that  public  necessity  required  the 
plant  and  the  company's  franchise,  where  it  was  in  the  hands  of 
a  receiver,  to  be  sold  together,  and  that  the  trust  deed  s.hould 
be  a  specific  lien  thereon  to  the  extent  of  the  value  of  the  ma- 
chinery."* 

§  340.     Oil  refinery — ParaflGine  works. 

An  oil  refinery  is  a  building,  within  the  meaning  of  that  term 
as  used  in  a  statute ;  and  a  lien  may  be  secured  upon  it  by  a 
material  man  furnishing  timbere  for  it.®^  And  although  the 
se^'eral  structures  constituting  the  refinery  consist  of  appliances 
put  up  in  the  oj)en  air,  and  are  not  enclosed  under  a  roof  or  shed, 
yet  a  material  man's  lien  for  furnishing  material  for  any  one 
of  such  appliances  extends  to  the  whole  refinery.*'"  Paraffine 
works  are  part  of  a  refinery.*'^ 

«2  Holly  Mf.  Co.  V.  New  Chester  ee  Titusville  Iron  Works  v.  Key- 
Water  Co.,  48  Fed.  Rep.  879.  stone  Oil  Co.,   130  Pa.   St.   211;    18 

63  Oconto   Water   Co.   v.   National  Ail.  Rep.   7.39;   Linden  Steel  Co.  v. 

Foundry,  59  Fed.  Rep.   19;   7  C.   C.  Imperial   Refining  Co.,    138  Pa.   St. 

A.  603.  10;    20   Atl.   Rep.   867,   869. 

6*  McNeal  Pipe,  etc.,  Co.  v.  Wolt-  «7  Sicardi    v.    Keystone    Oil    Co., 

man.  114  N.  C.  178;   19  S.  E.  Rep.  149  Pa.   St.    139;   24  Atl.  Rep.   161, 

109.  163. 

85  Short    V.    Miller,     120    Pa.    St. 
470;  14  Atl.  Rep.  374. 


CHAPTER  XVIL 

MORTGAGES. 

Art.  1.     Mortgage  of  oil  or  mining  property. 
Art.  2.     Mortgage  of  gas  plant. 

AKTICLE  1. 
MORTGAGE  OF  OIL  OR  MINING  PROPERTY. 

§341.  Leasehold  may   be   mortgaged  by   lessee. 

§342.  Lessor   may   mortgage   premises. 

§343.  Mortgage  of  oil  or  mining  lease  in  Pennsylvania. 

§344.  Mortgagor  may  remove  gas,  oil  and  minerals. 

§345.  Mortgagor  in  possession. 

§346.  Mortgagee  in  possession. 

§347.  Mortgagee  in  possession,  English  rule. 

§341.     Leasehold  may  be  mortgaged  by  lessee. 

A  leasehold  estate  may  be  mortgaged,  even  though  it  be  an  es- 
tate only  for  years  j  ^  and  the  same  is  true  of  a  lease  to  take  out 
mineral,  gas  or  oil ;  for  such  a  lease  gives  a  freehold  interest 
in  the  land.'  The  mortgage  must  be  recorded,  according  to 
the  registry  laws  of  the  State  where  the  lands  leased  lie;  and  if 
recording  is  necessary  to  the  validity  of  an  ordinary  mortgage, 
then  a  mortgage  of  a  leasehold  estate  must  be  recorded.^  The 
mortgagee  is  entitled  to  the  benefit  of  any  covenants  in  a  lease, 
as  for  a  renewal ;  and  if  there  be  a  rencAval,  his  mortgage  at- 

1  Walton  V.  Cronly,  14  Wond.  63;  2  Heller  v.   Dailey,   28   Ind.   App. 

Aster   V.    Miller,    2    Paige    Ch.    68;       5.55;  63  N.  E.   Rep.  490. 
Astor  V.  Hoyt.  5  Wend.  603 ;  Childs  3  Lester  v.  Hardesty,  29  Md.  50. 

v.   Clark,   3    Barb.   Ch.   52;    Broman 
V.  Young,  35  Hun  173. 

384 


MORTGAGES.  384il 

taclics  to  the  renewed  lease/  Where  tlie  royaUies  on  coal  and 
iron  mined  on  tlic  premises  were  to  Ix'  paid  before  the  coal  or 
iron  was  removed  from  the  premises,  it  was  held  that  the  lessee 
was  entitled  to  bo  paid  before  the  niortga^iee  of  the  lessee,  out 
of  the  funds  of  the  lessee's  a2;ents  arising  from  a  sale  of  coal 
an5  iron  and  paid  into  court.  The  lessee  was  treated  as  a  m<irt- 
gagor  in  ]X)Ssession  who  was  entitled  to  the  rents  and  profits  as 
against  the  mortgagee."'^  In  Ohio  it  has  been  held  that  a  real 
estate  mortgage,  given  by  the  lessee,  will  not  bind  the  leasehold 
or  the  lessee's  interest,  because  such  a  leasehold  is  not  real  estate 
or  an  interest  in  the  freehold;  and  the  question  was  left  o]H^n 
whetlier  a  chattel  mortgage  w^ould  bind  it.*^  The  same  was  also 
held  in  Xew  York.^ 

§342.     Lessor  may  mortgage  premises. 

A  lessor  may  mortgage  the  premises  leased,  but  the  mortgage 
will  be  subject  to  the  terms  of  the  lease,  aside  from  the  question 
of  accepting  a  mortgage  without  notice  of  such  lease.  The 
mortgagee  has  only  the  rights  of  tlie  mortgagor  as  against  tlie 
lessee,  his  assignee  or  sublessee.*  Until  default  in  the  ]U'ovi 
sions  of  the  mortgage,  at  least,  the  mortgagor,  if  in  possession, 
is  entitled  to  the  rents  and  profits  due  under  the  lease,  and  the 
mortgage  is  not  a  lien  upon  them."  It  makes  no  difference 
whether  the  mortgage  was  executed  Ix-fore  or  after  the  date  of 
the  lease ;  payment  to  the  mortgagor  is  good  until  the  mortgagee 
interferes.^"     Where  the  law  of  the  State  is  that  the  mortgagee 


*  Slee  V.  Manhattan  Co.,   1   Paige  «  Hemphill  v.  Giles.  Ofi  X.  C.  .512. 

Ch.  48.  0  Bank  of  Ogdensbuifrh  v.  Arnold, 

sChilds  V.  Hurd,  32  W.   Va.  66;  5    Paige    Ch.    38;     Fitrhburg.    etc. 

9   S.  E.  Rep.   362.  Corp.  v.  Melven.  lo  ]Mass.  268;  Long 

«  Meridian,  etc.,  Bank  v.  McConi-  v.    Wade,    70    Me.    358;    Clarke    v. 

ca,  8  Ohio  Cir.  Ct.  Rep.  442;  4  Ohio  Curtis,   1   Gratt.  289;   McKircker  v. 

Dec.  106.  Ilawloy,    16    Johns.   280. 

7  Broman  v.  Young,  3.5  ITtin   173;  i"  Trent  v.  Hunt,  0  Exch.  14.  22; 

First    National    Bank    v.    Dow,    41  Edwards    v.    Woodbury.    1    McCray 

Hun    13.  429;    3    Fed.   Rep.   14. 


384b  OIL   AND   GAS. 

shall  not  Iw  entitled  to  take  possession  of  the  mortgaged  prem- 
ises prior  to  a  foreclosure,  the  mortgagor  may  take  a  valid  as- 
signment of  tlie  rents  and  profits,  and  the  assignee  may  enforce 
his  right  to  take  them."  In  snch  a  case  the  mortgagor  is 
entitled  to  the  rents  accruing  nntil  there  has  been  a  foreclosure, 
a  sale,  and  the  title  to  the  mortgaged  premises  has  vested  in  the 
purchaser.  And  where  the  lessee  was  the  purchaser,  but  there 
was  a  delay  of  several  weeks  after  the  sale  before  he  received 
his  deed,  during  which  a  quarter's  rent  fell  due,  it  was  held  that 
the  lessor  (and  mortgagor)  was  entitled  to  such  rent.^^  If  the 
mortgagee  take  a  lease  of  the  premises  from  his  mortgagor,  and 
afterwards  the  equity  of  redemption  be  sold  he  can  not  insist, 
as  against  the  purchaser,  that  the  rents  be  set  off  against  the 
mortgage  debt.^'  After  a  mortgage  has  been  given,  the  mort- 
gagor cannot  make  a  lease  that  will  be  binding  on  the  mort- 
gagee." If  the  mortgagee  enter  for  breach  of  the  condition  of 
the  mortgage,  and  accept  rent  from  the  lessee,  the  latter  be- 
comes his  tenant  under  a  tenancy  from  year  to  year,  and  not 
for  the  term  as  fixed  by  the  lease.^^  But  if  he  do  not  so  accept 
rent,  he  may  treat  the  lessee  as  a  trespasser.^"  The  lessee  can 
not  compel  the  mortgagor  to  pay  off  the  mortgage ;  his  remedy 
being  an  ordinary  action  for  damages,  if  he  be  (lis]x)ssessed  un- 
der it  by  reason  of  its  terms. ^^  But  if  the  mortgagee  take  pos- 
session in  a  State  where  no  statute  authorizes  him  to  do  so,  on 
default  of  the  mortgagor,  and  he  takes  it  by  reason  of  tlie  consent 
of  the  latter,  a  verbal  agreement  of  the  lessee  to  pay  such  mort- 
gagee the  rent  under  the  lease,  does  not  continue  the  existing 
tenancy,  nor  put  him  in  the  place  of  the  lessor.  If  held  valid  at 
all,  it  must  be  held  to  be  a  new  agreement. ^^  If  tlie  lessee  cov- 
enants in  the  lease  to  pay  the  royalties  to  the  person  holding  a 

11  Syracuse  City  Bank  v.  Tallman,  ir.  Iluohcs  v.   Buckndl,    8  C.   and 

31   Barb.   201;    Argall   v.   Pitts,    78  P.   566. 
N.  Y.  239.  16  Birch  v.  Wright,  1   T.  R.  378; 

i2Clason  V.  Corley,  5  Sandf.  447.  Thunder    v.    Belcher,    3    East   449; 

13  Scott   V.  Fritz,  51   Pa.  Li.  418.  Rogers  v.  Humphreys,  4  Ad.  and  El. 

See  Taliaferro  v.   Gay,   78  Ky.  406.  299. 

"McDermott    v.    Burke.    16    Cal.  it  Costigan     v.     Hastier,      2     Sch. 

580;  Russem  v.  Wanser.  53  Md.  92;  and   Lef.    160. 
ITonshaw  v.  Wells,  0  Humph.  568.  is  Hogsett  v.  Ellis,   17   Mich.  351. 


MORTGAGES.  384c 

inortgago  on  llic  jM-cinisos,  siicli  jioi^son  may  maintain  an  actittn 
against  him  to  recover  such  royalties,  irres]T€ctive  of  the  fact 
that  sueli  lease  is  under  setil,  under  the  modem  system  of  pro- 
ceedure.^'"* 

§343.     Mortgage  of  oil  or  mining  lease  in  Pennsylvania. 

In  Pennsylvania  statutes  control  the  mortgao-ini!;  of  mining 
leases.  By  the  Act  of  April  27,  1855  -"  it  is  declared  "  tx»  bo 
lawful  for  every  lessee  for  term  of  years  of  any  colliery,  mining 
land,  manufactors',  or  other  premises,  to  mortgage  his  or  her 
lease  or  term  in  the  demised  premises,  with  all  buildings,  fix- 
tures and  machineiy  thereon,  to  the  lessee  belong  [  iug]  and 
thereunto  ajijnirtcnant,  with  the  same  effect-  as  to  the  lessee's 
interest  and  title,  as  in  the  case  of  the  mortgaging  of  a  free- 
hold interest  and  title  as  to  lien,  notice,  evidence  and  privity  of 
payment."  It  also  provides  that  the  mortgage  must  "  be  in 
like  manner  acknowledged  and  placed  of  record  in  the  ]ii'(ipo' 
county,  together  with  the  lease,  and  that  such  mortgage  shall  i:i 
nowise  interfere  with  the  landlord's  rights,  privity  or  remedy 
for  rent,  and  such  mortgages  may  be  sued  out  as  in  other  cases." 
A  subsequent  Act  (April  3,  1868)  '^  provides  that  '*  in  all 
cases  of  mortgages  upon  leasehold  estates,  the  mortgagees  shall 
have  tlie  same  remedies  for  the  collection  thereof  which  mort- 
gagees of  real  estate  have  under  the  laws  of  this  commonwealth.  ' 
A  third  Act  (May  13,  1870,)  "  provides  "  whenever  a  lease  c 
term  of  years  shall  have  heretofore  been  or  shall  her(>nfter  l'> 
mortgaged  under  the  Act  of  April  27,  1855,  .  .  .  if  the 
lease  shall  be  recorded  in  the  da'A  Imoks  of  the  jinipcr  (-(mnty 
before  the  execution  of  the  niortgage  or  shall  thus  be  rcc(ir(l('(' 

10  Central   Trust  Co.   v.    Borwind-  appointed    in   a    forpclosuro   suit,   na 

White  Coal  Co.,  95  Fed.  Rep.  .391.  aofainst     the     mort<ra<:oo.      on      the 

If  the  lease  be  taken  after  a  mort-  <rround  that  he  expended  money  to 

gage  has  been  placed,  on  the   prem-  render  them  productive.    O.  B.  Ming, 

ises  by   the   lessor,   it  is   subject  to  Co.  v.  First  National  Bank,  9^^  Fed. 

the  mortgage,  even  though  the  mort-  Rep.  .3.5;   35  C.  C.  A.  510.  afTirming 

gage  was  contested;    and   if  its  va-  89   Fed.  Rep.  449. 

lidity   be   sustained,    he   is   not  en-  20  p.  jj.  369. 

titled  to  claim   the  proceeds  of  the  21  p.  L.  57^  gee.  1. 

mine   while   operated  by   a   receiver  22  p.  L.   160. 


384d  OIL,   AND   GAS. 

at  the  time  of  recording  the  mortgage,  such  recording  shall  be 
deemed  a  sutticient  compliance  with  the  requirements  of  the 
Act  widi  reference  to  recording  such  lease."  And  it  also  pro- 
vides tliat  a  "  full  distinct  reference  "  shall  "  be  made  in  said 
mortgage  to  the  book  and  page  where  the  said  lease  is  recorded." 
Under  the  first  Act  it  has  been  held,  in  order  to  give  priority  of 
the  mortgagee  over  an  execution  creditor  of  the  mortgagor,  the 
lease  must  be  recorded  with  the  mortgage."^  And  under  this 
statute,  recording  the  mortgage  with  a  copy  of  the  lease,  and 
referring  to  tlie  latter  as  recorded  with  a  former  mortgage,  it 
was  held  to  be  a  substantial  compliance  with  the  act."*  The 
Act  of  1868  applies  to  actions  begun  before  it  was  enacted,  to 
enforce  the  colleotion  of  mortgages  in  the  same  manner  as  it 
provides  for.""^  Of  course,  all  three  statutes  must  be  const med 
in  pari  materia.^^  The  Act  of  1855  applies  to  leases  for  oil 
or  gas,  although  enacted  before  either  was  discovered.-^  The 
mortgage  and  leas©  need  not  bear  the  same  date,  if  recorded  at 
the  same  time  in  tlie  same  connection."^  If  the  mortgage  cover 
the  personal  property  on  the  leasehold  premises,  the  mortgagee 
may  follow  and  recover  it  wherever  he  finds  it,  notwithstanding 
his  debt  is  not  due  at  the  time  he  claims  it.""  ^''either  the  Act  of 
1855  nor  that  of  1868  embrace  a  leasehold  vesting  a  freehold  in- 
terest in  the  mortgagor.'"  The  Acts  of  1855  and  1876  apply  to 
a  leasehold  interest  in  a  city  lot  for  a  term  of  years,  the  lessee 
paying  a  yearly  rent  and  being  required  to  erect  a  building 
thereon.''  The  word  "  fixture"  as  used  \\\  the  Act  of  1855  is 
not  to  be  construed  in  its  strict  sense,  but  in  a  comprehensive 
way,  and  includes  mine  cases  and  all  such  machinery  and  ap- 

23  Sturtevant's  Appeal,  34  Pa.  St.  27  Gill    v.    Weston,     110    Pa.    St. 

149;    Gladinjr  v.    Frick,    88    Pa.    St.  312;  1  Atl.  Rep.  921. 

400.     See    First    National    Bank   v.  28  Gill    v.    Weston,    110    Pa.    St. 

Sheafcr.    149   Pa.    St.    236;    24   Atl.  312;  1  Atl.  Rep.  921. 

Rep-   221.  29  Gill    V.    Weston,     110    Pa.    St. 

24Ladlpy  v.  Crei<?hton,  70  Pa.  St.  312;  1  Atl.  Rep.  921. 

490.  30  Railroad  Co.  v.  Sanderson,   109 

25  Hosie  V.  Gray,  71   Pa.  St.   198.  Pa.  St.  583. 

2CGlading   v.    Frick,    88    Pa.    St.  3i  Hilton's    Appeal,    116    Pa.    St. 

460.  351;    9   Atl.    Rep.   342. 


MORTGAGES.  385 

pliances  which  arc  essential  to  the  operation  of  a  colliery,  not, 
however,  prop-timber.^^ 

§344.     Mortgagor  may  remove  gas,  oil  and  minerals. 

The  mortgagor  of  gas,  oil  or  mining  hinds  may  extract  the 
oil  or  gas  or  remove  the  minerals,  and  convert  them  into  money, 
if  tlie  gas  or  oil  wells  or  mine  operated  were  dug  or  opened  at 
the  time  the  mortgage  was  placed  u}X)n  the  premises;  but  if 
they  were  not,  tlien  the  lands  cannot  be  so  worked,  for  it  is 
waste  as  against  the  mortgagee  to  permit  it,  even  thongli  the 
land  was  purchased  as  mineral  land.^^  To  remove  and  convert 
into  money  minerals  underlying  the  soil  is  not  waste,  unless  it 
was  necessary  to  penetrate  tlie  soil  to  secure  such  minerals.^* 
The  only  restriction  on  the  mortgagor  is  that  he  must  not  en- 
danger or  seriously  impair  the  lien  of  the  mortgage.^^  In  one 
case,  after  decree  of  foreclosure  and  execution  issued,  the  mort- 
gagor quarried  stone  from  a  quarry,  alrendy  open  ;  and  it  was 
held  tliat  as  between  him  and  the  mortgagee,  the  latter  was  en- 
titled to  the  stone.^® 

§345.     Mortgagor  in  possession. 

In  this  country  tlie  mortgagor  is  usually  entitled  to  |X)ssession 
after  default,  and  until  a  foreclosure  of  the  mortgage  and  sale  of 
the  mortgaged  premises,  unless  a  receiver  be  appointed ;  and 
also  until  the  time  for  redemption  has  expired,  where  a  redemp- 
tion is  allowed.  Where  a  statute  provided  that  the  mortgagor 
should  be  entitled  to  the  possession  of  lands  or  tenements  sold 
under  execution,   until  the  expiration  of  fifteen  months  from 

32  Baker  v.  Athcrton,  15  Pa.  Co.  an  Duff's  Appeal,  21  W.  X.  C.  4!)1 ; 
Ct  Rep.  471.  Ward   v.    Carp   River    Iron    Co.,   50 

33  Ward  V.  Carp  River  Iron  Co.,  Mich.  522;  15  N.  W.  Rep.  880;  Ver- 
47  Mich.  65;   10  N.  W.  Rep.  109.  valcn    v.    Older,    4    Halst.     (N.    J.) 

34  Duff's  Appeal,  21  W.  N.  C.  491 ;  Ch.  98. 

Capner  V.  Minin<T  Co.,  2  Greens.   (N.  36  American    Trust    Co.    v.    North 

J.)   Ch.  407;  Childs  v.  Ilurd.  32  W.  Quarry  Co..    31    N.  J.   Eq.   89.     See 

Va.  (56;  9  S.  E.  Rep.  362;  Vervalen  I.cport   v.   Mining    Co.,   3   N.   J.   L. 

V.  Older,  4   Halst.    (N.  .7.)    Ch.  98;  Jr.    280. 
Leport   V.   Mining  Co.,    3   N.   J.   L. 
Jr.  280. 


386  on.  AND  OAS. 

tlio  time  of  the  sale,  and  use  and  enjoy  the  premises  without 
being  guilty  df  waste,  in  the  same  manner  and  for  the  like  pur- 
poses, in  wliich  and  for  which  they  were  used  and  applied  prior 
to  the  sale,  dtnng  no  ])ernianeiit  injury  to  the  freehold,  it  was 
held  tlie  working  of  the  open  mines  and  the  removal  of  ore  from 
them  was  permitted  by  the  statute;  but  not  the  opening  of  new 
mines.'*'  "  The  judgment  debtor  was  entitled  to  continue  the 
working  of  a  mine  in  a  reasonable  and  prudent  manner,  having 
regard  to  the  customary  working  before  the  sale,  and  to  dispose 
of  the  proceeds.  If  the  mining  was  improper,  excessive  or 
wasteful,  it  might  at  any  time  have  been  restrained,  and  the 
parties  responsible  for  and  held  liable  for  the  damages."  ^' 
Where  the  mine  underlies  a  farm,  which  has  been  mortgaged 
for  the  purchase  money,  any  necessary  and  proper  use  of  tlie 
fanu  in  carrying  on  the  mining  operations  is  not  a  waste.^'* 
But  if  the  o]>erations  proceed  so  far  as  to  endanger  the  security, 
then  the  holder  of  it  is  entitled  to  an  injunction  restraining  the 
further  operation  of  the  mine.*° 

§346.     Mortgagee  in  possession. 

Where  the  mortgagee  of  a  mining  property  goes  into  posses^ 
sion  of  the  mortgaged  premises,  by  reason  of  a  default  in  pay- 
ment, he  has  a  right  to  work  the  mines  that  are  open,  but  he  is 
not  bound  to  do  so.  He  ought  not  to  advance  more  money  in 
a  mining  speculation  than  a  prudent  man  would  do;  for  if  he 
does,  and  loses  it,  he  cannot  charge  the  loss  up  to  the  mortgagor.*^ 

37  Ward  V.  Carp   River  Iron   Co.,  it    thereon,    it    was    held    that   the 

47  Mich.  65;   10  N.  W.  Rep.  109.  stone  thus  quarried  was  subject  to 

3'*  Ward   V.  Carp  River   Iron  Co.,  the  lien  of  the  mortgage.    American 

50  Mich.  522;  15  N.  W.  Rep.  889.  Trust  Co.   v.   Quarry  Co.,   31   N.   J. 

39  Capner  v.  Mining  Co.,  2  Gr.  Eq.  89.  See  Leport  v.  Mining  Co., 
Ch.   (N.  J.)    467.  3  N.  J.  L.  J.  280. 

40  Appeal  of  Duff,  21  W.  N.  C.  4i  Rowe  v.  Wood,  1  J.  and  W. 
(Pa.)  491.  A  stone  quarry  may  be  555;  Elias  v.  Snowden  Slate  Co.,  4 
operated  by  the  mortgagor.  Verva-  App.  Cas.  455;  18  L.  J.  Ch.  811; 
len  V.  Older,  4  Halst.  Ch.  98.  26  W.  R.  869;  38  L.  T.  871 ;  Hughes 

See   where    an   insolvent   corpora-  v.  Williams,  12  Ves.  493;  Thorney- 

tion.  after  decree  in  foreclosure  and  croft  v.  Crockett,  16  Sim.  445;  2  H. 

an  execution  issued  against  it.  quar-  L.  Cas.  239;   12  Jur.  1081. 
ried  stone  on  the  premises  and  left 


MORTGAGES.  387 

In  sucli  an  insUmoo  tJio  mortgagee  is  entitled  to  his  expenses  in 
necessary'  rej^airs  of  tlie  mine,  as  "  just  allowances."  *'  If  the 
security  is  insufficient  to  satisfy  the  mortgage,  the  mortgagee 
may  ojien  new  mines  on  the  mortgaged  ])r(Muises,  and  the  court 
will  allow  him  his  costs  in  so  doing. *^  If  the  opening  of  a  new 
mine  results  in  a  loss,  he  must  pay  it;  if  in  a  profit,  tlie  mort- 
gagor is  entitled  to  a  credit  on  his  debt  to  the  extent  of  the 
amount  of  the  profit/*  But  if  tlie  security  is  sufficient,  then 
the  mortgagee  in  possession  may  not  o]x^n  a  new  mine.'"^  If 
the  mortgagor  may  not  open  a  new  mine,  his  mortgagee  in  ]X>s- 
session  may  not.  The  mortgagee's  right  in  tlie  premises  is 
measured  by  the  rights  of  tlie  mortgagor  at  the  time  the  mort- 
gage is  executed.**^  In  case  of  a  default  in  the  mortgage,  the 
mortgagee,  instead  of  taking  possession,  may  a])ply  for  a  re- 
ceiver to  operate  the  mine,  for  a  colliery  is  a  business.*^  But 
the  mortgagor  cannot  secure  the  appointment  of  a  receiver  when 
the  mortgagee  is  in  possession,  even  though  he  alleges  miscon- 
duct on  the  latter's  part;  for  the  mortgagor  cannot  in  that  way 
turn  out  the  mortgagee  so  long  as  any  of  the  debt  remains  un- 
paid.*** If  the  mine  be  flooded  by  the  careless  conduct  of  the 
mortgagee  in  working  it,  he  will  be  liable  to  make  good  the 
loss.*^  There  ought  to  be  inserted  in  every  mortgage  of  a  colliery, 
and  this  is  also  true  of  every  mortgage  on  oil  or  gas  lands,  a 
clause  enabling  the  mortgagee,  in  case  he  takes  possession,  or, 
where  an  agreement  as  to  possession  is  not  allowed,  to  apply 
for  and  have  a  receiver  appointed  to  work  the  mine,  if  the  mine 

42  Tipton  Green  Colliery  Co.  v.  4e  Elias  v.  Griniths.  8  Cli.  Div. 
Tipton  Moat  Co.,  7  Ch.  Div.  192;  47  .521;  40  L.  J.  Ch.  800;  20  W.  R. 
L.  J.  Ch.  152;  20  W.  R.  .348..  See  869;  .38  L.  T.  871;  S.  C.  4  App. 
Millett  V.  Davey,  31   Beav.  470;   32  Cas.  454;  48  L.  J.  Ch.  203. 

L.   J.  Ch.  122;   7  L.  T.  551;    11  W.  47  Jefferys  v.  Smith,  1  .7.  and   W. 

R.  170;  9  Jur.    (N.  S.)    92.  298;  Glouoester  Bank  v.  Rudry  Col- 

43  Hughes  V.  Williams,  12  Ves.  liery  Co.  [1895],  1  Ch.  029;  Canip- 
493.  Lell   V.   Lloyd's  Bank    \\9,f)l].   1    Ch. 

44  Millett  V.  Davey,  supra.  130,  note;   Peck  v.  Trinsniaran  Co., 

45  Thorneycroft    v.     Crockett,     16  Z  Ch.  Div.  115;  24  W.  R.  301. 
Sim.  445;  2  H.  L.  Cas.  239;   12  Jur.  4s  Rowe    v.    Wood.    1    J.    and    W. 
1081;  Hood  v.  Easton,  2  Giff.  692;  555;  2  J.  and  W.  5.53. 

2  Jur.  (N.  S.)  729;  27  L.  T.   (O.  R.)  4n  Taylor  v.   Mostyn,   33    Ch.  Div. 

295;  4  W.  R.  575.  220. 


388  OIL   AND    GAS. 

be  a  matorial  portion  of  the  security.^"  Tf  the  mortgage 
is  of  the  interest  of  one  co-tenant,  tJie  mortgagee  is  entitled  to 
the  same  account  as  the  co-tenant  himself."^  If  the  mortgagee 
in  possession  of  a  colliery  improperly  work  it,  his  mortgagor 
may  obtiiin  an  injunction  to  prevent  tlie  wrong  working  of  it, 
though  not  the  proper  working.^'  As  against  a  mortgagee  in 
possession,  a  mortgagor  is  entitled  to  an  accounting;  and  in 
such  an  action  tlie  mortgagee  must  account  for  not  only  all  he 
has  actually  received,  hut  for  what  ho  might  have  received  but 
for  his  gross  mismanagement  or  wilful  ncglcct.^^ 

§347.     Mortgagee  in  possession,  English  rule. 

We  take  the  following  statement  of  the  law  in  England  with 
reference  to  mines,  where  the  mortgagee  is  entitled  to  possession 
of  the  premises  after  default  made,  from  Bainbridge  on 
Mines  :^*  "A  mortgagee  has  in  law  an  absolute  estate  in  the 
lands  mortgaged,  and  is  entitled,  after  default  in  payment  of 
the  mortgage  debt,  to  take  immediate  possession,  and  to  receive 
the  rents  and  profits  of  the  mortgaged  estate.^^  And  as  regards 
the  mines  and  minerals  within  or  under  the  lands  comprised 
in  the  mortgage,  he  will  be  entitled  to  work  any  mines  or  quar- 
ries which  have  been  already  opened ;  but,  of  course,  he  is  not 

bound  to  do  so at  least,  in  the  general  case;  and  in  no  case 

ought  he  to  advance  more  money  in  a  mining  speculation  than 
a  prudent  owner  would  do.  For,  as  Lord  Eldon  very  justly 
observed,  if  he  were  owner  he  might  sywculate  for  himself  as 
much  as- he  pleased — sell.,  because  the  advantages,  whatever 
they  might  be,  would  be  his,  and  if  the  speculation  turned  out 
unfortunate,  he  would  bear  the  loss ;  but  could  a  mortgagee  be 

BO  Norton  V.  Cooper,  5   De  G.  M.  ^3  Hiifjhes    v.    Williams,    12    Vea. 

and  G.   728;    25   L.   J.   Ch.    121;    23  493;  Norton  v.  Cooper,  25  L.  J.  Ch. 

L.  T.   (0.  tt.)    125;  2  W.  R.  302.  121;    5    De    G.   M.    and    G.   728;    23 

siBentlcy  v.    Bates,   4   Y.   and    C.  L.  T.    (0.  S.)    125;   2  W.  R.  362. 

Exch.  182;  9  L.  J.  Exch.  30;   4  Jur.  As  to  preference  of  a  supply  man 

552.  furnisliing  coal  to  run  a  gas  plant  in 

•"■'2  Taylor  v.  ilostyn,  23   Ch.   Div.  the  hands  of  trustees,  see  l^)uisville 

583;    53    L.    J.    Ch.*89;    Sheehy    v.  &  N.  R.  Co.  v.  Memphis  Gaslight  Co., 

Muskerry,   1   H.  L.  Cas.  576;    7   CI.  60  C.  C.  A.   141;    125   Fed.  Rep.  97. 

and  F.   1;  Taylor  v.  Mostyn,  25  Ch.  s*  Pp.  32-38   (5th  ed.). 

Div.  48.  r-''  Williams  v.  Medlicott  (1819),  6 

Trice  496. 


MORTGAGES.  389 

required  to  risk  his  owni  fortuno  in  sncli  a  s]x^,oTilat,ion,  aiid  to 
incur  the  hazards  of  an  advcMiturc  the  iM'nctits  ni"  which  wtuihl 
redound  to  the  inortgai^or  ?  ^'"'  A  niortj:;agee  in  ]X)Ssession  In'ing 
aecoimtiible  for  wilful  default,  it  seems  to  follow,  that  if  the 
projx?rty  iu  mortgage  bo  a  mineral  estate,  the  mortgaj?tH3  will  Ik? 
bound  to  make  tiie  most  reasonable  use  of  the  estate  —  scil.,  be- 
cause the  nature  of  the  estate  should  have  been  con  tern  ]>lat^'d 
before  he  took  jxDssession ;  and  at  the  same  time,  if  he  exceed 
the  ex]">enditure  and  risk  demanded  from  a  prudent  owner,  he 
will  not  be  allowed  such  unnecessary  or  extravagant  expenses, 
but  will  si>eculat.e  at  his  own  risk.  Where  a  moi'tgage  term  of 
500  years  had  been  ci*eated  in  lands  by  the  fee  simple  owner 
of  the  lands ;  and  he  subsequently  opened  a  slate  quarry  in  the 
lands,  and  worked  such  quarry  (through  certain  lessees  thereof 
who  paid  him  a  royalty  of  1-1 8th  the  slate  gotten)  ;  and  after- 
wards the  mortgagees  entered  —  the  court  said,  that  they  could 
(although  only  termors)  continue  the  working  of  that  slate 
quarry,  although  it  had  not  been  opened  at  the  date  of  the  crea- 
tion of  the  term.  And  it  appearing  that,  the  mortgagees  had 
obtained  an  order  absolute  of  foreclosure,  they  were  held  to 
have  become  termors  absolute  for  the  residue  of  the  .^)00  years. •''^ 
In  Hughes  v.  Williams,^^  a  mortgagee  in  jwssession  had  opened 
a  slate  quarry  at  an  expense  of  681. —  and  had  made  21.  out 
of  the  quarry  —  i.  e.,  he  had  sustained  a  loss  of  661. ;  and  tlie 
court  left  him  to  bear  that  loss,  as  he  had  speculated  at  his  o^vn 
peril.  But  in  Tipton  Green  Colliery  Co.  v.  Tipton  Moat  Co.,**® 
where  tlie  defendants  were  unpaid  vendors  of  a  leasehold  col- 
liery, and  they  were  in  possession  (in  respect  of  their  lien  for 
the  unpaid  purchase  money),  and  had  expended  divers  sums  of 
money  upon  the  colliery  (in  necessary  repairs  and  othenvise)  ; 
and  the  plaintiffs  (the  purchasers)  claimed  to  redc^pm  them  — 
the  defendants  were  allowed   (as  a  matter  of  course,  i.  c  as 

66  Rowe  V.  Wood  (1820),  1  J.  and  Tliorneycroft  v.  Crockett  (1S48),  16 

W.   315,   555.  Him.   445;    12    Jur.    1081;    2   H.   L. 

oTElias    V.     Snowdon     Slate    Co.  Cas.  2.39. 

(1879),  4   App.   Cas.   455;   48  L,  J.  59  (1877)    7  Ch.   D.   192;  47  L.  J. 

Ch.  811  ;  41  L.  T.  289;  28  W.  R.  .54.  Ch.  152;  26  W.  R.  348. 

68(1806)     12    Ves.    496;    and    see 


390  OIL   AND    GAS. 

"  just  allowanc^i's  ")  all  tlieir  expenses  on  necessary  repairs,  but 
not  anjtiiing  for  expenses  l)oy(iiKl.  In  Millett  v.  Davey,""  the 
plaintiffs  were  mortgagees  in  jX)Ssession  of  the  defendant's  one 
et]iial  undivided  moiety  of  certain  lands;  and,  in  conjunction 
with  the  owner  of  tlie  other  undivided  moiety,  they  made  a 
lease  of  the  mines,  granting  also  certain  surface  rights ;  and 
under  the  lease,  a  large  quantity  of  the  minerals  had  been  got- 
ten, but  at  a  loss  —  and  a  considerable  part  of  the  surface  also 
had  been  damaged,  in  the  exercise  of  the  surface  rights;  and 
the  lessees  paid  up  all  royalties  accrued  due,  and  abandoned 
the  mine;  and  the  plaintiffs  obtained  a  judgment  for  foreclosure 
against  the  defendant  —  the  security  being  proved  to  have  been 
insufficient  at  the  time  the  mortgagees  entered  —  the  court 
said,  that  they  were  not  to  be  charged  with  the  value  of  the  coal 
(the  defendant's  moiety  thereof)  which  had  been  gotten  by  the 
lessees,  but  only  with  the  royalties  (the  defendant's  moiety 
thereof)  received  by  the  plaintiffs,  and  not  at  all  for  the  surface 
damage. 

"  In  a  mortgage  of  mines,  there  would  usually  be  inserted 
special  clauses  enabling  the  mortgagees,  in  case  they  took  pos- 
session (or  become  entitled  to  take  possession),  to  appoint  a  re- 
ceiver and  manager,  and  to  expend  moneys  on  the  working  and 
development  of  the  mines  (including  the  opening  of  the  new 
mines)  —  and  in  such  a  case,  the  mortgagees  would  be  allowed 
their  lawful  expenditure  with  interest  thereon.®^  And  the  like 
clauses  might  be  usefully  inserted  in  every  mortgage  of  lands 
containing  mines,  where  the  mines  were  a  material  portion  of 
the  security ;  and  as  regards  keeping  accounts  of  the  mortgagees' 
workings,  the  clauses  should  provide  for  tlie  mortgagor  having 
inspection  of  the  books  of  the  colliery,  but  not  (save  at  the  ex- 
pense of  the  mortgagor)  for  the  mortgagees  rendering  him  any 
account  of  the  workings.®" 

"  And,  generally,  as  regards  the  opening  of  new  mines,  it  ap- 
pears the  mortgagee  may  do  so,  if  his  security  is  insufficient; 

80(1862)    31    Beav.  470;   .32  L.  J.  G.  M.  and  G.  728;  2.5  L.  -T.  Ch.  121; 

Ch.  122;  7  L.  T.  551;  11  W.  R.  176;  23  L.  T.  (0.  S.)  125;  2  W.  R.  362. 
9  Jur.    {N.  S.)    92.  ^^  Ibid. 

61  Norton  v.  Cooper   (1854),  5  De 


MORTGAGES.  391 

and  if  in  sneli  a  case  he  acts  bona  fide,  the  court  will  not  restrain 
liiin/'^  But  he  opens  the  new  mines  at  his  own  jxtII,  that  is  to 
say  —  if  the  working  results  in  a  loss,  and  if  tlic  workinfi;  re- 
sults in  a  profit,  tlie  profit  goes  in  towards  the  discliarge  of  liis 
mortgage  deht.'^*  But,  nota  bene,  a  mortgage  of  lands  (in  which 
are  mines),  if  his  mortgage  is  hy  demise  onl}^  (i.  c,  if  he  is  en- 
titled only  to  a  term  of  years  in  the  lands),  may  not  o])en  new 
mines — for  a  termor  may  not  do  so,  unless  he  is  without  im- 
peachment of  waste.  But  just  as  any  termor  entitled  absolutely 
may  work  the  open  mines,  so  may  a  termor  who  is  a  mortgagee,®" 
at  all  events,  if  his  security  is  insufficient.  And  if  the  mort- 
gagor (or  other  jx^rson  entitled  under  him  suliject  to  the  mort- 
gage term)  should,  during  the  continuance  of  the  mortgage, 
lawfully  open  a  new  mine  within  or  under  the  lands  demised 
by  the  mortgage  deed,  the  mortgage  termor  may  thereafter  work 
such  newly  opened  mines  —  at  least,  if  his  security  be  insuffi' 
cient..  And  all  the  like  observations  are  niipli(':il)lc  also  U)  r. 
new  quarrv^  —  it  being  nevertheless  understood  that  the  quarry 
has  been  opened  —  that  is  to  say,  for  the  purpose  of  being 
worked  as  a  commercial  speculation,  and  not  merely  for  the  pur- 
pose of  digging  a  few  blocks  of  stone  thereout  for  some  S])ecifi'i 
private  purpose.''"  But  it  rather  appears,  that  if  the  security 
is  not  insufficient,  the  mortgagee  has  no  right  to  open  new  mines, 
and  that  if  he  do  open  and  work  them,  he  will  be  charged  witli 
all  receipts  from  the  mines,  without  any  allowance  for  the  ex- 
penses in  opening  and  working  them."^ 

"  The  mortgagee  of  a  colliery,  in  lieu  of  taking  possession  of 
the  colliery  —  whereby  he  incurs  the  li:il>ilities  alxivc  indicated 

63  Hughes  V.  Williams   (180G),  12  Ca.s.  454;    48   L.  J.    Ch.  811;    41   L. 

Ves.  40.3.  T.  289;  28  W.  R.  54. 

S'lMillctt    V.    Davey     (1862),    31  es  Elias  v.  Grifliths   (1878).  8  Ch. 

Beav.  470,  at  p.  476;   32   L.  J.  Ch.  D.   521;   S.  C.    (sub  nom.)    Elias  v. 

122;  7  L.  T.  551;   11  W.  R.  176;   9  Snowdon   Slate  Co.    (1879),  4   App. 

Jur.    (N.  S.)    92.  Cas.  4.54. 

65  Elias  V.  Griffiths   (1878).  8  Ch.  67  Thorneycroft         v.         Crockett 

D.  521;  46  L.  J.  Ch.  806;  48  L.  J.  (1848),  16  Sim.  445;   12  .Tnr.   1081; 

Ch.   203;    26    W.   R.   809;    38  L.  T.  2  H.  L.  Cas.  239;    Hood   v.   Easton 

871;     S.    C.     (sub    nom.)     Elias    v.  (1856).  2  OifT.  692:  2  .Tnr.    (N.  S.) 

Snowdon   Slate   Co.    [1879],   4   App.  729,  917;   27   L.  T.    (0.  S.)    295;   4 

W.  Ic.  575. 


392  OIL.    AND    GAS. 

—  ong-ht  to  appoint  a  receiver  (wlio  will  l>e  the  mortgagor's 
agent)  ;  and  if  a  manager  also  should  be  necessary,  he  may  ob- 
tain an  order  for  the  appointment  of  a  receiver  and  manager; 
and  he  may  obtain  such  an  order  even  after  lie  has  entered  into 
possession."*  And  the  reason  ^vhv  the  court  ai>]X)ints  a  receiver 
and  manager  is,  because  the  security  would  otherwise  go  to  ruin  ; 
and  (where  tlie  colliery  is  a  leasehold  one)  it  might  even  be 
forfeited  by  the  lessor  —  sciL,  for  neglect  to  work  or  for 
some  other  breadi  of  the  covenants  in  the  lease;  ^^  and  the  mere 
fact  that  the  colliery  business  is  not  &]>ecifically  comprised  in 
the  mortgage  will  not  make  any  difference,  a  colliery  being  a 
business/** 

"'  In  Eowe  v.  Wood,^^  the  mortgagees  were  in  possession,  and 
the  plaintiff  (the  mortgagor)  was  tlie  party  who  applied  for  a 
receiver  and  manager  of  the  mine  —  alleging  misconduct  on  tlie 
part  of  the  defendants  in  the  management;  but  the  court  said, 
that  the  plaintiff  could  not  (in  that  way)  tuni  out  the  mort- 
gagees from  the  possession  so  long  as  they  alleged  that  they  were 
unpaid  (even  a  sixpence  of)  their  mortgage  debt;  and  all  that 
the  plaintiff  (as  mortgagor)  was  entitled  to,  was,  to  require  the 
defendants  to  keep  the  proper  accounts  and  to  permit  his  insi>ec- 
vion  thereof. 

"  In  Norton  v.  Cooper,^^  the  mortgage  was  of  mines,  with 
■power  for  the  mortgagees  to  enter  and  develop  the  mortgaged 
premises,  and  to  expend  money  for  that  ]>urpose ;  and  the  mort- 
gagor, suing  for  redemption,  claimed  to  charge  the  mortgagees 
with  an  occupation  rent,  and  also  to  disallow  them  all  their  ex- 
penditure—  both  which  claims  the  mortgagees,  of  course,  re- 
sisted ;  and  tliey  also  refused  accounts,  save  at  the  expense  of  the 
mortgagor.  The  accounts  as  taken  in  the  suit  showed  — 
16,654L    owing  on    the   mortgage   for   principal    and    interest ; 

68  Campbell  v.  Lloyd's  Bank,  7o  JefTerys  v.  Smith  (1820),  1  J. 
cited  in  [1891]  1  Ch.  136,  note;  and  W.  298;  Gloucester  Bank  v. 
Peck  V.   Trinsmaran  Co.,   2   Ch.   D.       Rudry  Colliery  Co.,  supra. 

115;  24  W.  R.  361.  7i  (1820)      1     J.     and     W.     315; 

69  Gloucester  Bank  v.  Rudry  Col-        (1822)   2  J.  and  W.  553. 

liery  Co.  [1895].  1  Ch.  629;  64  L.  J.  72(1854)   5  De  G.  M.  and  G.  728; 

Ch.  451;  72  L.  T.  375;  43  W.  R.  25  L.  J.  Ch.  121;  23  L.  T.  (0.  S.) 
486;  2  Manson  223;  12  R.  183.  125;  2  W.  R.  362. 


MORTGAGES.  392a 

60,027/.  owing  as  moneys  properly  expended  in  developing 
the  mines;  and  3,747/.  owing  as  moneys  properly  paid  in  re- 
deeming a  previous  mortgage ;  and  74,037/.  received  as  profits 
from  the  mines  —  leaving  5,790/.  still  owing  to  the  mort- 
gagees ;  and  the  court  allowed  the  whole  ex]x^ntlituro,  and  aLso 
gave  the  mortgagees  their  costs  of  suit  —  holding  tliat  their 
conduct  had  not  been  vexatious,  merely  hecause  they  refused  the 
accounts  save  on  the  mortgagor's  first  paying  for  the  ox|wnse  of 
the  accounts;  and  the  court  refused,  of  course,  to  diarge  tlie 
mortgagees  with  any  occupation  rent. 

*'  In  Bentley  v.  Bates,^^  where  there  were  two  lessees  of  a 
mine,  and  they  were  working  it  in  quasi-partnershi]),  and  the 
plaintiff  was  tlie  mortgagee  of  the  interest  of  one  of  the  lessee- 
partners,  and  claimed  an  account  against  the  defendant  who  was 
the  other  lessee  (the  mortgagor  being  also  a  co-defendant)  — 
the  court  said,  tliat  the  plaintiff  was  entitled  to  all  the  rights 
of  his  mortgagor,  and  was  therefore  entitled  U)  have  an  account 
of  the  profits  (and  generally  of  the  management  by  the  defend- 
ant) of  the  mine ;  and  that  he  need  not,  for  that  purpose,  ask 
for  a  dissolution  of  the  partnership,  as  he  would  have  been 
obliged  to  do  in  the  case  of  an  ordinarv'  mercantile  business  — 
for  a  co-tenancy  (or  joint  partnership)  of  lands  is  not  to  be  de- 
termined by  a  partition  of  tlie  lands,  before  an  account  can  be 
taken  on  behalf  of  one  of  the  co-tenants  against  the  other  or 
others  of  them. 

"  In  Taylor  v.  MostATi  ^*  and  Mostyn  v.  Lancaster,''"  certain 
lands  containing  coal  mines  (which  in  1829  had  been  leased  by 
the  testator  for  a  term  which  would  expire  in  1848)  were  devised 
to  M.  for  his  life,  with  remainder  to  M.'s  first  son  in  tail,  and  M. 
was  empowered  to  lease  the  mines  at  his  discretion :  And  M. 
(being  in  possession  as  tenant  for  life  under  the  will)  leased  the 
mines  in  1843  (for  ninety-nine  years)  l>y  way  of  mortgage  to 
C.  for  securing  a  principal  sum  and  interest,  and  with  ]>owers 

-3(1840)   4  Y.  and  C.  Exch.  182;  75  23  Ch.  Div.  583;   51   L.  J.  Ch. 

9  L.  J.  Exch.  30;    4  Jur.  552.  f>06 ;  46  L.  T.  648;  48  L.  T.  715;  31 

74(1882)  23  Ch.  D.  583;  53  L.  J.       W.  R.  3,  686. 
Ch.    89;    49    L.   T.   483;    32   \V.    R. 
256. 


392b  OIL    AND    GAS. 

of  working  tlio  mines  similar  to  those  contained  in  the  1829 
lease  —  which  mortgage  was  afterwards  (in  1850)  transferred 
to  X.,  to  whom  M.  was  already  otherwise  very  largely  indebted; 
and  ]\[.  at  the  same  time  mortgaged  also  his  life  estate  to  X.  (or 
to  a  nominee  of  X.)  ;  and  (by  a  lease  in  1850)  M.  demised  the 
mines  to  X.'s  nominee  for  forty  years  at  a  dead  rent,  and  at 
royalties  —  and  tlie  last  mentioned  lease  was  duly  confirmed 
by  M.'s  first  son  (who  had  in  the  meantime  attained  his  age  of 
twonty-one  years,  and  lind  duly  barred  the  tail)  :  Afterwards, 
the  life  estate  of  ^I.,  and  the  fee  simple  remainder  of  his  first 
son,  became  vested  in  j\rostyn  and  others  (the  defendants  in 
Taylor  v.  Mostyn,  and  who  were  also  the  plaintiffs  in  Mostyn 
V.  Lancaster)  ;  and  the  1850  lease  was  assigned  to  Taylor  and 
others  (the  plaintiffs  in  Taylor  v.  Mostyn),  and  in  them  (or  in 
tlie  plaintiff  Taylor  alone  as  a  nominee  for  them)  were  also 
vested  the  1843  lease  and  the  mortgage  of  the  life  estate.  And 
the  plaintiffs  in  Taylor  v.  Mostyn  (by  virtue  of  the  lease  of 
1850)  sublet  the  mines  to  the  defendants  in  Mostyn  v.  Lan- 
caster, and  Taylor  at  the  same  time  (and  by  virtue  of  the  lease 
of  1843)  leased  the  mines  to  the  same  defendants  for  a  term 
limited  to  expire  in  1900 :  And  the  action  of  Taylor  v.  Mostyn 
Ix^ing  for  foreclosure,  and  the  action  of  Mostyn  v.  Lancaster 
being  for  an  injunction  to  restrain  the  removal  of  the  pillars 
of  coal  in  tlie  demised  mines  —  The  court  held  —  That  the 
lease  of  1843  was  a  valid  exercise  of  the  leasing  power  '° —  and 
consequently  that  the  plaintiffs  in  Taylor  v.  Mostyn  (unless 
they  were  redeemed)  might  foreclose;  and  That  the  lease  of 
1850  (or  the  sublease  derived  out  of  it)  did  not  (ujidu  its  true 
construction)  authorize  the  getting  of  the  pillars,  save  with  the 
consent  of  IM.  (which  consent,  so  far  as  regards  the  past  work- 
ings, had  not  been  obtained),  although  (on  the  expiration  of  the 
1850  lease,  and  during  the  then  residue,  if  any,  of  the  life  of 
M.)  the  consent  of  M.  to  the  working  of  the  pillars  of  coal 
under  the  lease  of  1843  had  been  (in  effect)  already  given  by 
M. —  and,  consequently,  that  the  defendants  must  (save  during 
such  residue  as  aforesaid,  if  any  of  the  life  of  M.)  be  restrained 

76  Sheehy  v.  Muskorry    (1848),   1        Macl.  and  R.  493;  LI.  and  Gt.  Plunk 
H.    L.    Cas.    57G;    7    C:.    and    F.    1;        568. 


MORTGACES.  3920 

from  removing  the  pillars  of  coal.  And  at  a  subsequent  stag.' 
of  litigation/^  tlie  plaintiffs  in  Taylor  v.  Mostyn,  alleging  tliat 
(owing  to  the  deeisioii  in  Mostyn  v.  Lancaster)  their  security 
was  of  vastly  less  value  than  tJie  amount  of  their  moi^t^jage  debt, 
neglected  to  prosecute  their  foreclosure  decree;  and,  on  the  ap- 
plication of  the  defendants,  the  court  directed  tliem  to  do  so, 
the  order  expressing  that  it  was  made  at  the  express  direction 
of  the  defendants  —  so  that  if  the  costs  of  tJie  further  prosecu- 
tion of  the  decree  should  Ix^  found  to  have  l)een  (widiout  any 
good  purjx)se)  forced  on  the  plaintiiVs,  the  defendants  might 
be  ordered  personally  to  pay  such  costs ;  and  the  order  gave  the 
plaintiffs  liberty  to  apply  for  a  stay  of  all  furtlier  proceedings. 
However,  while  the  decree  was  being  further  prosecuted,'*  the 
defendants  obtained  from  the  court  a  declaration,  tliat  (as  re- 
gards all  the  pillars  of  coal  wrongfully  removed  by  the  mort- 
gagee^lessees)  the  plaintiffs,  as  mortgagees,  were  to  be  charged 
with  the  full  value  of  such  coal,  less  only  the  cost  of  bringing  it 
to  bank  (that  is  to  say,  allowing  nothing  for  the  cost  of  severing 
the  coal)  ;  and  it  rather  appearing  that  a  flooding  of  the  mines 
had  been  occasioned  by  the  ^\Tongful  removal  of  such  pillars, 
the  court  directed  an  inquiry  as  to  that  if  (u])<>n  the  result  of 
that  inquir)')  the  damage  from  tJie  flooding  should  be  traceable 
to  the  wrongful  removal  of  the  pillars  of  coal,  the  plaintiffs,  as 
mortgagees,  would  be  chargeable  with  that."  ^^ 


ARTICLE  2. 
GAS  PLANT. 

§348.     Mortjrafrc  of  -jas  plant. 

§348.     Mortgage  of  gas  plant. 

A  franchise  giving  a  right  to  "  construct,  own,  maintain  and 
operate  "  a  gas  or  water  plant  may  be  mortgaged ;  and  a  mort- 
gage on  such  a  franchise  of  a  plant  in  process  of  construction 
carries  the  plant  with  it*°     It  Avill  also  include  tangible  pro]v 

77(1883)   25  Ch.  D.  48.  of  an  oil  lease  in  possession.    Fuller 

78  33    Ch.    Div.    226.  v.  I'.uckoyo  Supply  Co..  .'">  Ohio  C.  PI. 

73  The  expense  of  an  uns'iccessful  187;  7  Ohio  N.  P.  420. 

effort     in    fishing    for    lost    tubinpf  so  Andrew    v.    National    Foundry. 

has    been    allowed    to    a    mortgagee  76  Fed.  Rep.  166;  22  C.  C.  A.  IIU; 


392d 


OIL   AND    GAS. 


erty  as  an  incident,  if  such  was  tlie  evident  intx^nt  of  the  mort- 
gagor and  niortgagee.^^  Even  tliongh  the  company  had  no 
]>ower  to  execute  the  mortgage,  yet  it  cannot  raise  that  question 
on  the  ground  that  it  was  of  a  quasi-public  character,  so  long  as 
the  municipality  in  Avhieh  it  is  situated  does  not  challenge  the 
validity  of  the  mortgage.^"  The  property  should  l)e  sold  as  an 
entirety  without  redemption ;  and  no  redemption  can  be  allowed 
when  the  foreclosure  is  in  the  United  States  Circuit  Court,  not- 
withstanding a  State  statute  requires  mortgaged  property  to  be 
sold  subject  to  tlie  right  to  redeem. ^^ 


36  L.  R.  A.  139;  46  U.  S.  App.  281 
rehearing  denied,  77. Fed.  Rep.  774 
23  C.  C.  A.  454;  46  U.  S.  App.  619 
Hays  V.  Galion,  etc.,  Co.,  29  Ohio  St 
330;  Louisville  &  N.  R.  Co.  v.  Mem 
phis  Gaslight  Co.,  125  Fed.  Rep 
97;   60  C.  C.  A.  141. 

81  AndreAv    v.    National    Foundry, 
supra. 

82  American  W.  W.   Co.  v.  Farm- 
ers'"   Loan,    etc.,    Co.,    73    Fed.    Rep. 


9.56;  20  C.  C.  A.  133;  36  U.  S.  App. 
563. 

83  Farmers'  Loan,  etc.,  Co.  v.  Iowa 
Water  Co.,   78  Fed.  Rep.  881. 

The  purchaser  is  entitled  to  at 
once  take  possession  as  absolute 
owner.  McKenzie  v.  Bismark  Water 
Co.,  F.  6  N.  D.  361;  71  N.  W.  Rep. 
608. 


CHAPTER  XVIII. 

TRANSPORTATION  AND  EMINENT  DOMAIN. 

§349.  Scope  of  chapter. 

§350.  Transportation  of  pas  or  oil  a  public  use. 

§351.  Carriers  of  oil. —  Tank  cars. 

§352.  Transportation  from  State  cannot  be  prevented. 

§353.  Transportation  bj-  pipe  line. —  Inter-state  commerce. 

§354.  Regulation  of  transportation. 

§355.  Ownership  of  oil  in  pipe  lines. 

§356.  May  be  endowed  witli  powers  of  eminent  domain. 

§357.  Artificial  gas  companies. —  Eminent    domain. 

§358.  •  Foreign  companies  excluded  from  use  of  power  of  eminent  domain. 

§359.  Number  of  lines  that  can  be  laid  in  right  of  way  acquired. 

§300.  Laying  pipes  in  country  highways,  or  on  right  of  way  of  railroad. 

§361.  Measure  of  damages  for  taking  right  of  way. 

§362.  Damages  occa.sioned  by  gas  company's  trespass  on  land. 

§363.  Prospective  damages  for  fires  and  explosions. 

§364.  Removal   of  pipe  line,   damages. 

§365.  Pipe  line  crossing  right  of  way  of  railroad  company. 

§366.  Revocation  of  license. 

§367.  Route,  specifying  in  petition. —  More  than  one  route 

§368.  Coal  mine  beneath  pipe  line. —  Support. 

§369.  Well  pipe  pa.ssing  through  coal  mine. 

§349.     Scope  of  chapter. 

Tn  this  chapter  all  (|Uf'stioiis  of  nrgllricnre  in  tlh^  trans]inrta- 
tion  of  oil  or  p^as  aro  climinatod,  they  finding  an  ajijn-opriate 
place  in  the  chapters  on  Trans]X)rtation  and  on  XeG:liii:en('e,  and 
in  the  one  on  Leaks  and  Explosions.  So  all  discussions  of  tlie 
general  principles  and  rules  of  pract.ice  of  eminent  domnin  are 
eliminat-ed,  exoe]>t  so  far  as  tliey  arc  ]K>culiar  to  (jucstions  con- 
cerning gas  and  oil. 

§350.     Transportation  of  gas  or  oil  a  public  use. 

The  transportation  of  natural  gas  or  oil  is  a  puhlic  use,  as 
much  so  as  a  railway  cximpanv  engaged  in  the  transpirtatiftn  of 

393 


394  ■    OIL   AXD   GAS. 

articles  of  commerce.  Indeed,  natural  gas  and  petroleum  when 
brought  to  the  surface  and  enclosed  in  tanks,  reservoirs  or  pipes 
arc  articles  of  commerce,  a  commercial  commodity.  "  The  gas 
in  the  eartli  may  not  be  a  commercial  commodity,"  said  the 
Supreme  Court  of  Indiana,  "  but,  when  brought  to  the  surface 
and  placed  in  pipes  for  transportation,  it  must  assume  that  char- 
acter as  completely  as  coal  on  the  cars  or  petroleum  in  the  tanks. 
We  suppose  it  clear  tliat  Pennsylvania  could  not  prohibit  the 
transportation  of  coal  or  petroleum  to  another  State,  and  there 
is  no  difference  between  cases  where  coal  is  the  commodity  af~ 
fected  and  those  in  which  it  is  natural  gas.  It  is  no  doubt  true 
that  there  is  a  point  at  which  a  natural  or  a  manufactured 
product  is  not  an  article  of  commerce,  but,  w^hen  it  assumes  such 
a  foi-m  as  fits  it  for  transportation  from  State  to  State,  it  is,  so 
far  as  tlie  law  of  interstate  commerce  is  concerned,  transformed 
into  a  commercial  commodity."  "  Natural  gas  is  as  much  an 
article  of  commerce  as  iron  ore,  coal,  petroleum,  or  any  other 
of  the  like  products  of  the  earth.  It  is  a  commodity  which 
may  be  transported,  and  it  is  an  article  which  may  be  sold  in  the 
markets  of  the  country."  ^  There  are  many  cases  to  the  same 
effect ;  and  it  is  now  no  longer  an  open  question  that  the  trans- 
portation of  gas,  whether  artificial,  manufactured,  or  natural, 
and  oil,  of  whatever  kind,  is  a  public  use ;  ^  and  that  a  State 
may  fix  the  rates  to  be  charged  for  carriage  within  its  limits, 
although  not  for  interstate  carriage.  The  reasonableness  of 
the  rate  is  open  for  review  by  the  courts.-'' 

1  State   V    Indiana,   etc.,   Co.,    120  etc.,    Co.    v.    Ohio    River   Pipe   Line 
Ind   .575-  22  N   E.  Rep.  778;  29  Am.  Co.,    22    W.    Va.    GOO;    Jamieson   v. 
and  En.''  Corp.  Cas.  2.37;  6  L.  R.  A.  Indiana,    etc.,    Co.,    128    Ind.    555 
579-    West  V.  Kansas  Nat.  Gas  Co.,.  28  N.  K  Rep.  76;    12  L.  R.  A.  652 
31    Sup.    Ct.    564;    221    U.    S.    220,  34    Am.    and    Eng.    Corp.    Cas.    1 
afTirmincT    Kansas    Natural    Oas    Co.  Manufacturers'  Gas  and  Oil   Co.   v 

V  Hasl<ell     17^   Fed.    545;    Haskell  Indiana,    etc.,    Co.,    155    Ind.    545; 

V  Cowl.am',  187  Fed.  403.  58  N.  E.  Rep.  706;    Manufacturers 

2  Bloomfield,  etc.,  Co.  v.  Richard-  Gas  and  Oil  Co.  v.  Indiana,  etc.,  Co., 
son  63  Barb.  437;  Carotl.er  v.  Phil-  155  Ind.  560;  58  N.  E.  Rep.  851. 
adeiphia  Co.,  118  Pa.  St.  468;  12  Conducting  natural  i^as  from  the 
Atl  Rep.  314;  -Johnston  v.  Peo-  ^vells  to  consumers  is  the  transporta- 
ple's  Natural  Gas  Co.  (Pa.),  7  Atl.  tinn  of  freight.  Carother  v.  Phila- 
Rep.  167;  West  Virsinia,  etc..  Co.  V.  dolphia  Co..  118  Pa.  St.  468;  12 
Volcanic  Oil  and  Coal  Co.,  5  W.  Va.  Atl.    Rep.   314. 

382-     John-ton's     Appeal     (Pa.).    7  2a  Tucker    v.    !\1o.     Pac.    Ry.    Co., 

Atl'Rep.  107 :  /w  r^  Ohio  Vnllev  Gas  82     f\an.    222:     108    Pac.    Rep.    89; 

Co     6  Pa    Dist    Ren.  200-.  27  Pittsb.  Prairie  t)il   &   (^as  Co.   v.    Kfnhardt, 

Le^   J    (N.  S.)   321;  West  Virginia,  244  111.  634;  91  N.  E.  Rep.  680. 


TRANSPORTATION  —  EMINENT    DOMAIN.  395 

§351.     CaiTiers  of  oil  —  tank  cars. 

Carriers  of  oil  must  serve  all  shippers  impartially.  Tf  tlipy 
fail  to  furnish  tank  cars  for  oil,  in  consequencjc  of  which  the 
shipper  is  required  to  ship  oil  in  barrels,  tliey  arc  liable  for  the 
damages  resulting  tJierefrom,  under  Sec.  8  of  tlie  Interstate 
Commerce  Act  providing  that  "  any  common  carriers  "  subject 
to  its  provisions  shall  be  liable  for  the  "  full  amount  "  of  all 
damages  caused  by  violation  of  its  provisions.  If  they  cliarge 
for  carrying  oil  in  barrels  when  the  use  of  tank  cars  for  shi])- 
ments  has  not  been  open  impartially  to  shipj^rs,  in  consequence 
of  which  such  shippers  have  been  deprived  of  the  use  of  such 
cars,  they  will  be  required  by  the  Interstate  Commerce  Commis- 
sions to  refund  the  amount  received  for  the  transportation  of 
the  barrels.^ 

§352.     Transportation  from  State  cannot  be  prevented. 

As  gas  and  oil  are  instruments  of  commerce  when  confined  in 
receptacles,  a  State  cannot  prevent  their  transport:ation  beyond 
its  boundaries,  however  desirable  such  prevention  may  bo.  This 
has  been  attempted  without  success.^  Because  of  its  local  char- 
acter, however,  it  occupies  a  position  distinct  from  other  articles 
of  commerce.  "Upon  tliis  jxiint,"  to  quote  from  an  Indiana 
case,  "  we  affinn  that  natural  gas  is  characteristically  and  ]n'cu- 
liarly  a  local  product,  tliat  its  production  is  confined  to  a  liniit-cd 
territory,  that  because  of  its  local  character  and  peculiarities 
it  is  a  proper  subject  of  State  legislation,  and  cannot,  so  far 
as  regards  local  protection,  be  made  the  subject  of  general  legisr 
lation  by  CongrevSs;  or,  at  all  events,  that  it  does  not  require  a 
uniform  system  as  between  the  States  for  its  regulation."  ° 

3  Independent    Refiners'     Assoeia-  Corp.   Cas.    1;    Manufacturers'   Gas, 

tion   V.   Western,   etc.,   R.   R.   Co.,   4  etc.,    Co.    v.    Indiana,   etc.,   Co.,    155 

Inter.  St.  Rep.  162.  Ind.  545;  58  N.  E.  Rep.  706;  Manu- 

*  State  V.   Indiana,   etc.,   Co.,    120  facturcrs'  Gas,  etc.,  Co.   v.  Indiana, 

Ind.  575;   22   N.  E.  Rep.  778;   6  L.  etc.,    Co.,    155    Ind.    566;    58   N.    E. 

R.  A.   579;   29  Am.  and   Enjj.  Corp.  Rep.  851;    Kansas  Natural   Gas  Co. 

Cas.  2.37;  Jamieson  v.  Indiana,  etc.,  v.  Haskell,  172  Fed.  Rep.  545. 

Co.,  128  Ind.  555;  28  N.  E.  Rep.  76;  o  Jamieson    v.    Indiana,    etc.,    Co., 

12  L.  R.  A.  652;   34  Am.  and  Eng.  supra. 


396  OIL   AND    GAS. 

§353.     Transportation  by  pipe  line. —  Interstate  commerce. 

There  is  no  doubt  about  petroleum  or  natural  gas  (and  even 
artificial  gas)  being  the  subject  of  commerce,  even  of  inter- 
state oommeroe.  The  Indiana  Supreme  Court  has  so  consid- 
ered it,  saying: 

"  I^atural  gas  is  as  much  an  article  of  commerce  as  iron  ore, 
coal,  petroleum,  or  any  other  of  the  like  products  of  the  eartli. 
It  is  a  commodity  which  may  be  transported,  and  it  is  an  ar- 
ticle which  may  be  bought  and  sold  in  the  markets  of  the  coun- 
trv.  The  gas  in  the  earth  may  not  be  a  commercial  commodity, 
but,  when  brought  to  the  surface  and  placed  in  pijDcs  for  trans- 
portation, it  nuist  assume  that  character  as  completely  as  coal 
on  the  cars  or  petroleum  in  the  tanks.  We  suppose  it  clear 
that  Pennsylvania  could  not  prohibit  the  transportation  of  coal 
or  petroleum  to  another  State,  and  there  is  no'  difference  in  prin- 
ciple between  oases  where  coal  is  the  commodity  affected  and 
Ihose  in  which  it  is  natural  gas.  It  is  no  doubt  true  that  there 
is  a  point  at  which  a  natural  or  manufactured  product  is  not 
I  n  article  of  commerce,  but,  when  it  assumes  such  a-  form  as 
fits  it  for  transportation  from  State  to  State,  it  is,  so  far  as  the 
law  of  interstate  commerce  is  concerned,  transformed  into  a 
-X)mmercial  commodity.  For  the  purposes  of  taxation  an  ar- 
ticle of  pro]Terty  may  not  be  regarded  as  a  commercial  com- 
modity until  it  has  started  on  its  way  from  one  State  to  another, 
but  property  that  may  become  an  article  of  commerce  cannot  l>e 
kept  in  the  State  where  it  was  produced  by  a  State  law  forbid- 
ding its  transportation.  If  this  were  not  so,  then,  not  only 
might  coal  and  petroleum  be  kept  within  the  State  in  which 
they  were  produced,  but  so  might  corn  and  wheat,  cotton,  and 
fruit,  and  lead  and  iron.  If  such  laws  could  be  enacted  and 
enforced,  a  complete  annihilation  of  interstate  commerce  might 
result,  and  it  was  to  prevent  the  possibility  of  such  result  that 
the  provision  vesting  exclusive  power  in  the  Federal  government 
was  written  in  the  ISTational  Constitution."  ^ 

estate  v.  Indiana,  etc.,  Co.,  120  579;  2  Inter  St.  Com.  Reps.  758; 
Ind.  575;  22  N.  E.  778;  29  Am.  and  Manufacturers'  Gas  and  Oil  Co.  v. 
Eng.    Corp.    Cas.   237;    6   L.   R.   A.       Indiana,  etc.,  Co.,  156  Ind.  679;  60 


TRANSPORTATION  —  EMINENT    DOMAIN.  397 

§354.     Regulation  of  transportation. 

ISTotwitJistiindiiifl:  that  natural  gas  is  the  subject  of  interstate 
commerce,  that  will  not  prevent  tlie  State,  in  the  exercise  of 
its  police  power,  taking  such  steps  as  will  protect  its  inhabitants 
and  their  property,  even  tliongh  tlie  effect  is  to  prevent  its  gen- 
eral trans|X)rt.ation.  Such  an  instance  occurs  wliere  the  State 
prohibits  a  greater  pressure  in  the  pipes  than  a  certain  amount, 
although  such  a  pressure  is  not  sufficient  to  caiTv  the  gas  from 
the  field  where  it  is  found  beyond  the  boundaries  of  the  State. 
In  an  Indiana  case  the  follo^ving  language  was  used  in  dis- 
cussing the  right  of  the  State  to  regulate  the  transportation  of 
gas: 

"  If  natural  gas  cannot  be  safely  transported  to  a  State  dis- 
tant from  its  source,  it  is  because  of  its  natural  qualities,  and 
not  because  of  legislation.  The  restriction  upon  transporta- 
tion, if  there  be  any,  is  in  the  inherent  nature  of  the  thing 
itself;  none  is  put  upon  it  by  the  statute,  since  the  statute  does 
no  more  than  regulate  its  conveyance  from  the  wells  to  points  of 
distribution  in  such  a  mode  as  to  protect  lives  and  property. 
This  it  does,  and  nothing  more.  If  the  distribution  within  the 
State  cannot  be  made  at  safe  pressure,  it  is  because  of  the 
character  of  the  local  natural  product,  not  because  of  any 
standard  of  pressure  fixed  by  legislation.  Fixing  the  standard 
of  pressure  is  not  a  regulation  of  interstate  commerce;  possibly 
it  might  bo  different  if  the  product  -u^re  not  a  local  one,  and 
intrinsically  dangcTOUs;  but  natural  gas  is  local  and  is  danger- 
ous in  its  transportation  and  use.  It  is  the  inherent  element 
of  danger  that  makes  it  necessaiy  to  handle,  store,  and  trans- 
port natural  gas  in  peculiar  modes,  and  under  reasonable  re- 
strictions. It  is  true  that  natural  gas  may  be  an  article  of 
commerce,  but  it  is  not  an  ordinniy  article  of  c<^>inmerce.  It  is 
not  a  commercial  commodity  while  in  the  earth,  it  is  only  so 
when  it  ceases  to  become  real  estate  and  lx?comes  ])ersonal  pro]>- 
erty.     It  cannot  in  any  event  become  an  ordinary  article  of 

N.  E.  Eep.  1080;  :Manufacturers' Gas  N.    E.    Rep.    700;    West    v.    Kansas 

and  Oil  Co.  v.  Indiana,  etc.,  Co.,  155  Natural   Gas  Co.,   31    Sup.   Ct.  504; 

Ind.  500;  58  N.  E.  Rop.  851;  Manu-  221    U.    S.   229,    affirming    172    Fed. 

facturers'    Oil    and    Gas    Co.    v.    In-  545. 
diana,   etc.,   Co.,    155    Ind.   545;    58 


398  OIL   AND   GAS. 

merchandise  in  ^vhicll  no  dangerous  elements  combine.  Tn  a 
limited  and  qualified  sense  it  is  a  commercial  commodity,  but 
the  limitation  is  not  put  upon  it  by  any  statute.  That  is  done 
by  nature.  It  is,  no  doubt,  so  far  a  commercial  commodity  that 
this  State  cannot  prohibit  its  transportation  to  another  State  by 
direct  legislation.  If  it  can  be  taken  from  the  well  and  trans- 
ported to  anodier  State  under  a  safe  pressure  tlic  State  cannot 
prohibit  its  transi^rtation,  nor  can  the  State  -establish  one 
standard  of  pressure  for  its  own  citizens  and  another  standard 
for  the  citizens  of  other  States.  But  nothing  of  the  kind  is  at- 
tempted directly  or  indirectly,  for,  as  we  have  shown,  there  is 
one  standard  and  no  prohibition.  The  standard  is  for  all.  If 
it  is  such  as  will  allow  the  transportation  of  natural  gas  to 
other  States,  there  is  no  restriction  or  burden  upon  interstate 
commerce.  If  there  is  a  prohibition  in  any  sense,  or  to  any  ex- 
tent, it  is  in  the  nature  of  the  commodity  itself,  but  there  is  no 
prohibition.  We  have  shown,  as  we  believe,  that  natural  gas, 
because  of  its  local  nature  and  intrinsic  qualities,  cannot  be 
made  the  subject  of  general  commerce  between  the  States,  and 
have  thus  established  the  conclusion  that  it  mnnot,  so  far  as 
local  safety  is  concerned,  be  made  the  subject  of  uniform  Fed- 
eral legislation,  but  is  a  legitimate  subject  for  reasonable  police 
regulation.  But  if  it  be  conceded  that  it  is  the  subject  of  gen- 
eral commerce  between  the  States,  it  may,  nevertheless,  be  the 
subject  of  legislation  by  the  State  in  so  far  as  the  regulation  is 
local.  In  every  case  in  which  there  is  an  authoritative  decision 
upon  the  question  it  is  affirmed  that  the  States  may  make  p<ilice 
regulations,  although  articles  of  commerce  may  be  affected  by 
such  regulations.  Interstate  commerce,  it  is  true,  can  neither 
be  burdened  nor  restricted.  But  the  establishment  of  a  reason- 
able police  regulation  fur  the  local  safety  is  neither  a  burden 
nor  a  restriction  within  the  meaning  of  the  law;  since,  if  there 
be  a  lawful  exercise  of  a  governmental  power,  there  can  be  no 
wrong.  Our  own  cases  recognize  the  power  to  enact  reasonable 
police  regulations  concerning  articles  of  commerce.  But  our 
decisions  are  of  comparatively  little  importance  upon  this  ques- 
tion, since  the  question  is  one  to  be  determined  by  the  decisions 
of  the  Supreme  Court  of  the  United  States.      The  most  familiar 


TRANSPORTATION  —  KMINENT    DOMAIN.  309 

instances  of  the  exercise  of  police  power  over  commercial  com- 
modities are  those  wherein  intoxicating  liqnors  were  the  subject 
of  legislation,  and  it  has  been  uniformly  liold  that  such  com- 
modities are  subject  to  State  authority."  ^ 

§355.     Ownership  of  oil  in  pipe  lines. 

Prima  facie  oil  delivered  to  a  pipe  line  belongs  to  the  person 
to  whose  credit  or  in  whose  name  it  is  delivered;  and  tlie  pipe 
line  company,  when  sued  for  the  oil,  cannot  show  tliat  another 
owned  it,  or  had  an  interest  in  it  as  a  tenant  in  common,*  An 
interest  represented  by  a  run-ticket  issued  by  a  pijie  line  com- 
pany storing  and  carrying  oil  may  be  garnisheed,  although  all 
the  oil  the  company  is  intrusted  with  is  mixed  together  and 
stored  in  a  common  stock  in  two  States,  in  one  of  whicli  the 
garnishee  proceedings  is  brought,  and  although  the  particular 
oil  for  which  the  ticket  was  given  Avas  produced  in  the  other 
State  and  was  never  in  the  State  in  which  sucli  proceedings  are 
instituted.® 

§356.     May  be  endowed  with  powers  of  eminent  domain. 

Owing  to  the  public  character  of  transportation  of  oil  and 
(natural)  gas,  companies  producing  or  manufacturing  such 
commodities  may  be  endow^ed  witli  the  power  of  eminent  do- 

7  Jamieson    v.    Indiana,    etc..    Co.,  State.     Tho  company's  riplit   to  the 

128  Ind.  555;   28  N.  E.  Rep.  76;   12  use   of   eminent    domain    was    condi- 

L.  R.  A.  652;  34  Am.  and  Eng.  Corp.  tioned  on  such  a  provision  being  in- 

Cas.   1;   Manufacturers',  etc.,  Co.  v.  serted   in   its  ciiarter  or   articles   of 

Indiana,  etc.,  Co.,   155  Ind.  566;   58  association.     License  to  foreign  cor- 

N.  E.  Rep.  851;  Manufacturers',  etc.,  porations  formed  for  tlie  purpose  of 

Co.   V.    Indiana,   etc.,    Co.,    156   Ind.  transporting  natural   gas   by  means 

679;     60    N.    E.    Rep.    1080;     Con-  of    pipe    lines    \va.s    forbidden.      The 

Burners'    Gas   Trust  Co.   v.   Harless,  Circuit   Court   for  tiie   Eastern   Dis- 

131  Ind.  446;  29  N.  E.  Rep.  1062.  trict  of  OKlaiioma  held  the  statute 

In   Oklahoma   the   legislature    un-  unconstitutional     and    enjoined    the 

dertook    to    prevent    the    taking    of  State  oflicers   enforcing  it.      Kansas 

natural   gas   out   of   the   State,   and  Natural    Gas    Co.    v.    Haskell,    172 

enacted  a  statute  that  no  gas  com-  Eed.  Rep.  545,  aiTirmed  31  Sup.  Ct. 

pany    should    be   granted    a   ciiarter  564;    55  L.  Ed.  — :   221   U.  S.  229. 

unless   there   was   a   clause    inserted  »  Enterprise   Oil    and   Gaa    Co.   v. 

in    it    to    the    eflect    that    it    would  National   Transit   Co.,    172    Pa.    St. 

only  transport  oil  from  one  point  in  421;    26   Pittsb.  L.  J.    (N.  S.)    314; 

the  State  to  another,  and  would  de-  37  W.  X.  C.  473;   33  Atl.  Rep.  687. 

liver   no  gas  to  any  person   or  cor-  '■*  Huckeye    Pi|)e   Line   Co.   v.    Fee, 

poration  transporting  gas  out  of  the  15  Ohio  C.  C.  G73. 


400 


OIL    AND   GAS. 


main,  in  order  that  they  may  secure  a  right  of  way  for  their 
pipe  lines/"  "In  this  State  the  legislature,  in  the  exercise  of 
its  discretion,  has  judged  it  proper  to  clothe  companies,  cor- 
poratio!is  and  associations  engaged  in  the  business  of  furnishing 
petroleum  and  natural  gas  to  the  citizens  of  tliis  State,  for  con- 
sumption, with  the  power  of  eminent  domain,  while  it  has  not, 
as  yet,  thought  proper  to  clothe  companies,  corjwrations  and 
associations  not  so  engaged  with  that  power.  It  is  not  our 
province  to  inquire  into  the  motions  which  ])r<)iii])t(Hl  the  legis- 
lature to  grant  this  power  to  jjersons  engaged  in  furnishing 
petroleum  and  natural  gas  to  the  people  of  this  State,  and  to 
make  no  such  provisions  for  those  furnishing  them  to  the  people 
of  other  States.  It  is  sufficient  for  us  to  know  that  under  the 
authorities  they  possess  the  power  to  do  so,  and  tliat  in  the  exer- 
cise of  the  discretion  it  possesses  it  has  done  so."  " 


10  Johnston  v.  People's  Natural 
Gag  Co.  (Pa.),  7  Atl.  Rep.  167;  5 
Cent.  Rep.  564;  15  Morr.  Min.  Rep. 
556;  Carother  v.  Pliiladelphia  Co., 
118  Pa.  St.  468;  12  Atl.  Rep.  314; 
Bloomfield,  etc.,  Co.  v.  Richardson, 
63  Barb.  437;  West  Virginia,  etc., 
Co.  V.  Volcanic  Oil  and  Coal  Co.,  5 
W.  Va.  382;  In  re  New  Rochelle 
Water  Co.,  46  Hun  525 ;  Calor  Oil  & 
Gas  Co.  V.  Franzell  (Ky.),  122  S.  W. 
Rep.  188;  34  Ky.  L.  Rep.  — ;  Calor 
Oil  &  Gas  Co.'v.  Franzell  (Ky.), 
109  S.  W.  Rep.  328;  33  Ky.  L.  Rep. 
98;  Lovett  v.  West  Virginia  Central 
Gas  Co.,  65  W.  Va.  739;  05  S.  E. 
Rep.  196;  In  re  Ohio  Valley  Gas  Co., 
6  Pa.  Dist.  Rep.  200;  27  Pittsb. 
Leg.   J.    (.N.    S.)    321. 

11  Consumers'  Gas  Trust  Co.  v. 
Harless,  131  Ind.  446;  29  N.  E.  Rep. 
1062;  15  L.  R.  A.  505;  Board  v. 
Indianapolis,  etc.,  Co.,  134  Ind.  209; 
33  N.  E.  Rep.  972;  Consumers'  Gas 
Trust  Co.  V.  Iluntsinger,  14  Ind. 
App.  156;  42  N.  E.  Rep.  640; 
Charleston  Natural  Gas  Co.  v.  Ix)w, 

52  W.  Va.  662;  44  S.  E.  Rep.  410; 
State  V.  Toledo,  48  Ohio  St.  112; 
26  N.  E.  Rep.  1061;  11  L.  R.  A. 
729;  Bloomfield,  etc..  Natural  Gas- 
light Co.  V.  Richardson,  03  Barb. 
437. 

A  y>ipe  line  laid  in  ground  with- 
out the  landowner's  permission  be- 
longs to  the  landowner.  \VindfalI, 
etc.,  Co.  V.  Tutewiler,  152  Ind.  304; 

53  N.  E.  Rep.   284.      See  Lovett  v. 


West  Virginia  Central  Gas  Co.,  65 
W.    Va.    739;    65   'S.    E.    Rep.    196. 

Under  a  parol  license  to  lay 
"water  mains"  the  licensee  has  a 
right  to  lay  only  one  main,  where 
only  one  was  contemplated  wlien  the 
license  was  given.  Great  Falls  W. 
W.  Co.  V.  Great  Nortliern  Ry.  Co. 
21   Mont.   487;    54   Pac.    Rep.  903. 

No  question  as  to  the  efl'ect  on 
a  defendant  gas  company  of  the  pe- 
titioner piping  the  gas  into  a  city 
can  be  considered  in  a  proceeding 
to  secure  a  right  of  way  across  land 
•  leased  by  others  to  the  defendant 
gas  company;  and  a  lease  granting 
to  a  gas  company  the  exclusive  right 
to  lay  pipe  lines  across  the  lessor's 
land  is  v  d,  because  against  public 
policy,  in  so  far  as  it  excludes 
others  from  crossing  the  tract,  and 
gives  rise  to  no  legal  lights.  In 
taking  land  for  a  riglit  of  way 
across  land  tlie  gas  company  seek- 
ing it  must  pay  its  "market  value," 
which  is  a  sum,  tiie  owner  who  de- 
sires to  sell  it,  but  not  compelled 
to  do  so,  would  take  for  it  in  its 
present  condition,  and  what  a  pur- 
chaser, who  is  not  compelled  to  buy 
it,  and  not  compelled  to  iiave  it, 
would  give  for  it  under  tlie  circum- 
stances. This  rule  apjilios  to  an 
instance  of  laying  a  ])ipe  in  a 
higiiway  or  along  the  right  of  way 
of  a  railroad  across  the  defendant's 
land.  Calor  Oil  &  Gas  Co.  v.  Fran- 
zell  (Ky.),  109  S.  W.  Rep.  328;  33 


TRANSPORTATION EMINENT    DOMAIN.  400a 

§  357.     Artificial  gas  companies. — Eminent  domain. 

Companies  for  furnishing  artificial  or  manufactured  gas  sel- 
dom possess*  the  power  of  eminent  domain ;  but  there  is  no 
doubt  that  they  may  be  endowed  with  that  power.^-  They  are 
not  usually  such  public  corporations  as  are  endowod  with  the 
privilege  to  exercise  such  a  great  power.  Their  ])r()i)crty  is  not 
exempt  from  condemnation  by  a  railway  cttmiiany  se<'kiiig  u 
right  of  way,  as  public  quasi-public  corporations  usually  arc. 
In  one  case  it  was  said :  "  There  is  nothing  in  tlie  charter 
of  the  gaslight  company  which  entitles  it  to  exemption  from  tlie 
power  of  eminent  domain  exorcised  under  tlie  statute,  in  ao- 
quiring  real  estate.  Its  land  is  not  held  by  virtue  of  any  such 
right;  nor  is  it  required  to  sen^e  any  public  use  which  confers 
upon  it  any  special  privilege  in  this  respect  It  is  a  private 
manufacturing  corporation  which  furnishes  gas  to  individuals 
and  for  the  lighting  of  the  public  streets,  on  such  terms  as  are 
agreed  upon.  This,  of  itvself,  does  not  make  It  a  public  cor- 
poration. It  is  not  merely  public  because  it  has  a  public  char- 
acter. The  land  is  not  now,  and  has  not  been,  devoted  to  gas 
purposes  by  the  company,  and  it  is  not  clear  that  it  is  not  abso- 
lutely indispensable  for  their  use  at  the  present  time.  That  it 
may  become  so  hereafter  does  not  nocossarily  deprive  tbe  peti- 

Ky.   L.   Rep.   98;    Calor  Oil   &  Gas  real  estate  sought  to  be  condemned 

Co.    V.    Franzell    (Ky. ),    122    S.    W.  is  necessary   for   its  pipe   lino   from 

Rep.   188;   34  Ky.  L.  Rep.  — ;   Calor  its   wells   to    a   certain    named    city. 

Oil  &  Gas  Co.  V.  Withes  (Ky.),  13.3  It  should  show  that  it  is  cngarjod  in 

S.  W.  210.  furnisiiing  gas  to  the  public.     If  the 

A    statute    providing    tliat    lands  statute  autliorizes  merely  taking  an 

for  gas  pipe  lines  shall  not  be  con-  easement,    llien    the    petition    is    de- 

demned    within    a    certain    distance  fective   if   it   seeks   to  tiike  the   fee. 

of  a  dwelling,  but  permitting  pipes  Great  We?        ,  etc.,  Co.  v.  Hawkins 

to  be  laid  along  a  highway,  without  (Ind.  App. ),  GG  N.  E.  Rep.  7tir>. 

regard  to  nearness  of  dwellings,  has  In  order  to  secure  a  right  of  way 

no   application   to  tiie   sinking  of   a  to  a  city  it  is  not  necessary  to  allege 

well   and   laying  pipes  on  one's  own  the    petition    tliat   tiie    petitioner 

land,    between    wliich    and    dwellings  has  secured   a   franchise   in  tiie  city 

within  that  distance  tiiere  is  a  high-  or   that    it    sold   all    its   gas    to   an- 

way.     Winfall   IManufg.   Co.  v.   Pat-  other    company.      Calor    Oil    &    Gas 

terson,  148   Ind.  414;  47  X.  E.  Rep.  Co.   v.    Franzell    (Kv.),    10!)    S.    W. 

2;    62  Am.   St.   Rop.   532;   37   L.   R.  328;   33  Ky.  L.   Rep.  98. 

A.  381.  Instate  "v.   Indiana,  etc..  Co.,   120 

Under    a    statute    authorizing    a  Ind.  ,'575;  22  N.  E.  Rep.  778;  29  Am. 

natural     gas     company    engaged     in  and    Eng.  Corp.    Cas.    237:    G   L.    R. 

furnisiiing  gas  to  the  ])ublic.  the  pe-  A   579;    In   re.   East    River   Gas   Co., 

tition    for    the    condenuiation    of    a  190  N.  Y.  528;  84  N.  E.  Rep.  1112; 

tract  for   a   right  of  way   is  fatally  aflirming    119    App.    I)iv.    350;     104 

defective  if  it  only  alleges  that  the  N.   Y.   Supp.   Rep.   239. 


400b  OIL   AND   GAS. 

tioners  of  the  right  to  acquire  it  if  the  public  exigencies  re- 
quire it."  ^^ 

§358.     Foreign  companies  excluded  from  use  of  power  of  eminent 
domain. 

The  legislature  may  authorize  domestic  companies  to  exercise 
the  jwwer  of  eiuiuent  domain  without  extending  the  right  to 
foreigni  companies ;  and  the  statute  conferring  such  power  is  not 
for  that  reason  unconstitutional.^*     A   foreign  company  may, 

however,  be  endowed  with  such  pnwer.^^ 

§  359.     Number  of  lines  that  can  be  laid  in  right  of  way  ac- 
quired. 

A  gas  company  having  acquired  a  right  of  way  by  the  power 
of  eminent  domain  is  not  restricted  in  the  size  of  the  pipe  it 
will  lay  down,  nor  in  the  number  so  long  as  it  keeps  upon  such 
right  of  way.^* 

§  360.    Laying  pipes  in  country  highways  or  on  right  of  way 
of  a  railroad. 

As  a  pipe  line  is  an  additional  burden  on  the  fee  of  a  country 
highway,  a  gas  or  oil  company  engaged  in  the  transportation 
of  gas  or  oil  must  condemn  the  fee  for  their  use,  and  also 
obtain  the  consent  of  the  proper  public  officials,  before  it  can 
lay  its  pipe  lines  therein. ^^     If  a  railroad  company  have  an 

13  New  York,  etc.,  R.  R.  <Jo.  v.  172  Fed.  Rep.  585,  affirmed  31  Sup. 
Metropolitan  Gaslight  Co.,  63  N.  Y.,  Ct.  564;  221  U.  S.  22!);  Haskell  v. 
326;  5  Hun  201.     See  also  Common-       Coweram,    187    Fed.    403. 

wealth    V.    Lowell   Gaslight   Co.,    12  le  Dover  Gaslight  Co.  v.  Dover,  7 

AUeo  77.  De  G.  M.  and  G.  545;  4  Gas  J.  129, 

That    an    artificial    gas    company  176;   1  Jur.   (N.  S.)  812. 

may  be  endowed   with  the  right   of  A    gas    company    cannot    erect    a 

eminent    domain,    see    Bloomfield    v.  telegraph    or    telei)hono    line    along 

Richardson,  63  Barb.  437.  and    on    its    right    of    way    on    the 

14  Consumers'  Gas  Trust  Co.  v.  ground  that  it  is  necessary  to  carry 
Harless,  131  Ind.  446;  29  N.  E.  Rep.  on  the  chief  purpose  of  its  incorpo- 
1062-   15  L.  R.  A.  505.  ration.      Woods   v.   Greensboro,   etc., 

15 /n   re   Ohio   Valley    Gas   Co.,    6  Gas    Co.     (Pa.),    54    Atl.    Rep.    470. 

Pa.    Dist.    200;    27    Pitsb.    I>eg.    J.  See    Gray    v.    Boston   Gaslight    Co., 

(N.    S.)     321;    United    Waterworks  114  Mass.  149. 

Co    V    Omaha  Water  Co.,  21  N.  Y.  i"  Board  v.  Indianapolis,  etc.,  Co., 

Misc.  594;  49  N.  Y.  Supp.  817.     See  134   Ind.   209;    33   N.   E.   Rep.   972; 

Cowell  V.  Colorado  Springs,   100  U.  Consumers'  Gas  Trust  Co.  v.  Hunt- 

S.    55;     American,    etc.,    Union    v.  singer,   14  Ind.  App.   156;   42  N.  E. 

Yount'    101    U.    S.    352;    Watts    v.  Rep.     640;     Sterling's    Appeal.     Ill 

Gantt,  42  Neb.  869:   61  N.  W.  Rep.  Pa.  St.  35;  2  Atl.  Rep.  105;  Bloom- 

104-    Carlow    v.    Aultman,    28    Neb.  field,    etc.,    Gas    Co.    v.    Calkins,    1 

672;    44   N.   W.   Rep    873;    Kansas  T.  and   C.    (N.  Y.)    549;   Calkins  v. 

City    Natural    Gas    Co.    v.    Haskell,  Bloomfield,  etc.,  Gas  Co.,    1  T.  and 


TRANSPORTATION  —  EMINENT    DOMAIN.  400c 

easement  over  an  owner's  land  for  its  right  of  way,  a  pipe  line 
cannot  be  laid  in  such  a  right  of  way  without  condemning 
the  land  and  paying  the  owner  for  such  purpose.''"  Where  a 
turnpike  company  granted  to  a  natural  gas  company  a  right- 
of-way  for  gas,  in  consideration  of  gas  to  be  furnished  to  the 
company,  its  successors  or  assigns,  and  the  turnpike  campany 
afterwards  assigned  its  rights  to  a  street  railway  company, 
and  the  turnpike  road  was  subsecjuently  condemned  by  the 
county  as  a  public  street,  the  assignee  of  the  turnpike  com- 
pany was  entitled  to  receive  gas  from  the  gas  company,  under 
the  contract,  as  long  as  the  gas  company  maintained  its  line 
along  the  road  undisturbed ;  the  taking  over  of  the  turnpike 
company  by  the  county  not  ipso  facto  terminating  the  right-of- 
way  regardless  of  whether  the  turnpike  company  owned  a  fee 
in  the  road  or  had  the  power  to  grant  a  right-of-way  beneath, 
the  surface.^^'' 

§  361.     Measure  of  damages,  for  taking-  right  of  way. 

The  courts  will  presume  that  it  is  a  damage  to  land  to  con- 
duct a  pipe  line  through  it,  without  any  evidence  of  that  fact.'^ 
In  determining  the  amount  of  damages,  both  present  and  future 
damages  may  be  recovered.^''  The  measure  of  damages  in  the 
appropriation  of  a  right  of  way  is  the  market  value  of  the  land 
appropriated,  and  any  injury  to  the  residue. -°  In  the  case  just 
cited  only  an  easement  was  taken,  and  the  court  called  attention 

C.     (X.    Y.)    541;    Kansas    Natural  Co.   v.   Jones,   14    Ind.   App.   55;    42 

Gas   Co.   V.   Haskell,    172   Fed.   Rep.  N.  E.  Rep.  487;   12  Nat.  Corp.  Rep. 

585.                         ■  60. 

In   Bishop   v.  North   Adams    Fire  i9  Hyde  Park,  etc.,  Co.  v.  Porter, 

District,    167    Mass.    364,    45    N.    E.  167    ifl.    276;    47    N.    E.    Rep.   2(Xi; 

Rep.  925,  it  is  held  tliat  one  owning  allirniing    64    111.    App.     152.      This 

the  fee  of  a  highway  is  not  entitled  statement,  in  its  efTcct,  must  not  be 

to  damages  because  of  a  water  pipe  e.xtonded     to     prospective     damages 

laid  therein.  caused  by  negligence. 

In  England,  see  Selby  v.  Crystal,  20  Manufacturers',     etc.,      Co.     v. 

etc.,  Gas  Co.,  30  Beav.  606;   ll  Gas  Leslie,  22   Ind.  App.  -677;   51   N.  E. 

J.    398;    6   L.    T.   R.    790;    Footway,  Rep.  510.     The  first  opinion  in  this 

Mitchani  Gas  Co.  v.  Wimbledon  Lo-  case,   as  reported   in   49   N.    E.    Rep. 

cal  Board,  30  Gas  J.  600.  946,  was  set  aside.     Calor  Oil  &  (Jas 

i-aCalor  Oil  &  Gas  Co.  v.   Fran-  Co.    v.    Franzell     (Kv.),    109    S.    W. 

zell    (Ky.),    109   S.   W.      Rep.   328;  Rep.    328;    34    Ky.  "l.    Ht'i). 

33  Ky.  L.  Rep.  98;  Calor  Oil  &  Gas  If  the  strip  scnight  to  be  taken 
Co.  V.  Franzell,  122  S.  \V.  Rep.  188;  has  no    peculiar   adaptaiiility    for    a' 

34  Ky.  L.  Rep.  — ;  Calor  Oil  &  Gas  pipe  line,  evidence  of  the  value  of 
Co.  V.  Wither  (Ky. ),  133  S.  W.  the  pipe  line  based  on  any  supposed 
210.  adaptability     for     pipe     line     pur- 

17b  Suburban     Rapid     Transit    St.  pos«'s,     is     inadmissible;      and     the 

Ry.    Co.    V.    Monoiigaliela    Nat.    Gas  owner   of   tlie  land   mav  not   add   to 

Co.,   230    Pa.    109;    79    Atl.    252.  the   value  of   his   projierty    damages 

18  Indiana    Natural    Gas    and    Oil  arising   from   the   supixised   e.xhaus- 


400d  OIL   AND    GAS. 

to  the  difference  where  only  an  easement  was  taken  and  where 
the  fee  was  condemned.  "  The  object,  tliereforc,  of  the  legis- 
lature in  passing  tlie  Act,"  said  the  court  in  the  case  cited,  '*  we 
are  now  considering  was  to  provide  land  owners  a  just  and  ade- 
quate compensation  for  damages  incident  to  construction  of  pipe 
lines  over  and  across  their  lands.  Such  compensation  must  be 
measured  by  the  actual  damages  to  the  freehold  occasioned  l>y 
sucli  construction,  including  tlie  land  aj>propriated  and  occupied, 
and  the  relation  of  the  remaining  land  thereto."  '^  The  amount 
to  be  allowed  whore  the  line  is  laid  in  the  public  highway  is  the 
difference  in  tlie  market  value  of  the  land  Ix^fore  and  after  the 
construction.""  Damages  may  be  allowed  for  the  inconvenience 
occasioned  by  the  placing  of  boxes  at  a  point  where  another  line 
crosses,  and  which  would  not  have  been  necessary  but  for  the 
construction  of  such  line.^^  But  the  right  of  tlie  company  to 
abandon  the  easement  or  right  of  way  and  remove  its  pipes  can- 
not, it  has  been  held,  furnish  a  claim  for  injuries  apprehended 
from  its  exercise ;  nor  in  reducing  the  amount  by  reason  of  the 
fact  that  the  land  owner  would,  by  such  abandonment,  receive 
back  his  land  without  a  burden  imposed  upon  it.^*  But  tliis 
case  on  appeal  was  reversed,  as  indicated  below.  ^^ 

tion   of   a   gas    reservoir   under   his  Haskell,  172  Fed.  Rep.  545;  Haskell 

property  by  the  use  which  the   gas  v.  Cowan,   187  Fed.  403. 

company    intends     to    make    of    its  =1  Indiana,   etc.,   Co.   v.   Jones,    14 

gas    wells,    because    its    exhaustion  Ind.  App.    55;    42   N.   B.   Rep.   487; 

will   not   arise   from   the   mere    fact  12  Nat.  Corp.  Rep.  60;  Patterson  v. 

that  the   pipe   line   is   laid   through  People's  Natural    Gas   Co.,    172   Pa. 

his   land.      Calor   oil   &   Gas   Co.   v.  St.   554;    26    Pittsb.   L.   J.    (N.    S.) 

Franzell     (Ky.),     122    S.    W.    Rep.  260;  37  W.  N.  C.  422;  33  Atl.  Rep. 

118;  34  Ky,  L.  Rep.  — .  575;     Newberryport    Water    Co.    v. 

A  gas  company  has  no  such  prop-  Newberryport,  168  Mass.  541;  47  N. 
erty  right  in  the  location  of  its  E.  Rep.  533.  Benefits  may  be  con- 
pipes  and  mains,  laid  under  an  ex-  sidered.  Fisher  v.  Raden  Gas  Co., 
elusive  franchise  to  supply  gas  to  138  Pa.  St.  301;  22  Atl.  Rep.  29. 
the  city  and  its  inhabitants,  as  to  22  Hankey  v.  Philadelphia  Co.,  5 
make  the  imposition  upon  it  of  the  Pa.  Super.  Ct.  148;  41  W.  N.  C.  27. 
cost  of  changes  in  the  location  of  2^  ;McMillan  v.  Philadelphia  Co., 
such  pipes  and  mains,  necessitated  1  Pa.  Super.  Ct.  648;  38  W.  N.  C. 
by  the  construction  of  the  municipal  222. 

draimge  system    authorized   by    Act  "*  Clements  v.  Philadelphia  Co.,  3 

La.  July  9,  1896,  a  taking  of' prop-  Pa.  Super.  Ct.  14;  39  W.  N.  C.  290; 

ertv      without      due     compensation.  reversed   184  Pa.   St.   28;    41   W.   N. 

Judgment     (1003)    35    So.    920,    111  C.    321:    28    Pittsb.    L.    J.     (N.    S.) 

La.  838.  afTirmed.    New  Orleans  Gas-  344:    30  L.  R.  A.  532;    38  Atl.  Rep 

light    Co.    V.    Drainage    Commission  1000. 

of  New  Orleans,  25   S.   f'i.  471,   197  s''- Evidence     of     the     eflfect     upon 

U.  S.   453,  40  L.   Ed.  831.  vegetation  of  escaping  gas  is  admis- 

Natural  gas  reduced  to  possession  sible,    even    upon    cross   examination 

cannot  be  taken   without  eompensa-  where  the  witness  has  testified  that 

tion.      Kansas   Natural    Gas   Co.   v.  laying  pipes  through  the  soil  would 


TR.\NSPORTATION  —  EMINENT   DOMAIN.  401 

§362.     Damages  occasioned  by  gas  company's  trespass  on  land. 

Where  a  gas  conijwiny  commits  a  tresiiass  upon  land,  under 
4  the  daim  or  assertion  of  a  right  to  lay  a  pipe  line  therein,  the 
measure  of  damages  is  not  the  same  as  it  is  in  proceedings  to 
condemn  a  right  of  way.  In  sucli  an  instance  the  land  owner  is 
entitled  to  damages  for  any  injury  to  the  land  caused  by  the 
operation  of  the  pijx?  line.  But  he  is  not  entitled,  it  has  been 
held  in  Pennsylvania,  for  destruction  of  crops  caused  by  escap- 
ing gas,  if  there  be  no  evidence  that  the  pijjes  are  defective  or  not 
properly  constructed."" 

§363.     Prospective  damages  for  fires  and  explosions. 

Damages  cannot  be  allowed  for  losses  that  may  possibly  be 
occasioned  by  fires  and  explosions.  The  courts  will  not  pre- 
sume that  gas  or  oil  cannot  be  safely  conducted  through  pro[x?r 
pipes;  and  it  will  not  presume  that  the  condemning  company 
will  not  use  proper  pipes  or  conduct  its  business  in  a  safe  man- 
ner. Xor  will  it  be  presumed  that  gas  or  oil  will  be  permitted 
to  escape  so  as  to  injure  growing  crops  or  trees,  or  render  the 
region  through  which  it  passes  unsafe  or  undesirable  to  use  for 
living  purposes.  It  will  not  indulge  the  presumption  that 
noisome  smells  will  be  permitted  to  escape,  to  the  nnnoyaneo  of 
the  owner  of  the  lands  through  which  the  pipe  linos  run.-'  This 
is  especially  true  if  a  statute  makes  the  company  liable  for  dam- 
ages thus  occasioned  in  the  future."'* 

not    injure    the    land.      Bloomfield,  27  Indiana,  etc.,  Co.  v.  Jones,   14 

etc.,  Gas  Co.  v.  Calkins,  1  T.  and  C.  Ind.  App.  55 ;    42   N.   E.   Rep.  487 ; 

(N.  Y. )  549.  Manufacturers'  Gas  Co.  v.  Leslie,  22 

Damages    for   loss   of   rifle   range,  Ind.  Ai>p.  G77;   51  N.  E.  Rep.  510; 

see  Holt  v.   Gasliglit  and  Coke  Co.,  Wolf  v.  Cincinnati,  etc.,  Co.,  (>  Oliio 

L.  R.  7  Q.  B.  Div.  728;  41  L.  J.  Q.  Dec    15iJ;  Donniston  v.  riiiladclpliia 

B.  351;  27  L.  T.   (N.  S.)   442.     For  Co.,    IGl    Pa.    St.   41;    28  All.   Kep. 

injury  to  arches  in  street.  Gaslight  1007. 

and  Coke  Co.  v.  Hi.  George  Vestry,  28  Denniston   v.   Philadelphia  Co., 

42  L.  J.    (X.  S.  Q.  B.)   50.  1   Super.   Ct.    (Pa.)    599;    38   W.  N. 

20  Patterson    v.    People's    Natural  C.  332;  27  Pittsb.  L.  J.   (N.  S  )    14. 

Gas  Co.,   172   Pa.   St.   554;    33   All.  Future    prospective    leaks    in    water 

Rep.  575;  Denniston  v.  Philadelpiiia  pipes   may    be    allowed.      Darlington 

Co.,    IGl    Pa.   St.   41;    28    All.    Rep.  v.   Allegheny,    28.  Pittsb.   L.    J.    (X. 

1007;    Ilankey   v.   Philadelphia    Lu.,  S.),381;  McGregor  v.  Equitable  Gas 

5    Pa.    Super.    Ct.    148;    41    W.    X.  Co.,    21    Atl.    Rep.    l3;    139    Pa.    St. 

C     27.  z30. 


402  OIL    AND    GAS. 

§364.     Removal  of  pipe  line,  damages. 

Tn  a  Pennsylvania  case  the  following  nile  was  laid  down  con- 
cerning damages  occasioned  by  a  removal  of  a  pij:>e  line : 

"  An  entry  for  the  purpose  of  removal  stands,  however,  uyxm 
somewhat  different  gi'onnds.  It  is  not  made  Ixjcause  of  the 
necessities  of  transportation,  but  because  they  no  longer  exist. 
It  is,  therefore,  the  duty  of  the  company  to  make  the  removal 
at  the  time  and  in  the  manner  best  adapted  to  the  purpose,  and 
least  harmful  to  tlio  land  owner.  It  is  the  duty  of  the  company, 
upon  a  surrender  of  its  easement,  to  fill  the  trench  it  has  ojiened 
so  far  as  to  substantially  to  restore  the  surface  of  the  land,  and 
its  failure  to  do  so  is  just  ground  of  a  complaint.  It  should 
make  compensation  for  any  actual  injury  to  growing  grain  or 
grass,  and,  if  the  field  be  in  meadow,  for  any  substantial  injury 
to  the  turf,  beyond  the  mere  opening  and  filling  of  the  trench  in 
which  the  pipe  lay.  Subject,  however,  to  the  limitations  now 
indicated,  it  has  the  right  to  enter  and  remove  its  pipe  without 
being  liable  as  a  trespasser  therefor."  ^® 

§365.     Pipe  line  crossing  right  of  way  of  railroad  company. 

The  owner  of  an  easement  across  or  under  a  railroad  track, 
for  the  purpose  of  passing  and  repassing,  cannot  give  a  pipe  line 
company  the  right  to  lay  its  line  in  his  right  of  Avay ;  and  if  the 
pijK?  line  company,  acting  u]x>n  a  permission  given  by  such 
owner  of- the  easement,  lay  its  pipe  line  in  his  right  of  way  it 
will  be  liable  to  the  railroad  company  in  an  action  of  trespass.^" 
But  where  the  owner  of  land  convoyed  a  right  of  way  to  a  rail- 
road company  for  its  railroad,  and  afterwards  discovered  gas 

29  Clements    v.    Philadelphia    Co.,  and    cannot  be   removed.     Windfall, 

184  Pa.  St.  28;  28  Pittsb.  L.  J.   (N.  etc.,  Co.  v.  Tutewiler,  1.52  Ind.  .364; 

S.)    344;    41  W.  N.  C.  321;   38  Ail.  53  N.  E.  Rep.  284. 

Rep.  1090;  39  L.  R.  A.  532,  revers-  30  United  States  Pipe  Line  Co.  v. 

ing  3  Pa.  Super.  Ct.  Rep.  14.  Delaware,  etc.,  Ry.  Co.,  62  N.  J.  L. 

A   gas    pipe    laid    in    the    ground  254;  41  Atl.  Rep.  759;  42  L.  R.  A. 

without     permission     of     the     land  572;   Breckanidge  v.  Delaware,  etc., 

owner   belongs   to   such   land  owner  R.  R.  Co.   (N.  J.),  33  Atl.  Rep.  800. 


TRANSPOKTATIOX  —  EMINENT    DOMAIN.  403 

on  bis  land  bcyuncl  tJie  railroad,  it  was  held  lliat  he  was  entitled 
to  a  right  of  way  across  the  company's  track  for  a  gas  pipe,  as  a 
way  of  necessity.'^ 

^366.     Revocation    of  license. 

o 

A  license  to  erect  and  nuiiiitain  a  n^servoir  and  iu])o  line  will 
not  be  revoked  by  court  of  equity,  except  on  the  condition  that 
the  licensee  may  remove  his  im]>rovements,  made  on  the  iaith  of 
the  license,  if  it  can  l)e  accomplished  without  material  loss,  or  if 
not,  that  the  licensor  or  his  grantor  make  a  just  eomjiensation 
for  the  loss.'^^^ 

§367.     Route,  specifying  in  petition  —  more  than  one  route. 

The  exact  location  of  a  ])urposed  pipe  line  need  not  be  given 
by  courses  and  distances  in  the  petition,  under  the  ordinary  stat- 
ute; but  it  is  sufficient  to  give  the  size  of  the  pi]x^,  the  number 
of  feet  it  will  traverse  the  land  in  question,  and  its  a])proximate 
direction.'*'  As  a  rule  a  (•om]>any  can  have  only  one  right  of 
way  across  a  tract  of  land;  however  convenient  another 
would  be.^^ 

§368.     Coal  mine  beneath  pipe  line  —  support. 

The  easement  of  a  gas  company  by  eminent  domain  carries 
with  it  the  right  of  su]>port  for  its  lines;  and  tJie  owner  of  the 
coal  has  no  right  to  remove  the  coal  or  other  minerals  under  the 
lines  to  their  injury  or  detriment.  The  I'ight  of  the  owner  of 
the  land  is  subordinate  to  the  su]:)erior  right  of  the  gas  com- 
pany; and  such  superior  right  to  the  use  of  the  ground  appro- 
priated extends  to  all  the  mineral  underlying  the  line,  including 

31  nil  V.   Ohio  River  "Rv.  Co.,  47  32  Tn  re  Ohio  Vallpy  Oas  Co.,  fi  Pa. 

W.  Va.  59;  34  S.  E.  Rep."  934.     See  Dist.    Rop.    200;    27    Pittsh.    L.    J. 

Calor    Oil    &    Gas    Co.    v.    Franzell  (X.  R.)   321. 

(Ky  )      109    S     W.    Rep.    328;     33  33  j\IcKav    v.   Pennsylvania    Water 

Ky  L.'Pep.  78     122  S.  W.  Rep.  188;  Co.,  G  Pa.  Dist.  Rep.  364;  27  Pittsh. 

34  Kv.  L.  Rep.  — .  Lop.  J.   (N.  S.)   400. 

*3i  Flick   V.   Bell    (Cal.),   42  Pac.  If   the  conipnny   does  not  comply 

Rep.  813.  ^vith    the   statutory   requirements   in 

The  rights  of  a  licensee  laying  his  securing  a  eondeinnat  inn   of  a   ritrht 

pipes    in    another    person's    ground  of   way,    the   courts   will    not  enjoin 

will     be     protected     l)y     injunction.  the  land  owner  from  interfering  \%'i(li 

Ralston  v.  Wichita  Natural  C!as  Co.,  tlie  layinur  of  its  ])ipe  line.     Qunrrv- 

81  Kan.  86;   10.5  Pac.  Rep.  430.    See  ville  Water  Co.  v.  Fritz,  14  Lane.  L. 

also  Brookshire  Oil  Co.  v.  Casmolia,  Rev.  186. 
etc.,    Co.,    156   Cal.    211;    103    Pac. 
Rep,  927. 


.  404  OIL,   AND    GAS. 

the  coal,  the  removal  of  which  would  endanger  the  safety  of  the 
pipes.  In  such  a  case  it  may  be  shown  in  evidence  in  assessing 
the  damages,  the  cliarnctcr  of  the  sdil  through  which  the  line 
will  rim,  tlie  deptli  the  line  will  be  below  the  surface  of  the 
ground,  its  proximity  to  the  surface  of  the  underlying  coal,  the 
danger  of  the  surface  falling  in  -svhen  the  coal  is  removed,  the 
probable  breaking  of  the  pi^x?  line,  and  the.  danger  of  gas  escap- 
ing into  the  mine,  for  the  purpose  of  showing  the  general  depre- 
ciation in  the  market  value  of  the  land  through  which  the  pipe 
line  runs.  The  gas  company  has  a  right  to  the  support  of  its 
pi}X'  lines,  and  this  is  an  element  to  be  considered  in  estimating 
the  extent  to  which  the  value  of  the  tract  as  a  whole  is  affected, 
though  not  to  estimate  the  value  of  the  coal  supposed  to  be  neces- 
sary to  remain  to  afford  a  support.  The  fact  that  the  gas  com- 
pany has  executed  a  release  of  damages  that  might  be  occasioned 
by  the  removal  of  the  coal  does  not  prevent  the  owner  of  tlie 
mine  recovering  compensation  for  the  risk  of  injuries  to  the 
mine  in  operating  it.^*  Dangers  to  the  coal  mine  that  might 
be  occasioned  by  gas  escaping  into  the  mine  cannot  be  considered 
in  assessing  damages  for  a  right  of  way ;  for  the  law  provides  a 
remedy  in  such  a  case  by  an  action  for  damages ;  and  if  the  mine 
owner  has  occasioned  a  break  in  the  piix?s,  whereby  the  gas 
escapes  into  tlie  mine,  by  removing  their  support,  he  cannot  re- 
cover. If  the  gas  company  has  released  a  right  of  support 
'^  from  the  coal  or  other  mineral  underlying  the  surface,  tlien 
the  owner  of  the  coal  may  mine  and  remove  it  as  freely  and 
fully  as  though  no  entry  had  been  made  upon  tlie  surface,  and 
for  that  reason  it  should  not  bo  taken  into  consideration  in  ad- 
justing the  damages  to  tlie  land  owners  "  ;  ''''  and  the  element  of 
possible  damages  to  the  pipe  line  from  a  subsidence  of  the  sur- 
face cannot  be  considered.  ISTor  can  evidence  be  admitted  of  a 
conjectural  character  as  to  tlie  opinions  of  wdtnessesi  that  there 
might  be  a  subsidence  where  the  coal  is  more  than  one  hundred 

34  Davis  V.  JofTorson  Gas  Co.,  147        130   Pa.   St.  230;    21    Ail.   Rep.    13; 
Pa.   St.  ]30;  23  Atl.  Rep.  218.  27  W.  N.  C.   197. 

35  McGregor  v.  Equitable  Gas  Co., 


TRANSi'OKTATlON  EMINENT    DOMAIN.  405 

feet  below  the  surface,  and  therefore  it  would  be  necessary  to 
leave  coal  for  a  support.^" 

§369.     Well  pipe  passings  through  coal  mine. 

A  lessee  of  a  coal  mine,  having  only  a  right  to  remove  the 
coal,  and  such  risihts  as  are  incident  thereto,  cannot  prevent  tlie 
owner  of  the  surface,  or  his  lessee,  drilling  a  gas  well  through 
the  stratuju  of  coal  to  tlie  gas  or  oil  Ix-low,  whether  or  in  it  the 
existence  of  the  oil  or  gas  was  known  at  the  time  of  the  lease ; 
and  the  lessee  cannot  prevent  a  use  of  either  the  surface  or  of 
the  eartli  below  the  coal  stratum.  lie  is  not  entitled  to  dam- 
ages because  of  the  siid<ing  of  the  shaft.'''  Nor  will  an  injunc- 
tion be  granted  where  the  pipes  pass  through  that  i)ortion  of  the 
mine  from  which  the  coal  has  been  removed,  even  though  the 
charge  is  that  there  will  be  danger  from  explosions  when  such 
danger  is  denied  by  counter  affidavit-s  because  of  the  extra  ])re- 
cautions  that  are  being  used  to  prevent  an  explosion.  Nor  will 
a  preliminary  injunction  be  awarded  to  prevent  the  boring 
where  the  pipe  passes  tlirough  that  portion  of  the  mine  exca- 
vated, if  the  remaining  coal  can  bo  removed  without  serious 
interference  by  other  passageways  ami  the  o^\^^er  of  the  coal  can 
be  a\varded  a  judgment  for  the  value  of  the  coal  taken  out  on 
final  hearing.^^  Nor  will  the  fact  that  one  or  more  wells  have 
already  been  sunk  prevent  the  sinking  of  other  wells,  unless  posi- 
tive danger  should  he  occasioned  thereby. "''" 

36  Wallace  v.  Jefferson  Gas  Co.,  Mellon,  152  Pa.  St.  286;  25  Atl. 
147   Pa.  St.  205;  23  Atl.  Rep.  410.       Rep.  507;   18  L.  R.  A.  702. 

On  the  same  points  see  Penn.   (Jas  •''s  Rend    v.    Venture    Oil    Co.,    48 

Coal  Co.  V.  Versailles  Fuel  Gas  Co.,  Ted.    Rep.    248. 

131  Pa.  St.  522;  19  Atl.  Rep.  93.3.  3(.  Commonwealth    v.     Sauters.    0 

37  Chartierrf    Block    Coal    Co.    v.  Kulp   407.     See   Robbins  v.  Guffey, 

48  Le<'.  Int.  462. 


CHAPTER  XIX. 

TRANSPORTATION  OF  OIL  AND  GAS. 

§370.     Limit  of  diseiissinn. 

§371.     Irijiuies  oeoasioned  in  transportin<j^  oil  by  rea.son  of  defective  cars 

or  track. 
§372.     Defective  oil  tank.  —  Car.  —  Remote  liability  —  Intervening  agency. 

—  Crude  petroleum  not  a  dangerous  agency. 
§373.     Oil  shipped  on  trains  carrying  other  goods. 
§374.     Shipper's  liability  to  servant  of  carrier.      Naphtha. —  Petroleum. — 

Dangerous  agency. 
§375.     Injuiy  to  passengers.- — •  Train  wicck. 
§37fi.     Cunosity  seekers. —  Exploding  oil. 
§377.     Allowing  oil  to  escape  from  pipe  line. 
§378.     Inspection  of  pipe  line. 
§379.     Oil  illegally  stored  at  railroad  station. 
§380.     Storing  oil  in  warehouse. 
§381.     Tliiof  setting  oil  on  fire. 

§370.     Limit  of  discussion. 

Tn  another  chapter  we  have  discussed  the  subject  of  Eminent 
Domain  as  applied  to  ^as  and  oil  pipe  linos,  and  shall  not  here 
repeat  what  was  there  said ;  but  shall  only  make  use  of  tlie  fe  v 
cases  there  are  on  the  subject  of  transportation  of  oil  and  ^at., 
whether  by  the  ordinary  methods  of  transportation,  or  bv  rail- 
road or  water,  or  by  pipe  lines. 

§371.     Injuries  occasioned  in  transporting  oil  by  reason  of  de- 
fective cars  or  track. 

A  railway  company  or  common  carrier  may  he  liable  for  in- 
juries to  property  adjacent  its  riirht  of  way  occasioned  by  tlie 
use  of  improper  cars,  or  by  allowing  its  track  to  become  out  of 
repair  whereby  a  train  is  derailed,  oil  tanks  it  is  carrying  are 
bursted  open,  the  oil  set  afiro,  the  oil  reaching  adjacent  property 
and  setting  it  on  fire.  Thus  where  a  railroad  em])loye,  charged 
with  the  duty  of  loading  two  tank  cars  with  oil  from  an  adjacent 

40G 


TI^VNSrOKTATION. 


407 


reservoir,  unooupled  the  cars  in  order  to  iiiovo  tlio  oiic  filled 
along  tlie  track  to  make  room  for  tlie  other  one,  when,  \)\  reason 
of  a  defective  brake  on  it,  it  got  away,  ran  down  the  track  a  mile, 
collided  widi  a  locomotive,  burst  the  tank,  set  tlie  oil  on  tire, 
which  spread  to  projx^rty  adjoining  the  right  of  way,  which  was 
burned  down,  tlie  railroad  <'<iiii]>any  was  held  liable,  tor  the  rea- 
son that  tlie  brake  was  defective,  and  if  a  gcMul  one  had  been 
upon  it  tlie  car  would  not  have  got  away  and  there  would  have 
been  no  collision.  It  was  considered  that  the  i-ailroad  cnm- 
pany's  servant  was  in  charge  of  both  cars,  and  whatever  he  did 
was  the  act  of  the  company. ^  So  where  an  oil  train  was  de- 
railed by  reason  of  a  defective  track,  the  taiiks  bursted,  the  oil 
set  on  fire,  wdiicli  spread  to  adjoining  property,  the  railroad 
company  was  held  liable,  the  court  saying: 

"  The  cases  cit^d  in  the  original  opinion,  as  w^ell  as  the  au- 
thorities relied  on  by  apj^llant,  by  reason  and  analog}',  support 
the  proposition  that  where  a  railroad  company  negligently  and 
carelessly  runs  a  heavy  freight  train,  consisting,  in  part,  of  sev- 
eral cars  of  oil,  over  a  defective  and  unsafe  track,  tlirough  a 
city,  in  the  night,  at  a  high  and  dangerous  rate  of  speed,  to  wit: 
thirty-five  miles  an  hour,  in  violation  of  an  ordinance,  it  is 
guilty  of  a  positive  wrong,  and  not  a  mere  passive  negligence, 
and  is  liable  for  the  loss  sustained  by  tlie  burning  of  the  pro|>- 
erty  of  tlie  adjacent  land  o^^^^er,  occasioned  tlirough  tJie  wTCck- 
ing  of  the  train  and  the  eonseciuent  flowing  and  burning  of  the 
oil,  as  the  proximat^^.  and  natural  result  of  such  negligence, 
under  the  circumstances  alleged  in  tlu^  eom])laint.  It  was  not 
necessary  to  aver  in  the  complaint  that  after  tJie  "wreck  occurred, 
the  company  was  then  and  there  guilty  of  any  other  ami  addi- 
tional act  of  negligence  which  caused  the  burning  oil  to  run 
dowm  hill  onto  appellee's  land.  XotJiing  could  liaVe  been  done 
after  the  wreck  occurred  to  prevent  sudi  a  result.  The  innne- 
diate  flowing  of  tlie  burning  oil  onto  and  over  appellee's  prem- 
ises, and  the  consequent  burning  of  her  property,  was,  under 
the  circumstances  attending  the  disaster,  inevitable.  In  other 
words,  in  conclusion  on  this  subjeH,  it  will  suffice  to  say  that 

lOil    Creek,    etc.,    R.    R.    Co.    v.  Koifrhron,  74  Pa.  St.  310. 


408  OIL   AND    GAS. 

the  wreck  of  the  train,  the  ignition,  explosion  and  bumin"^  of 
the  oil,  and  tlie  consequent  destruction  of  appellee's  projjcrty, 
are  shown,  by  the  averments  in  the  complaint,  to  have  been  the 
natural  and  proximate  result  of  the  negligence  of  appellant."  ^ 
But  where  there  was  a  landslide  which  covered  the  track  of 
a  railway  company,  into  which  an  oil  train  ran,  was  derailed, 
the  oil  tanks  were  broken  open,  the  oil  ignited  from  the  fire  in 
the  locomotive  and  ran  down  a  creek  running  alongside  the  track 
to  the  plaintiff's  property,  four  hundred  i'ect  below,  and  set  it  on 
fire,  the  railroad  company  was  held  not  liable;  for  the  reason 
that  it  had  not  been  guilty  of  any  negligence,  the  landslide  hav- 
ing occurred  but  a  short  time  before  the  wreck,  and  it  being 
impossible  to  stop  the  train  between  the  place  it  could  have  been 
first  seen  by  the  engineer  and  the  place  where  the  train  was  de- 
railed. 

"  To  hold  the  defendant  answerable  for  this  loss,"  said  the 
court,  "  would  be  on  the  same  principle  that  the  defendant  would 
be  answerable  for  all  losses  occasioned  to  other  persons  by  reason 
of  the  burning  oil  floating  down  the  current.  If  that  burning 
oil,  thus  carried,  directly  fired  bridges,  wharves,  warehouses 
and  other  property,  over  and  along  the  stream  for  a  great  difci- 
tance;  every  o^vner  could  recover  his  loss  from  the  defendant,  i  £ 
it  is  liable  to  the  plaintifi^s.  If  the  current  of  water  is  not  a)i 
inten'oning  agency,  the  cause  is  proximate ;  if  it  is,  the  cause 
is  remote.  The  result  depends  not  on  time  or  distance,  but  o-*. 
the  presence  or  absence  of  an  intervening  agency.  \Vliether  th » 
fire  be  carried  by  running  water  over  which  the  defendant  has 
no  control,  or  through  its  own  woodshed,  or  through  the  ware- 
house of  another,  can  make  no  difference,  unless  it  be  held  that 
water  is  not  an  intervening  agency  in  carrying  and  communi- 
cating the  fire."  ^  Where  burning  oil  flowed  dowm  from  neigh- 
boring property  upon  the  defendant's  pipe  line,  causing  it  to 
burst  and  throw  a  spray  of  burning  oil  on  the  plaintiff's  house, 
thereby  burning  it  down,  the  defendant  was  held  not  liable,  for 
the  pipe  line  was  not  the  proximate  cause  of  the  injury.      The 

2  Lake  Erie,  etc.,  R.  R.  Co.  v.  Low-  3  Hoag  v.  Lake  Shore,  etc.,  R.  R. 

der,  7  Ind.  App.  5.37;   34  N.  E.  Ilcp.       Co.,    8.5    Pa.    St.    293;    Chester   Nat. 
447,  747.  Bank  v.  Southern  Pipe  Line  Co.,  40 

Pa.  Super.  Ci.  87. 


TRANSPORTATION.  408a 

company  was  not   bound  to   foresee  and  provide  against  the 
bursting  of  its  pipe  line.* 

§  372.     Defective  oil  tank — car — remote  liability — intervening 
agency.     Crude  petroleum  not  a  dangerous  agency. 

The  following  is  a  statement  of  a  case  decided  in  the  United 
States  Court  of  Appeals,  where  a  defective  oil  tank  was  prac- 
tically the  cause  of  a  very  destructive  fire,  but  for  which  the 
shipping  company  was  held  not  liable:^ 

"  That  in  November,  1889,  the  Standard  Oil  Company 
ship]'>ed  a  tank  car  of  crude  petroleum  containing  C,000  gallons 
from  Lima,  Ohio,  to  tlie  Fort  Scott  Gas  Co.  of  Fort  Scott, 
Kansas.  The  tank  car  had  a  discharge  pipo  in  the  l)ottoiii  ami 
about  the  center  of  tlie  tank  some  four  inches  in  diameter  and 
projecting  about  six  inches  below  the  bottom.  The  projection 
was  threaded  to  receive  a  heavy  cap  screw.  Within  the  tank 
the  discharge  pipe  is  fitted  with  a  heavy  valve  to  prevent  the 
escape  of  oil.  The  valve  rests  U]X)n  a  shoulder  in  the  u]>]^er 
part  of  the  disdiarge  pi]Te.  Below  the  shoulder  tliere  are  four 
concaves  made  in  tlie  valve,  to  permit  the  flow  of  oil  upon  rais- 
ing the  valve.  An  inflexible  iron  rod  is  attached  to  the  valve, 
extending  through  the  dome  on  top  of  the  tank  and  projecting 
a  foot  or  more  above  it.  Within  the  tank  at  the  top  tliere  is 
a  coiled  wire  spring  arranged  to  hold  the  rod  down  and  kec])  the 
rod  in  position,  closing  the  outlet.  To  discliarge  the  contents 
of  the  car  through  the  lower  discharge  pipe  tJie  cap  is  unscrewed 
and  the  pipe  coupling  attached.  The  valve,  by  means  of  the 
rod,  is  then  lifted  and  the  oil  jierniittcd  to  flow  through  the  out- 
let into  tlie  pi])e  and  conducted  to  the  reservoir  provided  for  its 
reception.  The  tank  car  arrived  at  Fort  Scott  oti  the  ITtli  day 
of  November  and  was  received  by  the  consignee  on  the  next  day. 
The  gas  company  caused  tlie  car  to  Ix^  removed  from  tlie  yard  of 

♦BehlinjT  v.  Southwestern,  etc.,  one  for  the  court  and  not  for  tlie 
Pipe  Lines.  IGO  Pa.  St.  3.59;  28  All.       lurj-. 

Rep.    777.     The    question    of    nepli-  5  Goodlander  Millinfr  To.  v.  Stanil- 

gence   in   this   case   was   held   to   be       ard   Oil   Co.,  63   Fed.  Rep.  400;    24 

U.  S.  App.  7;  27  L.  R.  A.  .5S3. 


408b  OIL    AND    GAS. 

the  railroad  company,  where  it  was  delivered  and  to  be  placed 
on  the  switcli  track  of  another  company  located  on  a  street  a 
half  mile  away  between  the  property  of  the  gas  company  and 
the  steam  flour  mill  of  tlie  plaintiff  in  error.     This  was  done 
for  the  puriMxso  of  piping  the  petroleum  contained  in  the  tank 
into  the  reservoir  of  the  gas  company,  located  beyond  the  mill 
and  ui>on  the  farther  side  of  an  intercepting  street.     The  rail- 
road track  upon  which  the  tank  car  stood  was  three  feet  distant 
from  the  furnace  room  of  the  mill,  and  the  latter  being  three 
feet  below  the  level  of  the  railroad  track  at  that  point.      The 
car  was  placed  directly  opposite  the  furnace  room  of  the  mill. 
On  the  afternoon  of  Xovember  the  18th  before  or  at  the  time  of 
the  removal  of  the  car  on  that  day,  it  was  observed  by  tlie  en- 
gineer of  the  switch  engine  that  the  tank  was  leaking,  the  oil 
dri]>ping  at  the  outlet  of  the  car  and  forming  a  pool  on  the 
ground.      On  the  morning  of  the  19th  of  November  two  servants 
of  the  gas  company  undertook  to  discharge  the  oil  into  the  reser- 
voir of  the  gas  company,  through  a  pipe  laid  from  the  reservoir 
to  the  tank  car.     One  of  them  adjusted  tlie  rod  at  the  top  of 
the  car  and  reported  to  the  other  that  it  had  been  pushed  down, 
indicating  the  valve  to  be  in  proper  position.      The  other  went 
under  the  car  with  a  wrench  to  remove  the  cap  and  attacli  the 
pipe  leading  to  the  reservoir.     He  obsei-ved  that  the  cap  was 
loose  and  removed  it  wnth  his  hand ;  and  it  is  stated  in  the  brief 
of  the  counsel  of  the  plaintiff  in  error  —  without  reference  to 
the  record  of  verification  of  the  statement  —  that  the  uuin  ob- 
served as  he  went  under  the  car  for  the  purjwse  of  removing  the 
cap  and  attaching  the  coupling,  that  the  oil  was  leaking  some, 
but  he  did  not  deem  that  fact  of  moment,  supposing  that  the 
valve  was  in  proper  position,  and  would  prevent  the  disdiarge 
of  ]>etroleum  until  it  was  raised.      Upon  removing  the  cap,  the 
oil  flowed  out  before  the  coupling  could  be  attached  and  despite 
the  efforts  made  to  prevent  it  and  before  the  car  oould  be  re- 
moved from  its  position,  the  oil  flowed  down  the  descent,  through 
an  open  window,  into  the  boiler  room  and  also  upon  some  hot 
ashes,  located  at  the  rear  of  the  engine  room  and  Ixulor  house, 
and  some  eight  feet  distant  from  the  car  and  caught  fire,  where- 
by the  mill  and  its  contents  were  destroyed  and  property  of  the 


TRANSP014TATI0N. 


408c 


value  of  $107,000  consumed.  After  tlie  fire  and  upon  exam- 
ination of  the  tank,  it  was  discovered  that  it  contained  no  valve ; 
that  it  was  removed,  but  how,  or  when,  it  is  not  disclosed  by  the 
evidence,  but  presumably  before  tfee  tank  car  was  filled  with  oil 
for  shipment.  The  evidence  ost^iblislied  that  crude  |Xitroleum 
\vill  give  off  a  vajwr  or  gas  which  will  flash  at  a  tomi)craturo  of 
90  degrees,  igniting  by  contact  with  fire,  and  exjilosivc  u]X)n  its 
ignition ;  that  it  is  in  common  use  for  fuel  purposes ;  that  it  is 
as  volatile  as  turpentine.  Tlic  action  against  tlie  Standard  Oil 
Company  by  the  mill  (n\nicr  is  predicted  upon  negligence  in 
omitting  to  have  a  proper  valve  in  the  outlet  of  the  tank.  At 
the  trial  of  the  cause  and  upon  a  conclusion  of  the  evidence  for 
the  plaintiff,  the  court  directed  the  jury  to  find  a  verdict  for 
the  defendant."  In  passing  u|>on  the  liability  of  the  Standard 
Oil  Company,  the  court  used  the  following  language: 

''  We  are  thus  brought  to  the  question  whether  crude  petro- 
leum may  properly  be  classified  as  a  '  dangerous  agency  within  ' 
the  meaning  of  the  rule.  Tt  is  an  extensive  article  of  commerce, 
transported  by  rail  to  all  parts  of  the  land,  shipped  by  steamers 
nnd  sail  vessels  to  all  parts  of  the  world.  It  is  innocuous  of 
itself.  It  is  dangerous  only  when  in  considerable  quantity  it 
is  brought  in  contact  with  fire.  It  is  in  general  use  for  fuel 
and  other  purposes.  It  is  no  more  volatile  than  turpentine,  no 
more  explosive  than  gas;  does  not  necessarily,  in  handling,  in- 
volve immediate  danger  to  any  one.  It  is  not  a  daiigorons 
agency  in  itself,  but  becomes  such  by  subjection  tx?  a  high  degree 
of  heat  or  from  actual  contact  \\'ith  fire.  The  shipment  of  such 
an  article  of  commerce  cast.s  upon  the  ship]x^r  a  c^M-tain  duty  to 
the  public  —  that  of  j^roviding  a  suitable  vehicle  for  the  petro- 
leum in  all  respects  ada]>te(l  to  the  pur]X)se  of  carriage  and  able 
to  encounter  tlie  usual  risks  of  transportation  reasonably  to  be 
anticipated.  We  think  that  to  be  the  true  limit  of  the  shipper's 
duty,  and  that  duty  as  it  appears  tx)  us  in  this  case  was  pro|,orly 
discharged.  The  petroleum  was  contained  in  a  tank  im]^ervious 
to  fire.  The  shipment  reached  its  destination  in  safety.  The 
case  is  not  like  that  of  the  shipment  of  explosives,  the  character 
of  the  shipment  being  concealed.  Here  the  contents  of  the  tank 
was  declared  by  tlie  peculiar  construction  of  the  car.      Tlio  jtroji- 


408d  OIL    AND    GAS. 

erties  of  the  petroleum  were  known  to  the  consignee  and  to  the 
public  equally  with  the  defendant.  1  hey  are  matters  of  com- 
mon knowledge.  Tliere  was  here  no  disguise  and  no  conceal- 
ment. 

'"  With  the  knowledge  (of  the  oil  leaking)  the  e^)m]>any  placed 
the  car  within  three  feet  of  the  engine  and  hoilcrs  nf  the  mill, 
located  below  the  grade  of  the  railroad,  and  with  knowledge  of 
the  leakage,  sufficient,  in  view  of  the  dangerous  proximity  of 
fire,  to  tlie  place,  a  careful  ])erson,  upin  diligent  incpiiry,  un- 
dertook to  discharge  the  oil  in  close  proximit}^  to  hot  ashes,  and 
near  an  ojien  window  of  the  boiler  room.  We  cannot  say  that 
the  negligent  omission  of  the  valve  '  necessarily  set  the  other 
causes  in  operation,'  nor  can  we  say  that  the  injury  was  the 
natural  and  ])robable  consequence  of  the  negligent  act.  In 
marshalling  the  probable  consequences,  "which  ordinary  sagacity 
should  have  foreseen  as  probably  resulting  from  the  omission 
of  the  valve,  it  would,  as  we  conceive,  appear  unlikely  and  al)- 
normal  that  this  injury  should  result.  We  are  of  the  ojunion 
that  the  intervening  and  independent  act  of  the  gas  company 
was  the  efficient  cause,  self-operating,  by  which  the  negligent 
act  of  the  defendant  was  rendered  effective  to  an  injury  that 
was  not  the  proljable  and  natural  consequence  of  the  act." 

§373.     Oil  shipped  en  trains  carrying  other  goods. 

If  a  railroad  company  ships  oil  on  a  train  carrying  other 
goods  and  merchandise,  it  must  take  every  available  precaution 
against  the  communication  and  spread  of  fire,  if  it  should  occur.^ 
It  must  exercise  the  same  degree  of  care  in  handling  and  trans- 
pirting  combustilde  oils  as  is  exercised  by  merchants  and  in- 
surers in  dealing  with  such  articles.^ 

§374.     Shippers    liability    to    servant    of    carrier. —  Naphtha  — 
petroleum  —  dangerous  agency. 

A  shipper  of  naphtha  should  1)0  careful  to  so  mark  the  bar- 
rels or  casks  in  which  it  is  shi])]>ed  that  it  can  bo  readily  ascer- 

<"•  Empiro    Transportation     Co.    v.  ^  Henry   v.   Cleveland,   etc..   R.    R. 

Wamstta,  etc..  Co..  6:1  Pa.  St.  14.  Co.,  67  Fed.  Rep.  426. 


TRANSPORTATION. 


409 


tained  what  is  in  such  barrels  or  casks,  and  thus  put  the  servants 
of  tlie  carriers  on  tlieir  ^lard,  so  that  tJicy  will  Ix?  able  t<j  avuid 
danger  in  eoniini;'  in  amlacL  with  thr  oil.  'J'lius  where  n:i])htha 
was  put  in  leaking  barrels  having  whiter  heads,  across  which  was 
written  the  words  "  I'lisafe  for  illuminating  ])ur]X)oes,"  and  tlie 
na])htha  was  billed,  with  othcM-  barrels  of  petroleum,  as  carbon 
oil,  and  an  explosion  was  caused  by  a  servant  of  tlie  carrier 
bringing  a  light  too  close  to  the  leaking  barrels,  it  was  held 
that  the  shipper  was  liable,  tlie  words  on  the  barrel  heads  and 
in  tlie  bill  of  lading  not  being  enough  to  ajiprise  those  handling 
the  oil  of  its  dangerous  character.  In  this  case  it  was  insisted 
that  the  servant  was  guilty  of  contributory  negligence  in  going 
into  tlie  car  with  a  light ;  but  it  was  held  that  the  plaintiff  could 
show  that  he  supposed  the  car  was  loaded  with  ordinary  oil  and 
prove  by  a  witness  that  there  was  no  danger  in  going  into  a  car 
loaded  with  such  oil,  with  a  light.  It  was  also  held  that  the 
shipi">ers  might  show  that  wooden  barrels  were  safe,  and  that 
naphtha  was  ordinarily  ship|)ed  in  that  way  by  prudent  businevSS 
men ;  and  that  it  was  no-  defense  that  the  carrier's  othcors  had 
agreed  that  the  naphtha  might  be  shipped  in  the  manner  in 
which  it  was  put  up.®     Petroleum,  however,  is  not  a  dangerous 


8  standard  Oil  Co.  v.  Tierney,  92 
•Kv.  3G7;  17  S.  W.  Rep.  1025;  14 
L.'  R.  A.  677;  13  Ky.  L.  Rep.  G26; 
Standard  Oil  Co.  v.  lierney,  95  Ky. 
C33 ;  96  Ky.  89 ;  27  S.  W.  Rep.  983. 
See  Barnev  v.  Burstenbinder,  7  Lans. 
210. 

Whore  75,000  pounds  of  Fels 
Xaphtlia  soap  was  shipped  on  board 
a  vessel  to  Liverpool,  and  was  con- 
fined in  a  hold  having  two  four- 
inch  ventilators,  the  hatch  remain- 
ing closed  during  the  voyage;  and 
the  shipment  was  made  during  the 
summer  when  tlie  temperature  was 
60  to  80  degrees  Fahrenheit;  and 
on  reaching  Liverfwol,  when  the 
stevedores  opened  the  hatch  and  de- 
scended into  the  hold,  a  violent  ex- 
plosion took  place;  and  it  was 
shown  that  naphtha  vapor  when 
mi.xed  with  air  in  the  proportion 
of  2  to  5  per  cent,  forms  a  highly 
explosive   mixture,   when  coming   in 


contact  with  any  igniting  substance, 
it  was  held  that  the  explosion  was 
caused  by  the  vapor  given  ofl"  by 
the  soap,  the  evidence  disclosing  the 
presence  of  no  other  explosive.  In 
this  case  the  boxes  were  plainly 
marked  "Fels  Naphtha  Soap,"  and 
the  carrier  was  notified  that  the 
soap  contained  naphtha,  and  that 
there  miglit  be  danger  of  an  ex- 
plosion if  it  were  placed  in  a  con- 
finetl  space;  and  there  was  an  agree- 
ment that  the  shipment  should  be 
stowed  in  a  place  where  there  was 
a  free  circulation  of  air.  It  was 
held  that  the  carrier,  having  Knowl- 
edge of  the  character  of  the  com- 
modity shipped,  was  chargeable  with 
notice  of  the  explosive  mixture  being 
formed  by  the  air  and  naphtha 
vapor,  that  fact  being  one  of  com- 
mon knowledge.  International  Mer- 
cantile Marine  Co.  v.  Fels,  164  Fed. 
Rep.  337. 


410  OIL    AND    GAS. 

agency  within  the  rule  that  he  Avho  uses  it  does  so  at  his  peril 
and  must  resi)ond  to  injuries  thereby  occasioned,  not  caused 
by  external  natural  conse(iuences  or  by  the  interposition  of 
strangers."  No  positive  duty  is  imposed  on  a  railway  company 
to  examine  tanks  containing  suli)huric  acid,  in  its  freight 
depot,  which  is  awaiting  delivery  to  the  consignee,  to  ascer- 
tain if  such  tank  is  in  good  condition;  and  a  failure  so  to  do 
amounts  to  nothing  more  than  passive  negligence."* 

§  375.     Injury  to  passengers. — Train  wreck. 

A  freight  train  carrying  two  tank  cars  of  naphtha,  one  of 
kerosene  oil,  a  car  of  coke  and  a  caboose,  was  wrecked,  block- 
ing the  right  of  way,  and  the  cars  became  afire.  On  the  arrival 
of  a  passenger  train,  those  in  charge  of  it  began  transporting 
the  passengers  around  the  wreck  to  another  train  on  the  other 
side.  A  gap  was  opened  in  the  fence  along  the  right  of  way  so 
that  the  passengers  could  be  transferred  around  the  fire  a  safe 
distance  from  it,  and  were  transferred  in  safety  to  a  place  be- 
yond the  wreck  where  they  were  free  from  danger.  The  plaintiff, 
following  tlie  direction  of  the  company's  officers,  passed  through 
the  gap,  around  the  fire  and  burning-  oil  and  re-entered  through 
a  second  gap  upon  the  right  of  way  by  passing  through  the  gap 
in  the  fence  made  by  such  officers  so  he  could  reach  the  place 
where  he  was  to  take  the  train.  After  going  through  this  last 
gap  he  went  l)aek  along  the  railroad  track,  on  the  right  of  way, 
toward  the  wreck,  although  the  oil  was  burning  fiercely  with 
a  loud  noise,  and  arriving  at  a  point  about  two-thirds  of  the 
distance  between  the  second  gap  and  the  wreck,  he  stood  there 
half  an  hour  watching  the  fire,  when  the  naphtha  and  oil  ex- 
ploded, .and  he  was  badly  burned.  When  the  explosion  oc^ 
currcd,  the  train  to  carry  the  passengers  had  not  yet  arrived; 
and  the  evidence  of  the  company  tended  to  show  that  its  agent 
had  indicated  a  place  where  the  passengers  were  to  remain  until 
the  train  that  was  to  carry  them  had  arrived,  and  that  such  place 
was  a  safe  one,  and  if  he  had  remained  there  he  would  not  have 
been  injured.  It  was  held  that  the  dangers  were  so  apparent 
that  plaintiff  should  have  avoided  the  danger;  that  the  railroad 
company  had  the  right  to  assume  that  he  would  occupy  the  place 

3  Clevolanfl,   etc.,  Ry.   Co.   v.   Bal-  "« Means    v.    Southern    California 

lentine,  84  Fed.  Rep.  1)3.5:  56  U.  S.  Ry  Co.,  144  Cal.  473;  77  Pac.  Rep. 
Apps.  266;  28  C.  C.  A.  572.  1001. 


TRANSPORTATION.  411 

to  whidi  ho  had  hoon  conuuctod  and  would  imt  oxiM)se  himself  to 
danger;  that  it  was  not  ho*nnd  to  rosti-aiii  him  from  .i;:oiii<z:  noar 
the  wreck,  that  he,  at  the  time  of  the  injury  was  still  a  passen- 
ger, having  a  right  to  complete  his  journey  on  the  company's 
cars,  and  the  taking  up  of  the  dangerous  position  near  the  burn- 
ing tank  might  bar  him  from  a  rii:lit  to  recover  damages  for 
his  injuries,  hut  it  did  not  aifect  his  rights  as  a  passenger;  that 
as  the  company  did  notliing  to  invite  him  to  the  place  of  danger, 
he  had  to  exercise  ordinary  care  for  his  owm  safety ;  that  the 
company  was  bound  to  exercise  only  ordinary  care  and  prudence, 
and  that  the  question  of  negligence  on  the  plaintiff's  part,  as 
well  as  on  the  defendant's,  were  questions  for  the  jury  to  deter- 
mine under  proper  instructions.      A  ncw^  trial  was  granted/** 

§376.     Curiosity  seekers. —  Exploding  oil. 

A  train  of  cars  was  run  into  oil  cars  standing  on  a  side  track, 
by  reason  of  a  switch  having  been  negligently  open,  some  of  the 
tanks  burst,  and  the  oil  took  fire.  At  the  time  the  plaintiff  was 
two  miles  away.  lie  went  to  the  scene  of  the  disaster,  on  ar- 
riving there  found  the  fire  burning  fiercely,  the  oil  being  on 
fire  and  making  a  loud  noise  like  steam  escajung  from  an  engine, 
lie  went  upon  the  premises  of  his  owm  free  will.  The  oil  ran 
along  the  track  and  set  fire  to  oil  tanks  tliat  had  not  been  bursted 
by  the  collision,  and  which  burst  and  injured  him.  Two  hours 
elapsed  after  the  wreck  and  before  the  explosion,  and  the  com- 
pany could  have  removed  the  unbursted  tanks  to  a  ])laee  of  safety 
and  extinguished  the  fire.  The  plaintiff  claimed  no  warning 
had  been  given  of  the  danger  of  exploding  tanks;  tJiat  at  tlie 
time  he  was  in  the  exercise  of  due  care  for  his  own  safety,  and 
that  he  was  assisting  in  putting  out  the  fire  at  the  request  of  one 
of  the  serv^ants  of  tlie  railroad  company.     The  court  held  that 

10  Conroy  v.  Chicago,  etc.,  Co.,  00  jurinfj  the  plainlilT.     Tho  explosion 

Wis.    243;    70   N.   W.   Ivep.   48G;    38  \\;is  occasioned  by  tlie  failure  of  the 

L.  R.  A.  419.  servant    to    shut    ofT    the    pas:    and 

A    railroad    company    had    a    con-  lliis  failure  was  occasioned  either  by 

tract   with    a    lighting   company    to  neglirre nee  or  because  of  the  defective 

supply   its  cars  with  gas.     While  a  condition   of  the  car  valve.      It  was 

servant  of  the  lighting  company  was  held     that    both     railroiul    and    the 

filling  a  gas  tank  on  one  of  the  cars  lighting    company    were    liable    for 

of  the  railroad  company's  train,  on  the   plaintiff's    injuries.      Chicngo   & 

which  plaintiff  was  a  passenger,  an  R.   T.  P.  Ry.  Co.  v.   Rhodes.  35  Tex 

explosion   of    the   gas   occurred,    in-  Civ.  App.   432;   80  S.  \V.  Rep.  8G9. 


412  OIL    AND    GAS. 

petrolouin  only  became  a  dangerous  agency  when  heated;  that 
the  plaint  irt'  was  not  a  trespasser,  but  was  engaged  in  a  laudable 
work ;  that  the  company  was  guilty  of  negligence  in  leaving  the 
switch  open  whereby  the  collision  was  occasioned,  and  also  in 
not  sto])ping  tlie  fire  or  removing  the  cars  to  a  place  of  safety  so 
the  fire  could  not  reach  them,  and  in  not  giving  a  sufficient  warn- 
ing to  the  injured  ]>erson,  and  tliat  if  the  plaintiff  exercised  due 
care  and  caution  he  was  entitled  to  recover.^^  A  companion  of 
the  plaintiff  was  injured,  under  the  same  circumstances  and 
conditions,  by  the  same  explosion;  and  his  case  being  appealed 
he  was  denied  a  recovery.  The  ground  of  the  denial  was  that 
"  negligence  to  be  actionable,  must  occur  in  a  breach  of  a  legal 
duty  arising  out  of  a  contract  or  otherwise,  or  owing  to  the  per- 
son sustaining  the  loss  " ;  and  the  court  defined  a  "  legal  duty 
to  be  "  tliat  which  the  law  requires  to  be  done  or  forborne  to  a 
/leterminate  person,  or  to  the  public  at  large,  and  as  a  correla- 
five  to  a  right  vested  in  such  persons,  or  public  at  large  " ;  that 
the  plaintiff  was  only  a  licensee,  having  no  greater  rights  than 
a  city  fireman  called  to  extinguish  a  fire  and  entering  a  burn- 
ing house ;  that  the  negligent  act  in  leaving  the  switch  open 
was  a  breach  of  no  duty  to  the  plaintiff,  who  was  two  miles 
distant  at  the  time,  and  who  voluntarily  came  to  the  scene ; 
and  that  the  fact  he  was  assisting  the  servants  of  the  company 
to  put  out  the  fire  could  not  aid  him,  for  the  danger  was 
obvious.^- 

11  Henry  v.  Cleveland,  etc.,  Ry.,  67  into  a  field  out  of  mere  curiosity 
Fed.  Rep.  426.  to  see  the  fire,  and  wliile  there  were 

12  Cleveland,  etc.,  Ry.  Co.  v.  Bal-  injured  by  the  explosion.  The  evi- 
lentine,  28  C.  C.  A.  572;  5C  U.  S.  dence  on  belialf  of  the  mother  and 
App.  266;  84  Fed.  Rep.  935.  As  to  son,  plaintill's,  was  that  the  son 
the  right  of  a  city  fireman  injured  had  gone  out  to  look  after  a  cow 
in  a  building  while  extinguishing  a  tethered  in  or  near  the  field  where 
fire,  see  Gibson  v.  Leonard,  143  111.  the  injurio-  were  received,  and  that 
182;  32  N.  E.  Rep.  182,  affirming  the  mother,  becoming  anxious  over 
37  111.  App.  344;  Woodruff  v.  the  son's  long  absence,  had  gone  out 
Bowen,  136  Ind.  431;  34  N.  E.  Rep.  to  "see  what  was  keeping  him."  It 
1113.  WIS    h.rld    that   the   question   of   the 

A   mother    and    son   were    injured  plaintifT's     contributory     negligence 

by  the  explosion   on  a   railroad   car  was   for   the  jury;    and   therefore   a 

containing    naphtha.      Tlie    evidence  verdict   for   the  plaintiff  should  not 

of   the    railroad   company    was    that  be  set  aside.     Morrison  v.  Pittsburg 

the  mother  and  son  knew  for  some  C.  C.  &  St.  L.  Ry.  Co.,  26  Pa.  Super, 

time   that   cars   containing   naphtha  Ct.  338. 
were  burning,   and   that   they   went  Plaintiff    was    walking    along    a 


TRANSPORTATION.  4 1 3 

§  377.     Allowing  oil  to  escape  from  pipe  line. 

A  pipe  line  company  is  bound  to  safely  keep  the  oil  it  is 
transporting  in  its  pipes,  and  not  allow  it  to  escape ;  and  if  it 
does  escape,  to  the  damage  of  another  (such  as  spoiling  his 
well  or  springs  or  crops),  it  is  liable  in  damages  for  the  injury. 
Such  an  act  is  the  creation  of  a  nuisance.^''  It  is  bound  to  use 
great  care  and  to  lay  and  maintain  pipes  that  are  safe,  and  to 
carefully  overlook  and  inspect  them  to  detect  and  stop 
leaks.^^* 

§  378.    Inspection  of  pipe  line. 

It  is  the  duty  of  a  pipe  line  company  to  keep  a  careful  watch 
over  its  lines,  to  detect  leaks  and  imperfections  in  them  and 
prevent  oil  escaping.  If  it  do  not,  its  failure  to  do  so  may  be 
such  negligence  on  its  part  as  will  render  it  liable.  Thus  where 
a  contractor  putting  in  a  sewer  for  a  city,  uncovered  a  section 
of  an  oil  pipe  line  that  was  empty,  and  in  blasting  rock  broke 
it  apart  at  one  of  its  joints,  from  which  two  weeks  later  oil 
escaped  by  reason  of  pumping  having  been  resumed,  causing 
personal  injuries  resulting  in  death,  the  company  was  held 
liable  on  the  ground  that  it  had  failed  to  inspect  the  line  for 
two  weeks,  at  the  end  of  which  time  the  pumping  of  oil  was 
resumed  and  continued  for  a  period  of  two  and  a  half  hours 
when  it  was  notified  by  the  employees  at  the  other  end  of  the 
line  that  no  oil  was  flowing.^* 

street,  on  which  the  ordinary  travel  concerning  the  cause  of  the  ignition, 

had   .not    stopped,     260     feet     from  is  not  admissible  for  tlie  defendant 

where  cars  in  a  railroad  yard  were  as  a  part  of  the  res  gestae,  Texas  & 

burning.     He  was  40  feet  above  the  X.  0.  R.  Co.  v.  Beller,  51  Tex.  Civ. 

cars.      Naphtha    in    these    burning  App.   154;    112  8.  \V.  Kep.  323. 

cars  exploded.     At  the  time  of  the  i*  Hauk    v.    Tidewater    Pipe    Line 

explosion   employes   of   the    railroad  Co.,   153  Pa.   St.  3GG;    2G   Atl.   Rep. 

company  and  the  fire  department  of  C44.      See   Clements   v.    Philadelphia 

the    city    were    working    witiiin    30  Co.,    184    Pa.    St.    28;    41    \V.   N.    C. 

feet  of  the  cars,  trying  to  extinguish  321;  38  Atl.  Rep.  1090;  39  L.  R.  A. 

the    flames.      It    was   held    that   the  532.      See   Lee   v.    Vacuum    Oil    Co., 

question  whether  plaintiff  was  guilty  54  Ilun  156;  7  N.  Y.  Supp.  420. 

of  contributory   negligence   was   one  i-aHashman    v.    Wyandotte    Gas 

for  the  jury.     Smith  v.  Pittsburg  C.  Co.,  83  Kan.  328;    111    Pac.  468. 

C.  &   St.   L.   Ry.   Co.,   210    Pa.   345,  i*  T>ee  v.  Vacuum  Oil  Co.,  54  Ilun 

349;  59  Atl.  Rep.  1077,  1119;  156;    7  X.   Y.  Supp.  426;    The  ques- 

A  statement  of  a  bystander  made  tion  of  negligence  was  held  to  be  a 

during  the  fire  occasioned  by  oil  es-  proper  one  for  the  jury, 
caping  from  the  defendant's  oil  tank 


414  OIL   AND   GAS. 

§379.     Oil  illegally  stored  at  railroad  station. 

Oil  was  stored  or  ponnitted  to  remain  at  a  railroad  station 
in  violation  of  a  statute,  or  rather  it  had  been  kept  there  longer 
than  tlie  statute  |x>nnitted  it  to  be  kept.  There  were  thirty 
barrels,  some  full,  some  partly  full  and  some  empty.  The  plat- 
form on  which  these  barrels  were  standing  was  about  four  feet 
above  the  ground,  old  and  rotten,  had  rubbish  beneath  it,  and 
was  soaked  with  oil.  A  teamster,  not  connected  with  the  rail- 
road company,  but  having  a  right  to  go  upon  the  premises,  while 
upon  this  platform,  lighted  his  pipe  with  a  match  and  threw 
down  tJie  burning  match  on  the  oil  soaked  boards,  from  which 
u  fire  was  started.  The  fire  spread  to  and  burned  the  property 
K>i  others.  The  court,  assuming  that  the  company  had  violated 
the  statute  by  keeping  the  oil  on  the  platform  longer  than  the 
j^tatute  allowed  it  to  do  so,  held  that  the  proximate  cause  of  the 
injury  was  the  act  of  the  teamster  and  refused  to  consider  any- 
thing back  of  tliat  act,  on  the  ground  that  the  company  could 
not  anticipate  that  a  responsible  person  w^ould  throw  a  lighted 
match  in  the  place  he  did  and  start  a  fire.  The  court  also  de- 
clined to  hold  that  tlie  negligence  of  the  company  was  concur- 
rent with  that  of  the  teamster,  for  the  reason  that  the  negligence 
of  the  former  preceded  that  of  the  latter  and  was  an  existing 
fact  when  his  negligence  intervened ;  and  directed  a  verdict  for 
the  defendant.'' 

§380.     Storing  oil  in  warehouse. 

Oil  of  a  highly  inflammable  kind,  awaiting  shipment,  had 
been  stored  for  two  days  in  a  warehouse  before  the  warehouse 
was  set  on  fire.  The  warehouse  was  set  on  fire  without  the 
neglect  of  the  owner;  and  the  fire  from  it  spread  to  an  adjoin- 
ing warehouse  and  destroyed  it  witli  tlio  greater  part  of  its 
contents.  The  owner  of  the  second  warehouse  sued  the  owner 
of  the  first,  claiming  that  because  of  the  explosion  of  the  oil 

15  stone  V.  Boston,  oto.,  "Ry.,  171 
Mnss.  .536 ;  51  N.  E.  Rep.  1 ;  41  L. 
R.  A.  794. 


TRANSPORTATION.  415 

the  fire  from  the  first  warehouse  was  siuhlenly  precipitated 
upon  his  warehouse,  and  tliat  if  it  had  not  been  for  the  exj)lod- 
ing  oil,  a  greater  portion  of  tlie  contents  of  his  warehouse  would 
have  been  removed  before  tlie  fire,  which  was  burning  in  the 
warehouse  at  tlie  time  of  the  explosion,  could  have  extended  to 
his  building.  The  court  held  that  tJie  questions  of  proximate 
cause  and  whetlier  tlie  oil  had  boon  in  the  warehouse  for  an 
unreasonable  lengtli  of  time  were  for  the  jurv,  and  that  the 
plaintiff  might  show  that  the  warehouse  and  its  floor  were  soaked 
-with  oil." 

§381.     Thief  setting  oil  on  fire. 

Crude  petroleum  was  carried  in  a  tank  on  a  lighter  used  in 
the  oil  trade.  The  lighter,  with  others,  lay  at  a  pier,  with  no 
watchman  on  board.  It  was  forced  open  by  a  thief,  who,  in 
exploring  the  locker  with  a  lighted  match,  set  fire  to  the  gas 
or  fumes  arising  from  the  petroleum,  thereby  causing  an  explo- 
sion and  a  fire.  The  fire  destroyed  the  lighter  and  another  one 
lying  alongside  of  it.  Suit  was  brought  against  the  owner  of 
the  lighter  on  which  the  explosion  occurred  to  hold  him  liable 
for  the  destruction  of  the  other  lighter;  but  the  court  held  that 
he  was  not  liable,  for  the  escape  of  the  gas  into  the  locker  was 
an  accident,  and  the  presence  of  a  lighted  match  in  the  locker 
in  the  hands  of  a  thief  was  not  the  natural  result  of  the  absence 
of  a  watchman. ^^  So  where  a  statute  made  an  oil  company 
liable  "for  all  damages  occasioned  by  leakage  or  the  breaking 
of  its  pipes,"  and  a  pipe  broke  from  which  oil  spread  over  land 
to  a  mill  800  feet  away ;  and  an  idler  on  the  scene  lighted  a 
cigar  and  threw  the  blazing  match  on  the  ground  which  ig- 
nited the  oil  and  the  fire  spread  to  the  mill  and  burned  it 
down;  and  under  certain  conditions  of  the  Avind  the  fire  might 
not  have  reached  the  mill,  it  was  held  not  error  to  submit  to 
the  jury  the  question  w'hether  the  escape  of  the  oil  was  the 
proximate  cause  of  the  burning  of  the  mill.'* 

16  Wrifrlit    V.    Chicago,    etc.,    Ry.  is  C'liostcr  Xat.  Bank  v.  Southern 
Co..  27  111.  App.  200.                        *         Pipe  Line  Co.,  40  Pa.  Super.  Ct.  87. 

17  Sofiled  V.  Sommors,  9  Ben.  520; 
Fed.  Cas.  No.  13,  157. 


CHAPTER  XX. 

LEGISLATIVE  AND  MUNICIPAL  CONTROL. 

§382.     Gas  a  dangoroiis  agoncy. — Polipc  powers. 

§383.     Regulating  pressure   in  pipes. 

§384.     Proliibiting  transportation  of  gas  beyond  the  State. 

§385.     Plugging  abandoned  wells. — Waste  of  gas. 

§386.     Preventing  waste  of  gas. — Flambeau  lights. 

§387.     Waste  of  gas  in  operating  oil  well. 

§388.     Inspection  of  oil. — Tests. 

§389.     Ordinance  regulating  storage  of  oil. 

§390.     Regulating  sale  of  naphtha  by  United  States. 

§390a.  Adulteration  of  oils. 

§390b.  Transportation  through  a  municipality  license. 

§391.     A  charter  is  a  contract. 

§392.     City  cannot  fix  rates  without  statutory  authority. 

§393.     Municipality  regulating  rates   after  ordinances  granted. 

§394-.     Rates  fixed  in  ordinance  granting  franchise. 

§395.     Rates  fixed  by  city  in  its  consent  to  assignment  of  franchise  right. 

§396.     Gas  company  accepting  provisions  of  subsequent  ordinance. 

§397.     Prohibition  to  change  for  specified  time. 

§398.     Police  power. — Rates. 

§399.     Municipality  regulating  gas  companies. 

§400.     Power  to  change  rates. — Rates  established  must  be  reasonable. 

§400a.  Rates  fixed  must  be  reasonable. 

§400b.  It  must  be  clearly  shown  rate  fixed  is  too  low. — Duty  of  gas  com- 
pany to  make  disclosures  of  its  condition. 

§400c.  In  fixing  rates  each  case  stands  on  its  own  peculiar  facts. 

§400d.  Value  of  good  will,  when  not  to  be  considered  in  fixing  rates. — Risks, 
of   promoters. — Cost  of  promoting. 

§400e.  Difficulty  of  determining  value  and  fixing  rates. — Practical  test. 

8400f.    Rates   for  municipality. — ]\randamus. 

§400g.  Rate  for  consolidating  companies. 

§400h.  Unlawful  combination  defeating  right  to  have  recoverable  rates. 

§400i.    Legislature  fixing  minimum  rate. 

§400j.    Statute  requiring  excessive  pressure  in  pipes. 

§400k.  Consumers  cannot  complain  of  rates  fixed  by  legislature. 

§4001.    Continuing  to  sup])ly  gas  pending  litigation. 

§400m.  Parties  to  suit  to  enjoin  enforcement  of  ordinance   or    statute. 

§400n.  Refunding    illegal    amounts  collected  during  litigation. 

§400o.  Power  to  authorize   common  council  or  commission  to  fix  rates. 

§401.     Gas  companies  quasi  public  corporations. — Rates    may   be   changed. 

§402.     Same  continued. — Rates  may  be  changed. 

§403.     Same  continued. — Rates  may  be  changed. 

§404.     Mnnicipality  delegating  power  to  change  rates. 

§405.     Annexing  territory  after  contract  made. 

§406.     Police  power  regulations. 

416 


LEGISLATIVE   CONTROL.  417 

§  382.     Gas  a  dangerous  agency — police  powers. 

Gas,  and  especially  natural  gas,  has  always  been  regarded  as 
a  dangerous  agency,  an^l  must  be  used  with  care  whenever  it 
comes  in  contact  with  property  or  persons.  That  it  is  a  danger- 
ous agency  is  a  matter  of  common  knowledge,  of  Avliich  the 
courts  will  take  judicial  notice.^  It  is  in  {■.  high  degree  inflam- 
mable and  explosive.  Not  only  is  it  dangerous  as  an  explosive, 
but  it  is  dangerous  to  life  and  injurious  to  herbage,  shrubbery 
and  growing  trees  under  certain  circumstances.  It  is  in  fact 
as  dangerous  an  agency  as  gunpowder,  which  has  always  been 
regarded  as  a  proper  subject,  of  legislation,  even  to  the  extent  of 
excludinir  it  from  thickly  settled  connnuuities.  Tlierefore, 
under  the  police  powers  of  a  State,  it  is  a  proper  subject  of 
regulation.  "  The  public  safety  and  welfare,"  said  the  Su- 
preme Court  of  Indiana,  "  is  the  highest  consideration  in  all 
legislation,  and  to  this  consideration  private  rights  must  yield. 
No  man  has  a  right  to  so  use  a  dangerous  species  of  property 
as  to  put  the  safety  of  others  in  peril.  Liberty  does  not  imply 
the  right  of  one  man  to  so  use  property  as  to  endanger  the 
property  of  others,- nor  does  owmership  imply  any  such  right. 
This  is  rudimental.  It  must,  therefore,  be  true  that  the  owner 
of  property  of  such  dangerous  nature  as  to  require  regulations 
to  prevent  injury  to  others  can  have  no  right  paramount  to  tlie 
police  power.  It  is  not  too  much  to  say  that  against  the  police 
power  there  is  no  such  thing  as  a  vested  right.  If  the  position 
of  the  appellee's  counsel  is  tenable,  then  after  a  corporation  has 
invested  money  in  natural  gas  pipes,  machinery  and  appliances, 
there  can  be  no  subsequent  legislation,  although  the  use  of  the 
pipes  bought  might  put  in  peril  towms,  houses,  and  even  hunuin 
life  along  the  entire  line.  The  law  is  s\d)ject  to  no  such  re- 
proach as  a  rule  like  that  for  which  appellees  contend  would 
bring  upon  it.  No  investment,  however  great,  can  so  vest  a 
right  as  to  preclude  the  just  exercise  of  a  governmental  ]iower 
such  as  that  under  which  regidations  for  the  prot^ection  of  tlie 
health  and  safety  of  persons  are  enacted.  This  principle  is 
supported  by  many  decisions."  ^ 

1  Sec.  41.  Rop.   7G:    34   Amor,   and   Enp.   Corp. 

2  Jamieson     v.     Indiana     Natural       Cas.  1:  12  L.  K.  A.  r.52:  3  Interstate 
Gas,  etc.,  Co.,  128  Ind.  555;  28  N.  E.       Com.  Rt'iJ.  (J13;    iieuedict  v.  Colum- 


418  OIL   AND   GAS. 

§  383.     Regulating  pressure  in  pipes. 

In  the  exercise  of  its  police  power  for  the  protection  of  life 
and  property,  a  State  may  regulate  and  prescribe  the  pressure 
in  the  gas  mains  of  a  company ;  and  it  may  fix  a  limit  for  such 
pressure  oven  tliough  it  has  the  effect  to  prevent  the  conveyance 
or  transportation  of  gas,  as  natural  gas,  beyond  tlic  limits  of  the 
State,  a  thing  of  itself  a  State  cannot  prevent.  ''  Tlic  i)ipes  for 
the  transportation  of  the  gas,"  said  the  Supreme  Court  of  In- 
diana, "  must  be  laid  in  our  soil ;  they  must  cross  our  farms, 
pass  through  onr  towns,  and  cross  onr  highways.  There  are 
many  jiersons,  many  houses,  and  much  property  along  the  line, 
witliin  the  borders  of  this  State.  There  is  danger  to  our  in- 
habitants, and  to  their  property  from  the  use  of  defective  or 
insecure  pipes,  as  well  as  from  an  improper  use  of  them.  If  a 
volatile,  inflammable,  and  explosive  substance,  such  as  natural 
{>as,  can  not  be  conveyed  in  pipes,  under  an  unsafe  pressure, 
without  danger  to  those  whom  it  is  the  duty  of  the  common- 
wealth to  protect,  then  regulation  is  not  unreasonable  or  illegal 
in  itself.  The  danger  is  to  our  citizens  in  their  own  houses,  and 
on  their  own  thoroughfares.  It  cannot,  we  suppose,  be  success- 
fully asserted  that  a  gas  company  could  use  pipes  of  paper,  or  of 
spider-webs,  at  their  pleasure ;  and  yet,  if  there  is  no  power  in 
the  State  to  regulate  the  character  of  the  pipes,  or  the  like,  this 
conclusion  must  result.  They,  indeed,  may  do  what  they 
please.  The  danger  to  be  avoided  is  witliin  the  State;  the  pro- 
tection of  the  law  ought,  upon  every  principle  of  justice,  to  be 
commensurate  with  the  danger.  The  legislation  is  local,  is  for 
local  protection,  and  for,  presumptively,  at  least,  no  other  pur- 
pose. Gas  companies  acquire  the  right  to  lay  pi|X^s  by  virtue 
of  the  power  of  eminent  domain  resident  in  the  State,  and  surely 
if  they  take  the  benefit  of  our  laws,  and  use  our  lands  and  min- 
erals, they  must  yield  obedience  to  such  laws  as  are  framed  for 
the  local  protection.  ...  It  seems  true  beyond  fair  con- 
bus,  etc.,  Co.,  49  N.  J.  Eq.  23;  23  ()•)  Kan.  07:  7(J  Tac  Hop.  448; 
Atl.  Rep.  485;  Given  v.  State  Hashman  v.  Wyandotte  Gas  Co.,  83 
160  Ind.  552;  66  N.  E.  Rep.  750;  La  Kan.  328;  HI  Pac.  468. 
Harpe  v.  Elm.  Tp.  Gaslight,  etc.,  Co., 


LEGISLATIVE   CONTROL.  418a 

troversv  tliat  tho   Stato,  bv  virtiio  of  its  inlicrcnt.  ]H»\v('r,   iiiav 
provide  that  pij'ies  shall  ho  laiil  in  treiiclios,  or  shall  1m'  of  snfH- 
cieiit  streii2:tli  to  be  safe.      Otherwise  they  mig'ht  l)e  laid  on  the 
ground  subject  to  the  action  of  the  elements,  or  be  of  inade(]iiate 
strength  and  thus  be  fruitful  of  danger  to  persons  and  property. 
It  also  seems  entirely  clear  that  the  State  may  declare  that  gas 
shall  not  be  confinc^l  in  insulHciciit  taid<s  or  reservoirs,  as  was 
done  respecting  petroleum  in  States  where  it  is  obtained.     If 
it  be  true  that  such  regulations  may  be  made  it  must  also  be 
true  tliat  pressure  may  bo  regulated,  and  that  the  State  must, 
to  a  great  extent,  be  judge  of  the  nature  and  character  of  the. 
regulations  required.     The  local  character  of  such  a  substance 
as  natural  gas  is,  we   repeat,  marked  and   peculiar.     It  is  a 
natural  product,  and  its  source  is  in  the  soil,  or  rocks  of  the 
earth.     It  is  as  strikingly  local  as  coal  or  petroleum,  and  yet 
no  one  has  ever  questioned  the  power  of  a  State  to  enact  laws 
governing  mining.     If  it  be  not  true  that  the  mining  and  con- 
veyance of  natural  gas  may  be  regulated  for  the  protection  of 
persons  and  property,  it  may  be  true  that  many  mining  laws 
are  void.     Coal  oil  is  subject  to  inspection  and  regulation,  and 
so  must  be  natural  gas,  for  it  is  more  dangerous  than  coal  oil. 
It  is  so  essentially  local  that  only  local  regulations  can  be  ef- 
fective or  appropriate.     It  is  found  in  very  few  localities,  and 
the  character  of  locality  is  impressed  upon  it  more  clearly  and 
strongly  than  upon   almost  any  other  natural   product  in   the 
world."     It  was  held  in  pursuance  of  this  line  of  reasoning, 
that   a    statute   providing   that   gas   pipes   for   transporting  of 
natural  gas  should  be  tested  to  at  least  four  hundred  pounds 
pressure  to  the  square  inch,  and  gas  "  should  not  Ix^  transjxirtcd 
in  such  pipes  at  a  pressure  exceeding  three  hundred  pounds  per 
square  inch,  or  otherwise  than  by  tJie  natural  pressure  of  the 
gas  flowing  from  the  wells,"  was  valid ;  although  the  effect  of 
this  regulation  was  such  that  gas  could  not  be  transported  l>e- 
yond  the  State  line  where  the  distance  it  was  desired  to  trans- 
]X)rt  it  was  a  long  one.^ 

3  Jamieson  v.  Indiana,  etc.,  Co.,  R.  A.  6r)2;  3  Inter.  Com.  Rep.  613; 
128  Ind.  555;  28  N.  E.  Rep.  76;  34  l?enodict  v.  Construction,  etc.,  Co., 
Am.  and  Eng.  Corp.   Cas.   1;    12  L.      49  N.  J.  Eq.  23;   23  Atl.  Rep.  486; 


418b  OIL   AND    GAS. 

§384.     Prohibiting  transportation  of  gas  beyond  the  State. 

Xatural  gas  is  an  article  of  comincrco,  although  not  an  or- 
dinary article  of  commerce.  While  in  the  earth  it  is  not  a  com- 
mercial oommoditv ;  it  becomes  so  only  when  it  ceases  to  be  a 
part  of  the  real  estate  and  becomes  personal  property.  So  far 
as  it  is  a  commercial  commodity  the  State  cannot  prohibit  its 
transportation  to  another  State  by  direct  legislation ;  and  a 
statute  enacted  for  that  purjwse  is  void,  on  the  ground  that  it  is 
an  infringement  of  that  clause  of  the  Federal  Constitution  giv- 
ing Congress  the  right  to  regulate  commerce  between  the  States.'* 
But  this  does  not  prevent  a  reasonable  regulation  of  the  pres- 
sure in  ihe  ]>i])es,  although  the  effect  of  such  regulation  is  to 
prevent  the  transportation  of  gas  a  long  distance,  and  to  a  very 
great  extent  confine  its  use  to  the  limits  of  the  State.^ 

§385.     Plugging  abandoned  wells  —  waste  of  gas. 

A  penal  statute  which  requires  all  wells  to  be  so  used  as  to 
prevent  the  escape  of  gas  or  oil  into  the  open  air,  without  being 
confined  in  pipes  "  or  other  safe  receptacles  for  a  longer  period 
than  two  days  next  after  "  it  has  been  struck  in  such  wells ;  re- 
quiring all  abandoned  wells  to  be  plugged  in  a  certain  manner; 
and  providing  that  if  the  owmer  does  not  plug  them  within  the 

Manufacturers'  Gas  and  Oil  Co.  v.  Amer.  and  Eng.  Corp.  Cas.  237;   6 

Indiana,  etc.,  Co.,   155  Ind.  566;   58  L.   R.   A.    579;    2   Inter.   Com.   Rep. 

N.  E.  Rep.  851;  Manufacturers'  Gas  758;     Kansas    Natural    Gas    Co.    v. 

and  Oil  Co.  v.  Indiana,  etc.,  Co.,  156  Haskell,  172  Fed.  Rep.  545;  affirmed 

Ind.    679;    59   N.    E.    Rep.    169.      In  31    8up.    Ct.    564;    221    U.    S.    249; 

this  last  case  it  was  held  that  an  in-  Haskell   v.    Covvhan,    187    Fed.    403. 

dividual  cannot  maintain  an  injunc-  Those  two  last  cases  hold   that  the 

tion   to   prevent   an  unlawful   trans-  owner   of   gas   cannot   be    prevented 

portation   of   gas,   unless   he   sufl'ers  by  legislation  from   putting  his  gas 

an   injury  peculiar  to  himself.     See  into  interstate  commerce.     In  them 

also    Richmond   Natural    Gas   Co.   v.  a    statute     forbidding    tlie    crossing 

Enterprise  Natural  Gas  Co.,  31  Ind.  of    highways    with    pipe    lines    was 

App.  222;    66  N.   E.  Rep.  782.  held  unconstitutional. 

A    state    gas    commission    cannot  •''' Jamieson    v.    Indiana,    etc.,    Co., 

require  an  artificial  gas  company  to  128  Ind.  555;  28  N.  E.  Rep.  76;  34 

furnish  gas  at  such  a  pressure  as  to  Am.  and   Eng.   Corp.   Cas.    1;    12  L. 

be    commercially    impossible.      Con-  R.  A.  652;  3^  Inter.  Com.  Rep.  6ia; 

solidated  fias  Co.  v.  New  York  City,  Benedict   v.   Columbus   Construction 

157   Fed.   Rep.   849.  '  Co.,  49  N.  J.  Eq.  23;   23  Atl.  Rep. 

4  state  V.    Indiana,   etc.,    Co.,    120  485. 
Ind.    575;    22   N.   E.    Rep.    778;    29 


LEGISLATIVE   CONTROL.  418c 

two  (lavs'  limit  any  owner  of  lands  ailjaront  to  tlioni  or  in  tho 
vicinity  may  enter  and  ]>luj2;  tluMn  and  rf  cover  the  cost  of  jdni::;- 
ging  from  their  owner,  is  a  valid  exercise  of  the  ]>nblic  ])ower; 
and  the  State  may,  in  its  sovereign  capacity,  maintain  a  suit  to 
enjoin  waste  in  violation  of  snch  statutes,  on  the  ground  that 
such  waste  is  a  nuisance.  Tlic  court  sai<l,  in  ]nissing  on  such  a 
statute,  that  natural  gas  in  the  ground  was  no  more  the  ]>ro]>- 
erty  of  the  owner,  so  long  as  it  remained  there,  than 
the  air  or  sunshine  that  floated  over  such  ground ;  and  tJierefore 
the  claim  made  that  such  a  statute  prohibited  the  owner  of  the 
gas  to  do  with  it  as  he  pleased  was  not  well  taken.  "  It  is  not 
the  use  of  unlimited  quantities  of  gas,"  said  the  court,  "  that 
is  prohibited,  but  it  is  the  waste  of  it  that  is  forbidden.  The 
object  and  policy  of  that  inhibition  is  to  prevent,  if  jxissible,  the 
exhaustion  of  the  storehouse  of  nature,  wherein  is  deposited  an 
element  that  administers  more  to  the  comfort,  happiness,  and 
well  being  of  society  than  any  other  of  the  bounties  of  the  earth. 
Even  if  the  appellee  cannot  draw  oil  from  its  well  without 
wasting  gas,  it  is  not  denied  that  it  may  draw  gas  therefrom, 
and  utilize  it  without  wasting  the  oil.  But,  even  if  it  cannot 
draw  oil  from  such  wells  without  wasting  gas,  and  is  forbidden 
by  injunction  so  to  do,  it  is  only  applying  the  doctrine  that  the 
owner  must  so  use  his  o'wn  pro]x^rty  as  not  to  injure  others.  It 
may  use  its  wells  to  produce  gas  for  a  legitimate  use,  and  n.ust 
so  use  tliem  as  not  to  injure  others  or  the  community  at  la:ge. 
The  continued  waste  and  exhaustion  of  the  natural  gas  of  In- 
diana tlirough  appellee's  wells  would  not  only  deny  to  the  in- 
habitants the  many  valuable  uses  of  the  gas,  bui  the  State, 
whose  many  quasi-public  corporations  have  many  millions  of 
dollars  invested  in  supplying  gas  to  the  State  a<id  its  inhal)- 
itants,  will  suffer  the  destruction  of  such  corpora cions,  tlie  loss 
of  such  investments  and  a  source  of  largo  revenues.  To  tise 
appellee's  wells  as  they  have  been  doing,  they  injure  thousands 
and  perhaps  millions  of  the  people  of  Indiana,  and  the  injiirv, 
the  exhaustion  of  natural  gas,  is  not  only  an  irvejiarablo  one, 
but  it  wnll  be  a  great  public  calamity.  The  oil  apjielloe  pro- 
duces  is   of  very   small   consequence   as    compared   with    that 


418d  OIL   AND    GAS. 

calamity  which  it  mercilessly  and  cniolly  holds  over  the  head? 
of  the  people  of  Indiana.  .  .  .  We  had  petroleum  oil  more 
than  a  third  of  a  century  before  its  discovery  in  this  State,  im- 
ported from  other  States,  and  wo  could  continue  to  do  so  if  the 
production  of  oil  should  cease  in  this  State.  But  we  cannot 
have  the  blessing  of  natural  gas  unless  measures  for  the  preser- 
vation tliereof  in  this  State  are  enforced  against  tlie  lawless. 
Wo  therefore  coiichide  that  tlio  facts  stated  in  the  complaint 
make  a  ease  of  a  public  nuisance  which  the  appellant  [the 
State]  has  a  right  to  have  abated  by  injunction."  *  On  appeal 
this  case  was  affirmed  by  the  Supreme  Court  of  the  TTuited 
States.^ 


estate  v.  Ohio  Oil  Company,  150 
Ind.  21;  49  N.  E.  Rep.  809;  47  L.  R. 
A.  627;  Given  v.  State  (Ind.),  66 
N.  E.  Rep.  750. 

7  Oliio  Oil  Co.  V.  Indiana,  177  U. 
S.  190;  20  Sup.  Ct.  Rep.  570. 

Such  a  statute  must  be  strictly 
construed.  Under  the  Ohio  statute 
it  must  appear  in  the  petition  to 
recover  the  penalty  given  by  the 
statute  that  the  complainant  is  a 
resident  of  the  county  where  the 
resident  of  the  county  where  the 
suit  is  brought;  but  such  defect 
must  be  taken  advantage  of  by  spe- 
cial demurrer  particularizing  such 
defect.  Some  act  must  be  shown 
indicating  the  defendant's  inten- 
tion to  abandon  the  well.  As  long 
as  the  casing  remains  in  the  well, 
and  prevents  water  from  penetrat- 
ing the  oil-bearing  rock,  the  penalty 
is  not  incurred;  but  it  is  not  neces- 
sary to  aver  that  the  casing  has 
been  drawn.  State  v.  Oak  Harbor 
Gas  Co.,  18  Ohio  Cir.  Ct.  Rep.  751; 
4  Ohio  Cir.  Ct.  Dec.  158;  affirmed 
53  Ohio  St.  347;  41  N.  E.  Rep.  584. 
Under  a  statute  declaring  it  un- 
lawful for  any  person  to  turn  ofT 
any  valve  belonging  to  any  person 
furnishing  gas  to  consumers  with- 
out permission  of  the  owner,  the 
offense  is  committed  by  turning  off 


the  valve  without  reference  to  the 
intent  of  the  doer.  State  v.  Moore, 
27  Ind.  App.  83 ;  60  N.  E.  Rep.  955. 
A  statute  providing  that  "it  shall 
be  unlawful  for  any  person,  firm  or 
corporation  liaving  possession,  or 
control,  of  any  natural  gas  or  oil 
well,  whether  as  contractor,  owner, 
lessee,  agent,  or  manager,  to  allow 
or  permit  the  flow  of  gas  or  oil  from 
any  such  well  to  escape  into  the 
open  air,  without  being  confined  in 
such  well  or  proper  pipe,  or  other 
safe  receptacle,  for  a  longer  period 
than  two  days  next  after  gas  or  oil 
shall  have  been  struck  in  such  well," 
is  valid,  and  is  not  invalid  because 
of  the  shortness  of  the  period  in 
which  it  must  be  secured.  Given  v. 
State  160  Ind.  552;  66  N.  E.  Rep. 
750.  Such  statute  is  strictly  con- 
strued. McDonald  v.  Corlin,  163 
Ind.  432;  71  N.  E.  Rep.  961;  Bailey 
V.  State,  103  Ind.  165;  71  N.  E. 
Rep.  655. 

For  a  construction  of  the  Ken- 
tucky statute,  see  Commonwealth  v. 
Trent,  117  Ky.  34;  77  S.  W.  Rep. 
390;  25  Ky.  L.  Rep.  1180. 

For  a  construction  of  the  Pennsyl- 
vania statute,  see  Dawson  v.  Shaw, 
28  Pa.  Super.  Ct.  503;  Steelsmith 
V.  Aiken,  14  Pa.  Super.  Ct.  226. 


LEGISLATIVE    CONTROL.  419 

§386.     Preventing^  waste  of  gas  —  flambeau  lights. 

The  State  by  statute  may  prevent  the  waste  of  natural  gas ; 
and  as  the  burning  of  gas  in  flambeau  lights,  whetlier  in  the 
country  or  in  the  city,  is  a  very  wasteful  method  of  securing 
light,  it  may  prohibit  its  use  in  that  nuinner,  allowing  its  use 
in  ''  jumbo  "  burners  enclosed  in  glass  globes  or  in  other  ways 
that  are  not  wasteful.  Such  a  statute  does  not  deprive  an  indi- 
vidual of  his  projx^rty  without  due  process  of  law  or  without 
just  compensation,  nor  ''  grant  to  any  citizen,  or  class  of  citi- 
zens, privileges  or  immunities  which  upon  the  same  terms  "  do 
"  not  equally  belong  to  all  citizens."  "  The  act,"  said  the 
court  of  Indiana,  "in  no  way  deprives  the  owner  of  the  full 
and  free  use  of  his  property.  It  restrains  him  from  wasting 
the  gas  to  the  injury  of  others,  to  the  injury  of  the  public." 
The  court  likened  such  a  statute  to  one  regulating  fishing  or 
hunting,  which  was  enacted  to  prevent  unusual  destruction 
of  fish  or  game,  and  therefore  secure  their  extinction  as  food 
products.^ 

§  387.    Waste  of  gas  in  operating  oil  well. 

A  statute  prohibiting  the  waste  of  gas  is  not  invalid  even 
though  such  waste  is  only  incidental  to  the  operation  of  a  well, 
in  order  to  take  out  oil ;  and  although  such  waste  is  not  per- 
mitted it  cannot  be  operated.  Nor  is  it  invalid  even  though 
the  value  of  the  gas  is  trivial  compared  with  the  value  of  the 
oil  that  can  be  taken  out  of  the  well  by  its  operation.  In  fact, 
though  the  statute  is  practically  prohibitory,  so  far  in  its 
operation,  as  to  an  oil  well  is  concerned,  still  the  statute  for 
that  reason  is  not  invalid." 


8  Town  send  v.  State,  147  Ind.  624;  that    they    would    thereafter    waste 

47  N.  E.  Rep.  19;  37  L.  R.  A.  294;  gas,    evidence    was    introduced    that 

62  Am.  St.  Rep.  477.  they     had     theretofore     wast^^d     it. 

In    an    action     for     damages    for  lx)uisville     Gas     Co.     v.     Kentucky 

wasting  natural  gas,  defendants  ere  Heating  Co.,   Ill   S.  W.  374. 

not    precluded    from    showing    that  » Ohio  Oil  Co.  v.  Indiana,   177  U. 

they  did  not  waste  gas  by  a  judg-  S.  190;  20  Sup.  Ct.  Rep.  576;  State 

ment  against  them  in  a  prior  action  v.  Ohio  Oil  Co.,  150  Ind.  21;   49  N. 

to   restrain    the   irastinr)   of    pas,    in  E.  Rep.  809;  47  L.  R.  A.  627;  Civen 

which,    for   the    purpose   of   showing  v.  Slate    (Ind.).  (iO  N.  E.   Rep.  750. 


420 


OIL    AND    GAS. 


§  388.     Inspection  of  oil — tests. 

There  is  no  doubt  that  the  State  has  the  power  to  inspect 
illuminating  oil  offered  for  sale,  or  that  will  be  offered ;  and  to 
charge  the  expense  of  such  inspection  to  its  owner.^"  It  may 
prescribe  a  test  for  such  oil,  requiring  it  to  stand  a  certain  rea- 
sonable number  of  degrees  of  heat  without  exploding  or  ignit- 
ing. Such  is  only  a  reasonable  regulation  for  the  safety  of  the 
inhabitants  of  the  State.'*  And  there  is  no  doubt  that  a  statute 
providing  for  an  inspection  of  oil  may  exempt  oils  from  inspec- 
tion inspected  in  another  State  under  a  similar  statute.'-  But 
a  city  charter  authorizing  the  passage  of  all  ordinances  neces- 
sary for  the  trade,  commerce,  health,  and  good  government  of 
a  city,  does  not  authorize  the  passage  of  an  ordinance  requiring 
vendors  of  illuminating  oils  to  pay  the  inspector  fees  for  in- 
specting the  oil." 


10  Burkhardt  v.  Strigcr  (Ky.),  67 
S.  W.  Rep.  270;  Louisiana  State 
Board  v.  Standard  Oil  Co.,  107  La. 
Ann.   713;   31   So.  Rep.   1015. 

11  Patterson   v.    Kentucky,    97    U. 
S.   501;   Patterson  v.   Kentucky,    11 
Bush.     311;     21     Amer.     Rep.     220 
Standard  Oil  Co.  v.  Commonwealth 
119  Ky.  1;  82  S.  W.  970;   83  S.  W 
557;    2G    Ky.    L.    Rep.    927,    1187 
Standard  Oil  Co.  v.  Commonwealth 
119   Ky.   75;    82   S.   W.   Rep.    1020 
26  Ky.  L.  Rep.  985;   Waters-Pierce 
Oil  Co.  V.  Desselms,  212  U.  S.   159 
29  Sup.  Ct.  Rep.  270;  53  L.  Ed.  — , 
affirming  18  Okl.  107;  89  Pac.  Rep 
212;    Blaco   V.   State,   58   Neb.   557 
78  N.  W.  Rep.  1050;  Commonwealth 
V.   Standard   Oil   Co.,    129   Ky.   546 
112  S.  W.  Rep.  (532;  33  Ky.  L.  Rep. 
1074;    Foote  v.    Fire   Department,  5 
Hill   99    (gunpowder)  ;    Williams  v. 
Augusta,   4   Ga.    509    (gunpowder)  ; 
Davenport  v.  Richmond,  81  Va.  636 
(gunpowder) . 

Wlicre  oil  has  been  properly'  tested 
by  state  officials  and  the  casks 
marked  according  to  law  showing 
that  it  is  marketable  oil  and  com- 
plies with  the  statutory  tost,  a 
dealer  in  such  oil  is  not  responsible 
for   damages   occasioned    bv    an    ex- 


plosion of  such  oil  which  explosion 
was  occasioned  by  the  fact  that  it 
was  below  the  standard  required  by 
the  statute,  unless  he  received  in- 
formation which  would  lead  a  rea- 
sonably pruaent  man  to  think  that 
the  oil  he  was  selling  did  not  cor- 
respond with  the  inspector's  brand, 
when  he  sliould  have  it  inspected  in 
order  to  ascertain  if  that  was  the 
fact.  Whether  or  not  he  should  have 
called  in  the  state's  inspector,  under 
the  circumstances,  or  had  an  expert 
make  a  test,  or  whether  a  test  by 
himself  with  the  apparatus  he  had 
access  to,  would  be  sufficient,  is  a 
question  for  the  jury.  Chapman  v. 
Pfarr,  145  Iowa  190;  122  N.  W. 
Rep.  992. 

1-  In  re  Robinson,  28  Tex.  App. 
511;  13  S.  W.  Rep.  786.  And  the 
statute  is  not  invalid  because  it  ex- 
cludes some  oils  which  are  as  safe 
for  use  as  those  which  comply  with 
tlie  statutory  standard.  Waters- 
Pierce  Oil  Co.  V.  Dcselms,  212  U.  S. 
159;  29  Sup.  Ct.  Rep.  270;  53  L. 
Ed.  — ;  affirming  18  Okl.  107;  89 
Pac.  Rep.  812. 

13  Waters-Pierce  Oil  Co.  v.  McEl- 
roy  (Tex.  Cir.  App.),  47  S.  W.  Rep. 
272.     As  to  validity  of  appointment 


LEGISLATIVE    CONTROL. 


421 


§  389.     Ordinance  regulating  storage  of  oil. 

Under  a  statute  authorizing  a  numicipality  to  regulate  and 
prevent  the  storage  of  combustible  or  explosive  material,  an 
ordinance  prohibiting  the  keeping  or  storing  of  explosive  oils 
vi^ithin  a  distance  of  one  thousand  feet  of  any  dwelling,  house, 
store  room,  building,  barn,  shed  or  other  like  structure,  is  rea- 
sonable and  valid,  even  as  applied  to  a  plant  in  operation 
before  any  other  buildings  were  erected  in  the  neighborhood.'* 
A  statute  making  it  an  offense  to  keep  for  sale  oils  for  illu- 
minating purposes  inflammable  at  a  lower  temperature  than 
that  fixed  therein  prohibits  an  agent  for  another  keeping  such 


of  officers  in  Alabama,  see  State  v. 
McGough,  118  Ala.  159;  24  So.  Rep. 
395. 

A  statute  providing  that  illumin- 
ating oils  shall  oe  inspected,  applies 
to  gasoline,  although  it  must  be 
first  transformed  into  a  vapor. 
Burkhardt  v.  Striger  (Ky.),  G7  S. 
W.    Rep.    270. 

A  statute  prohibiting  the  sale  or 
offering  for  sale  of  illuminating  oils 
with  ignition  point  of  less  than  130 
degrees  Fahrenheit,  or  oil  condemned 
by  an  authorized  inspector  and 
branded  unsafe  for  illuminating  pur- 
poses does  not  prohibit  the  owner 
mi.xing  it  with  oils  of  a  higher 
grade  than  130  degrees  so  as  to 
make  a  mixture  of  that  number  of 
degrees,  and  then  oll'ering  it  for 
sale.  Commonweath  v.  Standeird  Oil 
Co.,  129  Ky.  54G;  112  S.  W.  Rep. 
632;  33  Ky.  L.  Rep.  1074. 

The  legislature  maj-  delegate  to  a 
state  board  power  to  make  such 
rules  and  regulations  for  the  in- 
spection and  testing  of  oils  sold  or 
offered  for  sale  as  they  may  deem 
necessary  to  provide  the  people  of 
the  state  with  satisfactory  illumin- 
ating oil.  Red  C.  Oil  :\Ifg.  Co.  v. 
Board  172  Fed.  Rep.  095:  Chapman 
V.  Pfarr;  i45  Iowa  19(i:  123  X.  W. 
Rep.  092. 

A  statute  requiring  every  oil  to  be 
inspected  which  was  tlie  product  of 
petroleum  and  which  is  intr'iulcd  to 


bo  put  on  the  market  and  sold  for 
illuminating  purpo.scs,  requires  gaso- 
lene kept  for  sale  as  an  illuminant 
to  be  inspected ;  and  the  fact  that 
no  grade  of  gasoline  will  bear  the 
statutory  test  does  not  exempt  it 
from  inspection,  if  the  owner  intends 
to  offer  it  for  sale  for  illuminating 
purposes.  Blaco  v.  State,  58  Neb. 
557;  78  N.  W.  Rep.  1050.  (See 
Hanson  v.  Maverick  Oil  Co.,  C7  N. 
H.  201.) 

In  1875  a  legislature  provided 
that  the  fees  of  an  inspector  should 
be  so  much  per  barrel.  In  1887 
another  legislature  declared  what 
should  be  a  barrel.  It  was  held 
that  the  barrel  the  legislature  had 
in  mind  in  1875  was  the  barrel 
which  controlled  when  arriving  at 
the  inspector's  fees,  and  not  the 
barrel  of  1887.  Due  v.  Standard  Oil 
Co.,  2  Tenn.  Ch.  App.  118.  Further 
as  to  fees,  see  Blaco  v.  State,  58 
Xeb.  557;  78  X.  W.  Rep.  105G  (fees 
due   altliough   oil   condemned). 

i-i  Standard  Oil  Co.  v.  Danville, 
199  III.  50;  G4  X.  E.  Rep.  1110.  af- 
firming 101  111.  App.  Go;  Crowley 
V.  Ellsworth,  114  La.  308;  38  So. 
Rep.  119;  09  L.  R.  A.  27G. 

An  ordinance  making  it  unlawful 
to  erect  and  maintain  gas  works 
within  certain  limits  in  the  city  is 
valid  coming  within  the  police  pow- 
'^".  Dobbins  V.  Los  Angeles  (Cal.), 
72    Pac.   Rej).    970. 


422  OIL   AND   GAS. 

oil  for  sale.^*'»  Authority  given  a  city  to  regulate  the  storage 
of  inflammable  materials  includes  authority  to  prohibit  the 
storage  of  explosive  oils  within  the  city  limits;'*''  and  the 
enforcement  of  an  ordinance  having  the  effect  of  putting  an 
end  to  the  business  of  storing  explosive  oils  and  rendering 
valueless  certain  structures  used  in  connection  with  the  busi- 
ness does  not  constitute  the  taking  of  property  without  due 
process  of  law  where  the  circumstances  justifies  its  adoption 
as  a  police  regulation/**^  A  provision  in  the  regulations  of  the 
Commissioners  of  the  District  of  Colum])ia,  that  upon  appli- 
cation for  a  permit  to  store  gasoline  the  application  shall  be 
referred  to  the  inspector  of  buildings  and  chief  engineer  of 
the  fire  department  for  examination  of  the  building  described 
therein,  who  shall  examine  such  building  and  return  the 
application  with  their  recommendation  to  the  assessor,  who 
shall  issue  a  license  to  the  applicant  unless  otherwise  ordered, 
is  valid ;  and  it  cannot  be  successfully  insisted  that  it  is  void 
on  the  ground  that  it  is  an  unauthorized  delegation  of  the 
power  conferred  upon  such  commissioners.'*''  A  complaint 
charging  a  violation  of  such  regulations  by  storing  and  keep- 
ing gasoline  for  sale  without  a  license  was  held  not  supported 
by  evidence  showing  that  the  accused  had  a  license  to  conduct 
the  business  of  storing  automobiles,  but  had  been  refused  a 
special  license  for  storage  and  sale  of  gasoline  on  the  prem- 
ises, it  appearing  that  he  had  a  permit  to  store  gasoline  in  a 
tank  underground,  half  a  block  away,  and  from  time  to  time 
each  day,  as  need  be,  he  took  gasoline  from  the  tank  for  the 
supply  of  automobiles  in  his  establishment,  which  remained 
there  from  ten  to  sixty  minutes  awaiting  the  arrival  of  their 
owners,  who  had  ordered  them  ready  for  use.'**^  Where  an 
ordinance  provided  that  it  should  be  unlawful  to  store  in  the 
city  more  than  200  gallons  of  kerosene  in  barrels,  tanks  or 
cans,  unless  kept  in  a  fireproof  magazine,  isolated  and  located 

14a  state  v.  Boylan,  79  Conn.  463;  1 4b  Crowley  v.  Ellsworth,   114  La. 

65  Atl.  Rep.  595.     In  this  case  the  308;   38  So.  Rep.  1199;  69  L.  R.  A. 

evidence  was  conflicting  as  to  which  276. 

device  or  "cups"  should  be  used  for  nc  Crowley  v.  Ellsworth,  supra. 

testing  the  inflammability  of  the  oil.  H'l  District   of   Columbia   v.   Wes- 

and  it  was  held  to  be  a  question  for  ton,  23  App.  D.  C.  303. 

the  jury  which  device  or  cup  should  i4e  Weston    v.   District   of   Colum- 

be  used'.  bia,  23  App.  D.  C.  367. 


liEGISLATIVE   CONTROL.  423 

at  some  place  approved  by  the  council,  and  i)roviding  a  pen- 
alty for  its  violation,  it  was  held  that  the  establishment  of  non- 
isolated storage  tanks  within  the  city,  having  a  capacity  of 
11,000  gallons  each,  constituted  an  abatable  nuisance  as  to 
adjoining  property  owners.'*' 

§  389a.     Transportation  through  a  municipality. — License. 

A  municipality  may  be  empowered  to  regulate  the  handling 
of  inflammable  oils  Avithin  its  boundaries;  and  ordinances  en- 
acted in  pursuance  of  the  power  thus  given  are  valid.  It  may 
even  be  empowered  to  exact  a  license  for  their  storage  and 
transportation.  Thus  a  city  ordinance  regulating  the  handling 
of  turpentine,  kerosene,  benzine,  naphtha,  coal  oil  or  its  prod- 
ucts, and  lubricating  and  fuel  oils,  from  wagons  or  vehicles,  on 
the  streets  of  the  city,  and  requiring  a  fee  for  each  wagon, 
was  held  valid  under  the  power  conferred  on  it  by  statute  to 
regulate  traffic  on  its  streets  and  sidewalks,  to  license,  tax, 
regulate,  suppress  and  prohibit  peddlers,  to  make  all  regula- 
tions which  might  be  necessary  for  the  promotion  of  health, 
and  to  pass  all  ordinances  and  make  all  regulations  necessary 
to  carry  into  effect  the  powers  granted  to  cities.  And  it  was 
also  held  that  the  provisions  of  the  ordinance  designed  to  pre- 
vent highly  combustible  lubricating  and  fuel  oils  from  being 
handled  on  the  streets  from  tank  wagons  in  such  a  way  as  to 
be  spilled  or  otherwise  allowed  to  escape  on  the  surface  of  the 
streets  was  a  valid  exercise  of  the  city's  police  power.'*^ 

§390.     Regrdating  sale  of  naphtha  by  United  States  statute. 

Congress  cannot  legislate  upon  the  sale  of  naphtha  within 
the  States,  nor  regulate  its  sale  therein.''' 

i*f  Texas   Co.    v.    Fisk    (Tex.   Civ.  the  city.     Walter  v.  Bowling  CJrocn, 

App.),  129  S.  W.  Rep.  188.  2G  Ohio  Cir.  Ct.  Rep.  75(5. 

i*gSpiegler    v.    Chicago,    21G    111.  In  this  Ohio  case  it  was  also  held 

114;    74  N.   B.   Rep.   718.  that  a  fine  of  $100  for  the  first  of- 

Under  a  power  making  it  unlaw-  fonse  was  not  excessive, 

ful  to  transport  nitroglycerin  in  anj'  i'  United     States     v.     Dcrmitt,     8 

package     not     having     written     or  Wall.  41. 

printed  on  it  "Nitroglycerin.     Dan-  Where  a  statute  made  it  a  fine  to 

gerous," — a  city  may  absolutely  pro-  sell     naphtha     under    any    assumed 

hibit    the    transportation    of    nitro-  name,    and    tlie    defendant    claimed 

glycerin   in   any   quantities   through  that  the  article  sold  had  been  com- 


424 


OIL   AND   GAS. 


§  390a.     Adulteration  of  oils. 

The  legislature  may  make  it  an  offense  to  adulterate  kero- 
sene oil  and  prevent  its  sale.'^* 

§  391.     A  charter  is  a  contract. 

If  a  State  incorporate  a  gas  company  for  a  particular  mu- 
nicipality, or  a  municipality  grant  it  the  right  to  occupy  its 
streets  and  supply  its  inhabitants  with  gas,  a  contract  is  at 
once  created,  in  the  first  case  between  the  State  and  the  company, 
and  in  the  second  between  the  municipality  and  the  company, 
which  is  protected  by  that  clause  in  the  Constitution  of 
the  United  States  prohibiting  a  State  from  impairing  the  obli- 
gation of  a  contract.^''     Of  course,  it  must  be  understood  that  in 


bined  with  chemical  nfrents  so  as  to 
counteract  its  explosive  qualities  as 
naphtha;  it  was  held  that  an  in- 
struction telling  the  jury  they  were 
to  decide  whether  the  article  sold 
"was  substantially  naphtha  or  not" 
afforded  him  no  ground  of  com- 
plaint. Commonwealth  v.  Went- 
worth,  118  Mass.  441. 

15a  Stowcll  V.  Standard  Oil  Co., 
139  Mich.  18;  102  N.  W.  Rep.  227; 
11  Det.  Leg.  N.  725;  Bartles  Oil  Co. 
V.  Lynch,  109  Minn.  487;  124  N.  W. 
Rep.  1;  State  v.  Holton  (Iowa)  ;  120 
N.  W.  Rep.  1125;  Neiman  v.  Chan- 
nellane  Oil  Mfg.  Co.,  112  Minn.  11; 
127  N.  W.  Rep.  394. 

A  statute  prohibiting  the  sale  of 
adulterated  kerosene  oil  does  not 
prohibit  the  sale  of  kerosene  oil  col- 
ored red,  unless  the  coloring  in  some 
substantial  degree  rendered  the  oil 
impure  or  afTected  its  illuminating 
quality,  or  rendered  it  less  safe. 
Whether  or  not  the  coloring  matt^-r 
adulterated  the  oil  is  a  question  of 
fact  and  not  one  of  law.  Bartles  Oil 
Co.  V.  Lynch,  supra. 

Upon  an  allegation  that  tlie  oil 
sold  was  "adulterated"  it  may  be 
shown  that  the  adulteration  was  the 


result  of  improper  manufacture  as 
well  as  by  admixture  after  manu- 
facture. A  toliolesaler  selling  such 
oil  is  liable  to  a  customer  purchas- 
ing it  from  a  retailer  if  he  be  in- 
jured by  its  explosion.  In  an  action 
to  recover  damages  resulting  from 
adulterated  oil,  an  expert  loitness 
may  describe  the  process  of  produc- 
ing kerosene  from  petroleum,  in 
order  to  show  that  gasoline  is  a 
lighter  product,  as  tending  to  show 
what  was  the  substance  sold.  It 
may  also  be  shown  that  gasoline  will 
throw  off  a  vapor  at  a  lower  tem- 
perature than  kerosene  of  the  legal 
test,  and  that  kerosene  of  the  legal 
test  will  not  ignite  under  the  condi- 
tions shown  to  have  existed,  and 
that  if  mixed  with  gasoline  or  other 
substance,  it  might  do  so.  Stowell 
v.  Standard  Oil  Co.,  139  Mich.  18; 
102  X.  W.  227;  11  Det.  I^g.  N.  725. 
18  New  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  115  U.  S.  050;  10 
Am.  and  Eng.  Corp.  Cas.  089;  0 
Sup.  Ct.  Rep.  252;  Louisville  Gas 
Co.  V.  Citizens'  Gas  Co.,  115  U.  S. 
083;  0  Sup.  Ct.  Rep.  265;  10  Am. 
and  Eng.  Corp.  Cas.  671  (reversing 
81  Ky.  263;   1  Am.  and  Eng.  Corp. 


LEGISLATIVE   CONTROL. 


425 


granting  a  gas  company  a  charter  the  State  does  not  part  with 
its  police  power  to  protect  its  inhabitants  in  their  heahli  and 
property;  ^^  and  in  granting  it  the  right  tlie  ninnicipality  does 
not  part  witli  its  ix)wer  to  also  protect  itri  inhabiUints  in  l)<)th 
their  health   and  ])r()perty.'* 

§  392.     City  cannot  fix  rates  without  statutory  authority. 

A  city  cannot  fix  the  price  of  gas  supplied  by  a  company 
under  a  statute  merely  authorizing  it  to  provide  by  ordinance 
reasonable  regulations  for  its  supply,  distribution  and  con- 
sumption;   nor   is   such    a   power   conferred   under   a    general 


Cas.  156)  ;  State  v.  Laclede  Gaslight 
Co.,  102  Mo.  472;  22  Am.  St.  Rep. 
789;  34  Am.  and  Eng.  Corp.  Cas. 
49;  14  S.  W.  Rep.  974;  15  S.  W. 
Rep.  383;  Richmond  County  Gas- 
light Co.  V.  :\Iiddleto\vn,  59  X.  Y. 
'228;  Detroit  v.  Detroit,  etc.,  Co., 
184  U.  S.  3G8;  22  Sup.  Ct.  Rep.  410; 
Southwestern,  etc.,  Co.  v.  Joplin, 
113  Fed.  Rep.  817. 

i^Xew  Orleans  Gas  Co.  v.  Louis- 
iana Light  Co.,  supra;  Jamieson  v. 
Indiana  Natural  Gas  Co.,  128  Ind. 
SS-S;  28  N.  E.  Rep.  7G;  12  L.  R.  A. 
652;  34  Am.  and  Eng.  Corp.  Cas. 
1;  3  Inter.  Com.  Rep.  613;  Bath 
Gaslight  Co.  v.  Claffy,  74  Hun  638; 
26  N.  Y.  Supp.  287;  Morristown  v. 
East  Tennessee,  etc.,  Co.,  115  Fed. 
Rep.  304;  Mason  v.  Ohio,  etc.,  Co., 
52  W.  Va.  — ;  41  S.  E.  Rep.  418; 
Rushville  v.  Rushville  Natural  Gas 
Co.,  164  Ind.  162;  73  N.  E.  87;  Nevv 
Y'ork  City  v.  N.  \^  Mut.  Gaslight 
Co.,  120  N.  Y.  Supp.  Rep.  776 ;  State 
V.  Excelsior  Coke  and  Gas  Co.,  60 
Kan.  45;  76  Pac.  Rep.  447;  La 
Harpe  v.  Elm  Tp.,  etc.,  Co.,  69  Kan. 
97;  76  Pac.  Rep.  448;  New  Orleans 
Gaslight  Co.  v.  Drainage  Commis- 
sion, 111  La.  838;  35  So.  Rep.  929; 
Indianapolis  v.  Consumers'  Gas 
Trust  Co.,  140  Ind.  107;  39  X.  E. 
433;   49  Am.   St.   183;   27  L.  R.  A. 


514;  Westfield  Gas,  etc.,  Co.  v.  Mcn- 
denhall,  142  Ind.  538;  41  N.  E.  Rep. 
1033:  ^lichigan  Telephone  Co.  v. 
St.  Joseph,  121  Mich.  502;  80  X.  W. 
Rep.  383;  47  L.  R.  A.  87;  80  Am. 
St.  520;  State  v.  Corrigan,  etc.,  St. 
R.  Co.,  85  Mo.  263;  55  Am.  Rep. 
361 ;  Burlington  v.  Burlington  St. 
R.  Co.,  49  Iowa  144;  31  Am.  Rep. 
145;  Xew  Orleans  v.  Great  Southern, 
etc.,  Co.,  40  La.  Ann.  41;  3  So.  Rep. 
533;  8  Am.  St.  502;  City  R.  Co.  v. 
Citizens'  St.  R.  Co.,  160  U.  S.  557; 
17  Sup.  Ct.  Rep.  653:  41  L.  Ed. 
1114;  Baltimore  Trust,  etc.,  Co.  v. 
Mayor,  64  Fed.  Rep.  153. 

18  Northern  Liberties  v.  Xorthern 
Liberties  Gas  Co.,  12  Pa.  St.  318; 
Walla  Walla  v.  Walla  Walla  Water 
Co.,  172  U.  S.  1;  19  S.  Ct.  Rep.  77; 
Fertilizing  Co.  v.  Hyde  Park,  97  U. 
S.  059;  Butchers'  I'nion,  etc.,  Co.  v. 
Crescent  City,  etc.,  Co.,  Ill  U.  S. 
746;  4  Sup.  Ct.  Rep.  652;  Coates 
V.  Mayor,  7  Cow.  585;  Mason  v. 
Ohio  River  R.  R.  Co.,  52  W.  Va. 
— :  41  S.  E.  Rep.  418. 

In  the  Walla  Walla  case  the  court 
said :  "The  grant  of  a  right  to 
supply  gas  or  water  to  a  municipal- 
ity and  its  inhabitiints  through 
pipes  or  mains  laid  in  the  street, 
upon  condition  of  the  pcrformajice 
of    its    service    by    the    grantee,    is 


426 


OIL    AND    GAS. 


welfare  clause,  such  as  is  usually  found  in  municipal  charters 
or  statutes  concerning  the  powers  of  municipalities.'"  Under 
a  power  to  "regulate"  the  openings  in  streets  for  a  gas 
company's  pipes,  and  the  laying  of  pipes  therein,  a  city  can 
not  regulate  the  price  which  the  company  may  charge  for 
gas.'^"  So  under  a  statute  providing  merely  that  a  munici- 
pality may  establish  "such  regulations"  of  the  business 
of  a  gas  company  as  it  sees  fit,  it  is  not  authorized  to  fix  rates 
to  be  charged  after  the  company  has  occupied  its  streets  with 
its  pipes   under  an  ordinance   granting  it  leave   to    do   so.^° 


the  grant  of  a  franchise  vested  in 
the  State,  in  consideration  of  the 
performance  of  a  public  service,  and 
after  the  performance  by  the 
grantee,  is  a  contract  protected  by 
the  Constitution  of  the  United 
States  against  State  legislation  to 
impair  it." 

See  ]Mason  v.  Ohio  River  R.  R. 
Co.,  52  W.  Va.  — ;  41  S.  E.  Rep. 
418:  Traverse  City  Gas  Co  v.  Tra- 
verse City  (Mich.),  89  N.  W.  Rep. 
574;  People  v.  Chicago  Gas  Trust 
Co.,  130  111.  268;  22  N.  E.  Rep. 
798:   8  L.  R.  A.  497. 

After  the  right  to  occupy  the 
streets  has  been  gi-antcd  and  ac- 
cepted, the  municipality  cannot  re- 
quire the  lighting  company  to  pay 
compensation  for  the  use  of  tlie 
ground  occupied  by  its  poles.  Hot 
Springs,  etc.,  Co-,  v.  Hot  Springs, 
70  Ark.  300;  67  S.  W.  Rep.  761. 

The  incorporation  of  a  gas  com- 
pany, either  by  special  act  or  under 
the  general  laws  of  the  State,  with 
power  to  manufacture  and  sell  gas 
gives  it  the  implied  power  to  charge 
and  collect  reasonable  rates  for  the 
gas  manufactured,  and  such  power 
forms  part  of  its  contract  with  the 
State.  Capital  City  Gaslight  Co. 
V,  Des  Moines,  72  Fed.  Rep.  829. 

If  the  charter  or  franchise  does 
not  fix  the  rates  to  be  charged,  yet 
the  rates  must  be  reasonable;  and 
whether  they  are  reasonable  is  a 
question  for  the  courts.  Vander- 
berg   V.   Kansas    City   Gas  Co.,    126 


Mo.  App.  &00;  105  S.  W.  Rep.  17; 
Madison  v.  Madison  Gas,  etc.,  Co., 
129  Wis.  249;  108  N.  W.  Rep.  65; 
Phelan  v.  Boone  Gas  Co.,  147  Iowa 
626;   125  X.  W.  Rep.  208. 

But  no  charter  to  make  and  sell 
gas  is  necessary,  the  making  and 
selling  not  being  a  prerogative  of 
the  government.  Jersey  City  Gaa 
Co.  V.  Dwight,  29  N.  J.'Eq.  242. 

19  Lewisville  Natural  Gas  Co.  v. 
State,  135  Ind.  49;  34  N.  E.  Rep. 
702;  21  L.  R.  A.  734;  43  Am.  and 
Eng.  Corp.  Cas.  483  (overruling 
Rushville  v.  Rushville  Natural  Gas 
Co.,  132  Ind.  575;  28  N.  E.  Rep. 
853;  38  Am.  and  Eng.  Corp.  Cas. 
276;  15  L.  R.  A.  321)  ;  Indianapolis 
V.  Consumers'  Gas  Co.,  140  Ind. 
107;  39  N.  E.  Rep.  433;  27  L.  R.  A. 
514;  48  Am.  and  Eng.  Corp.  Cas. 
151;  49  Am.  St.  Rep.  183;  Nobles- 
ville  V.  Noblesville,  etc.,  Co.,  157 
Ind.  162;  60  N.  E.  Rep.  1032;  Rush- 
ville V.  Rushville  Natural  Gas  Co., 
104  Ind.   102;    73  N.  E.  Rep.  87. 

19a  Mills  V.  Cliicago,  127  Fed.  731. 

20 /n  re  Pryor,  55  Kan.  724;  41 
Pac.  Rep.  958;  29  L.  R.  A.  398;  49 
Am.  St.  Rep.  280;  12  Am.  R.  and 
Corp.  Rep.  364.  See  Freeport  Water 
Co.  V.  Freeport,  180  U.  S.  587; 
affirming  186  111.  179;  57  N.  E. 
Rep.  862;  Richmond  v.  Richmond 
Natural  Gas  Co.,  168  Ind.  82;  79 
N.  E.  Rep.  1031;  Vanderberg  v. 
Kansas  City  Gas  Co.,  126  Mo.  App. 
600;   105  S.  W.  Rep.  17. 


LEGISLATIVE   CONTROL. 


427 


There  is  no  doubt  of  the  power  of  the  State  to  delegate  to  a 
municipality  the  authority  to  fix  tlie  rates.-^ 

§  393.     Municipality  regulating  rates  after  ordinances  granted. 

After  a  municipality  has  given  a  gas  company  the  riglit  to  oc- 
cupy its  streets,  and  the  company  has  aeepted  the  grant,  there 
exists  a  contract  between  them  which  tJio  city  cannot  change, 
unless  it  has  received  the  power  to  do  sc.*^  The  incorporation 
of  tlie  company,  either  by  a  sjiecial  act  or  inidcr  the  general 
law,  with  ]X)wer  to  make  and  sell  gas,  the  power  to  charge  and 
collect  reasonable  rates  for  the  gas  manufacture  is  implied,  and 
forms  a  part  of  the  company's  contract  with  the  State.^^     And 


21  Cleveland  Gaslight  and  Coke 
Co.  V.  Cleveland,  71  Fed.  Rep.  GIO; 
Capitol  City  Light  and  Coke  Co.  v. 
Des  ISIoines,  72  Fed.  Rep.  829 ;  Walla 
Walla  V.  Walla  Walla  Water  Co., 
172  U.  S.  1;  19  S.  Ct.  Rep.  77;  Peo- 
ple V.  Stephens,  62  Cal.  209. 

The  California  constitution  pro- 
vides that  the  legislature  shall  pass 
laws  for  the  regulation  and  limita- 
tion of  charges  for  services  per- 
formed and  commodities  furnished 
by  gas  companies;  and  it  also  cm- 
powers  cities  to  regulate  charges  of 
such  companies  within  their  respec- 
tive limits.  It  is  held  that  the  last 
clause  does  not  require  or  authorize 
the  legislature  to  take  away  the 
power  conferred  on  cities  by  the 
second  clause,  nor  does  its  failure 
to  pass  the  prescribed  laws  suspend 
or  hold  in  abeyance  the  right  of 
cities  to  regulate  gas  rates;  and 
until  the  legislature  has  acted  the 
right  of  cities  to  act  exists  unham- 
pered, except  so  far  as  restricted  by 
general  principles  or  specific  powers 
of  the  fundamental  law.  Denninger 
v.  Pomona,  145  Cal.  629;  79  Pac. 
Rep.  360. 

22  Indianapolis  v.  Consumers',  etc., 
Co.,  140  Ind.  107;  39  N.  E.  Rep. 
433;    48   Am.   and   Eng.    Corp.   Cas. 


151;  27  L.  R.  A.  514;  Louisville 
Gas  Co.  V.  Citizens'  Gas  Co.,  115 
U.  S.  683  (reversing  81  Ky.  263)  ; 
6  Sup.  Ct.  Rep.  265;  10  Am.  and 
Eng.  Corp.  Cas.  271;  People  v.  Chi- 
cago Gas  Trust  Co.,  130  111.  2(58; 
22  N.  E.  Rep.  798;  8  L.  R.  A.  497; 
29  Am.  and  Eng.  Corp.  Cas.  257, 
New  Orleans  Gas  Co.  v.  Louisiana 
Gas  Co.,  115  U.  S.  650;  6  Sup.  Ct. 
Rep.  252;  10  Am.  and  Eng.  Corp. 
Cas.  089;  Richmond  County  C.-is- 
light  Co.  V.  :Middletown,  59  X.  Y. 
228;  East  Onio  Gas  Co.  v.  Akron, 
81  Ohio  St.  33;  90  N.  E.  Rep.  40, 
Rushville  v.  Rushville  Natural  C,:;i 
Co.,  164  Ind.  102;  73  N.  E.  Rep.  87; 
Noblesville  v.  Noblesville  Gas  etc., 
Co.,  157  Ind.  162;  60  N.  K.  Rep. 
1032;  Mills  v.  Chicago,  127  I'ed. 
Rep.  731;  Richmond  v.  RioliinonJ 
Natural  Gas  Co.,  168  Ind.  82;  79 
N.  E.  Rep.   1031. 

23  Capital  City  Gaslight  Co.  v. 
Des  Moinas,  72  Fed.  Rep.  829; 
Cleveland  Gaslight  and  Coke  Co.  v. 
Cleveland,  71  Fed.  Rep.  010;  35 
Ohio  L.  Bull.  155;  Santa  Ana  Water 
Co.  V.  San  Buemiventura,  56  Fed. 
Rep.  339;  Madison  v.  Madison  Gas, 
etc.,  Co.,  129  Wis.  249;  108  N,  W. 
65. 


428  OIL   AND   GAS. 

where  a  statute  "vvas  in  force  autliorizini;'  tlie  logislatnro  to 
amend,  change  or  alter  the  charter  of  every  corporation ;  and 
thereafter  tlie  legislature  granted  a  company  a  charter,  au- 
thorizing it  to  lay  its  pipes  and  sell  gas  in  certain  portions  of  a 
certain  city,  and  ex('in]>t(^(l  it  from  the  provisions  of  the  statute 
authorizing  amendments  by  it  to  the  charters  of  companies;  and 
several  years  after  the  charter  was  so  amended  as  to  extend  the 
rights,  privileges  and  franchises  of  the  company  throughout  the 
entire  corporate  limits  of  such  city,  it  was  decided  that  the 
right  to  make  and  sell  gas  carried  with  it  the  right  to  fix  the 
price,  and  that  such  right  was  not  subject  to  i-egulation  either 
by  the  city  or  State.  The  regulation  of  the  price  of  gas  was 
considered  not  an  exercise  of  the  police  power."* 

§394.     Rates  fixed  in  ordinance  granting  franchise. 

The  statement  made  at  the  opening  of  the  immediately  pre- 
ceding section  is,  however,  subject  to  an  exception.  Thus,  if  a 
municipality  in  granting  to  a  gas  company  the  right  to  lay  its 
mains  in  its  streets  and  to  supply  consumers  gas  for  private 
use,  fix  the  amount  it  may  charge  them,  and  tlic  company  ao 
cept  the  grant  or  franchise  thus  given  it,  either  expressly  or  by 
implication  in  occupying  the  streets  pursuant  to  tlie  ordinance, 
it  cannot  exceed  the  rate  thus  fixed ;  and  if  it  attempt  to  charge 
more  than  is  allowed  in  such  ordinance,  any  consumer  within 
the  municipality  whom  it  is  attempted  to  overcharge  may  suc- 
cessfully maintain  an  action  to  enjoin  such  company  overcharg- 
ing him  and  from  removing  his  meter  in  order  to  enforce  its 
unlawful  charge.''^  "  Having  accepted  the  franchise  granted 
by  the  ordinance,"  said  the  Supreme  Court  of  Indiana,  "  and 

24  State    V.   Laclede   Casliplit   Co.,  a  city  cannot  be  empowered  by  the 

102  Mo.  472;   14  S.  W.  Rep.  974:   15  legislature   to   regulat«   the  ratoe  to 

S.  W.  Rep.  383;   22  Amer.  St.  Rep.  be    cliarged    for   gas.      Richmond    v. 

789;    34   Am.    and    Eng.    Corp.   Cas.  Richmond  Natural  Gas  Co.,  169  Ind. 

49;   People  v.   Kent    (111.),    12  Nat.  82;   79  N.  E.  Rep.  1031. 

Corp.   Rep.    193;    Noblesville   v.   No-  zr,  Westfield  Gas,  etc.,  Co.  v.  Men- 

blesville  Gas,  etc.,  Co.,  157  Ind.  162;  denhall,    142    Ind.    538;    41    N.    E. 

60  N.   E.   Rep.    1032;    Mills  v.   Chi-  Rep.    1033.     This   case   arose  under 

cago.  127  Fed.  Rep.  731.  the  same  statute  as  did  Louisville, 

As  to  a  franchise  already  granted,  etc.,  Co.  v.  State,  supra. 


LEGISLATIVE   CONTROL.  428a 

agreed  to  be  bound  by  tlic  express  terms  as  to  tbe  price  of  iras, 
and  having  engaged  in  the  exercise  of  the  privilege  nn(U'r  the 
grant,  and  so  continuing  to  do  it;  it  is  now  prechided  fnmi 
successfully  refusing  to  discharge  its  obligations  to  the  inhab- 
itants of  the  town,  who  desire  to  use  its  fuel  upon  the  ground 
that  they  refuse  to  pay  a  price  therefor  in  excess  of  the  maxi- 
mum rate  fixed  by  the  ordinance.  The  to^vn  could  not  by  its 
subsequent  action  impair  or  restrict  the  rights  granted  to,  ac- 
cepted, and  exercised  by  the  appellant.  Neither  will  the  latter 
be  permitted,  under  the  circumstances,  to  decline  to  comply 
with  the  terms  or  conditions  assumed  by  which  it  is  expressly 
granted."  ^®  In  a  subsequent  case  the  same  court  said  :  "  That 
the  city  had  no  power  to  regulate  the  rates  of  its  licensee  makes 
no  difference.  It  had  the  power  to  contract.  And  the  ])o\ver 
to  regulate  the  governmental  function,  and  the  power  to  contract 
for  the  same  end,  are  quite  different  things.  One  requires  the 
consent  only  of  the  one  body,  the  other  the  consent  of  two.  In 
this  instance  the  city  acted  in  the  exercise  of  its  power  to  con- 
tract, and  it  is  therefore  entitled  to  the  benefits  of  its  bar- 
gain." "^  In  an  ordinance  granting  a  gas  company  the  right 
to  occupy  its  streets,  a  municipality  may  require  that  it 
furnish  gas  free  to  its  public  buildings,  or  even  to  its  j^laces  of 
worship;  and  the  company  will  be  bound  by  its  provisions.  In 
such  an  instance  the  relation  between  the  municipality  and  the 
gas  company  is  one  of  contract."® 

28  Citing  Indianapolis  v    Consum-  Ohio  Valley   Gas   Co.,    154   Pa.    St. 

ers',  etc.,   Co.,    140   iiul.   107;   39  N.  539;     25    Atl.     Rep.    808:     Newark 

E.  Rep.   433;    27   L.   R.  A.   514;    48  Gas  and  Fuel  Co.  v.  Newark,  7  Oiiio 

Amer.  and  Eng.  Corp.  Cas.  151.     In  N.    P.    76;    Toledo   v.    N.    W.    Ohio 

the  case  from  which   the  quotation  Natural  Gas  Co.,  5  Ohio  C.  C.  557; 

is  made  the  gas  company  had  given  3  Ohio  Cir.  D.  273;  IvOgansport,  etc., 

a  bond  to  the  tcjwn  agreeing  to  e<im-  Gas  Co.  v.  Peru,  89.  Fed.  Rep.    185; 

ply  with   the  ordinance  granting  it  Richmond  v.  Ricliniond  Natural  Gas 

the  right  to  occupy  its  .*.treets;   and  Co.,    108    Ind.    82;    79    N.    E.    Rep. 

it  was  a  part  of  such  ordinance  that  1031;    Vanderberg   v.    Kansas    City 

the  company,    in   consideration   that  Gas    Co.,    120    Mo.    App.    000;     105 

the   town    had    waived    its    right    to  S.  W.  Rep.  17. 

exact  a  fee  for  the  use  of  its  streets,  2s  Sewickley     School     District    v. 

would   adhere   to  the   charges    fixed  Ohio    Valley   Gas    Co.,    154    Pa.    St. 

in    it  for   private  consumers.  539;  25  Atl.  Rep.  So8. 

27  Noblesville    v.    Noblcsville,    etc.,  Where    a    com]>any    was    granted 

Co.,    157    Ind.    162;    00    N.    E.    Rep.  the  exclusive  right  to  the  streets  of 

1032;    Sewickley    School   District   v.  a    city,    under    a    condition    that    it 


428b 


OIL    AND    GAS. 


§395.     Rates  fixed  by  city  in  its  consent  to  assignment  of  franchise 
right. 

If  the  rio;lit  to  assifj^i  fv  franchisp  granted  a  gas  company  re- 
quires the  consent  of  sucli  municipality  granting  it,  then  in 
such  consent  tlie  municipality  may  fix  the  rates  the  assignee 
may  charge  private  consumers,  without  any  further  or  other 
consideration  than  that  involved  in  consenting  to  the  assign- 
ment."" 

§396.     Gas  company  accepting  provisions  of  subsequent  ordinance. 

A  gas  company  may  bind  itself  by  aooepting  the  terms  of  an 
ordinance  fixing  rates  passed  subsequently  to  the  grant  of  its 
franchise ;  and  the  right  to  charge  the  rates  fixed  is  a  sufficient 


was  to  furnish  froe  gas  to  tlie  city 
so  long  as  it  occupied  tiie  streets; 
and  the  city  afterwards  granted 
another  cqnipany  the  right  to  oc- 
cupy such  streets,  binding  it  to  have 
in  operation  a  well  connected  with 
pipes  within  a  ye<Tr,  it  was  held 
that  the  latter  company  did  not  ac- 
quire any  rights  in  the  streets  until 
it  had  fulfilled  the  condition,  and 
that  the  first  company  must  con- 
tinue to  furnish  free  gas  until  that 
time.  Newark  Gas  and  Fuel  Co.  v. 
Newark,  7  Ohio  N.  P.  76;  Toledo 
V.  N.  W.  Ohio  Natural  Has  Co.,  8 
Ohio  S.  and  C.  P.  Dec.  277;  6  Ohio 
N.  P.  531. 

If  a  city  has  reserved  the  power 
to  regulate  the  rates  to  be  charged, 
as  incident  to  such  right  it  may 
require  the  gas  company  to  furnish 
annually  sucli  data  and  information 
exclusively  in  tlieir  j)ossession  as 
will  enable  it  to  fix  such  rate  intelli- 
gently. Cline  V.  Springfield,  7  Ohio 
N.  P.  62G;  10  Ohio  S.  &  C.  P.  Dec. 
389. 

The  charter  of  the  city  of  Detroit 
confers  upon  the  city  the  power  to 
control,  prescribe,  and  regulate  the 
manner  in  wliich  highways,  streets, 
etc..  within  the  city,  sliall  l)e  used 
and  enjoyed,  and  to  provide  for  and 
regulate  tlie  lighting  of  such  places. 
The  act  for  the  organization  of  gas 


companies  authorizes  companies 
organized  thereunder  to  manufacture 
and  sell  gas,  to  lay  gas  conductors 
through  the  streets,  etc.,  of  any  city, 
etc.,  where  the  corjjoration  is  located 
or  carrying  on  its  business,  which 
conductors  are  to  be  laid  with  the 
consent  of  the  municipal  authorities 
of  such  cities,  etc.,  under  such  rea- 
sonable regulations  as  they  may  pre- 
scribe. It  was  1  eld  tliat  the  city  of 
Detroit  was  not  proliibited  by  the 
statute  from  prescribing  rates  at 
which  gas  should  be  furnished  to  the 
inhabitants,  but  was  impliedly  au- 
thorized thereby  to  enter  into  a  con- 
tract with  ?  gas  company  prescrib- 
ing the  rates  wiiicli  should  be 
charged.  Boerth  v.  Detroit  City  Gas 
Co.,   152  Mi        G54:    116  N.  w'.  628. 

29 /ri  re  Pryor,  55  Kan.  724;  41 
Pac.  Pvep.  958;  29  F .  R.  A.  398;  49 
Am.  St.  280.  See  Noblesville  v. 
Noblesville,  etc.,  Gas  Co.,  157  Ind. 
162;   60  N.    E.  Rep.   1032. 

On  an  extension  of  time  the  city 
may  exact  of  the  company  a  bond 
to  complete  the  work  within  a  cer- 
tain time,  and  fix  upon  a  specified 
sum  as  liquidated  damages  if  it 
does  not  complete  the  work  by  the 
time  therein  agreed  upon,  ^larshall 
V.  -T.  W.  A:  W.  S.  Atkins  (Tex.  Civ. 
App.),  127  S.  W.  Rep.  1148. 


LEGISLATIVE   CONTROL,  428c 

consideration  to  make  its  acceptance  l)in(iitip:;.  Tims  where  a 
company  was  occupying  the  streets  of  a  town  uikKt  an  <ir(li- 
nance  that  allow^ed  it  to  cliarge  reasonable  rates  (by  construe- 
tion),  no  rate  being  specified;  and  no  ordinance  was  enacted 
specifying  what  rates  the  company  could  charge,  but  a  subse- 
quent ordinance  was  passed,  emimerating  and  fixing  rates  for 
almost  all  the  instances  in  which  the  company  had  been  making 
a  diarge ;  and  the  company  accepted  the  terms  of  such  subse- 
quent ordinance,  it  was  held  that  it  was  bound  by  such  acce])t- 
ance  and  could  charge  only  the  rates  specified,  except  in  tlicise 
instances  where  no  rate  was  fixed,  where  it  could  charge  a  rea- 
sonable rate*^*' 

§397.     Prohibition  to  change  for  specified  time. 

In  some  States  are  statutes  authorizing  tlie  enactment  of  an 
(►rdinanoe  granting  the  right  of  a  gas  company  to  supply  gas 
within  a  certain  named  period,  or  not  to  exceed  a  certain  period 
of  time,  and  providing  on  the  acceptance  of  such  an  oi-dinance 
that  the  acceptance  and  ordinance  shall  constitute  a  contract 
between  the  municipality  and  the  gas  company.  Where  such  a 
statute  prevails,  and  such  an  ordinance  is  accepted,  the  rates 
fixed  in  it  cannot  be  changed  during  the  period  of  time  fixed 
in  the  ordinance.^^  Under  such  a  statute  the  time  when  the 
jjeriod  of  time  shall  begin  to  run  may  be  dated  ahead,  although 
the  period  of  time  from  the  enactment  of  the  ordinance  until 
the  contract  shall  exj)irc  will  exceed  the  length  of  time  for 
which  the  municipality  is  authorized  to  bind  itself  by  the  con- 
tract.^' 

30  Noblesville   v.   Noblesville,   etc.,  3i  I^o<jan  iS'atural  Gas.  etc..  Co.  v. 

Co.,    157    Ind.    162;    60   N.   E.   Rep.  Chillicothe,  65  Ohio  St.  186;  62  N. 

1032.  E.    Rep.    122;    Cincinnati    Gaslight, 

Acquiescence    in    a    reductinn    of  etc.,   Co.  v.   Avondale.   43   Ohio   St. 

rates    for    several    years    for    each  257 ;    1   N.   E.   Rep.   527 ;    reversing 

year,  will  not  prevent  contest  for  a  8  Ohio  N.  P.  88;   11   Wkly.  L.  Bull, 

reduction    in    future    years,    or    in  216:     13    Wkly.    L.    Bull.    467;     14 

years,    in   which   there  has  been    no  Wkly.  L.  Bull.  15;  State  v.  Inmton 

acquiescence.     Los    Angeles    v.    Los  Gas  Co.,  37  Ohio   St.   45. 

Angeles  City  Water  Co.,   177  U.  S.  32  Logan  Natural  Gas,  etc.,  Co.  v. 

558;  20  Sup.  Ct.  Rep.  736;  124  Cal,  rhillicothe,  supra. 

377.  A  contract  for  a  lonirer  time  than 


428d  OIL   AND    GAS. 

§398.     Police  power. —  Rates. 

But  it  must  be  understood  that  in  parting  witli  its  power  to 
■fix  and  determine  rates  neither  the  State  nor  tlie  municipality 
parts  witli  its  ]M)liee  power  —  the  power  to  protect  the  lives  and 
the  safety  of  its  inhabitants  or  the  safety  of  its  property.  It 
may  be  said  that  is  a  power  that  neither  a  State  and  perhaps  a 
municipality  cannot  alienate.^^  But  the  right  to  exercise  tlie 
police  power  is  one  that  must  be  exercised  with  duo  regard  to 
the  individual  or  company  affected ;  under  the  guise  of  the 
right  to  exercise  it,  it  cannot  be  so  used  as  to  destroy  vested 
rights;  and  under  it  the  right  to  regulate  a  business,  it  cannot 
be  so  used  as  to  confiscate  a  gas  company's  business  or  projjerty 
without  compensation  and  without  due  course  of  law.^* 

§399.     Municipality  regulating  gas  companies. 

As  a  muiiici]wlity  is  only  an  agent  of  the  State  in  its  govern- 
ment, the  State  may  delegate  to  it  its  rights  under  the  police 
power  to  control  or  regulate  a  gas  company ;  and  no  express  pro- 
vision of  the  constitution  is  necessary  to  enable  it  to  do  so.^^ 

the  statute  allows,  or  for  an  in-  Co.,  115  U.  S.  650;  10  Am.  and 
definite  time,  will  render  the  time  Eng.  Corp.  Cas.  639;  6  Sup.  Ct. 
limit  of  the  contract  void;  and  it  Rep.  252;  Louisville  Gas  Co.  v.  Citi- 
cannot  be  urged  successfully  that  zens'  Gas  Co.,  115  U.  S.  683  (re- 
it  is  a  contract  for  the  full  time  versing  81  Ky.  156;  1  Am.  and  Eng. 
allowed  by  the  statute.  INIanhattan  "  Corp.  Cas.  156)  ;  6  Sup.  Ct.  Rep. 
Trust  Co.  v.  Dayton,  50  Fed.  Rep.  265;  10  Am.  and  Eng.  Corp.  Cas. 
327;  8  C.  C.  A.  140;  16  U.  S.  App.  071;  Bath  Gaslight  Co.  v.  Claffy, 
588.  There  is  a  seeming  conflict  be-  74  Hun  638;  26  N.  Y.  Supp.  287; 
tween  this  case  and  the  case  of  To-  Mason  v.  Ohio  River  R.  R.  Co.,  52 
ledo  V.  N.  W.  Ohio  Natural  Gas  W.  Va.  41;  41  S.  E.  Rep.  418. 
Co.,  5  Ohio  C.  C.  557.  ^-^  New  :Memphis  Gas.  etc..  Co.  v. 
33  State  V.  Columbus  Gaslight,  Memphis.  72  Fed.  Rep.  952;  Bene- 
etc,  Co.,  34  Ohio  St.  572;  32  Amer.  diet  v.  Columbus  Construction  Co., 
Rep.  390;  Zanesville  v.  Zanesville  49  N.  .T.  Eq.  23;  23  Atl.  Rop.  485. 
Gaslight  Co.,  47  Ohio  St.  1;  23  N.  35  Garrison  v.  Chicago.  7  Biss. 
E.  Rep.  555;  29  Am.  and  Eng.  Corp.  480;  Indianapolis  v.  Indianapolis 
Cas.  190;  Jamieson  v.  Indiana  Nat.  Gaslight,  etc..  Co..  66  Ind.  396;  New 
Gas,  etc.,  Co.,  128  Ind.  555;  28  N.  Orleans  Gaslight  Co.  v.  Hart,  40  La. 
E.  Rep.  76;  12  L.  R.  A.  652;  34  Ann.  474:  8  Amer.  St.  Rep.  544;  4 
Amer.  and  Eng.  Corp.  Cas.  1:  New  So.  Rep.  215:  Capital  City  Gaslight 
Orleans  Gas  Co.  v.  Louisiana  Light  Co.    v.    Des    Moines,    72    Fed.    Rep. 


LEGISLATIVE   CONTROL. 


420 


Under  the  right  delegated  to  regiihUc  gas  companies,  however, 
a  municipality  may  not  violate  any  right  granted  a  company  in 
its  charter.^"  Kor  can  the  municipality  under  its  power  to 
regulate  a  gas  company  break  or  impair  a  contract  it  has  with 
the  company  for  municipal  lighting,  or  lighting  its  streets  and 
public  highways.^^  A  municipality  has  the  inherent  and  im- 
plied police  power  to  require  all  gas  companies  ojierating  within 
its  limits,  to  use  all  reasonable  regulations  to  protect  its  inhab- 
itants, independent  of  any  statute  expressly  authorizing  it  so 
to  do."*  This  proposition  is  emphasized  when  it  is  borne  in 
mind  tliat  a  municipality  cannot  by  contract  impair  its  police 
power  over  gas  and  other  like  companies,  to  protect  its  inhab- 
itants in  their  health  and  property  from  their  operations.^'"* 

§400.     Power    to    change    rates  —  rates    established    must    be 
reasonable. 

Where  a  statute  is  in  force  authorizing  a  municipality  to 
change  or  regulate  rates  for  gas  charged  private  consumers,  the 
municipality  cannot  fix  the  rate  so  lo\v  tJiat  the  company  cannot 
manufacture  and   supply  gas.      The  rate  must  be  reasonable; 


829;  Northern  Liberties  v.  North- 
ern Liberties  Gas  Co.,  12  Pa.  St. 
318;  Westfield  Gas,  etc.,  Co.  v. 
Mendenhall,  142  Ind.  538;  41  N.  E. 
Rep.  1033;  Zanesville  v.  Louisville 
Caslipht  Co.,  47  Ohio  St.  1 ;  23  N. 
E.  Rep.  55;  29  Am.  and  Eng.  Corp. 
Cas.   190. 

36  District  of  Columbia  v.  Wash- 
ington Gaslight  Co..  20  D.  C.  39; 
Pittsburgh's  Appeal,  115  Pa.  St. 
4;  7  Atl.  Rep.  778;  Northern  Liber- 
ties V.  Northern  Liberties  Gas  Co., 
supra. 

•"Capital  City  Gaslight  Co.  v. 
Des  Moines,  72  Fed.  Rep.  829;  Levis 
V.  Newton,  75  Fed.  Rep.  884;  In- 
dianapolis V.  Consumers'  Gas  Trust 
Co.,  140  Ind.  107;  39  N.  E.  Rep. 
4.33;  48  Am.  and  Eng.  Corp.  Cas. 
151  ;  49  Am.  St.  Rep.  183;  27  L.  R. 
A.  514;  State  v.  Laclede  Gaslight 
Co.,  102  Mo.  472;  14  S.  W.  Rep. 
974;    15  S.  W.  Rep.  383;   22  Amer. 


St.  Rep.  789:  34  Am.  and  Eng. 
Corp.  Cas.  49:  Indianapolis  v.  In- 
dianapolis Gaslight,  et«.,  Co..  66 
Ind.  39G;  Gaslight  Co  v.  South 
River,  77  N.  J.  Ch.  487;  77  Atl. 
Rep.  473. 

3s  Northern  Liberties  v.  Northern 
Liberties  Gas  Co.,  12  Pa.  St.  318; 
Rushville  v.  Rushville,  etc..  Gas  Co., 
132  Ind.  575;  28  N.  E.  Rep.  853; 
15  L.  R.  A.  321  (overruled  on  the 
right  to  regulate  the  price  of  gas)  ; 
Borough  of  Edgcwood  v.  Scott,  29 
Pa.  Super.  Ct.  13G. 

30  East  St.  Louis  v.  East  St. 
Louis  Gas,  etc.,  Co.,  98  111.  415;  38 
Am.  Rep.  97;  Meadville  Fuel  Gas 
Co.'s  Appeal  (Pa.),  4  Atl.  Rep. 
733;  14  Am.  and  Eng.  Corp.  Cas. 
123;  Indianapolis  v.  Consumers' 
Trust  Co.,  140  Ind.  107;  39  N.  E. 
Rep.  483;  49  Am.  St.  Pop.  183;  48 
Am.  and  Eng.  Corp.  Cas.  151;  27 
L.  R.  A.  514. 


430 


OIL    AND    GAS. 


aiul  if  nut  reasonable,  the  ordinance  changing  the  rate  imposes 
no  obligations  uiM)n  tiic  ('(inij)any.''"  The  granting  of  a  charter 
to  a  company  to  manufacture  and  supply  gas  creates  an  implied 
contract  \vith  the  State  giving  the  company  the  right  to  charge 
a  reasonable  rate  for  all  gas  furnished,  which  cannot  be  im- 
paired.''^ lender  such  a  jiower  a  municipality  cannot  fix  a  rate 
so  low  as  to  work  a  practical  confiscation  of  the  company's  plant ; 
but  due  regard  must  be  had  to  the  right  of  the  company  to  re- 
ceive such  an  income  from  its  business  as  will  pay  operating 
exjK'nses,  legitimate  charges,  and  a  reasonable  profit.*'  The 
reasonableness  of  the  rate  fixed  is  a  matter  for  judicial  in- 
quiry ;  *^  and  a  court  of  equity  has  tlie  power  to  set  aside  such 
ordinance  and  direct  the  municipality  to  fix  such  rates  as  the 
statute  authorizes.**  Before  the  courts  can  interfere  it  must 
appear  that  the  rates  fixed  are  so  plainly  and  palpably  unrea- 


40  State  V.  Cincinnati,  etc.,  Oo., 
18  Ohio  St.  262;  Logan  Natural  Gas, 
etc.,  Co.  V.  Chillicotlie,  65  Ohio  St. 
186;   62  N.  E.  Rep.  122. 

41  Cleveland,  etc.,  Go.  v.  Cleve- 
land, 71  Fed.  Rep.  610;  35  Ohio  L. 
Jr.  155;  Toledo  v.  N.  W.  Natural 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dee. 
277;  Capital  Oity  Gaslight  Co.  v. 
Des  Moines,  72  Fed.  Rep.  829;  New 
Memphis  Gas  Qo.  v.  Memphis,  72 
Fed.  Rep.  952 ;  Los  Angeles  v.  Los 
Angeles,  etc.,  Co.,  177  U.  S.  558;  20 
Sup.  Ct.  Rep.  736;  affirming  88 
Fed.  Rep.  720;  Cincinnati,  etc.,  Ry. 
Co.  v.  Bowling  Green,  57  Ohio  St. 
336;  49  N.  E.  Rep.  121;  People's 
Gaslight  and  Coke  Co.  v.  Chicago, 
114  Fed.  Rep.  384. 

42  New  Memphis  Gas,  etc.,  Co.  v. 
Memphis,  72  Fed  Rep.  952;  Wad- 
dington  v.  Allegheny  Heating  Co., 
6  Pa.  Co.  Ct.  Rep.  96;  Spring  Val- 
ley, etc.,  Co.  v.  San  Francisco,  82 
Cal.  286;  22  Pac.  Rep.  910,  1046; 
San  Diego,  etc.,  Co.  v.  Jasi)er,  110 
Fed.  Rep.  702;  Indianapolis  Gas 
Co.  v.  Indianapolis,  82  Fed.  Rop. 
245 ;  San  Joaquin,  etc..  Co.  v.  Stan- 
islaus County,  113  Fed.  Hep.  930; 
Madison  v.  Madison  Gas  &  El.  Co., 
129  Wis.  249;  108  N.  W.  Rep.  65; 
Peoria  Gas  &  El.  Co.  v.  Peoria,  200 
U.  S.  48;  26  Sup.  Ct.  Rep.  214; 
50  L.  Ed.   565;    Cedar   Rapids  Gas- 


light Co.  V.  Cedar  Rapids,  144  Iowa 
426;  120  N.  W.  Rep.  966;  State  v. 
Redding,  84  Kan.  654;  114  Pac. 
1094. 

If  a  municipality  lease  its  own 
gas  works  to  a  company,  providing 
in  the  lease  that  its  council  may 
fix  the  rates,  but  not  below  the  then 
existing  rates,  the  proviso  is  a  lim- 
itation ujX)n  its  right  to  regulate 
rates,  and  not  a  mere  gi-anting  back 
by  the  lessee  of  the  right  of  the 
municipality  in  its  jiroprictary  ca- 
pacity only.  Los  Angeles  v.  Los 
Angeles,  etc.,  Co.,  177  U.  S.  558;  20 
Sup.  Ct.  Rep.  736,  affirming  88  Fed. 
Rep.  720. 

4!  Capitol  City  Gas  Co.  v.  Des 
Moines,  72  Fed.  Rep.  829;  New 
Memphis  Gas,  etc.,  Co.  v.  Memplus, 
72  Fed.  Rep.  952;  Agua  Pura  Co. 
v.  Las  Vegas,  10  N.  M.  6;  60  Pac. 
Rep.  208;  50  L.  R.  A.  224;  Vander- 
berg  v.  Kansas  City  Gas  Co.,  126 
Mo.  App.  600;  105  "S.  W.  Rep.  17; 
Lincolji  Gas  &  El.  Lighting  Co.  v. 
Lincoln.  182  Fed.  926. 

44  Spring  Valley,  etc.,  Co.  v.  San- 
Francisco,  82  Cal.  286 ;  22  Pac.  Rep. 
910,  1086;  Osborne  v.  San  Dieg«, 
etc.,  Co.,  178  U.  S.  22:  20  Sup.  Ct. 
Rep.  860;  affirming  76  Fed.  Rep. 
319;  People's  Gaslight  and  Coke  Co. 
v.   Hale,  94  111.  App.  406. 


LEOISI.ATIVK    CONTROI.. 


431 


sonable  as  to  make  Uieir  eui'urceiUL'ut  equivalent  to  tlie  taking 
of  private  property  for  public  use  without  proper  comi^ensa- 
tion.*^  In  discussing  this  question  at  great  length  the  Supreme 
Court  of  tlie  United  States  by  Justice  Harlan  has  said:  "  The 
contention  of  the  appellant  [a  water  cxjnii>any]  in  the  present 
case  is  tliat  in  ascertaining  what  are  just  rates  the  court  should 
take  into  consideration  the  cost  of  its  plant;  tlie  cost  per  annum 
of  operating  the  plant,  including  interest  paid  on  money  bor- 
rowed and  reasonably  necessary  to  be  used  in  constnicting  the 
same;  the  annual  depreciation  of  the  ])lant  from  natural  causes 
resulting  from  its  use;  and  a  fair  profit  to  the  company  over 
and  above  such  charges  for  its  services  in  supplying  the  water 
to  consumers,  either  by  way  of  interest  on  the  money  it  has 
expended  for  tlie  public  use,  or  upon  some  other  fair  and  ecpiita- 
ble  basis.  Undoubtedly,  all  these  matters  ought  to  be  taken 
into  consideration,  and  such  weight  be  given  tlieni,  when  rates 
are  being  fixed,  as  under  all  the  circumstances  will  be  just  to 
the  company  and  to  the  jMiblie.  The  basis  of  ciilculation  sug- 
gested by  the  appellant  is,  however,  defective  in  not  requiring 
the  real  value  of  tlie  property  and  the  fair  value  in  themselves 
of  the  services  rendered  to  be  taken  into  the  consideration. 
What  tlie  company  is  entitled  to  demand,  in  order  that  it  may 
have  just  oomj^.nsation,  is  a  fair  return  upon  the  reasonable 
value  of  the  property  at  the  time  it  is  being  used  for  the  public. 
The  property  may  have  cost  more  than  it  ought  to  have  cost, 
and  its  outstanding  bonds  for  money  borrowed  and  which  went 
into  tlie  plant  may  be  in  excess  of  the  real  value  of  the  property. 
So  tliat  it  cannot  be  said  that  the  amount  of  such  l)onds  should 

45  San  Diego,  etc.,  Co.  v.  Jasper,  to  not  constitute   a  just  coinpensa- 

111    Fed.    Rep.    702.     See    People's  tion. 

Gaslight  and  Coke  Co.  v.  Hale,  04  A  reduction  of  the  company's  in- 
Ill.  App.  406,  and  San  Diego,  etc.,  come  need  not  be  shown  to  establish 
Co.  V.  San  Diego,  118  Cal.  556;  50  the  fact  that  the  reduction  of  it-= 
Pac.  Rep.  633;  38  L.  R.  A.  460;  62  rates  by  ordinance  impairs  tlic  ohli- 
Am.  St.  Rep.  261.  In  this  case  gation  of  a  contract  prohil)itini; 
three  and  one-third  per  cent  upon  such  reduction.  Los  Angeles,  et<'., 
the  actual  cost  of  the  plant  after  Co.  v.  Los  Angeles,  88  Fed.  Kep. 
deducting  current  expenses  was  held  720;   affirmed   177  U.  S.  558;   20  S. 

Ct.  Rep.   736. 


432 


OIL    AND    GAS. 


in  every  ease  control  the  question  of  rates,  althongli  it  may  be 
an  element  in  tlic  in(|niry  as  to  ^vllat  is,  all  the  circumstances 
considered,  just  both  to  the  company  and  to  the  public."  *°  In 
anotlier  case,  involving  turnpike  rates,  it  was  said :  '^  Each 
case  must  de]x^nd  upon  its  special  facts;  and  when  a  court, 
withdut  assuming-  itself  to  prescribe  rates,  is  rc(]uired  to  deter- 
mine whether  the  facts  prescrilwd  by  the  legislature  for  a  cor- 
poration controlling  a  public  highway  are,  as  an  entirety,  so 
unjust  as  to  destroy  the  value  of  its  property  for  all  the  pur- 
poses for  which  it  was  acquired,  its  duty  is  to  take  into  consid- 
eration the.  interests  both  of  the  public  and  the  owner  of  the 
property,  together  with  all  other  circumstances  that  are  fairly 
to  be  considered  in  determining  whether  the  legislature  has, 
under  tJie  guise  of  regulating  rates,  exceeded  its  constitutional 
authority,  and  practically  deprived  the  owner  of  property  with- 
out due  process  of  law.  .  .  .  The  utmost  that  any  corpora- 
tion operating  a  public  highway  can  rightfully  demand  at  the 
hands  of  the  legislature,  when  exerting  its  general  powers,  is 
that  it  receive  what  under  all  the  circumstances  is  such  com- 
pensation for  the  use  of  its  property  as  will  be  just  both  to  it 
and  to  the  public."  *'  If  the  municipality,  having  the  author- 
ity to  fix  rates,  do  not  do  so,  then  the  gas  company  may  fix  its 
rates  at  such  a  reasonable  figure  as  it  sees  fit,  unless  some  ex- 
press provision  of  a  statute  or  an  ordinance  prohibit  its  so 
doing. *^     Where  a  municiaplity  with  authority  to  fix  rates  does 

46  San  Diego  Land  Co.  V.  National  v.  San  Diego,  118  Cal.  556;  50 
City,  174  U.  S.  739;  affirming  74  Pac.  Rep.  633;  38  L.  R.  A.  460;  62 
Fed.  Rep.  79.  It  was  also  held  that  Am.  St.  Rep.  261. 
the  cost  of  outside  ventures  could  47  Covington,  etc.,  Co.  v.  Sand- 
not  be  considered  in  determining  ford,  164  U.  S.  578.  See  Chicago, 
the  rates.  New  ]\Iemphis  Gaslight  etc.,  Ry.  v.  Minnesota,  134  U.  S. 
and  Coke  Co.  v.  Memphis,  72   Fed.  418. 

Rep.    952.     In   St.   Louis    v.    Arnot,  48  Lanning    v.    Osborne,    76    Fed. 

94  Mo.   275,   7   S.  W.  Rep.   15,  evi-  Rep.   319;   affirmed  O.sborne  v.   San 

oence  of  the  cost  of  the  water  works  Diego,   etc.,   Co.,    178   U.   S.   22;    20 

was  held  to  be  irrelevant  in   fixing  Sup.  Ct.  Rep.  860.     In  this  case  it 

the  rates.     Nor  can  expenses  of  lit!-  was   held   that  the  annual    rates   as 

gation  in  contesting  the  validity  of  first  fixed  were  not  made  irrevocable 

an  ordinance   in   fixing  the  rates  be  by  a  contract  for  the  sale  of  water 

considered,     San    Diego    Water    Co.  rights  for  a  fixed  sum,  providing,  in 


LEGISLATIVE   CONTROL.  433 

SO,  it  will  be  presumed  that  tlie  rates  are  reasonable;  and  tlio 
gas  company  has  the  burden  to  show  that  it  is  not.*"  If  there 
be  no  restriction  upon  the  comi»aiiy  in  tixini;'  the  price,  it  is 
authorized  to  fix  it  at  a  reasonable  tigure;  ^"  and  tJie  ]>re.sumi> 
tion  is  that  the  price  at  which  it  fixes  it  is  a  reasonable  one.^* 
In  a  case  involving  rates,  analogous  to  the  rates  of  a  gas  com- 
pany, the  Supreme  Court  of  the  United  States  has  used  the  fol- 
lowing language:  "  The  judiciary  ought  not  to  interfere  with 
the  collection  of  rates  established  under  legislative  sanction  un- 
less they  are  so  plainly  and  palpably  unreasonable  as  to  make 
their  enforcement  equivalent  to  the  taking  of  property  for 
public  use  without  such  compensation  as  under  all  the  circum- 
stances is  just  to  the  owner  and  to  the  public;  that  is,  judicial 
interference  should  never  occur  unless  the  case  presents  clearly 
and  beyond  all  doubt,  such  a  flagrant  attack  upon  the  rights  of 
property  under  the  guise  of  regulations  as  to  compel  tlie  court 
to  say  that  the  rates  prescribed  will  necessarily  have  the  effect 
to  deny  just  compensation  for  private  property  taken  for  the 
l>ublic  use."  ^'     Under  its  power  to  change  the  rates  a  munici- 

addition,   for   the   payment  of  such  so  Louisville  Gas  Co.  v.  Dulaney, 

annual    rates   to   "be   fixed   by   the  100  Ky.  405;  38  S.  W.  Rep.  703. 

water  company  as  allowed  by  law."  si  Bellaire  Goblet  Co.  v.  Findlay, 

Power  given  to  a  municipal  body  3  Ohio  Cir.  Dec.  205;   5  Ohio  C.  C. 

to    fi.x    rates    does    not    make    it    a  418;  Noblesville  v.  Xoblesville  Gas, 

part   of   the   legislative   department  etc.,    Co.,    157    Ind.    1G2;    GO   X.    E. 

of   the  State.     Spring   Valley,   etc.,  Rep.  1032. 

Co.  v.  San  Francisco,  82  Cal.  28G;  52  yan  Diego  Land  Co.  v.  National 

22   Pac.   Rep.   910,    1046.     See  Lan-  City,    174   U.   S.    739;    affirming   74 

ning  V.  Osborne,   82  Fed.  Rep.  575.  Fed.   Rep.   79;   citing  Chicago,   etc.. 

49  Capitol    City    Gaslight    Co.    v.  Ry.    v.    Wellman,    143    U.    S.    339; 

Des  Moines,  72  Led.  Rep.  829.     See  Reagan  v.  Farmers'  Loan,  etc.,  Co., 

State    v.    Ironton,    37    Ohio   St.    45;  154  U.  S.  362;   Smyth  v.  Ames.   16!) 

Toledo  V.  N.  W.  Ohio  Natural  Gas  U.  S.  p.  524;  and  Henderson  Bridge 

Co.,    3    Ohio    Cir.    Ct.   Dec.    273;    5  Co.    v.    Henderson    City.    173    U.   S. 

Ohio  Cir.  Ct.  557;  Logansport,  etc.,  592;    Cedar  Rapids  Gaslight  Co.  v. 

Gas  Co.  V.  Peru,  89  Fed.  Rep.   185.  Cedar   Rapids,    144    Iowa   426;    120 

That    the    motives    of   the    common  N.  W.  Rep.  9G6. 

council   in  fixing  the   price  may  be  See  the  following  analogous  cases: 

inquired    into,   see   State   v.   Cincin-  Chicago,  etc.,  Ry.  Co.  v.  Minnesota, 

nati  Gaslight,  etc.,  Co.,  18  Ohio  St.  134  U.  S.  418;  Spring  Valley  W.  W 


262. 


V.   San   Francisco,    82    Cal.   286;    22 


434 


OIL    AND    GAS. 


palitv  need  not  give  notice  of  its  intention  to  do  so,"^  unless  a 
sUtnte  requires  it;  and  this  is  especially  true  where  the  eoni- 
pany  must  furnish  (hita  to  enable  the  nuinieipality  to  determine 


Pac.  Rep.  910,  1046;  Spring  Valley 
W.  W.  V.  Bryant,  52  Cal.  132; 
Spring  Valley  W.  W.  v.  Bartlett,  G3 
Cal.  245;  San  Diego  W.  W.  Co.  v. 
San  Diego,  118  Cal.  55G;  50  Pac. 
Rep.  633 ;  38  U  R,  A.  460 ;  Rcdlands 
Domestic  Water  Co.  v.  Redlands,  120 
Cal.  312;  53  Pac.  Rep.  843. 

A  company  is  not  estopped  to 
contest  the  validity  of  an  ordinance 
fixing  rates  in  violation  of  a  con- 
tract between  the  city  and  the 
grantors  of  the  company,  merely 
because  of  fifteen  years  it  has  col- 
lected the  rates  established  by  sim- 
ilarly objectionable  ordinances, 
where  it  has  annually  protested 
against  the  city's  conduct.  Los  An- 
geles V.  Los  Angeles,  etc.,  Co.,  177 
U.  S.  558;  20  Sup.  Ct.  Rep.  736; 
affirming  88  Fed.  Rep.  720. 

A  failure  of  a  gas  company  to 
furnish  gas  at  a  rate  specified  in  an 
ordinance,  upon  which  condition  its 
charter  was  granted,  is  not  excused 
by  the  passage  of  a  subsequent  or- 
dinance for  the  repeal  of  the  former 
one.  Such  a  repealing  ordinance  is 
nothing  more  than  a  wrongful  as- 
sertion by  the  town  of  a  right  to 
rescind  its  contract.  Chicago,  etc., 
Co.  V.  Lake,  130  111.  42;  22  N.  E. 
Rep.  616;  affirming  27  111.  App.  346. 
An  ordinance  authorizing  a  com- 
pany to  charge  consumers  during 
the  continuance  of  the  privilege 
granted,  certain  named  rates  or 
"other  rates  that  may  be  estab- 
lished" by  the  company  and  ap- 
proved by  the  municipal  authorities, 
does  not  exclude  future  regulation 
of  the  rates  charged,  in  violation 
of  a  statute  authorizing  the  munici- 
pality to   fix   the   charges.     Creston 


W.  W.  Co.  v.  Creston,  101   la.  687; 
70  X.  W.  Rep.  739. 

In  determining  whether  or  not  the 
rates  are  reasonable,  bonds  issued 
for  patents  not  used,  cannot  be  con- 
sidered. Nor  can  the  rental  of 
land  owned  by  the  company  but  not 
used  as  a  plant  be  considered  as  a 
proper  expense.  Capitol  City  Gas- 
light Co.  V.  Des  Moines,  72  Fed.  Rep. 
829. 

The  change  of  rates  so  as  to  im- 
pair the  original  contract  raises  a 
question  giving  the  Federal  courts 
jurisdiction.  Logansport,  etc.,  Gas 
Co.  V.  Peru,  89  Fed.  Rep.  185. 

In  determining  the  rate  the  mu- 
nicipality may  take  into  considera- 
tion the  earnings  in  the  past. 
Logansport,  etc.,  Gas  Co.  v.  Peru,  89 
Fed.  Rep.  185. 

The  court  cannot  fix  the  rate;  it 
can  only  determine  whether  or  not 
the  rates  as  fixed  by  the  municipal- 
ity are  reasonable.  People's  Gas- 
light and  Coke  Co.  v.  Hale,  94  111. 
App.  40^;  Lladison  v.  iladison  Gas, 
etc.,  Co.,  129  Wis.  249;  108  N.  W. 
Rep.  65. 

The  constitution  and  statute  of 
California  authorizing  Boards  of 
Supervisors  to  fix  rates  at  which 
water  shall  be  sold  by  a  corporation 
furnishing  water  to  the  public  does 
not  apply  to  a  corporation  organized 
to  furnish  water  to  its  stockholders 
only.  ilcFaddon  v.  Los  Angeles 
County,  74  Cal.  571;  16  Pac.  Rep. 
397. 

•'■•-  Spring  Valley,  etc.,  Co.  v.  San 
Francisco,  82  Cal.  286 ;  22  Pac.  Rep. 
910,  1046;  Budd  v.  New  York,  143 
U.  S.  517;  12  S.  Ct.  Rep.  468. 


LEGISLATIVE   CONTROL. 


435 


what  the  rates  shall  be,  and  it  has  been  called  upou  by  such 
city,  before  fixing  the  rates,  to  furnish  such  data."^ 


5*  San  Diego  Land  Co.  v.  National 
City,  174  U.  S.  739;  aflirniing  74 
Fed.  Kep.  79. 

A  water  company  cannot  exact 
any  sum  of  money  or  otlicr  thing  in 
addition  to  the  legally  established 
rates  as  a  condition  upon  which  it 
will  furnish  water.  Lanning  v.  Os- 
borne, 76  Fed.  Rep.  319. 

The  current  expenses  which  may 
be  considered  in  determining  tlie 
sufSciency  of  the  income  provided 
by  water  rates  consist  of  the  amount 
of  money  which  is  properly  and  rea- 
sonably expended  each  year  in  the 
collection  and  distribution  of  water. 
San  Diego  Water  Co.  v.  San  Diego, 
118  Cal.  55G;  50  Pac.  Rep.  C33 ;  38 
L.  R.  A.  4G0. 

Where  the  water  is  to  be  fur- 
nished under  a  contract  fixing  tlie 
rate,  the  reasonableness  of  such 
rates  is  not  a  matter  of  considera- 
tion. Leadville  Water  Co.  v.  Lead- 
ville,  22  Colo.  297;  45  Pac.  Rep. 
362. 

The  court  is  not  limited  to  the 
evidence  heard  by  the  municipal 
board  in  fixing  the  rates  where  the 
hearing  was  conducted  without  no- 
tice to  the  company  and  without 
any  right  on  its  part  to  intervene 
cfTcctually.  San  Diego  Water  Co. 
V.  San  Diego,  supra.  Rut  see  Cedar 
Rapids  Gaslight  Co.  v.  Cedar  Rap- 
ids, 144  Iowa  426;  120  N.  W.  Rep. 
966. 

In  Pennsylvania  if  the  rates  yield 
no  more  than  is  required  to  main- 
tain the  plant,  pay  fixed  charges 
and  operating  expenses,  provide  a 
suitable  sinking  fund,  for  the  pay- 
ment of  debts,  and  pay  a  fair  profit 
to  the  owners,  they  are  not  so  un- 
reasonable  that   the  courts  will   re- 


duce them.  Under  the  statute  in 
that  State  the  power  of  the  courts 
to  decrease  rates  is  limited  to  a 
reduction  of  the  rates  which  are 
specifically  charged  to  be  excessive, 
and  does  not  include  the  right  to 
form  an  entirely  new  schedule  Of 
prices  covering  the  company's  entire 
business.  Brymer  v.  Butler  Water 
Co.,  179  Pa.  St.  331;  27  Pitts.  L.  J. 
(X.  S.)  285;  39  W.  X.  C.  439;  36 
Atl.  Rep.  249;   36  L.  R.  A.  2C0. 

Under  a  power  reserved  to  pre- 
scribe from  time  to  time  rules  and 
regulations  for  the  running  and  op- 
eration of  a  street  railway,  a  city 
cannot  prescribe  the  rate  of  fare. 
Detroit  v.  Detroit,  etc.,  Co.,  184  U. 
S.  308;  22  Sup.  Ct.  Rep.  410;  and 
the  same  is  true  of  the  price  of 
gas  company.  Mills  v.  Chicago,  127 
Fed.  Rep.  731. 

Power  in  a  city  to  secure  a  re- 
duction in  rates  by  arbitration  does 
not  authorize  the  city  itself  to 
change  the  rate.  Des  ^Moines  v.  Des 
Moines  W.  W.  Co.,  95  Iowa  348; 
64  X.  W.  Rep.  269. 

The  acceptance  by  a  gas  company 
of  the  provisions  of  a  city  ordinance 
in  whicli  it  is  reserved  the  right  of 
the  city  council  to  fix  the  price 
charged  for  gas  after  ten  years,  the 
council  at  the  end  of  the  ten-year 
term  may  fix  the  rates,  which  will 
be  conclusive  on  both  the  company 
and  the  public,  and  which  cannot  be 
interfered  with  by  the  courts  in  the 
absence  of  a  showing  of  fraud  or 
bad  faith.  Logansj>ort,  etc.,  Gas 
Co.  v.  Peru,  89  Fed.  Rep.  185. 

Under  a  power  to  fix  rates,  a  city 
may  require  a  gas  company  to  fur- 
nish annually  such  data  and  in- 
formation  exclusively   in   their   pos- 


436 


OIL    AND    GAS. 


§  400a.     Rates  fixed  must  be  reasonable. — Evidence. 

As  has  been  said  in  the  previous  section,  the  rates  fixed  by 
a  municipality,  or  otlier  authority  having  power  to  do  so,  must 
be  reasonable  and  not  confiscatory.  At  the  risk  of  repetition 
we  state  the  result  of  some  of  the  recent  cases  upon  this  sub- 
ject.   The  rates  fixed  must  not  be  unreasonable/'^'^    But,  "The 


session  as  \vill  enahle  the  city  to 
fix  the  price  intelligently.  Cline  v. 
Springfield,  7  Ohio  X.  P.  G26;  10 
Ohio  S.  &  C.  P.  Dec.  389.  Tn  such 
an  instance  it  is  no  defense  that 
the  city  had  not  exacted  reports  of 
other  gas  companies.  Cline  v. 
Springfield,  supra. 

The  fixing  of  the  rates  is  a  legis- 
lative function,  and  the  duty  of  the 
court  ends  when  it  has  determined 
the  rates  are  not  so  low  as  clearly 
to  be  confiscatory.  Cedar  Rapids 
Gaslight  Co.  v.  Cedar  Rapids,  144 
Iowa  426;    120  X.  W.  Rep.  9GG. 

A  court  cannot  say  that  the  in- 
come of  a  gas  company  must  neces- 
sarily be  five  per  cent,  above 
expenses,  including  taxes,  to  avoid 
the  charge  of  being  confiscatory. 
What  compensation  is  reasonable 
must  be  determined  in  the  light  of 
the  evidence  in  each  particular  case. 
Cedar  Rapids  Gaslight  Co.  v.  Cedar 
Rapids,  144  Iowa  42G;  120  N.  W. 
Rep.   96G. 

The  gas  company  cannot  evade 
the  ordinance  or  statute  fixing  the 
rates  by  charging  the  consumer  a 
meter  rent,  wliere  the  consumer  does 
not  consume  a  minir-ium  amount  of 
gas  during  a  montli.  ^Montgomery 
Light,  etc.,  Co.  v.  Walta,  1G5  Ala. 
370;  51  So.  Rep.  726. 

54a  Wilcox  V.  Consolidated  Gas  Co., 
212  U.  S.  19;  29  Sup.  Ct.  Rep.  192; 
53  L.  Ed.  — ;  reversing  157  Fed. 
Rep.  849;  Knoxvillc  v.  Water  Co., 
212  U.  S.  1;  29  Sup.  Ct.  Rep.  148; 
53  L.   Ed.  — ;    Reagan  v.   Farmers' 


Loan  &  Trust  Co.,  154  U.  S.  302; 
14  Sup.  Ct.  Rep.  1047;  38  L.  Ed. 
1031;  Covington,  etc.,  Turnpike  Co. 
V.  Sandford,  164  U.  S.  578;  17  Sup. 
Ct.  Rep.  198;  41  L.  Ed.  460;  Smyth 
V.  Ames,  169  U.  S.  466;  18  Sup. 
Ct.  Rep.  418;  42  L.  Ed.  819;  Stanis- 
laus County  V.  San  Joatjuin  Co.,  192 
U.  S.  201;  24  Sup.  Ct.  Rep.  241; 
48  L.  Ed.  406 ;  Ex  j'artc  Young,  200 
U.  S.  123;  28  Sup.  Ct.  Rep.  441; 
52  L.  Ed.  — ;  Cedar  Rapids  Ga.slight 
To.  V.  Cedar  Rapids,  144  Iowa  426; 
120  N.  W.  Rep.  966;  State  v.  Duluth, 
105  Minn.  472;  117  X.  W.  Rep.  827; 
Public  Service  Corp.  v.  American 
Lighting  Co.,  67  X.  J.  Ch.  122;  57 
Atl.  Rep.  482;  Erie  v.  Erie  Gas,  etc., 
Co.,  78  Kan.  348;  97  Pac.  Rep.  468; 
Saratoga  Springs  v.  Saratoga  Gas, 
etc.,  Co.,  191  X.  Y.  123;  83  X.  E. 
Rep.  G93,  reversing  122  X.  Y.  App. 
Div.  203;  107  X.  Y.  Supp.  Rep.  341; 
Brooklyn  L'nion  Gas  Co.  v.  Xew 
York  City,  188  X.  Y.  334;  81  X.  E. 
Rep.  141,  affirming  115  X.  Y.  App. 
Div.  69;  100  X.  Y.  Supp.  Rep.  625; 
R.ichman  v.  Consolidated  Gas  Co., 
114  X.  Y.  App.  Div.  216;  100  X.  Y. 
Supp.  Rep.  81,  afiirmed  186  X.  Y. 
209;  78  X.  E.  Rep.  871;  Grossman 
V.  Consolidated  Gas  Co.,  186  X.  Y. 
541:  78  X.  E.  Rep.  871,  affirming 
114  X.  Y.  App.  Div.  242;  100  X.  Y^ 
Supp.  Rep.  100;  Brooklyn  Union  Gas 
Co.  V.  X.  Y.  City,  50  X.  Y.  Misc. 
Rep.  450;  100  X.  Y.  Supp.  Rep.  570; 
Lincoln  Gas  &.  El.  Light  Co.  T. 
Lincoln,  182  Fed.  926. 


LEGISLATIVE    CONTROL.  436a 

rates  must  be  plainly  unreasonable  to  the  extent  that  their 
enforcement  would  be  equivalent  to  the  taking  of  property 
for  public  use  without  such  compensation  as  under  the  circum- 
stances is  just  both  to  the  owner  and  the  public.  There  must 
be  a  fair  return  upon  the  reasonable  value  of  the  property  at 
the  time  it  is  being  used  for  the  public. "  °'*''  In  order  to  de- 
termine whether  or  not  the  rates  are  confiscatory,  the  Supreme 
Court  of  the  United  States,  because  the  constitutionality  of  a 
legislative  act  is  involved  and  from  respect  due  to  legislative 
authority,  will  not  regard  the  findings  of  the  master  and  the 
court  below  as  conclusive,  unless  unsupported  by  the  evidence 
or  made  under  erroneous  views  of  the  law,  and  will  itself  ex- 
amine the  evidence  in  order  to  determine  whether  the  rate 
fixed  is  confiscatory  of  the  rights  of  the  company. '^^'^  The  cost 
of  reproduction  is  not  a  fair  measure  of  value  unless  a  sub- 
stantial allowance  is  made  for  depreciation,  in  estimating  for 
rate-fixing  purposes  the  value  of  the  plant.  "The  items  com- 
posing the  plant  depreciate  in  value  from  year  to  year  in  a 
varying  degree,"  said  the  Supreme  Court  of  the  United  States. 
"Some  pieces  of  property,  like  real  estate  for  instance,  depre- 
ciate not  at  all,  and  sometimes,  on  the  other  hand,  appreciate 
in  value.  But  the  reservoirs,  the  mains,  the  service  pipes, 
structures  upon  real  estate,  standpipes,  pumps,  boilers,  meters, 
tools  and  appliances  of  every  kind  begin  to  depreciate  with 
more  or  less  rapidity  from  the  moment  of  their  use.  It  is  not 
easy  to  fix  at  any  given  time  the  amount  of  depreciation  of  a 
plant  whose  component  parts  are  of  different  ages  with  dif- 
ferent expectations  of  life.  But  it  is  clear  that  some  sub- 
stantial allowance  for  depreciation  ought  to  have  been  made 
in  this  case."  ^^"^  Bonds  and  stocks  issued  for  the  purchase  and 
construction  of  the  plant  in  excess  of  its  cost  and  by  and  to 

54b  Citing  Wilcox  v.   Consolidated  n^cKnoxville   v.    Knoxville   Water 

Gas  Co.,  212  U.  S.  19;   29  Sup.  Ct.  Co.,  212  U.  S.   1 ;   29   Sup.  Ct.  Rep. 

Rep.  192;  53  L.  Ed.  — ;  San  Diego  192;  '53  L.  Ed.  — .  See  Madison  v. 

Land,  etc.,  Co.  v.  National  City,  174  Madison    Gas  &    El.    Co.,    129   Wis. 

U.  S.   739;    19   Sup.  Ct.   Rep.   804;  249;  108  N.  W.  Rep.  G5. 

43   L.   Ed.    1154;    San   Diego   I>and,  ''^d  Knoxville   v.    Knoxville   Water 

etc.,  Co.  V.  Jasper,  189  U,  S.  439;  23  Co.,  supra. 

Sup.  Ct.  Rop.  571;  47  L.  Ed.  892;  It  is  a  qua<:rc  wlietlior  anything 
Cedar  Rapids  Gaslight  Co.  v.  Cedar  can  be  allowed  for  "going  concern" 
Rapids,  144  Iowa  42G;  120  N.  W.  above  tin?  value  of  tlie  separate  tan- 
Rep.  9G6.  gible  elements. 


436b  OIL   AND    GAS. 

parties  interested  in  and  controlling  the  company  afford 
neither  a  measure  nor  a  guide  in  valuing  it  for  rate-fixing 
purposes ;  ■***  nor  is  the  court  confined  to  the  evidence  con- 
cerning the  income  of  the  company  affected  for  the  fiscal  year 
during,  or  preceding  that  in,  which  the  rate  was  fixed  by  the 
ordinance  or  statute,  but  it  may  receive  evidence  as  to  such  in- 
come in  subse(iuent  years.^*^  In  determining  whether  the  rate 
fixed  affords  a  fair  return  the  amount  must  be  considered  as 
fixed  by  the  ordinance  and  not  as  voluntarily  reduced  by  the 
company,  even  if  such  reduction  be  in  accordance  with  custom 
and  for  the  purpose  of  obtaining  prompt  payment.^*^  If  the 
State  by  its  legislative  enactment  has  permitted  a  gas  company 
to  capitalize  its  franchises,  their  value  at  the  time  of  capitaliza- 
tion will  be  included  in  the  value  of  the  property  as  an  element 
for  fixing  rates,  but  no  increased  value  of  the  franchise  can 
be  allowed. ^^''  It  is  immaterial  that  the  company's  franchises 
are  taxed  on  a  greater  value  than  that  allowed  if  it  charges 
its  taxes  as  operating  expenses  in  determining  its  net  income; 
and  if  the  company  has  a  monopoly  in  the  municipality  of  fur- 
nishing gas,  its  "good  will"  can  not  be  considered.  If  the 
property  of  the  company  has  increased  in  value  since  its 
acquisition,  the  company  is  entitled  to  the  benefit  of  the 
increase;  and  therefore  the  value  of  its  properties  at  the  time 
of  the  incjuiry  is  a  proper  subject  for  investigation."''*'  If  the 
statute  fixing  the  rate  requires  the  gas  company  to  perform  its 
service  in  such  a  manner  that  its  entire  plant  will  have  to  be 
rebuilt  at  a  cost  on  which  no  return  can  be  obtained  at  the 

B4e  Knoxville   v.   Knoxville   Water  extravagant  and  needless  expenditure 

Co.,   supra;   Cedar   Rapids   Gaslight  of  money"  in  its  construction;    and 

Co.  V.  Cedar  Rapids,  144  Iowa  426;  the   money  may  have  been   invested 

120  N.  W.  Rep.  966.  in  property  "unwisely  built."     Rea- 

c^f  Knoxville   v.   Knoxville   Water  gan  v.  Farmers'  Loan  &  Trust  Co., 

Co.,  supra.  154   U.    S.   362;    14    Sup.    Ct.    Rep. 

n4g  Knoxville   v.   Knoxville   Water  1047;   1031  L.  Ed.  — ;  San  Diego  L. 

Co.,  supra.  &  T.  Co.  v.  National  City,  174  U.  S. 

54ii  Wilcox  v.  Consolidated  Gas  Co.,  739;    19    Sup.   Ct.   Rep.   804;   43   L. 

212    U.    S.    19;    29    Sup.    Ct.    Rep.  Ed.  1154;  Stanislaus  County  v.  San 

192;   53   L.   Ed.  — .  Joaquin  C.  &  I.  Co.,  192  U.  S.  201; 

r.4l  Wilcox  V.  Consolidated  Gas  Co.,  24  Sup.  Ct.  Rep.  241 ;  48  L.  Ed.  — ; 

supra.  San  Diego  Co.  v.  Dariogo,  118  Cal. 

What  the  plant  cost  is  not  deter-  556;    50    Pac.    Rep.    G33;     62    Am. 

mining;    for   there  may   "have  been  St.  273. 


LEGISLATIVE    CONTROL.  436c 

rate  fixed,  then  the  statute  is  unconstitutional,  because  it  de- 
prives it  of  its  ability  to  secure  such  returns/'^J  The  company 
cannot  complain  of  a  statute  fixing  one  rate  for  the  munici- 
pality and  another  for  individual  consumers;  or  one  rate  for 
one  class  of  consumers  and  another  for  another  class,  if  the 
total  receipts  are  sufficient  to  yield  an  adequate  return.''^''  The 
company  is  entitled  to  earn  enough  not  only  to  make  current 
repairs,  but  also  to  provide  means  for  repairing  parts  of  the 
plant  when  they  can  no  longer  be  used,  so  that  at  the  end  of 
any  given  term  the  original  investment  will  remain  as  it  was 
in  the  beginning.'^'  But  property  discarded  by  the  company 
or  forming  no  part  of  the  plant  unless  required  for  immediate 
expansion  cannot  be  considered  in  determining  rates.''^'"  The 
cost  of  the  pipes,  the  prices  at  which  they  are  ordinarily  sold, 
in  connection  with  the  present  prices  and  depreciation  by 
decay  may  be  considered;  and  so  may  the  original  cost  of 
construction,  the  amount  expended  in  permanent  improve- 
ments, the  amount  and  market  value  of  the  bonds  and  stocks,'"*" 
the  present  as  compared  with  the  original  cost  of  construction, 
and  the  probable  earning  capacity  of  the  property  under  the 
particular  rates  prescribed,  and  the  sum  required  to  meet 
operating  expenses  should  be  considered;  but  the  reasonable- 
ness of  the  rates  cannot  be  determined  by  the  mere  addition 

64j»Wilcox  V.  Consolidated  Gas  Co.,  of    the    lower    court     (Consolidated 

supra.  Gas  Co.  v.   City  of  New  York,   157 

54k  Wilcox     V.     Consolidated-    Gas  Fed.  Rep.  S49),  which  in  other  re- 
Co.,  supra.  spects  it  reversed. 

One  rate   for   a  municipality   and  ■'"'•*•  Cedar   Rapids   Gaslight    Co.   v. 

another  for  individual  consumers,  is  Cedar    Rapids,    144    Iowa   426;    120 

not    an    unreasonable    classification,  N.  W.  060. 

and  does  not  render  the  statute  fix-  •''4m  Cedar   Rapids  Gaslight  Co.  v. 

ing    it    unconstitutional    under    the  Cedar  Rapids,  supra. 

equal  protection  clause  of  the  Four-  ^.^n  If  the  stock  has  been  watered 

teenth  Amendment.     Wilcox  v.  Con-  and  passed  into  the  hands  of  innocent 

solidated  Gas  Co.,  supra.  purchasers,  but  it  is  worth   its  par 

In  the  case  just  cited  the  Federal  value,   can   that   fact  be   considered 

Supreme    court    held    that    six    per  in  determining  the  rate?     Dividends 

cent,  was  a  fair  return  on  the  value  on  fictitious  stock  cannot  be  insisted 

of  the  property  employed  in  supjjly-  upon.      Saratoga    Springs    v.    Sara- 

ing  gas  in   the   City  of  New   York.  toga  Gas,  etc.,  Co.,   191   N.  Y.   123; 

The  gas   company    had   a   monopoly  83    N.    E.    Rep.    693,    reversing    122 

of   supplying   gas.      In   this   respect  X.    Y.    App.    Div.    203;    107    X.    Y. 

the   court    concurred   in   the  opinion  Supp.   Rep.   341. 


436d 


OIL    AND    GAS. 


of  the  separate  value  of  the  component  parts  of  the  enterprise, 
nor  from  the  cost  alone,  nor  from  what  it  might  cost  to  re- 
place the  plant.  If  the  gas  mains  and  pipes  had  been  laid  in 
improved  streets,  then  the  fact  that  the  streets  had  since 
been  paved  and  it  would  cost  more  to  lay  them  in  the  place 
they  occupied  at  the  time  of  the  inquiry  into  the  cost,  cannot 
be  considered.  Nor  can  the  statute  or  ordinance  be  assailed 
that  it  allows  no  discount  for  prompt  payment,  and  it  will 
entail  additional  expense  for  collecting  bills;  for  it  cannot  be 
presumed  in  advance  that  consumers  will  not  comply  with 
reasonable  rules  for  the  security  of  the  company.^^*'  In  de- 
termining whether  rates  are  proper  or  not  confiscatory,  courts 
may  examine  facts  dehors  the  record  and  annul  the  action 
of  the  legislature  on  a  finding  that  the  rates  prescribed  impairs 
the  constitutional  right  of  a  company's  stockholders  to  receive 
a  just  return  on  the  money  they  have  invested;  and  the  legis- 
lature may  even  authorize  a  commission  to  receive  expert  state- 
ments and  hearsay  evidence  in  fixing  rates.^^P 


540  Cedar  Rapids  Gaslight  Go.  v. 
Cedar  Rapids,  144  Iowa  426;  120 
N.  W.  Rep.  966.  In  this  case  it 
was  also  held  that  the  fact  the  gas 
company  was  in  possession  of  land 
beyond  the  high  water  mark  of  a 
meandered  river  must  be  taken  into 
consideration,  since  its  possession  of 
the  land  is  of  value,  for  only  the 
State  can  challenge  its  right. 

Courts  have  no  power  to  establish 
and  fix  rates  for  furnishing  gas  in 
the  future.  Ihat  is  a  legislative 
function;  but  whether  existing  or 
prescribed  rates  alford  a  reasonable 
compensation  is  a  judicial  question 
w-hich  the  courts  may  determine. 
Madison  v.  Madison  Gas  &  El.  Co., 
129  Wis.  249;   108  S.  W.  Rep.  65. 

A  contract  with  a  customer  for  a 
certain  rate  will  not  enable  the 
company  to  collect;  such  rate  if  the 
rate  afterwards  be  lawfully  reduced 
by  ordinance  or  statute.  Chillicothe 
V.  Logan  Nat.  Gas,  etc.,  Co.,  8  Ohio 


N.  P.  88;  11  Ohio  S.  &  C.  P.  Dec. 
24. 

•'">■*?  Saratoga  Springs  v.  Saratoga 
Gas,  etc.,  Co.,  191  N.  Y.  123;  83 
N.  E.  Rep.  693,  reversing  122  N.  Y. 
App.  Div.  203 ;  107  N.  Y.  Supp.  Rep. 
341 ;  Ricliman  v.  Consolidated  Gas 
Co.,  186  N.  Y.  20«;  78  N.  E.  Rep. 
871,  affirming  114  X.  Y.  App.  Div. 
216;  100  N.  Y.  Supp.  Rep.  81; 
Grossman  v.  Consolidated  Gas  Co., 
114  N.  Y.  App.  Div.  242;  100  N.  Y. 
Supp.  Rep.  100. 

The  amount  of  outstanding  bonds 
and  stock  are  not  to  be  considered 
where  it  is  shown  that  such  amount 
is  several  times  the  cost  of  the  pres- 
ent value  of  the  property;  nor  the 
value  of  the  franchise  to  occupy  the 
streets  if  nothing  was  paid  for  it. 
Five  per  cent,  income  on  the  value 
of  the  plant  will  not  render  an 
ordinance  fixing  rates  confiscatory 
before  an  actual  trial  to  determine 
whether  the   reduction  made  In  the 


LEGISLATIVE   CONTROL. 


437 


§  400b.  It  must  be  clearly  shown  that  rate  fixed  is  too  low. — 
Duty  of  gas  company  to  make  disclosures  of  its  con- 
dition. 

"The  case  must  be  a  clear  one  before  the  [Federal]  courts 
ought  to  be  asked  to  interfere  with  State  legislation  upon  the 
subject  of  rates,  especially  before  there  has  been  any  actual 
experience  of  the  practical  result  of  such  rates,"  said  Justice 
Peckham.  "The  value  of  real  estate  and  plant  is  to  consid- 
erable extent  matter  of  opinion,"  he  continued,  "and  the  same 
may  be  said  of  personal  estate  Avhen  not  based  upon  the  actual 
cost  of  material  and  construction.  Deterioration  of  the  value 
of  the  plant,  mains,  and  pipes  is  also  to  some  extent  based  on 
opinion.  All  these  matters  make  questions  of  value  somewhat 
uncertain ;  while  added  to  this  is  an  alleged  prospective  loss  of 


rate  will  not  result  in  increasetl  con- 
sumption and  net  earnings.  Lincoln 
Gas  &  El.  Light  Co.  v.  Lincoln,  182 
Fed.  92G. 

In  Xew  York  the  public  service 
commissioner  is  authorized  to  fix 
the  rates  "within  the  limits  pre- 
scribed by  law,"  and  tliis  is  con- 
strued that  tlie  rates  must  be  rea- 
sonable and  not  in  violation  of  either 
the  common  or  statute  law.  Sara- 
toga Springs  v.  Saratoga  Gas,  etc., 
Co.,  191  N.  Y.  123;  S3  X.  E.  Rep. 
693,  reversing  122  X.  Y.  App.  Div. 
203;    107  X.  Y.  Supp.  Rep.  341. 

The  stockholders  of  a  gas  company 
cannot  require  the  public  to  pay 
dividends  on  fictitious  stock  or  for 
their  extravagance  or  waste ;  but 
they  are  entitled  to  a  return  only 
on  the  actual  value  of  the  property 
devoted  to  the  public  use,  after  pay- 
ing expenses  and  liabilities  reason- 
r.bly  charged  against  it.  Saratoga 
Springs  v.  Saratoga  Gas,  etc.,  Co., 
supra. 

A  city  turned  over  to  a  gas  com- 
pany its  leases,  gas  wells,  and  a 
certain  amount  in  city  bonds,  gave 
it  the  right  to  its  streets  upon  con- 


dition that  the  company  furnish  gas 
for  the  city  and  its  inhabitants  and 
pay  to  the  city  one-fifth  of  the  net 
jirofits  from  the  sales  for  "domestic 
purposes.''  It  was  held  that  the 
expenditures  of  the  company  for  the 
necessary  instrumentalities  for  pro- 
ducing and  distributing  gas  could 
not  be  charged  as  expenses  against 
its  receipts  from  the  sale  of  gas; 
that  the  cost  of  the  operation 
of  the  plant,  including  necessary  re- 
pairs, should  be  charged  as  expenses, 
to  be  deducted  from  the  amount  re- 
ceived for  gas,  in  order  to  determine 
the  profits  thereon,  but  such  ex- 
penses could  not  include  expendi- 
tures for  new  wells,  mains,  or  other 
permanent  improvements,  or  the  cost 
of  supplying  gas  and  making  other 
sales,  in  the  profits  of  which  the 
city  did  not  share.  It  was  also  held 
that  the  words  "domestic  purposes" 
included  gas  furnisheil  not  only  to 
the  homes  of  the  city,  but  to  offices, 
stores,  churches,  and  the  like,  where 
•the  principal  use  is  for  heating  and 
lighting,  and  not  for  power.  Erie 
City  v.  Erie  Gas,  etc.,  Co.,  78  Kan. 
348;  97  Pac.  Rep.  468. 


438  OIL    AND    GAS. 

income  from  a  reduced  rate,  a  matter  also  of  much  uncer- 
tainty, depending  upon  the  extent  of  the  reduction  and  the 
probable  increased  consumption,  and  we  have  a  problem  as 
to  the  character  of  the  rate  which  is  difficult  to  answer  without 
a  practical  test  from  actual  operation  of  the  rate.  Of  course, 
there  may  be  cases  where  the  rate  is  so  low,  upon  any  reason- 
able basis  of  valuation,  that  there  can  be  no  just  doubt  as  to 
its  confiscatory  nature,  and  in  that  event  there  should  be  no 
hesitation  in  so  deciding  and  in  enjoining  its  enforcement 
without  waiting  for  the  damage  which  must  inevitably  accom- 
pany the  operation  of  the  business  under  the  objectionable 
rate.  But  where  the  rate  complained  of  shows  in  any  event  a 
very  narrow  line  of  devision  between  possible  confiscation  and 
proper  regulation,  as  based  upon  the  value  of  the  property 
found  by  the  court  below,  which  differ  considerably  among  the 
witnesses,  and  also  upon  the  results  in  the  future  of  operating 
under  the  rate  objected  to,  so  that  the  material  fact  of  value 
is  left  much  in  doubt,  a  court  of  equity  ought  not  to  interfere 
by  injunction  before  a  fair  trial  has  been  made  of  continuing 
business  under  that  rate,  and  thus  eliminating,  as  far  as  pos- 
sible, the  doubt  arising  from  opinion  as  opposed  to  facts.  "^**i 
In  another  case  Justice  Moody  used  the  following  language : 
"The  courts,  in  clear  cases,  ought  not  to  hesitate  to  arrest  the 
operation  of  a  confiscatory  law,  but  they  ought  to  refrain  from 
interfering  in  cases  of  any  other  kind.  Regulation  of  public 
service  corporations,  which  perform  their  duties  under  condi- 
tions of  necessary  monopoly  will  occur  with  greater  and 
greater  frequency  as  time  goes  on.  It  is  a  delicate  and  dan- 
gerous function,  and  ought  to  be  exercised  with  a  keen  sense 
of  justice  on  the  part  of  the  regulating  body,  met  by  a  frank 
disclosure  on  the  part  of  the  company  to  be  regulated.  The 
courts  ought  not  to  bear  the  whole  burden  of  saving  property 
from  confiscation,  though  they  will  not  be  found  wanting  where 
the  proof  is  clear.  The  legislature  and  subordinate  bodies,  to 
whom  the  legislative  power  has  been  delegated,  ought  to  do 
their  part.  Our  social  system  rests  largely  upon  the  sanctity 
of  private  property,  and  that  State  or  community  which  seeks 
to  invade  it  will  soon  discover  the  error  in  the  disaster  which 

54q  Wilcox  V.  Consolidatet]  Gas  Co.,       53  L.  Ed.  — ,  reversing  157  Fed.  Rep. 
212  U.  S.  19;  29  Sup.  Ct.  Rep.  192;        849. 


LEGISLATIVE   CONTROL.  439 

follows.  The  slight  gain  to  the  consuiucr,  which  lie  wouhi 
obtain  from  a  reduction  in  the  rates  charged  by  i)ublic 
service  corporations,  is  notliing  compared  with  his  sliare  in  the 
ruin  which  would  be  brouglit  about  by  denying  to  jirivatc 
property  its  just  reward,  thus  unsettling  values  and  destroying 
confidence.  On  the  other  hand,  the  companies  to  be  regulated 
will  find  it  to  their  lasting  interest  to  furnish  freely  the  in- 
formation upon  which  a  just  regulation  can  be  based.  If  here- 
after it  shall  appear,  under  the  actual  operation  of  the  ordi- 
nance, that  the  returns  allowed  by  it  operate  as  a  conliscation 
of  property,  nothing  in  this  judgment  will  prevent  another 
application  to  the  courts  of  the  United  States  or  to  the  courts 
of  the  State  of  Tennessee.  But  as  the  case  now  stands  there 
is  no  such  certainty  that  the  rates  prescribed  will  necessarily 
have  the  effect  of  denying  to  the  company  such  a  return  as 
would  avoid  confiscation."'"" 

§  400c.    In  fixing-  rates  each  case  stands  on  its  own  peculiar 
facts. 

In  fixing  rates  for  a  gas  company  each  case  must  stand  upon 
its  own  peculiar  facts.  What  would  be  sufficient  for  a  gas 
company  in  one  city  would  not  necessarily  be  sufficient  in  an- 
other. And  a  decision  in  one  case  "can  form  no  precedent 
in  regard  to  the  valuation  of  franchises  generally,  where  the 
facts  are  not  similar  to  those  in  the  case  before  us  .  .  . 
There  is  no  particular  rate  of  compensation  which  mUst  in  all 
cases  and  in  all  parts  of  the  country  be  regarded  as  sufficient 
for  capital  in  business  enterprises.  Such  compensation  must 
depend  greatly  upon  circumstances  and  locality ;  among  other 
things,  the  amount  of  risk  in  the  business  is  a  most  important 
factor,  as  well  as  the  locality  where  the  business  is  conducted 

54r  Knoxville   v.   Ivnoxville    Water  App.    Div.    203;     107    N.    Y.    Supp. 

Co.,  212  U.  S.   1;   v,t)  Sup.  a.  Rep.  Eep.  341. 

— ;  53  L.  Ed.  — ;  Cedar  Rapids  Gas-  Gas   rates   under   which   the   total 

light  Co.  V.  Cedar  Rapids,  144  Iowa  income  earned   are  sulTieicnt  to  pay 

42G;   120  X.  W.  Rep.  966;  Saratoga  return  on  its  investment  are  not  con- 

V.  Saratoga  Gas,  etc.,  Co.,  191  X.  Y.  fiscatory   because   the    furnishing  of 

123;   83  X.  E.  Rep.  G93    (rates  pre-  gas  to  some  small  consumers  under 

sumptively    valid    when    fixo<l    by    a  the  rate  would  be  <at  a  loss.    Lincoln 

commission),    reversing    122    X.    Y.  Gas  &  El.  L.  Co.  v.  Lincoln,  182  Fed. 

926. 


440  OIL,    AND    GAS. 

and  the  rate  expected  and  nsually  realized  there  upon  invest- 
ments of  a  somewhat  similar  nature  with  regard  to  the  risk 
attending  them.  There  may  be  other  matters  which  in  some 
cases  might  also  be  properly  taken  into  account  in  determin- 
ing the  rate  which  our  investor  might  properly  expect  or  hope 
to  receive  and  which  he  would  be  entitled  to  without  legisla- 
tive interference.  The  less  risk,  the  less  right  to  any  unusual 
returns  from  the  investments.  One  who  invests  his  money  in 
a  business  of  a  somewhat  hazardous  character  is  very  prop- 
erly held  to  have  the  right  to  a  larger  return  without  legisla- 
tive interference,  than  can  be  obtained  from  an  investment 
in  Government  bonds  or  other  perfectly  safe  security.  The 
man  that  invested  in  gas  stock  in  1823  had  a  right  to  look  for 
and  obtain,  if  possible,  a  much  greater  rate  upon  his  investment 
than  he  who  invests  in  such  property  in  the  city  of  New  York 
years  after  the  risk  and  danger  involved  had  been  almost 
eliminated. ' '  ^*^ 

§400d.  Value  of  good  will,  when  not  to  be  considered  in 
fixing  rates. — Risks  of  promotion. — Cost  of  promo- 
tion. 

If  a  gas  company  has  a  monopoly  of  furnishing  gas  in  a 
municipality,  then  the  value  of  its  good  wnll  cannot  be  con- 
sidered in  fixing  rates.  "In  an  investment  in  a  gas  company, 
said  Justice  Pcckham,  "such  as  complainant's,  the  risk  is  re- 
duced almost  to  a  minimum.  It  is  a  corporation,  which  in 
fact,  as  the  court  below  remarks,^"  monopolizes  the  gas  service 
of  the  largest  city  in  America,  and  is  secure  against  competi- 
tion under  the  circumstances  in  w^hich  it  is  placed,  because  it 
is  a  proposition  almost  unthinkable  that  the  city  of  New  York 
would,  for  purposes  of  making  competition,  permit  the  streets 
of  the  city  to  be  again  torn  up  in  order  to  allow  the  mains 
of  another  company  to  be  laid  all  through  them  to  supply  gas 
which  the  present  company  can  adequately  supply.""*"     And, 

54s  Wilcox  V.  Consolidated  Gas  Co.,  •'•'4u  Yet  this  has  been  done  in  some 
212  U.  S.  19;  29  Sup.  Ct.  Rep.  192;  cities,  in  order  to  bring  in  compcti- 
53  L.  Ed.  — ,  reversing  157  Fed.  tion  where  there  was  only  one  com- 
Rep.  849.  pany  who  were  charging  unreason- 
s'Consolidated  Gas  Co.  V.  New  able  prices  for  gas. 
York  City,  157  Fed.  Rep.  849. 


liEGISLATIVE   CONTROL.  441 

SO  far  as  it  is  given  us  to  look  into  the  future,  it  seems  as 
certain  as  any  thing  of  such  a  nature  can  be,  that  the  demand 
for  gas  will  increase,  and,  at  the  reduced  i)rice,  increase  to  a 
considerable  extent.  An  interest  in  such  a  business  is  as  near 
a  safe  and  secure  investment  as  can  be  imagined  with  regard 
to  any  i)i-ivate  manufacturing  business,  although  it  is  recog- 
nized at  the  same  time,  that  there  is  a  possible  element  of  risk, 
even  in  such  a  business.  The  court  below  regarded  it  as  the 
most  favorably  situated  gas  business  in  America,  and  added 
that  all  gas  business  is  inherently  subject  to  many  of  the 
vicissitudes  of  manufacturing.  Under  the  circumstances,  the 
court  held  that  a  rate  which  would  permit  a  return  of  six 
per  cent,  would  be  enough  to  avoid  the  charge  of  confiscation, 
and  for  the  reason  that  a  return  of  such  an  amount  was  the 
return  ordinarily  sought  and  obtained  on  investments  of  that 
degree  of  safety  in  the  city  of  New  York.  Taking  all  the 
facts  into  consideration,  we  concur  with  the  court  below  on 
this  question,  and  think  complainant  is  entitled  to  six  per  cent, 
on  the  fair  value  of  its  property  devoted  to  the  public  use." 
"We  are  also  of  the  opinion  that  it  is  not  a  case  for  a  valuation 
of  'good  will.'  .  .  .  The  complainant  has  a  monopoly  in 
fact,  and  a  consumer  must  take  gas  from  it  or  go  without. 
He  will  resort  to  the  'old  stand,'  because  he  can  not  get  gas 
anywdiere  else.  The  court  below  excluded  that  item,  and  we 
concur  in  that  action."  ^*^  But  even  under  an  exclusive  fran- 
chise, a  gas  company  is  entitled  to  compensation  for  the  risks 
incurred  in  (engaging  in  the  business,  it  has  been  held ;  and  that 
it  should  not  be  excluded  from  the  advantage  of  prudence  and 
foresight  in  its  development,  but  it  should  not  be  relieved  of 
the  consequences  of  mistakes  and  errors  of  judgment,  nor  can 
anything  be  allowed  for  its  promotion  and  organization,  be- 
cause it  is  immaterial  by  whom  the  plant  may  be  owned  in 
estimating  its  value."'^^' 

54v  Wilcox  V.  Consolidated  Gas  Co.,  If  the  company  paid   notiiing  for 

212  U.  S.  19;  20  Sup.  Ct.  Rep.  192;  the  franchise  or  right  to  occupy  the 

53    L.    Ed.    — ,    reversing    157    Fed.  streets,  then  the  value  of  such  fran- 

Rep.  849.  cliiso  cannot  Iw  considered  in  deter- 

54W  Cedar  Rapids  Gaslight  Co.  v.  mining  the  unreasonableness  of  the 

Cedar   Rapids,    144   Iowa,   42G;    120  rate.     Lincoln  Gas  &  El.  Co.  v.  Lin- 

N.  W.  966.  coin,  182  I'ed.  926. 


442  OIL,   AND    GAS. 

§  400e.     Difficulty  of  determining  values  and  fixing  rates. — 
Practical  test. 

Speaking  of  the  difficulty  of  determining  the  values  of  the 
properties  of  gas  plants  and  in  fixing  the  rates  to  be  allowed, 
or  rather  what  is  and  what  is  not  a  confiscatory  rate,  Justice 
Peckham  has  said:  "Where  a  large  amount  of  the  total  value 
of  a  mass  of  different  properties  consists  in  the  value  of  real 
estate,  which  is  only  ascertained  by  tlie  varying  opinions  of 
expert  witnesses,  and  where  the  opinions  of  the  plaintiff's  wit- 
nesses differ  quite  radically  from  those  of  the  defendant's,  it 
is  apparent  that  the  total  value  must  necessarily  be  more  or 
less  in  doubt.  It,  in  other  words,  becomes  mere  matter  of 
speculation  or  conjecture  to  a  great  extent.  It  may  be,  as 
already  suggested,  that  in  many  cases  the  rates  objected  to 
might  be  so  low  that  there  could  be  no  reasonable  doubt  of 
their  inadequacy  upon  any  fair  estimate  of  the  value  of  the 
property.  In  such  event  the  enforcement  of  the  rates  should 
be  enjoined,  even  a  case  where  the  value  of  the  property  de- 
pends upon  the  value  to  be  assigned  to  real  estate  by  the 
evidence  of  experts.  But  there  may  be  other  cases  where  the 
evidence  as  to  the  probable  result  of  the  rates  in  controversy 
would  show  they  were  so  nearly  adequate  that  nothing  but  a 
practical  test  could  satisfy  the  doubt  as  to  their  sufficiency. 
In  this  case  a  slight  reduction  in  the  estimated  value  of  the 
real  estate,  plants  and  mains,  as  given  by  the  witnesses  for 
complainant,  would  give  a  six  per  cent,  return  upon  the  total 
value  of  the  property.  And  again,  increased  consumption  at 
the  lower  rate  might  result  in  increased  earnings,  as  the  cost 
of  furnishing  the  gas  would  not  increase  in  proportion  to  the 
increased  amount  of  gas  furnislicd.  The  elevated  roads  of 
New  York  when  first  built  charged  ten  cents  for  each  pas- 
senger, but  when  the  rates  were  reduced  to  five  cents  it  is  com- 
mon knowledge  that  their  receipts  were  not  cut  in  two,  but 
that  from  increased  patronage  the  earnings  increased  from 
year  to  year,  and  soon  surpassed  the  highest  sum  ever  received 
upon  the  ten  cent  rate.  Of  course,  there  is  always  a  point 
below  which  a  rate  could  not  be  reduced  and  at  the  same  time 
permit  the  proper  return  on  the  value  of  the  property,  but  it 
is  equally  true  that  a  reduction  in  rates  will  not  alwaj'^s  reduce 
the  net   earnings,  but,   on  the  contrary,  may  increase   them. 


LEGISLATIVE    CONTROL.  443 

The  question  how  much  an  increased  consuin])tion  under  a 
less  rate  will  increase  the  earnings  of  complainant,  if  at  all, 
at  a  cost  not  proportioned  to  the  former  cost,  can  be  answered 
only  by  a  practical  test.  In  such  a  case  as  this,  where  the 
other  data  upon  which  the  computation  of  the  rate  must  be 
based,  are  from  evidence  so  uncertain,  and  wiiere  the  margin 
between  possible  confiscation  and  valid  regulation  is  so  narrow 
w'e  cannot  say  there  is  no  fair  or  just  doubt  about  the  truth  of 
the  allegation  that  the  rates  are  insufficient,"  "It  may  pos- 
sibly be,  however,  that  a  practical  experience  of  the  effect  of 
the  acts  by  actual  operation  under  them  might  prevent  the 
complainant  from  obtaining  a  fair  return,  and  in  that  event 
complainant  ought  to  have  the  opportunity  of  again  presenting 
its  case  to  the  court.  To  that  end  we  reverse  the  decree,  with 
directions  to  dismiss  the  bill  wathout  prejudice. '"^^^ 

§  400f .     Rates  for  municipality. — Mandamus. 

Where  it  is  necessary  for  a  municipality  to  have  gas  to  light 
its  streets  and  public  buildings ;  and  such  municipality  has  no 
contract  wdtli  a  gas  company  occupying  its  streets  Avith  pipes 
and  mains,  and  having  a  virtual  monopoly,  it  is  entitled  to 
gas  at  reasonable  rates  or  prices ;  and  if  the  company  insist 
upon  an  unreasonable  price  for  gas,  upon  the  demand  of  the 
city,  such  city  may  offer  a  reasonable  price  for  it;  and  if  the 
company  refuses  to  furnish  gas  at  that  price,  the  city  may 
obtain  a  mandamus,  if  the  supply  has  not  been  commenced, 
or  may  sue  in  equity  to  enjoin  the  stoppage  of  a  supply  being 
furnished.^*''  But  where  a  statute  provides  a  method  for  the 
establishment  of  rates,  as  through  the  agency  of  a  commission 
given  power  so  to  do,  a  city'  cannot  decline  to  pay  its  bills  on 
the  ground  that  the  rate  charged  by  the  gas  company  is  exces- 
sive, and  then  obtain  a  preliminary  injunction  to  restrain  the 
company  from  turning  off  the  gas,  unless  it  pays  the  ad- 
mittedly just  rates  for  the  gas  received. ^'^^ 

54x  Wilcox  V.  Consolidated  (las  Co.,  •'"''»>•  Public  Service  Corp.  v.  Aineri- 

212    U.    S.    19;     29    Sup.    CI.    Hep.  can  Lif^iiting  Co.,  67  N.  J.  Cli.   122; 

192;    53    L.    Ed.    — ;    Cedar    Rapids  57  Ati.   Rep.  482.      It  was  aI^K1  held 

Gaslight   Co.   v.   Cedar    Rapids,    144  in  this  case  that  the  company  could 

Iowa,    426;     120    N.    W.    Rep.    906;  not     be    compelled    to    furnisli     the 

Saratoga    Springs   v.    Saratoga    Gas,  citv  with  gas  without  its  l)eing  nieas- 

etc,   to.,    191    N.   Y.    123:    83   N.    E.  ured. 

Rep.  693;   122  N.  Y.  App.  Div.  203;  •'■^z  Buffalo  v.  Buffalo  Gas  Co.    (N. 

107   N.  Y.  Supp.  Rep.  341.  Y.),    112   N.    Y.   Supp.    Rep.   468. 


444  OIL   AND   GAS. 

§  400g.     Rates  for  consolidating  companies. 

Difficulties  sometimes  arise  in  fixing  rates  for  gas  where  two 
or  more  companies  consolidate,  and  as  to  one  of  them  there  is 
no  reservation  to  fix  its  rates  or  where  a  statute  allowing  the 
rates  to  be  charged  is  enacted  after  a  company  received  its 
franchise  while  as  to  the  other  companies  their  franchise  was 
granted  after  its  enactment,  and,  of  course,  subject  to  its 
provisions  authorizing  a  change  in  their  rates.  In  such  cases 
the  immunity  from  regulation  of  one  of  the  companies  cannot 
as  a  rule,  be  extended  to  the  other  companies.  Thus  any  con- 
tract exempting  a  gas  company  from  State  regulation  of  the 
price  of  gas  does  not  extend  to  the  plants  of,  and  territory 
occupied  by,  certain  other  gas  companies,  not  possessing  such 
immunity  in  their  own  right,  when  absorbed  by  the  former 
company  under  statutes  allowing  their  consolidation  and 
merger,  but  providing  that  the  consolidated  company  should 
be  subject  to  the  legal  obligations  arising  on  each  of  the  con- 
stituent companies.^^*" 

§  400h.     Unlawful  combination  defeating  right  to  have  reason- 
able rates. 

An  agreement  between  rival  companies  fixing  the  price  for 
gas  which  is  a  violation  of  a  statute,  does  not,  after  they  have 
ceased  to  act  under  it,  defeat  their  right  to  apply  for  an  in- 
junction to  restrain  the  enforcement  of  an  unjust  rate  for  gas 
fixed  by  the  State  or  a  municipality/''"''' 

§  400i.     Legislature  fixing  maximum  rate. 

It  is  the  usual  practice  in  fixing  rates  for  the  legislature  to 
declare  that  a  gas  company  shall  not  charge  a  rate  exceeding  a 

54aa  People's  Gaslight  &   Coke  Co.  olis  &  St.  L.  R.  Co.  v.  GardiKM-,  177 

V.  Chicago,  194  U.  S.  1 ;  24  Sup.  Ct.  U.  S.  332;  20  S.  Ct.  G5G;  41  L.  Ed. 

Rep.   .520;    48  L.   Ed.   851,   affirming  7fl3;  Georgia  R.  &  Bkg.  Co.  v.  Smith, 

114  Fed.  Rep.  384.     Citing  St.  Louis  128  U.   S.   174;"  9   S.  Ct.  47;   32  L. 

&  S.  F.  R.  Co.  V.  Gill,  156  U.  S.  G56;  Ed.  377.     See  also  Rogers  Park  Wa- 

15  S.  Ct.  484;   39  L.  Ed.  569;  Nor-  er  Co.  v.  Fergus,  178  111.  571;  53  N. 

folk  &  W.  R.  Co.  V.  Pendleton,  156  E.  Rep.  363. 

U.  S.  6G7;   15  S.  Ct.  413;  39  L.  Ed.  •'■>4bb  Peoria   Gas   &   El.   Co.  v.  Pe- 

574;    Covington   &   L.    Turnp.   Road  oria,  200  U.  S.  48;  2G  Sup.  Ct.  Rop. 

Co.  V.  Sandford,   164  U.  S.  586;   17  214;  50  L.  Ed.  365. 

S.  Ct.  198;  41  L.  Ed.  502:  :\Iinnoap-  $ 


LEGISLATIVE    CONTROL.  445 

certain   amount.     When   that   is  the   case  that   statute   prac- 
tically grants  express  authority  to  charge  up  to  that  rate. ''•'•'*' 

§  400 j.     Statute  requiring  excessive  pressure  in  pipes. 

By  act  of  the  legislature  the  Consolidated  Gas  Company  of 
New  York  City  was  required  to  maintain  a  certain  pressure  in 
its  pipes,  and  the  price  of  gas  was  also  regulated.  In  a  contest 
over  the  validity  of  this  statute,  it  was  shown  beyond  question 
that  to  maintain  such  pressure  there  would  be  a  great  possible 
if  not  probable  danger  of  explosion  in  the  mains  and  other 
pipes.  To  eliminate  this  danger  would  require  strengthening 
all  the  mains  and  other  pipes,  and  that  would  involve  an 
expenditure  of  many  millions  of  dollars  upon  which  no  return 
could  be  obtained  at  the  rates  prescribed  by  the  statute. 
"This  would  take  from  the  complainant,"  said  the  court,  "the 
ability  to  secure  the  return  to  which  it  is  entitled  upon  its 
property,  used  for  supplying  gas,  and  the  provision  as  to  the 
amount  is  therefore  void."  This  court  considered  this  pro- 
vision, however,  separable  from  the  other  provisions  of  the 
statute,  and  it  therefore  was  not  fatal  to  them.  The  statute 
required  the  company  t  ofurnish  a  light  of  22  candle-power,  and 
it  was  held  that  the  obligation  would  remain  upon  the  com- 
pany to  have  a  pressure  sufficient  to  insure  such  a  light,  not- 
withstanding the  unconstitutional  provision  as  to  the  degree 
of  pressure  attempted  to  be  rendered  obligatory.'^*'''' 

§  400k.    Consumers  cannot  complain  of  rates  fixed  by  legis- 
lature. 

Citizens  of  a  city  or  customers  of  a  gas  company  cannot 
complain  of  the  rates  if  they  are  fixed  l)y  the  legislature,  how- 
ever extortionate  they  may  be;  for  they  are  not  compelled  to 

54CC  Brooklyn  Gas  Co.  v.  New  York  v.  Saratoga  Gas,  et«.,  Co.,  191  X.  Y. 

City,  50  N.  Y.  Misc.  Rep.  450;    100  123;    83   X.   E.   Rep.   693,   reversing 

N.  Y.  Supp  Rep.  570;  Brooklyn  Gas  122  X.  Y.  App.  Div.  203;   107  N.  Y. 

Co.   V.  Xew   York   City,    115   XL   Y.  Supp.    Rep.  341. 

App.  Div.  69:    100  X.  Y.  Supp.  Ct.  •'"•(I'l  Wilco.v    v.    Consolidated    Gas 

Rep.    625,   affirmed    188   X.    Y.    334;  Co.,  212  U.  S.  19;   29  Sup.  Ct.  Rep. 

81  X.  E.  Rep.  141;  Saratoga  Springs  192;  53  L.  Ed.  — . 


446  OIL    AND   GAS. 

accept  the  service  of  the  company,  nor  pay  the  rate  fixed  unless 
they  take  the  gas.''^'*  Nor  can  the  courts  declare  such  rates 
are  unreasona])ly  high."^" 

§  4001.     Continuing  supply  gas  pending  litigation. 

Where  a  public  service  commission  was  empowered  to  fix 
the  rate  for  gas,  and  a  gas  company  contested  the  validity  of 
the  statute  creating  the  commission  and  endowing  it  with 
power  over  rates,  it  was  held  that  the  company's  consumers 
were  entitled  to  a  continuance  of  the  service  on  payment  of 
the  rates  so  prescribed  until  the  determination  of  the  consti- 
tutional question,  the  constitutionality  of  the  statute  being 
presumed  until  a  judicial  determination  that  it  was  not.'^'*^^ 

§  400m.     Parties  to  suit  to  enjoin  enforcement  of  ordinance  or 
statute. 

Usually  when  a  gas  company  brings  a  suit  to  restrain  the 
enforcement  of  an  ordinance  fixing  the  rate  for  gas  furnished 
inhabitants  of  the  municipality,  it  is  only  necessary  to  make 
the  city  a  party  defendant.  If  the  rates  are  fixed  by  statute, 
then  the  officers  whose  duty  it  is  made  to  enforce  its  provi- 
sions may  usually  be  restrained.  Although  it  is  a  general  rule 
that  the  enforcement  of  a  criminal  statute  cannot  be  restrained, 
yet  where  its  enforcement  is  so  disastrous  as  to  seriously 
damage  a  public  service  corporation  in  its  right  to  serve  the 
public  and  collect  a  remuneration  therefor,  a  court  of  equity 
will  inquire  into  its  validity,  and  if  found  to  be  invalid  it  will 
restrain  the  officers  enforcing  it.  And  where  by  statute  any 
consumer  could  not  mantain  a  suit  to  restrain  the  enforcement 
of  illegal  rates  by  a  gas  company  and  to  compel  the  company 
to  furnish  gas  at  the  rate  prescribed  by  an  ordinance,  or  recover 

54€e  Brooklyn    Union    Gas    Co.    v.  Co.,   186  N.  Y.  209;   78  N.  E.  Rep. 

New  York  City,  50  N.  Y.  Misc.  Rep.  871,   affirming  114  N.   Y.   App.  Div. 

450;    100  X.  Y.  Supp.   Rep.  570.  216;     100    N.    Y.    Supp.     Rep.    81; 

54ff76tf/;  Brooklyn  Gas  Co.  V.  New  Grossman   v.   Consolidated   Gas   Co.^ 

York  City,  188  N.  Y.  334;  81  N.  E.  114  N.  Y.  App.  Div.  242;   100  N.  Y. 

Rep.  141,  affirming  115  N.  Y.  App.  Supp.  Rep.   100,  affirmed  186  N.  Y. 

Div.  69;   100  N.  Y.  Supp.  Rep.  625.  .541;  78  N.  E.  Rep.  871. 

fi4ggRichman  v.   Consolidated  Gas 


LEGISLATIVE    CONTROL  446a 

a  penalty  for  its  refusal,  it  was  held  that  in  a  suit  by  the  gas 
company  against  a  city  and  its  officers  to  enjoin  the  enforcement 
of  an  ordinance  fixing  rates,  on  the  ground  that  it  was  uncon- 
stitutional, and  the  total  number  of  consumers  in  the  city  was 
so  large  as  to  prevent  their  being  made  parties,  that  a  tem- 
porary restraining  order  granted  pending  hearing  properly 
include  all  consumers,  although  not  parties  to  the  record,  they 
being  the  real  parties  in  interest  and  represented  by  the 
municij^ality.'^'*'^'' 

§  400n.     Refunding  illegal  amounts  collected  during  pending 
litig-ation. 

Where  a  temporary  restraining  order  is  sought  to  restrain 
the  enforcement  of  an  ordinance  or  statute  on  the  ground  that 
the  rate  is  unconstitutional,  the  court  may  require,  as  a  con- 
dition to  the  issuance  of  such  an  order,  the  complainant  to 
give  a  bond  for  the  refunding  of  all  monies  collected  during 
the  litigation  in  excess  of  the  rate  so  fixed,  if  the  ordinance  or 
statute  be  found  to  be  unconstitutional ;  or  it  may  require  it  to 
pay  into  court  such  excess,  to  be  disposed  of  by  the  court  on 
the  final  determination  of  the  case."'*"  In  one  instance,  a  gas 
company  was  ordered  to  refund  the  excess  rate  it  had  received ; 
and  it  paid  it  into  court  for  distribution.  The  whereabouts  of 
some  of  the  customers  of  the  company  could  not  be  found,  and 
their  shares  were  returned  to  the  company  upon  it  giving  bond 
to  make  payments  to  those  entitled  thereto  on  their  subsequent 
appearance,  the  suit  being  kept  alive  in  the  meantime  to  enforce 
necessary  orders.^*^^ 

54hh  San  Francisco  Gas  &  El.  Co.  the  first  instance  to  pay  the  expense 

V.  San  Francisco,  164  Fed.  Rep.  884.  of   administering  the   fund — to   pay 

■>m  San  Francisco  Gas  &  EI.  Co.  v.  for  the  cost  of  distributing  tlie  ex- 
San  Francisco,  164  Fed.  Rep.  884;  cess  rate  among  such  customers;  and 
Central  Trust  Co.  v.  New  Amster-  no  distribution  of  such  int<»rest 
dam  Gas  Co.,  167  Fed.  Rep.  983.  would  be  made  until  tlie  amount  of 
In  this  last  case  there  were  873,000  tlie  excess,  after  deducting  such  cost 
customers,  and  the  litigation  ran  for  of  administration,  had  been  ascer- 
two  and   a   half  years.     The  excess  tained. 

rates  paid  to  the  master  in  chancery  ''*ii  Northern    Union    Gas    Co.    v. 

realized  some  interest.     It  was  held  Mayer,   171   Fed.  Rep.  602. 
that  this  interest  would  be  used  in 


446b  OIL   AND   GAS. 

§  400o.     Power  to  authorize  common  council  or  a  commission 
to  fix  rates. 

There  is  no  doubt  that  the  legislature  may  empower  the 
common  council  of  a  city,  when  it  can  do  so  itself,  to  fix  the 
price  of  gas,  always  bearing  in  mind  that  it  must  be  a  just  rate 
and  not  a  confiscatory  one.  The  legislature  may  thus  delegate 
its  power.  And  the  legislature  may  create  and  endow  a  com- 
mission with  power  to  fix  rates,  authorizing  it  to  hear  evidence 
and  require  the  particular  gas  company  under  investigation  to 
furnish  such  evidence  as  it  has  concerning  the  value  of  its 
plant,  the  cost  of  production,  and  the  amount  and  value  of  its 
stock.  It  may  even  empower  it  to  fix  rates  for  gas  and  enable 
it  to  fix  them  at  a  just  rate  to  receive  ex  parte  and  hearsay 
evidence,  and  base  its  decision  thereon,  at  least  if  an  appeal  is 
allowed  from  the  decision  made.^*'^''  This  is  particularly  true 
where  no  uniform  rate  of  charges  can  be  established  throughout 
the  state  that  would  be  just  or  reasonable,  and  that  an  approxi- 
mation of  a  reasonable  tariff  would  require  special  rates  to 
be  prescribed  for  many  different  localities.  And  though  no 
adequate  remedy  can  be  had  by  appeal,  that  will  not  render 
the  statute  invalid,  if  the  concurrent  remedy  of  injunction  to 
restrain  the  enforcement  of  any  improper  rate  be  preserved.  It 
will  be  presumed  by  the  court  that  the  rate  fixed,  even  by  a 
public  commission,  is  valid  until  the  contrary  be  shown,  even 
upon  appeal  from  its  order.^^"  When  a  statute  contemplates 
notice  to  the  gas  company  of  an  intention  to  investigate  and 
possibly  fix  or  change  the  rate,  the  commission  cannot  act 
on  the  ex  parte  statements  of  its  officers,  agents  and  inspectors, 
without  affording  the  corporation  an  opportunity  to  have  a 


54kk  Saratoga  Springs  v.  Saratoga  hands  which  possessed  the   "whole" 

Gas,    etc.,     Co.,     191     N.     Y.     123;  power  of  either  of  the  other  depart- 

83    N.    E.    Rep.    fit)3,    reversing    122  mcnts.     It  was  considered  that  this 

N.    Y.    App.    Div.    203;    107    N.    Y.  provision    did    not    prevent    the    im- 

Supp.  Rep.  341.     In  this  case  a  con-  position   on  an   administrative  hody 

stitutional  provision  on  the  division  of  some   powers   legislative  in  char- 

of  governmental  power  provided  that  acter. 

the    "whole"    power    of   one    of    the  •"•^'i  Saratoga  Springs  v.   Saratoga 

three     departments    of    government  Gas,   etc.,   Co.,   supra. 
should  not  be  exercised  by  the  same 


LEGISLATIVE    CONTROL. 


446o 


knowledge  of  and  controvert  such  statements. "^^"^  Conferring 
power  upon  the  courts  to  review  the  action  of  the  commission 
and  fix  the  rate  does  not  confer  upon  them  non-judicial  func- 
tions.^-*"" 


54mm  Saratoga  Springs  v.  Saratoga 
Gas,  etc.,  Co.,  supra. 

S4nn  Saratoga  Springs  v.  Saratoga 
Gas,  etc.,  Co.,  supra. 

Where  a  statute  provided  that  tlie 
rate  fixed  should  be  the  maximum 
price  to  be  charged  by  the  company 
for  a  term  of  three  years,  and  that 
until  after  the  expiration  of  that 
term  tlie  commissioner  should,  on 
complaint  filed  by  certain  city  offi- 
cers or  cus1:omers,  again  fix  the  price 
for  gas,  it  was  held  that,  though  the 
time  within  which  the  price  fixed 
was  to  be  operative  was  within  the 
power  of  the  legislature,  yet  the 
statute  was  invalid,  because  it  de- 
prived the  company  furnishing  the 
gas  of  the  equal  protection  of  the 
laws,  in  that  no  provision  was  made 
whereby  the  company  could  secure 
a  modification  of  the  order  after  the 
three-year  term,  though  the  condi- 
tions had  so  changed  in  the  mean- 
time that  the  rates  fixed  were  con- 
fiscatory; and  this  objection  to  the 
statute  was  not  obviated  by  the 
fact  that,  if  the  rates  fixed  became 
unfair,  the  gas  company  coiild  apply 
to  the  legislature  for  relief  and  for  a 
repeal  of  the  statute,  or  might  con- 
test the  validity  of  the  rates  fixed 
in  the  courts.  Saratoga  Springs  v. 
Saratoga  Gas,  etc.,  Co.,  191  N.  Y. 
123;  83  N.  E.  Rep.  693,  reversing 
122  N.  Y.  App.  Div.  203;  107  N.  Y. 
Supp.   Rep.   341. 

In  New  York  the  Public  Service 
Commission  may  authorize  an  issue 
of  bonds  for  purposes  clearly  legal, 


and  refuse  to  authorize  an  issue  to 
take  up  original  bonds  whose  valid- 
ity is  questioned.  People  v.  Public 
Service  Commission,  137  N.  Y.  App. 
Div.  810;  122  X.  Y.  Supp.  Rep.  041. 

A  Federal  Court  has  jurisdiction 
to  enjoin  an  ordinance  that  is  con- 
fiscatory. San  Francisco  Gas  &  El. 
Co.  v.  San  Francisco,   189  Fed.  943. 

This  statute  prohibits  the  issuance 
of  stock  or  bonds  except  for- money, 
and  for  labor  done  on  pro])erty  actu- 
ally received  for  the  lawful  use  of 
the  company;  that  the  company  may 
increase  or  reduce  its  capital  stock 
in  the  manner  therein  provided,  but 
not  beyond  any  maximum  prescribed 
by  the  general  law  governing  cor- 
porations formed  for  sinister  pur- 
poses; that  no  company  subject  to 
the  powers  of  the  company  oould 
issue  stock  or  bonds  until  the  com- 
mission shall  certify  in  writing  that 
the  amount  was  reasonably  required 
for  corporate  purposes,  and  the  com- 
mission could  take  and  hoar  testi- 
mony, examine  books,  etc.,  in  ar- 
riving at  the  conclusion.  It  was 
held  that  the  duties  of  the  commis- 
sion were  administrative,  and,  where 
its  consent  was  asked  for  the  is- 
suance of  stock  and  bonds,  it  was 
required  to  determine  whether  such 
stock  and  bonds  were  to  be  issued 
for  property,  labor,  etc.,  and  for  the 
reasonable  requirements  of  the  com- 
pany. In  re  Watertown  Gaslight 
Co.,  127  N.  Y.  App.  Div.  402;  111 
N.  Y.   Supp.   Rep.   48G. 


446d 


OIL   AND    GAS. 


g401.     Gas  companies  quasi  public  corporations  —  rates  may  be 
changed. 

Tlioro  is  a  general  tciulencv  in  the  courts  to  get  away  from 
the  earlier  decisions;  ami  while  not  //(  cnoniine  overturning 
these  decisions,  yet  to. give  grants  to  gas  and  water  companies  a 
strict  construction,  and  to  hold  that  a  State  or  city  may  revise 
the  company's  rates  unless  the  express  words  of  the  grant  pro- 
hibit it.  The  line  of  reasoning  is  that  such  companies  are 
quasi-corporations,  charged  with  a  public  duty  to  supply  au 
article  necessary  to  municipal  life  —  a  duty  that  the  munici- 
pality  itself  may  perform  and  which  it  has  delegated  to  another 
to  perform  for  it  —  tliat  it  enjoys  a  privilege  necessarily  often 
of  a  mono|X)listic  character,  a  privilege  granted  it  by  the  public, 
and  from  which  it  derives  a  financial  benefit;  and  that  by  the 
acceptance  of  such  a  grant  or  privilege  it  devotes  its  property 
in  a  measure  to  public  use,  and  is  therefore  more  subject  to 
State  or  municipal  control  or  regulation  than  if  it  were  purely 
a  private  corjxiration.^^  These  decisions  find  an  illustration 
in  an  Illinois  case  arising  out  of  the  annexation  of  the  village 
of  Rogers  Park  by  the  city  of  Chicago.  In  1888  Rogers  Park 
granted  to  a  water  company  the  right  to  lay  water  pipes  in  its 
street  in  order  to  supply  it  and  its  inhabitants  with  water  dui^ 
ing  the  period  of  thirty  years  at  a  rate  fixed  by  the  ordinance. 
In  1893  the  village  was  annexed  to  the  city  of  Chicago,  and 
four  years  afterwards  the  Chicago  common  council  provided 
by  ordinance  that  the  rates  in  the  annexed  territory  should  be 

55  state  .  V.     Cincinnati     Gaslight  Pocatello    Water    Co.    v.     Standley 

and    Coke    Co.,    18    Ohio    St.    262;  (Idaho) .  61  Pac.  Rep.  518 ;   Fellows 

Logan    Natural    Gas   and    Fuel    Co.  v.   Walker,   39   Fed.  Rep.  651;   Cin- 

V.  Chillicothe.  65  Ohio  St.   186;   62  oinnati,    etc.,    Ry.    Co.    v.    Bowling 

N.   E.  Rep.   122;   People  v.  Chicago  Green.   57   Ohio   St.   .336;    49   N.   E. 

Gas  Trust  Co..  130  111.  268;  22  N.  E.  Rep.     121;     People's    Gaslight    and 

Rep.  798;  8  L.  R.  A.  497;  29  Amer.  Coke  Co.  v.  Halo,  94  111.  App.  406; 

and  Eng.  Corp.  Cas.  257 ;   Toledo  v.  Waddington   v.   Allegheney  Heating 

N.  W.  Ohio.  etc..  Co.,  8  Ohio  S.  and  Co.,  6  Pa.  Ct.  Rep.  96;  Tacoma  Gas, 

C.  P.  Dec.  277;  6  Ohio  N.  P.  531;  5  etc..   Co.   v.  Tacoma,    14   Wash.288; 

Ohio  Cir.   Ct.   Rep.   557;    Cincinnati  44  Pac.  Rep.  655;  Tampa  v.  Tampa 

Ga-slight  and  Coke  Co.  v.  Avondale,  \\.  W.  Co.   (Fla.),  34  So.  Rep.  631. 
43  Ohio  St.  257;  1  N.  E.  Rep.  527; 


LEGISLATIVE    CONTROL.  447 

the  same  as  they  were  in  that  i)()rtion  of  ("liicago  not  embraced 
in  the  annexed  territory,  which  were  considerably  below  the 
rates  tliat  had  existed  in  the  new  territory  bef(jre  its  annexation. 
The  water  company  contended  that  it  was  not  bound  by  the  new 
ordinance,  for  the  reason  that  it  violated  tlie  State  constitution 
in  that  clause  which  forbade  the  enactment  of  a  law  impairinjj; 
the  obligation  of  a  contract;  and  that  until  the  thirty  years  had 
expired  it  was  entitled  to  supply  the  territory  formerly  em- 
braced in  Rogers  Park  at  the  rates  established  in  the  first 
ordinance.  But  the  Supreme  Court  of  that  State  held  that 
its  contention  could  not  be  sustained.  "  The  village  exercised 
the  power,"  said  the  court,  "  by  incorporating  in  the  ordinance 
a  scale  of  prices  as  being  just  and  reasonable  maximum  rates 
to  be  paid  to  the  company  by  the  consumers.  This  provision  of 
the  ordinance  had  not  the  effect  to  establish  a  contract  l:)etween 
the  company  and  the  village  that  the  individual  inhabitants 
of  the  village  should  and  would  pay  such  rates  for  the  period 
of  thirty  years,  or  any  fixed  period  of  time,  but  was  simply  a 
declaration  on  the  part  of  the  village  that  such  rates  were  rea- 
sonable. The  legal  effect  was  to  establish,  prima  facie,  that 
the  corporation,  in  order  to  discharge  the  duty  it  owed  to  tlie 
public,  must  supply  the  commodity  it  had  been  created  to  sup- 
ply at  the  prices  named  in  the  ordinance.  It  was  a  mode  of 
regulating  and  enforcing  the  discharge  of  a  legal  duty,  not  a 
proposition  looking  towards  a  contract.  Xo  contract  was  neces- 
sary to  create  an  obligation  on  the  part  of  the  corjwration  to 
supply  water  at  a  reasonable  rate,  for  that  rested  upon  it  as  a 
duty.  Nor  did  the  fixing  of  rates  by  the  alleged  ordinance 
of  the  village  of  Rogers  Park  vest  in  the  company  an  irrevoc- 
able right  to  exact  such  rates  for  the  period  it  had  been  granted 
permission  to  occupy  the  streets,  alleys,  and  public  places  of 
the  village,  or  for  any  fixed  period.  A  rate  or  price  reasonable 
and  just  when  fixed  may,  in  the  future,  become  so  unreasonably 
high  that  the  exaction  of  such  rate  or  price  is  but  an  extortion. 
The  duty  of  the  corporation  does  not,  however,  change,  but 
remains  the  same ;  that  is,  to  exact  only  reasonable  compensa- 
tion.    The  power  of  the  State  to  enforce  that  duty  is  not  ex- 


448  OIL   AND    GAS. 

hausted  by  its  exercise  in  the  first  or  any  subsequent  instance, 
but  is  continuous,  and  may  be  asserted  from  time  to  time, 
■whenever  necessary  to  prevent  extortion  by  the  agency  created 
by  the  State  to  serve  the  public.  Whenever  the  evil  of  extor- 
tion exists,  the  jxjwer  to  eradicate  it  may  he  successfully  invoked. 
In  the  exercise  of  that  power  by  the  State,  or  by  a  municipality 
exercising  the  power  by  delegation  from  the  State,  there  is  no 
admixture  whatever  of  any  contractual  element ;  nor  does  the 
corjMtrafion  against  whom  the  power  is  exercised  obtain  any 
vested  property  or  property  riglit  in  the  sale  of  rates  deemed 
at  any  particular  time  to  be  reasonable  maximum  prices  for  the 
article  to  be  supplied  by  the  corporation.  The  annexation  of 
the  village  of  Rogers  Park  to  the  city  of  Chicago  operated  to 
clothe  the  city  council  of  the  city  Avith  ample  authority  to 
determine,  prima  facie,  whether  the  rates  demanded  by  the  com- 
pany for  water  applied  to  the  inhabitants  of  that  part  of  the 
city  wliicli  was  formerly  within  tlio  limits  of  the  village  were 
reasonable,  and  to  enact  an  ordinance  reducing  such  rates  if 
deemed  by  it  to  l)e  extortionate."  ^° 

§402.     Same  continued.  —  Rates  may  be  changed. 

The  question  receives  furtlier  exposition  in  another  and  ear- 
lier Illinois  case.  A  water  company  was  organized  in  Novem- 
ber, 1882,  to  supply  the  city  of  Danville  with  water,  pursuant 
to  an  Act  of  the  legislature  providing  that  "  the  General  As- 
sembly shall  at  all  times  have  power  to  prescril>e  such  regulations 
and  provisions  as  it  may  deem  advisable,  which  regulations 
and  jirovisions  shall  be  binding  on  any  and  all  cor|X)rations 
formed  under  the  provisions  of  "  the  Act."  By  the  provisions 
of  an  ordinance  of  the  city  of  Danville  under  which  the  com- 
pany received  its  right  to  occupy  the  streets  of  that  city  and 

B8Eoger9  Park  Water  Co.  v.  Fer-  him  to  oontinue  to  pay  the  rates  of 

gus,    178    m.    571 ;    53   N.    E.    Rep.  the  company  permitted  by  the  ordi- 

363 ;  People's  Gaslight  and  Coke  Co.  nance     when     the    application     was 

V.  Hale,  04  111.  App.  400.  made   before    the    reduction   was   at- 

It  as  also   held  in  this  case  that  tempted.      See,    however,    Foster    v. 

the  sigTiing  of  an  application  by  the  Findlay,    5    Ohio    Cir.    Ct.    455;     3 

consumer   for  water,  subject  to  the  Ohio  Cir.  Dec.  224. 

regulations  thereafter  to  be  adopted,  ^7  i    Starr    and   Curt.   Ann.    Stat, 

was  not  such  a  contract  as  bound  (2d  ed.),  p.  1006,  Sec.  9. 


LEGISLATIVE   CONTROL.  44!) 

supply  its  iiiliabilants  wiUi  water  tho  rates  for  city  hydrants 
were  tixed  for  the  term  of  tJiirty  years;  and  the  company  fur- 
nished to  the  city  water  ai  those  rates  for  years  until  IbDO, 
when  the  common  council  adopted  a  new  ordinance,  lowering  the 
rates  for  hydrants  from  $02.50  per  annum  for  the  first  100, 
and  all  others  $50,  to  $50  per  annum  for  tho  first  140,  and  $10 
for  all  others;  which  ordinance  tlie  company  refused  to  accept. 
The  city  was  authorized  by  statute  to  enter  into  a  contract, 
at  the  time  it  did  so,  "  for  a  supply  of  water  for  public  use, 
for  a  ]>eriod  not  exceeding  thirty  years."  ^^  This  Act  was  silent 
as  to  the  rates  to  be  charged  and  as  to  the  mode  of  fixing  them ; 
but  a  statute  one  day  later  in  date  emjx)wercd  a  city  "  to  au- 
thorize any  pei*son  or  private  corporation  to  construct  and  main- 
tain water  works  "  at  such  rates  as  might  be  fixed  by  ordinance 
for  a  period  not  exceeding  thirty  years."*"  In  1891  an  Act  of 
the  legislature  was  passed  authorizing  a  city  in  which  was 
a  corporation  supplying  it  and  its  inhabitants  with  water  "  to 
prescribe  by  ordinance  maximum  rates  and  charges  for  the 
supply  of  water  furnished  by  such  .  .  .  corporation  to  such 
city  .  .  .  and  the  inhabitants  thereof,  sudi  rates  and 
charges  to  be  just  and  reasonable  " ;  and  if  tlie  rates  were 
unjust  and  unreasonable,  the  Circuit  Court  was  empowered  to 
review  and  determine  them.  The  company  refused  to  accept 
the  provisions  of  the  ordinance  of  1S95,  claiming  that  it  was 
a  violation  of  its  contract  with  the  city;  and  brought  suit  to 
recover  a  year's  rental  under  the  old  ordinance.  The  court 
held  the  new  ordinance  was  valid ;  and  that  the  company  could 
only  recover  according  to  the  rates  fixed  by  it.  The  court  said 
that  the  "  authority  to  contract  for  a  supply  of  water  for  ])u1)lic 
use  for  a  period  not  exceeding  thirty  years  "  did  "  not  neces- 
sarily provide  that  the  price  of  the.  supply  should  be  fixed  for, 
the  entire  period.  The  supply  rould  be  made  for  the  entire 
term,  but  the  price  is  to  be  determined  from  time  to  time,  and 
the  rates  to  l^e  settled  by  the  rules  of  the  common  law."  ""     The 

58  1  Starr  and  Curt.  Ann.  Stat.  p.  ^o  Citing  Carlylo  v.   Carlylo,  etc., 
545.                                                                   C"  ,  52  111.  App.  577. 

59  1  Starr  and  Curt.  Ann.  Stat.  p. 
508. 


450  OIL   AND    GAS. 

court  luhnittod  that  the  stiitutc  uiulor  which  the  crmipany  was 
fonuecl  wat;  silent  on  the  question  of  rates,  but  said:  "  Where 
the  cliarter  of  a  gas  or  water  company  in  a  city  does  not  ex- 
pressly confer  on  the  company  the  right  to  fix  its  own  prices, 
such  silence  cannot  lx>  construed  into  a  grant  of  the  franchise  to 
fix  its  own  rates.  So,  here,  tlie  silence  of  the  Act  as  to  the 
rates  to  be  charged  does  not  necessarily  confer  upon  the  munici- 
pality the  power  to  fix  one  established  rate  for  the  whole  ])eriod 
during  which  the  contract  is  to  run.  If,  however,  it  be  doubtful 
whether  the  language  of  tlie  Act  does  or  does  not  confer  the 
power  upon  cities  to  contract  for  a  supply  of  water  at  a  fixed 
rate  for  the  whole  period  of  thirty  years,  such  doubt  must  be 
resolved  in  favor  of  the  public."  The  court  then  proceeds  to 
say :  "  The  clause  '  for  a  period  not  exceeding  thirty  years  ' 
qualifies  the  words  '  construct  and  maintain  the  same,'  but  does 
not  qualify  the  words  '  at  such  rates  as  may  be  fixed  by  ordi- 
nance.' In  other  words,  the  council  may  authorize  a  private 
corporation  to  construct  and  maintain  water  works  for  a  jjeriod. 
not  exceeding  thirty  years,  and  they  may  authorize  a  private 
corporation  to  construct  and  maintain  the  water  works  at  such 
rates  as  may  from  time  to  time  be  fixed  by  ordinance."  °^  An- 
other case  of  the  same  character  was  that  of  the  city  of  Freeport, 
in  which  a  like  decision  was  made.®^  Appeals  from  these  deci- 
cions  were  taken  to  the  Supreme  Court  of  the  United  States, 
and  the  cases  affirmed  ;  but  the  decisions  were  put  upon  grounds 
slightly  different  from  that  of  the  Illinois  court,  as  will  appear 
in  the  following  extract  from  the  opinion  in  the  Freeport  case: 
"  Our  conclusion  is  that  the  ]xnvers  conferred  by  the  statutes  of 
1872  can,  without  straining,  be  construed  as  distributive.  The 
city   council   was   authorized   to   contract   with    any   person   or 

61  Danville  v.  Danville  Water  Co.,  short    opinion     is    rendered    is    af- 

178    111.    299;    53    N.    E.    Rep.    118;  firmed    on    appeal    to    the    Supreme 

180  111.  23.5;  54  N.  E.  Rep.  224.     In  862.     See    also    Tampa    v.     Tampa 

another  case  between  the  same  par-  W.  W.  Co.,  34  So.  Rep.  631. 
ties    (186   111.    .326;    57    N.   E.   Rep.  « 2  Freeport    Water    Co.    v.    Free- 

1120).    the    court    renders    a    short  port,    186    111.    179;    57    N.    E.    Rep. 

opinion,    roforrinir    to    the    opinion  862.     See  also  Tampa  v.  Tampa  W. 

from    which   the  above  quotation    is  W.  Co.,  34  So.  Rep.  631. 
made ;    and   this   case   in   which    the 


LEGISLATIVE   CONTROL.  "^■'^ 

corporation  to  construct  luul  iiuiinlaiii  water  works  at  such  rates 
as  may  be  fixed  hi/  ordinance,  and  for  a  period  not  exceeding 
thirty  years.  The  words  '  fixed  by  ordinance,'  may  be  con- 
strned  to  mean  by  ordinance  once  for  all  to  endure  during  tlie 
whole  period  of  thirty  years;  or  by  ordinance  from  time  to 
time  as  might  be  deemed  necessary.  Of  the  two  constructions 
that  must  be  adopted,  which  is  most  favorable  to  the  public, 
not  that  one  which  would  so  tie  the  hands  of  the  council  that 
the  rates  could  not  be  adjusted  as  both  parties  might  require 
at  a  particular  time."  "^  Where  a  gas  company,  organized 
before  any  statute  or  constitutional  provision,  authorized  a 
regulation  of  it  by  the  State  or  a  municipality,  was  authorized 
to  charge  not  to  exceed  three  dollars  per  thousand  feet,  after 
such  a  statute  was  enacted,  consolidated,  pursuant  to  a  statu ie 
authorizing  it  to  do  so,  subject  to  the  conditions  resting  upon 
each  of  them,  none  of  them  being  in  fact  extinguished,  it  was 
held  that  it  subjected  itself  to  regulations,  with  resjiect  to  its 
rates,  by  the  municipality,  and  could  only  charge  the  rates  al- 
lowed by  the  companies  it  had  absorlx^d.*'* 

§403.     Same  continued  —  rates  may  be  changed. 

The  Supreme  Court  of  Ohio  holds  that  gas  companies,  because 
of  their  ])eculiar  relation  to  the  public,  are  such  corporations 
as  their  rates  to  private  consumers  may  be  changed  by  the  legis- 
lature or  by  a  municipality  in  pursuance  of  a  st<itute  authorizing 
it  to  make  a   change.      In   1849   the   legislature  chartered   the 

63  Freeport    Water    Co.    v.    Free-  a   charter    for    its   own    government 

port  City.   180  U.  S.  .587;   21  S.  Ct.  "consistent    with     and    subject    to" 

493;    affirming   186   111.   179;   57  M.  its   provisions   and   tlie   laws  of  the 

E.  Rep.  862;  Danville  Water  Co.  v.  State.      A    general    law    authorized 

Danville,  180  U.  S.  610;  21   St.  Ct.  a    municipality    of    tl:c     jiopulation 

505;  affirming  186  111.  326;  57  X.  E.  specified  to  regulate  and  control  the 

Rep.  1129;   Rogers  Park   Water  Co.  "use"  of  gas,  but  contained  no  pro- 

V.  Fergus,  180  U.  S.  624.  vision  as  to  the  price.     It  was  held 

6*  People's  Gaslight  and  Coke  Co.  that  the  city  could  not  adopt  a  char- 

V.  Chicago,    114  Fed.   Rep.   384,   af-  ter  empowering   it  to   fix    the   price 

firmed    194    U.    S.    1 ;    24    Sup.    Ct.  of  that  commodity  to   l>c   furnished 

Rep.  520;   48  L.  Ed.  851.  its   inhabitants.     Tacoma   Gas,   etc., 

The   constitution  of   the   State   of  Co.   v.   Tacoma,    14   Wash.   288;    44 

Washingtoii  authorizes  a  municipal-  Pac.  Rep.  655. 
ity  of  a  specified  population  to  form 


452  OIL   AND   GAS. 

Zanesville  Gaslight  Company;  and  in  tlio  same  year  the  city  of 
Zanesville  authorized  this  company  to  hiy  its  pipes  in  the  city's 
streets  and  alleys,  providing  that  so  long  as  it  enjoyed  the  privi- 
lege granted  it  should  supply  tlie  "  town  council  "  with  gas  at 
a  price  not  to  exceed  two  dollars  and  fifty  cents  a  thousand 
cubic  feet.  At  that  time  the  city  had  no  legislative  authority 
to  regulate  the  price  of  gas.  Subsequently  the  legislature 
enacted  a  statute  authorizing  municipalities  to  fix  the  price  at 
which  gas  should  be  sold  by  gas  companies;  and  the  city  of 
Zanesville  thereafter  in  1884  fixed  the  price  to  itself  and  its 
citizens  at  one  dollar  and  twenty-five  cents  per  thousand  cubic 
feet.  The  gas  company  never  accepted  the  provisions  of  this 
last  statute  nor  of  this  last  ordinance.  But  the  Supreme  Court 
held  that  it  could  not  charge  more  than  the  price  fixed  by  the  last 
ordinance,  invoking  the  doctrine  of  Munn  v.  Illinois,*'^  and 
holding  that  it  was  such  a  quasi-public  corporation,  enjoying 
special  ]irivileges  of  such  a  public  character  that  its  rates  were 
subject  to  legislative  control.^"'  A  case  in  the  Federal  Circuit 
Court  for  the  Southern  District  of  Ohio  illustrates  how  far  the 
courts  are  inclined  to  go  to  enable  the  State  or  a  municipality 
to  regulate  the  rates  of  gas  or  Avater.  On  ]\rarch  18,  1887,  the 
city  of  Dayton,  pursuant  to  statutes  autliorizing  it  to  do  so, 
adopted  an  ordinance  giving  a  natural  gas  company  the  right  to 
lay  its  mains  in  the  streets  and  supply  the  inhabitants  of  the 
city  with  gas,  giving  it  eighteen  months  in  which  to  introduce 
the  gas,  and  providing  that  if  this  was  not  done  by  January  1, 
1889,  the  city  might,  by  resolution,  declare  a  forfeiture  of  the 
company's  franchise.  The  company  accepted  the  provisions 
of  the  ordinance,  began  to  lay  its  pipes  in  the  streets,  but  failed 
to  complete  the  enterprise  or  to  supply  gas  by  January  1,  1889. 

or.  94   U.   S.   113.  Ct.  557;   3  Ohio  Dec.  273;  Toledo  t. 

cfi  Zanesville      Gaslight      Co.      v.  Northwestprn.    etc..    Co.,    8   Ohio    S. 

Zanesville.  47  Ohio  St.  35;  23  N.  E.  and  C.  P.  Dec.   277;    6  Ohio  N.   P. 

Rep.   00;   23  Wkly.  L.  Bull.   70;    20  531.     See    Spring  Valley   W.    W.   v. 

Am.  and  Eng.  Corp.  Cas.  190;  State  Schottler,  110  U.  S.  347;  Agua  Pura 

V.   Cleveland,  etc.,  Co.,   3   Ohio  Cir.  Co.   v.  I^s  Vegas,   10  N.  M.  6;   60 

Ct.    251;    State   v.    Columbus,    etc.,  Pac.  Pep.  208;  50  L.  R.  A.  224.    See 

Co..    ,34    Ohio    St.    .572;    Toledo    v.  also  Tampa  v.  Tampa  W.  W.  Co.,  34 

Northwestern,  etc.,  Co.,  5  Ohio  Cir.  So.  Rep.  631. 


LEGISLATIVE    CONTROL.  4.'3 

On  February  2,  ISSU,  the  city  declarotl  all  its  ridits  forfcihircd. 
Meantime,  on  Deceml)or  2:5,  1S87,  it  passed  an  (irdinancc  lixiii^ 
the  maxiniinn  prices  the  company  shoiihl  have  a  riglit  to  charge 
for  p:af>  furnished  for  fuel  pur|x>ses  by  mixers  for  the  next 
ensuinij  live  years,  which  (irdinance  the  company  accepted. 
On  March  28,  188".),  the  name  of  the  <'(»iii])any  havini;  Ik'om 
changed,  the  city  passed  an  ordinance  granting  to  it  the  right 
to- occupy  its  streets,  for  the  term  of  twenty  years,  witli  the  ob- 
ject of  furnishing  gas  ''  for  heating,  fuel,  and  ]xiwer  ])ur|X)ses 
only";  and  in  it  jirovided  that  any  consumer  should  have  the 
right  to  require  gas  to  be  furnished  by  meter  measurement,  at  a 
rate  not  to  exceed  a  certain  figure,  and  not  by  the  former 
schedule  rates,  the  company  to  furnish  the  meter  at  a  rental  of 
three  dollars  a  year,  payable  in  advance.  The  meter  rate  was 
considerably  lower  than  the  former  rate.  A  subsequent  section 
provided  that  "  the  contract  heretofore  made  between  the  city 
and  this  company,  as  to  schedule  of  prices,  shall  be  in  full  force, 
except  as  herein  altered,  and  for  the  unex])ired  time  of  said 
original  contract."  The  contract  under  the  ordinance  of  D(^ 
cember  23,  1887,  expired  January  10,  1893.  Shortly  after  the 
company  went  into  the  hands  of  a  receiver,  who  claimed  that 
after  January  10,  1803,  there  was  no  rate  fixed  by  the  council 
tliat  w^as  operative  and  in  force ;  and  proceeded  to  carry  into 
effect  a  resolution  of  the  gas  company,  adopted  in  anticipation 
of  the  termination  of  the  contract  created  by  the  ordinance  of 
December  23,  1887,  as  modified  by  that  of  March  28,  1880, 
and  advanced  the  rates  to  nearly  double  what  they  had  been  by 
the  meter  measurements.  Before  any  of  these  ordinances  were 
adopted  a  statute  had  l>een  enacted  nnthoriziiig  city  councils  ''  to 
regulate,  from  time  to  time,  the  ])ric('  ''  which  natural  gas  com- 
panies could  charge  for  natural  gas  "  for  lighting  or  fuel  ]>ur- 
poses,"  and  providing  that  the  companies  could  not  charge 
more  than  the  price  then  fixed.  The  statute  also  provided  that 
if  tlie  council  fixed  "the  maxinium  jiricc  at,  which  it  vc(|uires 
any  company  to  furnish  gas  to  the  citizens,  or  public  buildings, 
or  for  the  purpose  of  lighting  the  streets  .  .  .  for  a  ]>eriod 
not  exceeding  ten  years,  and  the  company  assents  thereto  by 


454  OIL    AND    GAS. 

\vrilt('n  acceptance  ...  it  shall  not  bo  lawful  for  the  coun- 
cil to  require  such  company  to  furnish  gas  at  a  less  price  during 
tlie  jieriod  of  time  agreed  up^n,  not  exceeding  ten  years  as 
aforesaid."  The  court  held  that  after  the  five  years'  rate  ex- 
pired, as  provided  for  by  the  ordinance  of  December  23,  1887, 
the  rates  provided  by  tlie  ordinance  of  March  28,  1889,  were 
in  force.  The  court  adopted  the  reasoning  of  the  Supreme 
Court  of  the  State  of  Ohio,  and  followed  the  construction  it  had 
given  to  the  statute  cited. "'^  On  apiieal  the  case  was  affirmed, 
the  court  holding  that  the  provisions  for  a  maximum  rate  was 
not  a  contract  for  any  period,  but  an  exercise  of  the  power  to 
regulate,  and  a  limitation  on  the  license  granted,  and  continued 
in  force  after  the  expiration  of  the  original  contract,  and  until 
repealed.  The  court  also  held  that  when  a  municipality  is 
authorized  to  enter  into  a  contract  for  a  period  not  to  exceed 
ten  years,  its  contract  for  twenty  years,  or  for  an  indefinite 
time,  is  entirely  void,  and  that  it  cannot  be  sustained  as  a  con- 
tract for  ten  years. *** 

§404.     Municipality  delegating  power  to  change  rates. 

If  a  statute  (or  an  ordinance)  empowers  a  municipality  to 
fix  and  regulate  rates,  the  governing  l)ody  of  such  municipality, 
or  the  body  esj^ecially  authorized  to  fix  or  regulate  the  rate  must 
do  it;  and  the  power  to  fix  or  regulate  it  cannot  be  delegated 
to  any  other  person  or  body  than  the  one  named  in  the  statute  or 

67  Manhattan  Trust  Co.  v.  Day-  vision  of  wiiich  a  statute  may  be 
ton  Natural  Gas  Co.,  55  Fed.  Rep.  enacted  to  rej^ulate  corporations. 
181.  The     syllabus    would     lead    one    to 

68  Manhattan  Trust  Co.  v.  Day-  think  that  the  court  rested  its  de- 
ton,  59  Fed.  Rep.  327;  8  C.  C.  A.  cisinn  upon  tlie  unconstitutionality 
140;    16  U.  S.  App.  588.  of  this  statute;   but  the  decision   is 

The    case    of    the    Cleveland    Gas-  based  upon  the  fact  that  the  bill  for 

light    and    Coke    Co.    v.    Cleveland.  an    injunction    charged,    which    the 

71    Fed.    Rep.    610,    35   Ohio   L.    J.  demurrer   admitted,    that   the   price 

155,  is  not  so  much  at  variance  with  fixed    by    the    municipality    was    so 

the    Ohio    cases    as    would    at    first  low   that   gas    could    not   be   manu- 

seem.     The    gas    eom})any's    charter  factured  at   the  figure  named.     The 

dated   from   1846,  and  it  was   occu-  court  saiil   the  rates   fixed  must  be 

pyinir  the  streets  when  the  constitu-  reasonable, 
tion  of  1850  was  adopted,  by  a  pro- 


LEGISLATIVE    CONTROL.  455 

ordinance.  Xor  can  a  eontract  with  a  c^as  company  l)o  made 
that  will  aiithdrizo  some  l)ody  otluT  than  the  one  iiaiiuMl  in  tlu; 
statute  to  i-egulate  the  price.""  But  where  the  constitution  of 
a  State  provided  that  ]irivate  corjwrations  might  he  formed 
under  general  laws,  which  laws  might  be  altered  or  rejx^aled 
from  time  to  time;  and  ]>ursuant  to  its  provisions  a  company 
was  chartered,  providing  that  the  rates  might  be  fixed  by  a 
board  composed  of  two  members  aj)pointcd  by  the  municipality, 
two  appointed  by  the  company  and  the  fifth  by  the  four;  and 
thereafter  a  new  constitution  was  adopted  providing  that  the 
rates  should  be  fixed  by  the  city  and  county  board  of  super- 
visors, it  was  held  that  the  charter  was  subject  to  changes  ac- 
cording to  the  rights  reserved  in  the  first  constitution,  and  it 
was  not  impaired  by  the  last  constitution.'"  Yet  where  a  statute 
provided  "  that  the  board  of  gas  trustees  may  prescribe  by  by- 
laws the  price  of  gas  and  coke,  under  such  rules  and  regulations 
as  by  ordinance  the  council  may  prescrilw,"  it  was  hold  that  tho 
action  of  the  trustees  in  raising  the  price  of  gas  without  an  ordi- 
nance authorizing  them  so  to  do  was  void.''^ 

§405.     Annexing  territory  after  contract  made. 

If  a  city  has  a  contract  with  a  gas  company  to  supply  gas  at 
a  certain  fixed  price,  and  thereafter  extends  its  limits,  the  rate 
so  fixed  will  be  appliable  to  the  territory  annexed.^"  Thus 
where  a  gas  company,  pursuant  to  statutory  authority,  extend- 
ing its  gas  mains  into  a  village  where  it  is  vested  with  the  right 
to  lay  its  mains,  and  uses  such  mains  to  convey  to  such  village 
gas  manufactured  by  it,  and  uses  its  manufactory  and  mains  as 


69  Cincinnati    Gaslight    and    Coke  Ct.  455:  3  Ohio  Cir.  Dec.  224.     But 

Co.    V.   Avondale,    43    Ohio   St.   257;  fwe    People's   Gaslight   &    Coke    Co., 

1  N.   E.   Rep.   527.     See  Schwede  v.  1!)41    U.    S.    1;    24    Sup.    Ct.    Rep. 

Heinrich,  etc.,  Co.,  29  Wash.  — ;  69  520;    48   L.   Ed.    851;    Rogers   Park 

Pac.  Rep.  362.  Water  Co.  v.   Fergus,    178   111.  571: 

TO  Spring  Vallov  W.  W.  v.  Schott-  53    N.    E.    Rep.    363,    and    People's 

ler,  110  U.  S.  347;   4  Sup.  Ct.  Rep.  Gaslight    &    Coke    Co.    v.    Hale,    94 

48;    Spring  Valley  W.   W.   v.   Bart-  111.   App.  406. 

lett,   16  Fed.  Rep.  615;   Spring  Val-  72  See  People  v.  Deehan,  1.53  X.  Y. 

ley    W.    W.    V.    San    Francisco,    61  528:    47   N.  E.   Rep.   787;   reversing 

Cal.  3.  UN.   Y.  App.   Div.    175;    42  N.  Y. 

71  Foster  v.  Findlay,  5  Ohio  Cir.  Supp.    1071. 


456  OIL    AND    GAS. 

one  plant,  it  was  regarded  as  established  in  the  village,  within 
the  meaning  of  a  statute  giving  a  municipality  jxjwer  to  regulate 
the  ])rice  of  gas;  and  such  extension  of  the  mains  was  regarded 
as  the  extension  of  the  gas  works  for  supplying  the  village  with 
gas,  within  the  meaning  of  a  statute  authorizing  the  council 
"to  agree,  by  ordinance,  willi  any  |K>rson  or  ]>ersons,  for  the 
extension  of  gas  works  .  .  .  for  supplying  the 
corporation  or  its  inhal)itants  with  gas."  '■* 

§406.     Police  power  regulations. 

As  an  instance  of  the  exercise  of  the  [wlice  power  by  a  munici- 
pality, is  the  removal  of  a  lam}^post  where  the  public  conven- 
ience re(piires  it,  and  no  contractual  relation  with  the  gas  com- 
pany prohibits  it.  In  such  an  instance  the  power  to  remove  it 
may  be  delegated.^*  So  an  ordinance  adopted  subsequent  to  the 
granting  of  a  franchise  may  provide  for  an  inspection  of 
meters.'^  So  in  the  case  of  a  water  company  (and  no  doubt  the 
same  is  true  of  a  gas  company)  a  municipality  may  take  such 
measures  as  may  be  necessary  to  secure  pure  water,  "  the  pay 
of  its  [the  company's]  just  contributions  to  the  ])iibli('  burdens, 
and  the  observance  of  its  own  ordinances  respecting  the  luanner 
in  which  pipes  and  mains  of  the  company  should  be  laid  through 
the  streets."  ''^ 

73  Cincinnati    Gaslight    and    Coke       215;    8    Am.   St.   Rep.   844;    20  Am. 
Co.  V.  Avondale,  43  Ohio  St.  257 ;   1       and  Eng.  Corp.  Cas.  258. 

N.    E.    Rep.    527.     See   also    Rogers  7s  Cincinnati,  etc.,  Co.  v.  State,  18 

Park  Water  Co.  v.  Fergus,  180  U.  S.  Oliio  St.  2:?7. 

624;    21    S.   Ct.   Rep.   490,   afTirming  to  Walla  Walla  Water  Co.  v.  Wal- 

178    m.    571;    5.3    N.    E.    Rep.    56:?,  la  Walla.   172  U.  S.  1 ;  New  York  v. 

and  People's  Gaslight  and  Coke  Co.  Squire.  145  V.  S.   175;   St.  Louis  v. 

V.  Chicago,  114  Fed.  Rep.  .384.  Western  V.  Tel.  Co.,   148  U.  S.  02; 

74  New    Orleans    Gaslight    Co.    v.  Missouri,    efc,    Co.    v.    Murphy,    170 
Hart,  40  La.  Ann.  474;   4  So.  Rep.  U.  S.   78,  afTirming   130  Mo.   10;    31 

S.   W.   Rep.   594. 


CHAPTER  XXI. 

CONTRACTS  FOR  MUNICIPAL  LIGHTING. 

§407.  Power  to  make  contract. 

§408.  Constitutional  or   statutory  limitations   on   indebtedness. 

§409.  Length  of  term  of  contract. 

§409a.  No  time  fixed  in  ordinance  or  contract. 

§410.  Extending  term   of  contract. 

§411.  Bids  for  lighting. 

§412.  How  contract  executed. 

§413.  Liability  of  city   for   breach  of   contract. — Damages. 

§414.  Assignment  of  lighting  contract. 

§415.  Rescission   of  contract. — Breach. 

§4 15a.  Quality  of  gas. 

§416.  Discontinuing  use  of  gas. 

§417.  Changing  contract. 

§418.  Gas  furnished  not  covered  by  contract. —  No  contract. 

§419.  Municipality  extending  limits  after  making  contract. 

§420.  Municipality  receiving  light  under  a  void  contract. 

§421.  Contracts  void  for  uncertainty. 

§422.  Moonlight  schedule. 

§423.  The  price  to  be  paid. 

§424.  Free  light. 

§425.  Exemption  from  t^ixation  in  fixing  price  of  gas. 

§42G.  Cost  of  light,  out  of  what  fund  paid. 

§427.  Appropriation  for  light,  when  necessary  to  validity  of  contract. 

§428.  Exhaustion  of  appropriation  as  a  defense. 

§429.  Tax  to  pay  for  gas  or  to  .support  gas  plant. 

§430.  Assessing  cost  of  public  lighting  upon  abutting  property. —  Cost  of 

nuinicipal   plant. 

§431.  Mandamus  to  compel  auditing  of  payment  of  bills. 

§432.  Action  to  recover  for  gas  supj)lied. 

§433.  Interest. 

§434.  Lamps  —  Posts. 

§435.  I'nited  States  revenue  tax. 

§436.  Waiver  as  to  quality  of  gas  or  light. 

§437.  Extending  mains,  failure  to  pay  for  light. 

§438.  Receiver  boimd  by  contract. 

§439.  Municipal  ofTicer  interested  in  contract. 

§407.     Power  to  make  contract.  ' 

There  has  never  been  any  denial  of  tlip  power  of  a  niiinici- 
pality  to  make  a  contract  for  Ii2:htinii2;  its  streets  and   ])iililic 

457 


458  OIL    AMD    GAS. 

Luildiiigs  worthy  of  regard.  Wlictlicr  it  is  its  duty  or  not  to 
light  its  streets  and  public  places,  the  right  to  make  such  con- 
tracts is  unquestioned,  whether  a  statute  expressly  authorizes 
it  or  not.  "  A  municipal  corporation,"  said  the  Supreme  Court 
of  Indiana,  "not  liaving  either  body  or  limbs,  feet  or  hands, 
but  U-iiig  merely  a  lf<^-al  entity  cannot  execute  its  own  acts,  nor 
administer  its  own  affairs.  To  do  this  it  must  employ  persons, 
other  corporations,  or  agencies  of  some  kind,  and  to  employ  them 
and  agree  to  pay  them  ^s  to  make  a  contract;  and  if  it  could 
not  make  such  contracts,  and  was  not  bound  thereby,  it  could  not 
carry  on  the  ])ur}>oses  or  attain  the  objects  for  which  it  w^as 
established.  Iti^  ordinances  will  not  execute  themselves;  and 
to  deny  it  the  power  to  have  them  executed  would  be  to  render 
it  useless  and  helpless.  When  it  makes  a  contract  within  the 
scope  of  its  power  — •  not  ultra  vires  —  which  is  not  against  pub- 
lic policy,  and  not  fraudulent,  it  must  be  enforced  the  same  as 
the  contract  of  a  business  corporation,  or  a  person."  When  a 
municipality  enters  into  a  contract  with  an  individual  or  a 
corporation  for  the  lighting  of  its  streets  it  acts  by  its  power 
to  contract,  and  not  in  its  legislative  capacity  —  in  its  private 
capacity,  as  has  been  said,  and  not  in  its  public  capacity.^  Offi- 
cers acting  under  the  charter  have  the  ]M)\ver  to  bind  the  mu- 

1  Indianapolis       v.       Indianapolis  Rep_    92I;    44    U.    S.    App.    687;    22 

Gaslifrht  and  Coke  Co.,  G6  Ind.  390;  c.    C.    A.    618;    36    L.    R.    A.    228; 

Indianapolis     v.     Consumers'     Gas  Waj-mart    Water    Co.    v.    Waymart, 

Trust   Co.,   140  Ind.   107;   39  N.  E.  4   Pa.    Super    Ct.    211;    Winfield    v. 

Rep.  433;  27  L.  R.  A.  514;  48  Anier.  Winfield  Gas   Co.,   37    Kan.   24;    14 

and  Eng.  Corp.  Cas.  151;  San  Fran-  Pac.  Rep.  499;   Conyers  v.  Kirk,  78 

Cisco   Ga^   Co.    v.   San   Francisco,   9  Ga.  480;   3  S.  E.   Rep.  442;   Anoka 

Cal.    453;    Richmond    County    Gas  w.  W.,  etc.,  Co.  v.  Anoka,  109  Fed. 

Co.    V.    Middleton,    59    N.    Y.    228;  Rep.  580;   Crowdcr  v.  Sullivan,   128 

Harlem   Gaslifrht  Co.   v.   Mayor,   33  Ind.  4SG;   28  N.  E.  Rep.  94;    13  L. 

N.    Y.    .300,    afTirniing   3   Rolit.    100;  R.    A.    047;    Gosport    v.    Pritcliard, 

Davenport    Gasliplit    Co.    v.    Dwcn-  15G   Ind.  400;    59  N.  E.   Rep.    1058; 

port,  13  la.  229;  State  V.  Milwaukee  Seward   v.    Liberty,    142    Ind.    551; 

Gaslight   Co.,  29   Wis.   454;    9   Am.  42    N.    E.    Rep.    39;    Gaslight,   etc., 

Rep.   598;   Norwich  Gaslight  Co.  v.  Co.  v.  New  Albany,  150  Ind.  406;  59 

Norwich    City    Gas    Co.,    25    Conn.  N.  E.  Rep.  170;  Public  Service  Corp. 

19;  Philadelphia  v.  Fox.  64  Pa.  St.  v.  American  Lighting  Co.,  67  N.  J. 

169;    Garrison   v.    Chicago,    7    Biss.  Ch.    122;    57    Atl.    Rep.    182;    Cum- 

480;    Nebraska    City    v.    Nebraska,  berland  Gas  Co.  v.  West  Va.  &  Md. 

etc.,  Co.,  9  Neb.  339;  2  N.  W.  Rep.  Gas    Co.,     188    Fed.    585,    affirming 

870;   Keihl  v.  South  Bend,  76  Fed.  182  Fed.  007. 


MUNICIPAL   GAS    CONTRACTS. 


458a 


nicipality ;  and  it  cannot  be  nr^cd  tliat  tJiey  were  not  oilicrcrs 
de  jure.'  The  fact  that  a  municipality  is  authorized  to  build 
and  maintain  a  ])lant  of  its  own  docs  not  necessarily  prevent 
it  from  makin<2;  a  contract  for  lijiht,  and  this  is  true  even 
though  in  the  charter  authorizing  the  building  of  such  a  plant  is 
bestowed  no  specific  power  to  enter  into  a  contract  with  a  com- 
pany for  light.  Thus  a  gas  eom]>any's  statutory  charier  au- 
thorized it  to  furnish  gas  to  the  city  for  which  it  was  created; 
and  tlie  charter  of  the  city  only  authorized  it  to  build  and 
maintain  a  gas  plant ;  and  yet  it  was  held  that  the  city  could 
bind  itself  by  a  contract  with  the  company  for  lighting  the 
streets.^  Ti  as  much  as  entering  into  a  contract  for  lighting 
the  streets  is  not  the  exercise  of  legislative  power,  the  contract 
need  Tjot  be  by  formal  ordinance  or  resolution.* 

§408.     Constitutional  or  statutory  limitations  on  indebtedness. 

Constitutional  or  statutory  provisions  forbidding  municiixili- 
ties  contracting  a  debt  beyond  a  certain  amount  or  percentage 
of  its  assessable  property  are  not  uncommon,  and  must  l)e 
considered  in  entering  into  a  contract  for  light.  If  the  entire 
amount  a  city  will  pay  on  a  twenty  years'  contract  for  light  must 
be  considered  a  debt  of  the  city  w^hen  the  contract  is  entered  into, 


2  Lake  Charles  Ice,  etc.,  Co.  v. 
Lake  Charles,  106  La.  65;  30  So. 
Rep.  28!). 

3  Newport  v.  Newport  Light  Co., 
11  Ky.  L.  Rep.  840;  Tndiimapolis 
V.  Indianapolis,  etc.,  Co.,  supra. 

4  Gosport  V.  Pritchard,  156  Ind. 
400;    59   N.    B.   Rep.    1058. 

Power  in  a  city  to  furnish  water 
to  its  inhabitants  and  control  the 
erection  of  waterworks  for  tliat  pur- 
pose, is  sufficient  to  autliorize  the 
city  to  enter  into  a  contract  for 
water  and  to  grant  a  franchise  for 
such  purpose.  Anoka  W.  \V.,  etc., 
Co.  V.  Anoka,   109   Fed.  Rep.  580. 

In  New  Jersey  before  a  city  can 
let  a  ligliting  contract  it  must  first 
establish  a  system  of  street  lifrht- 
ing,  under  a  statute  providing  1liat 
it  "sliall  have  power  to  establisli, 
publish,  modify,  amend,  or  repeil 
ordinances,  rules  or  regulations,  and 
by  laws."  "to  provide  lamps  and 
gas  fixtures,  and  to  light  the  streets, 
parks,  and  public  places  of  every 
description  in"  the  city.     Taylor  v. 


Lambertville  (N.  J.),  10  Atl.  Rep. 
809. 

A  statute  may  give  tlie  courts 
])Ower  to  reform  a  city's  contract. 
Du  Bois  V.  Du  Bois,  etc.,  Co.,  176 
Pa.  St.  430;  35  Atl.  Rep.  248;  38 
W.   N.   C.   417;    34   L.    R.   A.   92. 

Vote  to  levy  tax,  see  Baltimore, 
etc.,  Co.  v.  People,  200  111.  623;  66 
N.   E.   Rep.   246. 

In  the  absence  of  statutory  power 
a  city  has  no  power  to  grant  a 
franchise  to  construct  a  gas  plant 
for  furnishing  light,  heat  and  jmwer, 
and  to  grant  the  riglit  to  pipe  the 
streets  for  distribution  df  the  gas 
to  consumers.  Elizjibeth  City  v. 
Banks.  150  N.  C.  407;  64  S.  E. 
Rep.  189. 

A  company  asking  a  frnnchise 
from  a  city  is  ehariicabh^  with 
knowledge  of  the  disal)ili(ies,  arising 
from  (lilferences  with  the  company 
controlling  the  gas  supply,  t-o  fulfill 
the  contract.  Public  Service  Corp. 
V.  American  Lighting  <  o.,  67  N.  J. 
Ch.    122;    57   Atl.   Rep.   482. 


458b  OIL    AND    GAS. 

then  many  a  city  is  so  indebted  that  it  cannot  enter  into  such  a 
contract,  where  such  constitutional  or  statutory  provisions  pre- 
vail ;  but  where  each  year's  supi)ly  of  liii'ht  is  to  be  paid  for  at 
the  end  of  the  year,  and  that  is  to  be  considered  the  extent  of 
tlie  city's  debt  —  a  debt  not  arising  until  the  end  of  the  year  — 
a  very  different  phase  of  the  situation  is  presented.  These 
provisions  are,  of  course,  not  identical  in  language,  although 
the  same  idea  iims  through  them.  A  provision  of  tlie  constitu- 
tion of  Indiana  provides  that  no  municipal  corporation  "  shall 
ever  become  iiidel)t(Ml  in  iiny  manner  or  for  any  purpose,  to  an 
amount,  in  the  aggregate  exceeding  two  ]ycY  centum  on  the  value 
of  the  taxable  property  Avithin  such  eor|>oration,  to  be  ascer- 
tained by  the  last  assessment  for  State  and  county  taxes  previous 
to  the  incurring  of  such  indebtedness."  A  city  entered  into  a 
twenty-year  contract  for  water,  the  rent  payable  annually.  The 
aggregate  amount  of  rent  to  be  paid  under  this  contract  exceeded 
two  per  centum  of  the  assessed  value  of  the  property  within 
the  city ;  but  an  annual  payment  fell  below  that  amount.  The 
contract  was  held  to  be  valid.  "  If  the  aggregate  sum  of  all 
the  yearly  rents,"  said  the  court,  "  is  t-o  be  taken  as  a  debt 
within  the  meaning  of  the  constitution,  then  many  cities  will  be 
left  without  the  means  of  procuring  things  so  essential  to  public 
welfare  and  safety.  We  are  not  to  presume,  unless  coerced  by 
the  vigor  of  the  words,  that  the  framers  of  the  amendment,  or 
the  electors  who  voted  for  it,  intended  to  destroy  the  corporate 
existence  of  our  municipalities  or  to  leave  them  without  water 
or  light.  Xor  are  we  to  presume  that  the  electors  were  ignorant 
of  the  existence,  condition  and  necessities  of  our  great  towns  and 
cities.  On  the  contrary,  we  are  to  pTesume  these  things  were 
known  to  the  electors,  and  that  they  intended  to  foster  the  best 
interests  of  these  instruments  of  local  government. 
To  deny  the  right  to  procure  light  and  water  is  to  deny  it  to 
the  inhabitants  of  the  towns  and  cities,  and  these  form  no  incon- 
siderable part  of  the  population  of  the  State.  We  cannot,  there- 
fore, by  mere  intendment  declare  that  the  electors  of  the  State 
meant  to  lay  down  a  rule  that  would  practically  take  from  the 
inhabitants  of  our  cities  the  power  to  supply  themselves  with 


MUNICIPAL    GAS    CONTRACTS.  458c 

water  or  light.  To  reach  the  c< inclusion  iJiat  they  meant  to  do 
this,  we  must  find  clear  warrant  in  the  hingiiage  of  the  constitu- 
tional provision  itself."  "  It  is  clear  that  if  the  city,"  con- 
tinues the  court,  '*  should  fail  to  perform  its  contract,  the  re- 
covery would  be  for  danuiges  for  a  breach  of  contract,  and  not 
the  contract  rate  of  com]x?nsati(>n,  and,  therefore,  it  cannot  be 
true  that  the  whole  of  the  comj^ensation  is  certainly  demand- 
able  by  the  corporation  with  which  it  contracts.  It  may  be  that 
but  a  small  part  of  even  one  year's  compensation  can  be  recov- 
ered. On  the  other  hand,  the  failure  of  the  water  company 
to  perform  may  put  an  end  to  the  contract,  and  that  would,  of 
course,  terminate  all  liability  of  the  municipal  corporation. 
There  could  be  no  action  maintained  against  the  city  for  tlie 
recovery  of  compensation  under  the  contract  without  evidence 
that  the  water  had  been  furnished,  and  this  proves  that  there 
is  no  indebtedness  until  the  water  has  been  supplied  in  accord- 
ance with  the  terms  of  the  contract.  The  effect  of  the  proposed 
contract  is  that  the  city  shall  be  liable  for  water  as  it  is  fur- 
nished and  not  before.  It  is  not  until  after  the  water  has  been 
furnished  that  there  can  be  justly  said  to  be  a  debt,  for,  while 
there  might  be  a  liability  for  damages,  in  case  of  a  breach  on 
the  part  of  the  city,  there  is  certainty  none  under  the  contract 
until  the  city  has  received  that  for  which  it  contracted.  If 
it  can  pay  this  indebtedness  when  it  comes  into  existence,  with- 
out exceeding  the  constitutional  limitation,  then  there  is  no  vio- 
lation of  the  letter,  and  surely  none  of  the  spirit  of  the  consti- 
tution. We  are  careful  to  say  that  whcMi  the  debt  comes  into 
existence,  and  not  to  say  when  it  beeomes  due,  for  between  these 
things  there  is  an  essential  difference.  The  object  to  be  accom- 
plished by  the  amendment,  the  condition  and  necessities  of  the 
municipalities,  as  kno^\^l  to  the  authors  of  tlie  anieiulnicjits  and 
the  just  force  of  the  language  employed,  authorize  us  to  con- 
clude that  the  inhibition  of  the  constitution  does  not  a])ply  to 
contracts  for  water  to  be  paid  for  as  the  wat-er  is  furnished, 
provided  it  is  shown  that  the  contract  ju'ice  can  l)c  ]>aid  ffoiu 
the  current  revenues  as  the  water  is  furnished  and  witliout  in- 
creasing the  corporate  indebtedness  lx?yond  the  constitutional 


458d  OIL    AND    GAS. 

limit."  ^  The  Supreme  Court  of  Illinois  has  used  the  foUow- 
iii^-  language  coiiccniing  a  eniitract  for  gas:  "The  contract 
was  for  the  furnishing  of  an  article  for  nightly  consumption 
by  the  city  during  a  period  of  thirty  years,  fixing  the  price  at 
which  the  article  should  be  furnished.  There  was  no  indebted- 
ness in  advance  of  anything  being  furnished,  but  indebtedness 
arose  as  gas  should  have  Ix^en  furnished  along  from  night  to 
night  during  the  period  of  thirty  years.  The  contract  provides 
for  the  payment  monthly,  at  the  end  of  each  month  that  became 
due  for  the  uKuitli  then  ended.  When  the  company  has  fur- 
nished the  gas  for  a  certain  month,  then  there  is  a  liability  — 
an  indebtedness  arises  —  and  not  before,  as  we  conceive.  Hence 
the  amounts  that  might  become  due  and  payable  under  the  con- 
tract in  future  years,  did  not  constitute  a  debt  against  the  city 
at  the  time  of  entering  into  the  contract,  within  the  meaning  of 
the  constitution."  ^  But  a  contract  for  a  gas  plant  to  be  leased 
by  the  city,  which  increases  the  city's  indebtedness  beyond  the 
constitutional  limit  is  void,  although  merely  executory ;  ^  and 
so  is  a  contract  whereby  a  city  agrees  to  pay  a  definite  sum 
on  the  completion  of  water  works  or  a  gas  plant.*  But  an 
ordinance  providing  that  any  unexpended  appropriations  left 

5  Valparaiso  v.  Gardner,  97  Ind.  687;  30  L.  R.  A.  228;  Hay  v. 
1;  49  Am.  Rep.  416;  Sackett  v.  New  Sprin<rfiekl,  04  111.  App.  671;  Gold 
Albany,  88  Ind.  473;  45  Am.  Rep.  v.  Peoria,  65  111.  App.  602;  Winston 
467;  South  Bend  v.  Reynolds,  155  v.  Spokane.  12  Wash.  524;  41  Pac. 
Ind.  74;    57  N.  E.  Rep.  706.  Rep.  888;   Brown  v.  Corry.   175  Pa. 

6  East  St.  Louis  v.  East  St.  Louis,  gt.  528;  34  All.  Rep.  854  (affirming 
etc.,  Co.,  98  111.  415;  Dively  V.  Cedar  4  Pa.  Dist.  Rep.  645;  17  Pa.  Co. 
Falls,  27  la.  227;  Grant  v.  Daven-  ct.  Rep.  490);  State  v.  'Quayle 
port.  36  la.  396;  French  v.  Burling-  (Utah),  71  Pac.  Rep.  1060;  New 
ton.  42  la.  614;  Burlington  Water  Orleans  Gaslight  Co.  v.  New  Or- 
Co.  V.  Woodward.  49  la.  58;  City  Jeans,  42  La.  Ann.  1  18;  7  So.  Rep. 
Water  Supply  Co.  v.  Ottumwa.  120  559.  Walla  Walla  Water  Co..  172 
Fed.  Rep.  309;  State  v.  McCauley,  U.  S.  1  ;  19  Sup.  Ct.  Rep.  77.  See 
15  Cal.  429;  People  v.  Pacheco,  27  Appeal  of  City  of  Erie,  91  Pa.  St. 
Cal.  175;  Crowder  v.  Sullivan,  128  393;  Gosport  v.  Pritchard,  156  Ind. 
Ind.  486;  28  N.  E.  Rep.  94;  13  L.  R.  40O:  59  N.  E.  Rop.   1058. 

A.   647;   Lamar   Water,  etc..   Co.   v.  7  Spilm.in  v.    Parkersburg.   35   W. 

Lamar,  140  Mo.  145;  39  S.  W.  Rep.  Va.  605;   14  S.  E.  Rep.  279. 

768;  Creston  W.  W.  Co.  V.  Creston,  8  Culhertsnn    v.    Fulton,    127    111. 

101    la.   687;    70   N.   W.   Rep.   739;  30;  ig  N.  E.  Rep.  781. 

Keihl.  V.  South  Bend.  76  Fed.  Rep. 

921;  22  C.  C.  A.  618;  44  U.  S.  App. 


^^irxu'irAi.  r.AS   contuacts. 


459 


at  the  end  of  each  year  shall  be  used  to  pay  for  a  plant  pur- 
chased of  a  lighting  company,  if  the  city  elects  to  purchase  it ; 
and  in  case  of  a  ])urchase  the  acceptance  shall  create  no  indebt- 
edness against  it  in  favor  of  the  company,  is  valid;  for  in 
that  case  there  is  no  debt  against  the  city."  If  at  the  time 
a  city  enters  into  a  contract  for  light,  to  run  over  a  long 
series  of  years,  the  indebtedness  of  such  city  is  not  so  great  as 
to  prohibit  it;  and  before  it  expires  the  debt  so  increases  as  to 
exceed  the  limit  of  an  annual  installment  falling  due,  such 
installment  cannot  be  collected  from  it,  and  the  claim  for  it  is 
void.^" 

§409.     Length  of  term  of  contract. 

Elsewhere,  under  the  head  of  Monopolistic  Grants  and  Mono- 
polistic Contracts,  is  treated  the  power  of  a  nmnicipality  to 
bind  itself  in  perpetuity  or  for  a  long  term  of  years  to  take  gas 
from  a  gas  company;  and  it  is  not  necessary  to  repeat  here 
what  is  said  there.  Suffice  to  say  here,  that  wlum  a  statute  pro- 
vides that  a  municipality  may  enter  into  a  contract  for  the 
lighting  of  its  streets  for  a  certain  number  of  years,  it  cauTiot 
exceed  the  limitatiim  thus  imposed  upon  it.  If  the  municipal- 
ity undertakes  to  enter  into  a  contract  for  a  longer  ]")eriod  than 
the  statute  authorizes,  that  fact  will  not,  it  has  been  held, 
render  it  invalid;  but  it  will  be  valid  for  the  time  such  nninici- 

9  Hay  V.  Springfield,  64  111.  App.  tiiining  the  amount  of  such  debt. 
671;  Lapore  v.  Gamewell  Co.,  146  future  interest  wiiich  is  not  due  on 
Ind.  466;   45  N.  E.  Rep.  588.  tlie  day  it  beeomos  necessary  to   fix 

10  Keihl  V.  South  Bend,  76  Fed.  the  sum  of  indebtedness  is  not  to  be 
Rep.  921;  44  U.  S.  App.  687;  22  C.  counted.  Unearned  interest  is  not, 
C.  A.  618;    36  L.  R.  A.  228.  within  the  true  intent  and  meaning 

As  to  waiver  of  a  statutory  pro-  of  the   constitution,    a   part   of   the 

vision    prohibiting   an    indebtedness,  debt  of  the  city.     Epping  v.  Colum- 

see    Bronx    Gas,    etc.,    Co.    v.    New  i,us   (Ga.),  4.3  S.  E.  Rep.  803.  citing 

York,  17  N.  Y.  Misc.  433;  41  N.  Y.  Dawson   v.    Water   Works   Co..    106 

Supp.  358.  Ca.  6!)6;  .32  S.  E.  Rep.  907;  Colson 

In  Georgia  the   rule   was   said  to  v.  Portland.  Fed.  Cas.  3275;   Board 

be    ascertained    by    adding    to    the  y.  Hopkinsville,   95  Ky.  230;   24   S. 

principal  of  all  outstanding  indobt-  ^y.  Rep.  872;  44  Am.  St.  Rep.  222; 

edness    the    amount    of   all    accrued  23  L.  R.  A.  402;  Culbertson  v.  Ful- 

interest  that  may  be  past  due  and  ion.  127  111.  30;   18  N.  E.  Rep.  781  ; 

payable  on  the  day  the  amount  of  Springfield  v.  Edwards,  84  111.  626. 
the   debt  is   to  be   fixed.      In   a  seer 


■IGO  OIL    AND    GAS. 

l^ality  is  authorized  to  make  the  contract.  Thus  where  a  munici- 
pality was  empowered  to  enter  into  a  contract  for  the  furnishing 
of  water  for  twenty  years,  and  did  S(i;  l>iit  it  was  also  ])rovided 
in  the  contract  that  it  should  remain  in  full  force  for  an  addi- 
tional twenty  years,  if  the  municipality  did  not  purchase  the 
water  works  before  the  expiration  of  the  first  term,  it  was  held 
to  be  a  valid  contract  for  the  original  term  of  twenty  years.^^  A 
statute  authorizing  municipal  authorities  to  enter  into  a  contract 
for  water  from  year  to  year  does  not  require  them  to  make  a 
new  contract  every  year,  hut  they  may  enter  into  one  for  a  term 
of  years  —  as  for  twenty  years.^"  So  where  a  city  entered  into 
a  contract  for  twenty-one  years,  to  furnish  the  city  with  water ; 
and  the  company  at  great  expense  built  water  works  and  main- 
tained them  for  four  years ;  and  the  city  levied  the  projxr  tax 
and  ])aid  the  hydrant  rental  for  three  years,  and  otherwise 
recognized  the  validity  of  the  contract ;  it  was  declared  thai 
the  contract  would  not  be  held  void  for  the  reason  that  it  ex- 
ceeded the  length  of  time  allowed  by  statute,  but  it  would  be 
u]Theld  for  a  reasonable  time,  the  circumstances  and  condition 
of  the  city  as  to  population  and  assessed  valuation  being  sub- 
stantially the  same,  and  no  other  better  facilities  being  offered 
upon  more  reasonable  terms.^^  It  is  no  objection  to  the  contract 
that  the  term  begins  in  the  future,  or  even  that  it  does  not 
begin  until  after  the  terms  of  the  councilmen  authorizing  it  has 
expired.^*  But  the  proposition  that  a  contract  exceeding  the 
cess  of  time,  has  not  met  with  favor  from  all  the  courts.  Thus 
in  Ohio  it  has  been  held  that  such  a  contract  is  void,  absolutely. 
"  The  language  of  the  statute  is,"  said  the  Supreme  Court  of 

"Neosho  City  Water  Co.  v.  Ne-  licothe,  65  Ohio  St.   180;    62  N.  E. 

osho,   136  Mo.  498;   38   S.  W.   Rep.  Rep.    122. 

89;    State   v.    Ironton    Gas    Co.,    37  \\niere   a   contract  was   made  for 

Ohio  St.  45.  twenty  years,   instead  of  ten,   as  it 

12  Light,  Heat,   etc.,   Co.   v.  Jack-  should    have    been,    in    which    rates 
son,  73  !Miss.  .598;   19  So.  Rep.  771.  were  agreed  upon;   it  was  held  that 

13  Columbus  Water  Co.  v.  Colum-  at  the  end  of  the  first  ten  years  the 
bus,  48  Kan.  09;  28  Pac.  Rep.  1097.  municipality      could      regulate     the 

14  Logan  Natural  Gas  Co.  v.  Chil-  rates.     State  v.  Ironton  Gas  Co.,  37 

Ohio  St.   45. 


MUNlCirAL    GAS     CONTHAC'TS.  4U1 

that  State,  "  that  the  municipality  shall  iiut  have  power  to  con- 
tract for  any  light  for  any  term  not  exceeding  ten  years.  This 
implies,  ^vith  as  iinich  force  as  if  it  had  heen  expressly  stated^ 
that  the  municipality  shall  not  have  jiowcr  to  contract  for  any 
longer  than  ten  years,  and  the  natural  iuforeiicc  is,  we  thiid<, 
that  the  purpose  is  to  iidiibit  such  cunti'iuMs  ciitii-cly,  Inr  the 
only  certain  way  of  insuring  their  non-enforcement  is  to  j)re- 
vent  their  attempted  execution.  This  nuiy  not  Ix^  etrectually 
done  unless  they  are  held  to  be  void."  ^'^  This  rule  has  been 
followed  in  Indiana.^*'  In  this  Indiana  case  a  contract  was 
entered  into  in  1870  for  gas  for  a  period  of  twenty  years  be- 
ginning in  1871,  and  providing  that  at  the  end  of  that  period 
the  city  "  will  cither  jnirchase  from  the  said  gas  company  .  .  . 
their  gas  works,  pi])es,  meters  and  other  property  at  the  fair 
and  reasonable  value  thereof  at  that  time,  or  grant  them  the 
same  right  and  privileges  as  contained  in  this  ordinance  for 
another  term  of  not  less  than  twenty  years,  but  subject,  how- 
ever, to  such  other  reasonable  conditions  as  the  interest  of 
said  city,  and  of  her  citizens,  may  at  that  time  require."  In 
1883  the  legislature  enacted  a  statute  prohibiting  a  city  enter- 
ing into  a  contract  for  light  for  a  term  exceeding  ten  years  in 
duration;  and  in  ISSS,  three  years  before  the  first  twenty 
years'  period  had  expired,  tJie  city  entered  into  a  contract,  siqv 
posed  to  be  in  pursuance  of  the  terms  of  the  first  ordinance 
noted,  for  gas  for  a  term  of  twenty-three  years.  This  last  con- 
tract was  held  to  come  witliin  the  ])rohibit i<iii  of  the  statute 
referred  to.'"      Of  contracts  extending  over  a  long  term  of  years, 

15  Wellston    V.    Morgan,    50    Oliio  oil.     Illinois      Trust     and     Savings 

St.  147;   52  N.  E.  Rep.   127.  liank     v.     Arkansas    City.     7(>    Foil. 

i«  (Gaslight,   otc.   Co.   V.   New   Al-  Rep.  271;  22  C.  ('.  A.  171;  :U  L.  R. 

bany.    15(5   Ind.  40G;    59   X.  E.  Rep.  A.    518;    Adrian    W.    \V.    v.    Adrian. 

176.     See    also    to    the    same    effect  64  :Micli.  .'.S4 :  :?1  X.  W.  Rep.  n-iit    (a 

Manhattan  Trust  Co.  v.  Dayton.  5!)  thirty-year  contraet  construed ) . 

Fed.  Rep.  327;  8  C.  C.  A.  140;  State  A  power  to  enter  into  a  contract 

V.  Harrison,  40  X"^.  J.  L.  79;  Sonier-  for   gas   "and    to  cause   the   annual 

set  V.  Smith.  20  Ky.  Law  Rep.  1488;  expense   thereof"    to  be   c-ertified   to 

49  S.   W.  Rep.  45(i.  a  proper  board,  limits  the  power  to 

IT  A  contract  for  twenty-one  years  make  only  one  year  contracts.    Tay- 

was  held  not  to  l)o  an  abuse  of  dis-  lor  v.  T.Miiibertvillc   (N.  J.),  10  Atl. 

cretion  on  the  part  of  the  city  coun-  Rep.  80;);   Atlanli<'  City  \V.  W.  Co. 


■162  OIL    AND    GAS. 

tJie  Sui)reine  Court  of  Tiidiaiui  said:  ''It  may  be  true  that 
the  contract  creates  an  obligation  for  a  breach  of  which  an 
action  for  damages  will  lie,  but  it  does  not  create  a  right  of 
action  for  the  unearned  compensation.  The  earning  of  each 
year's  com})onsatioii  is  essential  to  the  existence  of  a  debt.  If 
municipal  corporations  cannot  contract  for  a  long  period  of  time 
for  such  things  as  light  or  water,  the  result  would  be  disas- 
trous, for  it  is  a  matter  of  common  knowledge  that  it  requires  a 
large  outlay  to  provide  iiiachinery  ami  ajtplianccs  for  supplying 
towns  and  cities  with  light  and  water,  and  that  no  one  will 
incur  the  necessary  expense  for  such  machinery  and  appliances 
if  only  short  periods  are  allowed  to  be  provided  for  by  contract. 
The  courts  cannot  presume  that  the  legislature  meant  to  so  crifr- 
ple  the  municipalities  of  the  State  as  to  prevent  them  from 
securing  light  ujx)n  reasonable  terms,  in  the  ordinary  mode  in 
which  such  a  thing  as  electric  light  or  gas  is  obtained."  ^^ 

§  409a.     No  term  fixed  in  ordinance  or  contract. 

Almost  invariably  the  contract  between  a  municipality  and 
a  gas  company  for  a  supply  of  gas,  or  a  franchise  granting  a 
right  to  occupy  the  streets  for  the  purpose  of  supplying  gas 
to  its  inhabitants,  is  limited  in  duration  of  time;  but  if  there 
be  no  limitation  in  length  of  time,  then  the  contract  or  fran- 
chise may  be  terminated  by  either  the  municipality  or  the 
gas  company  at  any  time.  The  gas  company,  may,  therefore, 
voluntarily  forfeit  its  right  to  exercise  its  privileges  within  the 
municipality  and  withdraw  therefrom ;  but  so  long  as  it  con- 
tinues to  exercise  any  of  its  franchises  within  the  municipality, 
it  may  be  compelled  to  exercise  them  fairly  and  without  dis- 
crimination.^^'' 

V.   Reed,  50   N.   J.   L.   &65;    15   Atl.  Hartford  v.   Hartford,  etc.,   Co.,   G5 

Rep.   10.     See  Harlem  Gaslight  Co.  Conn.  324;    32  Atl.  Rep.  925;  Den- 

V.  New  York,  33  N.  Y.  309,  affirm-  ver    v.    Hubbard     (Colo.    App.),    08 

ing  3   Robt.    100.  Pac.   Rep.   993;    Southwest,  etc.,  Co. 

18  Crowder    v.    Sullivan,    128   Ind.  v.  Joplin,    113   Fed.   Rep.   817. 

486;  28  N.  E.  Rep.  94;   13  L.  R.  A.  isa  East   Ohio   Gas   Co.   v.   Akron, 

647;    Poland   v.  Frankton,   142  Ind.  81   Ohio   St.  33;   90  N.  E.  Rep.  40. 

546;     41     N.    E.    Rep.    1031.      See  Where  a  city  adopted  an  ordinance 

Edison  Electric,  etc.,  Co.  v.  Jacobs,  for  the  sale  at  public  bidding  of  a 

8   Kulp   120;   Black  v.  Chester,   175  franchise  for  supplying  gas  for  twen- 

Pa.    St.     101;     34    Atl.    Rep.    354;  ty  years   from   the   date  of   the   ac- 


MUNICIPAL   GAS    CONTRACTS.  403 

§  410.     Extending  terra  of  contract. 

Tlie  luunieipulity  may  extend  the  term  of  a  eontract,  so  long 
as  it  keeps  within  the  statutory:  period,  and  the  gas  company 
will  agree  to  the  extension;  and  snch  extension  is  not  void 
on  the  ground  tliat  it  is  against  public  policy,  where  the  city 
is  authorized  by  the  statute  to  light  its  streets.  Xo  fraud  is 
implied  in  snch  a  oontraft  on  the  ground  that  the  city  cannot 
decrease  tJie  number  of  lamps  during  the  term.^"  Where  a 
contract  was  for  one  year,  entered  into  in  185G;  and  from  time 
to  time  new  contracts,  not  always  in  writing,  were  entered 
into,  but  the  company  C(^ntinued  to  furnish  gas  and  the  city 
to  pay  for  it  according  to  the  last  written  contract  until  a  new 
one  was  executed,  until  1884,  when  the  last  one  was  ex- 
ecuted, which  expired  October  1,  1885  ;  it  was  held  that  the  gas 
furnished  for  one  year  after  the  last  written  contract  expired 
must  be  paid  for  according  to  tlie  terms  of  such  contract^  and 
that  a  statute  forbidding  the  city  to  enter  into  a  second  eontract 
with  a  company  for  gas  to  be  furnished  while  a  contract  was  in 
force  applied  to  a  second  contract  with  another  company  for  gas 
during  the  year  1886.'° 

§411.     Bids  for  lighting. 

Unless  the  provisions  of  the  municipality's  charter  requires 
it,  or  some  statute,  the  contract  need  not  be  let  by  advertising 
for  bids,  and  if  bids  are  advertised  for,  it  i>eed  7iot  be  let  to 
the  lowest  bidder,  especially  if  the  right  to  choose  among  the 
bidders  is  reserved.'^  The  letting  of  bids  is  a  judicial  act,  and 
no  action  lies  for  damages  against  a  board  of  aldermen  for  their 

ceptance   of   the   bid,   and   providing  (Ky.),  90  S.  W.  Rep.   589;   28  Ky. 

that    the    successful    bidder    should  L.   Rep.   840. 

not  be  required  to  furnish  gas  until  '!>  Parfit    v.    Furguson,    38    N.    Y. 

about  two  years  later,   it  was   held  Supp.  466;   3  N.  Y.  App.  Div.   176; 

that   the   franchise   began   from   the  73  N.  Y.  St.  Rep.  621;   afRrmed   159 

date  of   the  contract   and   not.   from  N.  Y.  Ill;   53  N.  E.  707. 

the    date    the    bidder    was    required  20  Taylor  v.  Lanilx'rtville,  43  N.J. 

to  furnish  gas;   and  that  the  grant  Va].  107;    10  Atl.  Rep.  809. 

was    valid.      Truesdale    v.    Newport  21  Harlem  Gaslight  Co.  v.  Mayor, 

33  N.  Y.  309,  affirming  3  Robt.   100. 


464 


OIL   AND    GAS. 


failure  or  refusal  to  award  tn  a  eompany  the  contract  for  Hji^ht- 
ing  a  city.'"  If  a  city  fdnnally  reject  a  bid  it  cannot  after- 
wards accept  it  and  bind  the  bidder.'"^  Sj)e('ifications  in  an 
advertisements  for  bids,  some  of  wliidi  arc  for  ]iroposals  to  light 
a  city  as  it  is  lighted  at  tlio  time  bids  are  asked,  while  others 
call  for  light  on  any  other  plan,  subject  to  the  condition  of 
furnishing  lights  of  2,000  candle  power,  are  sufficiently  definite, 
and  need  not  be  more  explicit.^*  The  mere  fact  that  a  bidder 
has  ]nit  in  the  lowest  l)id  does  not  constitute  an  award  of  the 
contract  to  him,  where  the  statute  provides  that  "  if  the  lowest 
bidder  shall  refuse  or  neglect,  within  five  days  after  due  notice 
tliat  the  contract  has  boon  awarded,  to  execute  the  same,  the 
deposit  made  by  him  shall  be  forfeited  to  the  city."  '^  Com- 
petitive bidding  need  not  be  asked  under  the  charter  of  Greater 
New  York  before  entering  into  a  contract  for  a  supply  of  water 
to  tlie  municipality.""  If  a  contract  provides  for  an  increase 
of  the  number  of  lights  at  a  fixed  price  per  light  upon  demand  of 
the  city,  it  is  not  necessary  to  advertise  for  bids  concerning  the 
extra  lio-hts."^ 


22  East  River  Gaslight  Co.  v.  Don- 
nelly, 25  Hun  614;  Gaslight  Co.  v. 
Donnelly,  93  N.  Y.  557;  People  v. 
Gleason,  121  N.  Y.  631;  25  N.  E. 
Eep.   4. 

23  Brush  Electric  Ldght  Co.  v. 
Cincinnati,  28  Wk\y.  Law  Bull.  29; 
27  Wkly.  L.  Bull.  412;.  11  Ohio 
Dec.  581.  If  the  city  endeavors  to 
assign  the  certificate  of  deposit  ac- 
companying the  rejected  hid,  an  in- 
junction will  lie  to  prevent  it  doing 
so. 

24  Detroit  v.  Hosmcr,  79  ]\Iich. 
384;  44  N.  W.  Rep.  622. 

25  Erving  v.  New  York  City,  131 
N.  Y.  133;  29  N.  E.  Rep.  1101,  af- 
firming 16  N.  Y.   Supp.   612. 

In  Georgia  a  city  can  make  a 
cash  contract  for  current  supplies — 
such  as  lamps  and  gasoline — for 
lighting   streets   througli    its  appro- 


priate officers  without  a  formal  reso- 
lution entered  on  its  minutes.  Con- 
yers  v.  Kirk,  78  Ga.  480;  3  S.  E. 
Rep.  442. 

26  Gleason  v.  Dalton,  28  N.  Y. 
App.  Div.  555;  51  X.  Y.  Supp.  337; 
85  N.  Y.  St.  Rep.  337:  reversing  23 
X.  Y.  Misc.   IS;   50  N.  Y.  Supp.  90. 

27  Bronx  Gas,  etc.,  Co.  v.  New 
York,  17  N.  Y.  Misc.  433;  41  N.  Y. 
Supp.  358. 

As  to  bidding  contracts  and  the 
failure  to  accept  them,  see  Vincennes 
V.  Citizens'  Gaslight  Co.,  132  Ind. 
114:  31  N.  E.  Rep.  573;  16  L.  R. 
A.  485:  Searle  v.  Abraham,  73  la. 
507;  35  N.  W.  Rep.  612. 

An  ordinance  calling  for  bids 
must  be  literally  complied  with  by 
the  city,  by  inserting  the  requisite 
number  of  notices  in  a  newspaper 
calling    for    bids.      Taylor    v.    Lam- 


MUNICIPAL   GAS    CONTRACTS.  4G5 

^412.     How  contract  executed. 

As  a  rule  tliovo  is  nothing  peculiar  about  a  lighting  contract 
with  a  nnmieipality  diifcrent  from  other  contracts,  aside  from 
the  right  to  oceiii\v  the  streets  with  gas  mains  or  pipes.  Usu- 
ally, however,  these  contracts,  evidenced  hv  an  (irdinaiicc  aflnpti'il 
by  tlie  common  council  or  board  of  trustees,  specitieally  setting 
forth  the  terms  of  the  contract,  requires  an  acceptance  in 
writing  on  the  part  of  the  gas  or  water  eom]iany.  But  there 
is  nothing  to  ju'event  the  ordinance  being  binding,  although  the 
company  does  not  accept  its  terras  in  writing,  if  it  in  fact  a.c- 
cepts  its  terms  by  acting  under  it;  and  this  is  true  even  though 
the  ordinance  provides  for  a  written  acceptance ;  for  in  such  an 
instance  the  municipality  waives  a  written  acceptance  by  i)er- 
mitting  the  company  to  go  on  and  comply  with  the  provisions  of 
the  contract  without  first  requiring  a  written  acceptance.  The 
common  council  or  board  of  trustees  may  confer  authority  upon 
a  municipal  officer  to  execute  the  contract,  where  no  jiositive 
statute  prevents  it;  especially  where  it  reserves  the  right  to 
approve  it  after  it  is  formally  signed.  In  such  an  instance  as 
the  latter  one  the  approval  of  the  mayor  is  not  necessary."' 
Under  a  statute  that   the  Ixvard  of  street  commissioners  shall 

bertville,  43  N.  ,J.  Eq.  107:    10  All.  (luired  competition.     Pororia  v.  Wal- 

Rep.  809.  Inco.    120    Cal.    .307:    02    Pac.    Pep. 

The  constitution  of  California  pro-  Gl. 
vides  that  any  person  may  use  the  Where  a  statute  requires  bids,  he- 
streets  of  a  city,  under  proper  reg-  fore  granting  a  franchise  for  a  term 
ulations  as  to  damages  and  charges,  of  years;  and  it  must  award  the 
while  there  is  no  city  plant  for  sup-  contract  to  the  highest  and  best 
plying  light.  A  statute  provides  bidder,  a  city  cannot  enlarge  a  fran- 
that  every  franchise  to  erect  poles  chise  already  granted,  except  by 
or  wires  for  electric  lighting  shall  award  to  the  highest  and  best  bid- 
be  advertised  and  sold  to  the  higliest  der.  People's  El.,  etc.,  Co.  v.  Capi- 
bidder.  In  view  of  these  provisions,  tal  Gas,  etc.,  Co.,  IIC  Ky.  7C>;  75 
it  was  held  that  the  statuory  re-  S.  W.  Pep.  2S0;  25  Ky.  L.  Pep. 
quirement    of    advertising   and    sale  327. 

was   unconstitutional   as  applied   to  =«  Ran   Francisco   Has   Co.   v.   San 

cities    having    no    municipal    plant,  Francisco,  C  Cal.  190;  Lake  Charles, 

for   the   highest   bidder   at   the   sale  etc.,   Co.   v.   Lake   Charles,    100   I>a. 

would  necessarily  take  an  exclusive  05:    30    So.    Pep.    280:    Cosport    v. 

franchise,  while  the  constitution  re-  Pritchard,    15G   Ind.   400;    59  N.   E. 


466 


OIL   AND    GAS. 


puporiiitoiid  ;iti(l  jH-dvidc  for  lii2,-litinir  street  lani])s,  and  repair 
them,  it  has  power  to  make  a  contract  witli  a  company  for  gas 
at  a  fixed  rate,  where  it  acts  under  the  authority  of  the  city 
council,  the  charter  providing  that  it  shall  cause  to  be  executed 
all  orders  of  such  council."" 


§413.     Liability  of  city  for  breach  of  contract  —  damages. 

If  a  municipality  fails  to  keep  its  contract  with  the  company 
contracting  to  supply  it  with  gas,  it  is  liable  in  damages  for  the 
breach.  But  the  company  cannot  recover  the  price  of  gas  not 
furnished,  although  it  was  not  its  fault  tJiat  the  gas  was  not 
furnished.  Nor  is  it  any  defense  for  the  municipality  that  it 
is  unable  to  pay  for  the  gas  it  has  contracted  to  take ;  nor  can 
it  annul  the  contract  for  that  reason,  much  less  at  its   own 


Rep.  1058;  Logansport  v.  Dikeman, 
116  Ind.   15;   17  N.  E.  Rep.  587. 

If  the  mayor  can  veto  the  ordi- 
nance, he  must  do  so  within  the 
time  fixed  by  statute.  Pennsylva- 
nia Globe  Gas  Co.  v.  Scranton,  97 
Pa.   St.   538. 

29  Hartford  v.  Hartford  Electric 
Light  Co.,  65  Conn.  324;  32  Atl. 
Rep.  925. 

An  ordinance  providing  for  water 
for  a  city  to  be  furnished  by  a  pri- 
vate corporation  at  an  annual 
rental,  payable  quarterly  for  thirty 
years,  is  a  contract  for  such  times 
as  the  city  may  request  water  to 
be  furnished,  the  taking  being  op- 
tional with  the  city,  for  the  pur- 
pose of  determining  the  amount  of 
the  city's  indebtedness.  Gold  v.  Peo- 
ria,  65   HI.   App.   602. 

An  agreement  by  a  board  of  im- 
provement of  a  town  with  a  gas 
company  that  such  board  will  not 
give  its  consent  to  any  other  com- 
pany to  lay  its  pipes  in  the  streets 
does  not  prevent  other  officers  be- 
coming vested  with  the  power  to 
determine  whether  leave  shall  be 
granted  to  other  companies  to  lay 
pipes   in   the   streets    for   exercising 


the  power.  Parfitt  v.  Ferguson,  159 
N.  Y.  Ill;  53  X.  E.  Rep.  707;  af- 
firming 38  N.  Y.  Supp.  466 ;  3  N.  Y. 
App.  Div.   176. 

A  city  common  council,  having 
the  power  to  confer  a  franchise  on 
a  gas  company,  by  passing  resolu- 
tions contemplating  and  providing 
for  execution  of  contracts  with  a  gas 
company  for  lighting  the  city,  gives 
the  consent  requisite  to  confer  a 
fraTichise  on  the  company.  People 
V.  Littleton,  110  N.  Y.  App.  Div. 
728;  96  N.  Y.  Supp.  Rep.  444. 

If  a  statute  provides  that  an  ordi- 
nance shall  not  embrace  more  than 
one  subject,  which  shall  be  expressed 
in  its  title,  an  ordinance,  which  in 
its  title  and  body  provides  for  the 
letting  of  franchises  to  supply  the 
city  with  light,  heat,  and  power  by 
means  of  either  gas,  hot  water  and 
steam,  is  void.  Silva  v.  Newport, 
119  Ky.  587;  84  S.  W.  Rep.  741; 
27  Ky.  L.  Rep.  212. 

Power  of  officers  of  a  corporation 
to  enter  into  a  contract  to  supply 
gas.  Minnetonka  Oil  Co.  v.  Cleve- 
land, etc.,  Co.,  27  Okl.  ISO;  111  Pac. 
Rep.  326. 


MUNICJl'AL    GAS    CUNTKACTS.  4G7 

will.^"  For  a  failure  to  t4iko  p:as  tlio  company  rocovcrs  what. 
jirotits  it  would  have  made  under  the  contract  durin<2:  the  time 
it  was  not  allowed  to  furnish  the  gas,  or,  in  other  words,  the 
difference  hetween  the  cost  of  furnishing;  it  and  its  value  ac- 
cording to  the  terms  of  the  contract.''*  But  an  ordinance  may 
be  so  worded  that  there  is  no  contract  to  take  any  specific 
quantity;  in  which  event  the  city  will  not  Ix'  liahlc  for  a  re- 
fusal to  take  gas.  Thus  where  an  ordiiance  gave  a  gas  com- 
pany the  right  to  occupy  the  streets  with  its  pijies  and  mains, 
providing  that  it  should  furnish  "  good,  pure  gas  for  all  the 
public  lamps  of  the  city,  and  light,  cxtiiu'-uish  and  keep  them 
in  good  repair,"  at  a  fixed  price  jier  annum  per  lamp;  and  also 
provided  that  the  city  council  should  •"  have  the  right  at  all 
times  to  regulate  the  times  of  lighting  .  nd  extinguishing  the 
street  lamps,  and  of  determining  the  quantity  of  gas  to  ho  con- 
sumed by  the  city  " ;  it  was  held  that  there  was  no  express 
contract  by  the  city,  under  the  ordinance  to  take  any  quantity 
of  gas;  and  that  an  action  for  damages  could  not  be  maintained 
against  the  city  for  a  failure  to  take  it.''"  The  action  of  a  city 
does  not  always  amount  to  a  rescission  of  the  contract ;  as  where 
a  city  was  to  take  gas,  at  a  stated  price  per  month,  and  it  under- 
took to  rescind  the  contract  by  a  resolution  of  the  council, 
approved  by  the  mayor,  declaring  the  contract  to  be  at  an  end, 
and  notifying  the  company  of  its  action.  This  was  considered 
not  to  be  a  rescission  of  the  contract,  for  the  gas  comi)any 
had  not  assented  to  it ;  but  only  a  breach  of  it,  for  which  the 

30  Davenport  Gaslijilit  and  Coke  the  courts,  and  that  no  existinjr 
Co.  V.  Davenport  l:j  la.  229;  Gos-  ripht  should  be  projudicec'  or  af- 
port  V.   Pritchard,    1.50   Ind.  400.  feded.    hiit   tlie   contraet   should,    if 

31  Davenport  Gaslifjht  and  Coke  valid,  remain  to  the  same  extent  as 
Co.   V.  Davenport,    15   la.   0.  thontrh    the    eomnany    had   not    shut 

In     this     case     litigation     having  ofT  the   gas.     It  was  held   that    this 

arisen   between    the    city    and    com-  special    agreement    did    not    prevent 

pany   to   determine   the   validity   of  the  eompnny  from  recovering  of  the 

the     contract,     it     was     agreed     be-  eity  damages  for  the  breach   of  the 

tween  them  that  the  company  should  original     contract,     it    having    been 

have    the    privilege   of    shutting   off  declared    valid. 

the  gas   from    the   city   lamps   until  •■!'- Gaslijrht  and   Coke   Co.   v.   \ew 

the  question   of  the   validity  of  the  Albany.  I'jG  Ind.  40G;  50  N.  E.  Rep. 

contract    should    be    determined    by  176. 


468  OIL    AND    GAS. 

company  could  recover  from  the  city,  in  a  proper  action,  ade- 
quate damages.*^ 

§  413a.     Failure  of  grantee  of  franchise  to  carry  out  its  pro- 
visions. 

In  the  past  it  was  nothing  uncommon  for  a  corporation  or 
individuals  to  secure  a  grant  of  the  privilege  to  lay  its  pipes 
in  the  streets  of  a  municipality  and  to  furnish  its  inhabitants 
■with  gas ;  and  then  fail  to  carry  out  any  of  its  provisions. 
Few  if  any  actions  for  damages  have  ever  been  brought  because 
of  a  breach  of  such  contracts.  In  granting  the  privilege  to 
furnish  its  inhabitants  with  gas,  a  municipality  acts  in  a 
governmental  capacity  in  which  it  has  no  private  interest ;  and 
hence  the  municipality  as  a  governmental  agency,  nor  the  in- 
habitants suffer  damages  capable  of  ascertainment  because  of 
the  failure  of  the  grantee  to  perform  their  franchise  obliga- 
tions.'^* 

§414.     Assignment  of  lighting  contract. 

A  distinction  must  be  borne  in  mind  between  a  contract  to 
furnish  light  to  a  city,  and  the  grant  of  a  right  to  lay  pipes  in 
its  streets  and  maintain  a  lighting  plant.  The  distinction  may 
often  seem  shadowy,  but  it  is  in  this  way  that  the  many  seem- 
ingly conflicting  eases  can  be  reconciled.  Usually  lighting  con- 
tracts, either  in  direct  or  indirect  terms,  provide  that  they  may 
be  assigned  ;  and  this  is  not  uncommon  with  tlie  gi-ant  of  privi- 
leges to  occupy  the  streets  —  a  franchise  as  it  is  often  called. 

33  Nebraska  City  v.  Nebraska  City,  c.  53,  §  0,  the  city  of  St.  Paul  must 

etc.,  Co.,  9  Neb.  339  j   2  N.  W.  Rep.  pay  the  St.  Paul  Gaslight  Company 

870.  eight   per  cent,  of  the  cost  of  erec- 

Where  a  statute  provided  a  com-  tion   by  it  of   lamps   in   the   streets, 

mission  who  should  fix  the  price  of  while  the  lamps  are  in  actual  serv- 

gas  for  a  city  whenever  called  upon,  ice.      St.    Paul   Gaslight   Co.   v.    St. 

after   an  investigation   duly   had,   it  Paul,  91  Minn.  521;  98  N.  W.  Rep. 

was  held  that  a  city  failing  to  apply  8GS. 

to  the  commission  to  fix  a  rate  could  If   tlie  contract  with  a  city  is  to 

not   decline   to   pay   for    the   gas   it  furnish  gas  so  much  per  lamp,  the 

received,    and    could    not    secure    an  gas  company  cannot  insist  that  it  be 

injunction  to  prevent  the  turning  ofT  paid  so  much  per  cubic  foot.     Public 

the   gas,    unless   it    paid    the    admit-  Service     Corporation     v.     American 

tediv  just  rates  for  such  gas  as  it  Lighting  Co.,  67  N.  J.  Ch.  122;  57 

received.     BulTalo  v.  BufTalo  Gas  Co.  Atl.  Rep.  482. 

(N.  Y.),  112  N.  Y.  Supp.  408.  3.^a  Marshall   v.  Atkins    (Tex.  Civ. 

Under  Minnesota  laws,  1856,  p.  87,  App.),  127  S.  W.  Rep.  1148. 


MUNICIPAL   GAS    CONTRACTS. 


4G8a 


A  contract  or  ordiiiaiico  irivini:-  llic  riirlit  to  tlic  cuiitracttir  or 
grant^^o  to  assio^ii  or  transfer  tlio  contraft  or  i>:rant  is  valid.'* 
So  sueli  contracts  or  ofrants  seem  to  be  assij^nable  in  some  juris- 
dictions witliont  express  words  in  relation  thereto,  or  witliont  a 
statute  ex]iressl_v  autlioriziiiii:  it.''"''  It  has  ]>eeii  said  that  even 
an  exchisive  francliise  may  be  assi<:;ned.^''  And  under  a  statute 
authorizing  a  city  to  contract  with  a  company  for  a  supply  of 
water,  it  may  agi'ee  that  such  company  may  assign  the  contract 
or  sell  its  plant,  and  thnt  the  assignee  or  purchaser  shall  suc- 
ceed to  all  the  rights  of  the  assignor."  Where  the  right  of 
assignment  is  given,  or  the  assigiiment  is  acquiesced  in  by 
the  city,  the  assigmce  must  comply  with  all  the  terms  of  the 
original  contract,^®  or  as  modified  in  the  written  consent  to  the 
assignment.^**     If  the  grant  is  made  to  the  grantee,  his  admin- 


34  State  V.  Laclede  Gaslight  Co., 
102  Mo.  472;  14  S.  W.  Rei).  974; 
15  S.  W.  Rep.  383;  34  Am.  and 
Eng.  Corp.  Cas.  49;  Los  Angeles  v. 
Los  Angeles  Water  Co.,  177  U.  S. 
558;  19  Sup.  Ct.  Rep.  77;  Pitts- 
burgh Carbon  Co.  v.  Philadelphia 
Co.,  130  Pa.  St.  438;  IS  Atl.  Rep. 
732. 

The  holder  of  a  fifty-year  fran- 
chise to  furnish  natural  gas  to  the 
inhabitants  of  a  city  and  a  gas  cor- 
poration, owning  gas  wells  and  a 
system  for  distribution  in  the  citj', 
contracted  to  furnish  gas  to  light- 
ing corporation,  authorized  to  fur- 
nish gas  for  domestic  uses,  and  to 
buy  and  sell  gas,  for  forty-nine 
years,  the  balance  of  the  life  of  the 
franchise.  The  contract  provided 
that  the  lighting  corporation  should, 
during  the  life  of  the  contract,  enjoy 
the  privileges  conferred  by  the  ordi- 
nance granting  the  franchise,  and 
should  have  tlie  exclusive  right  to 
dispose  of  gas  within  the  city,  etc. 
It  was  held  that  the  contract  was 
in  effect  an  assignment  of  the  fran- 
chise to  the  lighting  corporation,  so 
as  to  give  it  tlie  exclusive  right  to 
distribute  gas  in  the  city.  Ft.  Smith 
Light  &  Traction  Co.  v.  Kelley,  94 
Ark.   4G1;    127   S.  W.   Rep.   975. 


Assignment  of  contract  to  supply 
gas.  Minnetonka  Oil  Co.  v.  Cleve- 
land, etc.,  Co.,  27  Okl.  180;  111  Pae. 
Rep.  32G. 

3"'  San  Luis  Water  Co.  v.  Estrada, 
117  Cal.  1G8;  48  Pac.  Rep.  1075. 
The  entire  property,  franchises  and 
I)rivileges  cannot  ne  transferred  by 
sale  or  lease  for  the  life  of  tiie 
corporation;  and  the  company  thus 
incorporated  abandons  its  corporate 
duties.  New  Albany  W.  W.  v. 
Louisville,   122   Fed.  Rep.   77G. 

36  Southern  Illuminating  Co.,  5 
Pa.  Dist.  781.  Put  see  Brunswick 
Gaslight  Co.  v.  United,  etc.,  Co., 
85  :Me.  532;  27  Atl.  Rep.  525. 

37  American  W.  W.  Co.  v.  Farm- 
ers^ Ivoan  and  Trust  Co.,  73  Fed. 
Rep.  95G;  20  C.  C.  A.  133;  36  U.  S. 
App.  5G3. 

38  Freeport  Borough  v.  Enterprise 
Natural  Gas  Co.,  18  Pa.  Super.  Ct. 
73;  Sandv  Lake  v.  Sandv  Lake, 
etc.,  Co.,  "iG  Pa.  Super.  Ct.  234; 
Austin  v.  Bartholomew,  107  Fed. 
Rep.  349;   4G  C.  C.  A.  327. 

3'J /n  re  Pryor,  55  Kan.  724;  41 
Pac   Rep.  958';   29  L.  R.  A.  398. 

What  is  not  an  assignment  and 
not  a»  violation  of  a  statute  for- 
bidding it,  see  Marlborough  Gas- 
light Co.  V.  Neal,  17G  Mass.  217; 
44  N.  E.  Rep.  139. 


4G8b 


OIL   AND    GAS. 


istrator  or  assigns,  his  administrator  may  carry  out  its  provi- 
sions aftor  such  grantee  lias  died.*" 

§415.     Rescission  of  contract  —  breach. 

Under  proper  circumstances  a  municipality  may  rescind  its 
contract  with  a  gas  company  to  take  gas  from  it  for  municipal 
purposes.  But  it  must  be  such  a  breach  as  goes  to  the  very 
substance  of  the  contract.*^  And  a  suit  for  that  purpose  can 
be  brought  by  it.*"  But  more  inadequacy  of  the  supply  of  gas 
is  not  a  sufficient  reason  for  cancelling  tlie  contract,  unless  a 
proper   demand   for  an   increase  of  the  supply  has   first  been 


40  stein  v.  Bienville  Water  Sup- 
ply Co.,  34  Fed.  Rep.  145;  affirmed 
141  U.  S.  G7;   11  Sup.  Ct.  Rep.  892. 

The  power  to  make  and  sell  gas 
does  not  imply  the  power  to  sell 
or  assign  the  privilege  to  make  and 
sell  gas  given  by  tlie  company's 
charter.  Chicago  Gaslight,  etc.,  Co. 
V.  People's,  etc.,  Co.,  121  111.  530; 
13  N.  E.  Rep.  1G9. 

A  franchise  granting  to  a  gas  com- 
pany and  its  assignees  the  riglit  to 
furnish  gas  to  the  inhabitants  of  a 
city  for  fifty  years,  cannot  be  divided 
by  assignment,  so  as  to  leave  the 
gas  company  the  right  to  enjoy 
equally  with  the  assignees  the  rights 
and  privileges  of  the  franchise,  but 
the  franchise  may  be  enjoyed  by  only 
one  party  at  a  time.  Ft.  Smith 
Light,  etc.,  Co.  v.  Kelly,  94  Ark. 
4G1;    127   S.   W.   Rep.   975. 

A  gas  company  cannot,  without 
legislative  authority,  sell  its  prop- 
erty and  franchise  in  such  a  way 
as  to  take  away  its  power  to  per- 
form its  public  duties.  Weld  v. 
Board,  etc.,  Commissioners,  197 
Mass.  55G;  84  N.  B.  Rep.  101. 

A  corporation  whose  business  is 
limited  by  its  charter  to  supplying 
a  city  and  its  inhabitants  "with 
light  and  motive  power  generated  by 
electricity,  steam,  or  other  artificial 
means,  and  to  the  furnishing  and 
supplying  of  either  said  light,  power, 
or  heat,"  has  no  power  to  purchase 


or  operate  a  gas  plant.  Covington 
Gaslight  Co.  v.  Covington  (Ky.), 
58  S.  W.  Rep.  805;  22  Ky.  L.  Rep. 
79G. 

41  Light,  Heat,  etc.,  Co.  v.  Jack- 
son, 73  Miss.  598;   19  So.  Rep.  771. 

A  gas  company  contracted  with 
a  prospective  brick  company  to  fur- 
nish free  gas  for  a  certain  period, 
and  gas  at  a  reduced  price  for  an 
additional  period,  on  condition  that 
the  brick  company  would  construct 
a  plant  at  a  designated  point,  of 
such  extent  and  capacity  as  to  reg- 
ularly and  permanently  employ  not 
less  than  twenty-five  adult  employes, 
and  that  if,  at  any  time,  the  plant 
should  be  found  operating  its  plant 
with  less  than  twenty-five  bona  fide 
adult  employees,  the  gas  company 
might  charge  three  cents  per  1,000 
cubic  feet  for  gas  used  and  not  be 
held  to  furnish  it  free  until  the  com- 
pany should  have  at  least  the  full 
number  of  adult  employees  on  its 
pay  roll.  The  brick  company  failed 
to  at  all  times  employ  the  desig- 
nated number  of  employees,  and  this 
was  held  not  to  be  ground  for  res- 
cinding the  contract,  but  merely  gave 
the  gas  company  the  right  to  collect 
for  the  gas  supplied  at  the  rate 
specified.  jMinnotonka  Oil  Co.  v. 
Cleveland,  etc.,  Co.,  27  Okl.  180;  111 
Pac.  Rep.  32G. 

•«2  Light,  Heat,  etc.,  Co.  v.  Jack- 
son, supra. 


MUNICirVL    (IAS    CONTRACTS.  468c 

made.'*'  In  the  ease  of  a  contract  for  water,  to  l>o  furnished 
from  certain  named  s]>riiiirs,  mere  inndccinacv  of  the  supi)ly, 
occasioned  by  the  fact  that  the  spring's  did  not  furnisli  enouj^h 
water,  was  held  to  he  no  re;ison  for  a  caneeHation  of  the  con- 
tract/''  If  the  quality  of  the  gas  is  not  such  as  the  contract 
calls  for,  thnt  is  not  a  sufficient  reason  for  its  cancellation, 
unless  the  company's  attention  has  been  called  to  it,  a  demand 
made  for  a  compliance  with  the  contract  in  that  respect,  and 
a  failure  made  or  neglect  to  comply  with  the  demand;  and 
especially  is  this  true,  where  the  ciuality  of  gas  complained  of 
has  been  furnished  for  a  period  of  years/^'  Where  the  gas 
was  to  be  paid  at  so  much  a  light,  burning  from  sunset  to  sun- 
rise, to  consume  a  certain  number  of  feet  per  hour,  an  inability 
on  the  part  of  the  company  to  furnish  the  full  amount  agreed 
upon,  is  not  a  sufficient  reason  for  cancelling  the  contract, 
where  such  inability  arises  from  frost  getting  into  the  pipes 
and  clogging  them  so  the  gas  cannot  flow  through  them  in 
suflficient  quantities/* 

§  415a.     Quality  of  gas. 

In  the  early  stages  of  gas  production  little  or  nothing  was 
said  concerning  the  quality  of  gas  to  be  furnished.  "Gas 
was  gas,"  and  that  was  all  there  was  of  it.  But  gradually  a 
knowledge  of  the  fact  dawned  upon  the  minds  of  public  offi- 

43  United    States    W.    W     €o.    v.  used;  that  it  sold  such  gas,  and  re- 

Du  Bois,  176  Pa.  St.  439;  38  W.  N.  ceivcd  full  pay  from  consumers  being 

C.   419;    35   Atl.   Rep.   2.51.  immaterial,  since  it  could  not  avoid 

**  Du  Bois  V.  Du  Bois  City  W.  W.  receiving  the  gas.     Wilson  v.  Rush- 
Co.,   176  Pa.   St.  430;   38  W.   N.  C.  ville    M.    &    G.    Co.,    126    N.    Y.    S. 
417;  35  Atl.  Rep.  248;   34  L.  R.  A.  830. 
92.  A  private  consumer  cannot  bring 

•*•''  Winfield  v.  Winfield  Wat«r  Co.,  suit    to    cancel    the    city's    contract 

51    Kan.   70;    32    Pac.    Rep.    603.  with  the  gas  company,   for  there   is 

Whore  a  contract  required  plain-  no  privity  of  contract  between  him 

tifl",   who    had    exclusive    c<jntrol   of  and    the    company.      Akron    Water 

natural  gas  to  furnish  it  at  certain  Works  Co.  v.  Brownless,  1  Ohio  Dec. 

pressure,    and    they    refused,    when  1 ;    10  Ohio   C.   C.   620. 
the   pressure  became  less  than   con-  The  company  may  buy  gas  to  sup- 

tracted  for,  to  turn  it  off  at  the  well  ply    its  customers   with.      Hamilton 

until    the    proper    pressure    was    re-  v.   Hamilton   Caslight  Co.,    11    Ohio 

stored,   as  requested   by  the   defend-  Dec.  513. 

ant,   and    permitted    inferior  gas    to  4"  7»  re  Richmond  Gas  Co.  [18!)3], 

flow  into  the  defendant's   pipes,  the  1   Q.  B.  50;    62  L.  J.  Q.   B.   172;   67 

defendant  was  not  liable  for  the  gas  L.  T.  554;   41  W.  R.  41;  56  J.  P. 


4G8cl  OIL   AND    GAS. 

cials  that  one  gas  would  produce  more  light  per  cubic  feet 
than  another  kind ;  and  if  the  charge  was  the  same  per  cubic 
foot,  more  light  be  obtained  for  the  same  price.  So  in  time 
it  became  a  recognized  part  of  contracts  with  cities  that  the 
gas  company  must  furnish  gas  of  a  certain  candle-power, — 
the  light  of  a  candle  being  accepted  as  the  measure.  A  rather 
odd  phase  of  an  instance  of  this  kind  arose  in  England. 
By  a  special  act  of  1868  a  gas  company  was  required  to  supply 
gas  of  such  a  quality  as  to  produce,  from  an  Argand  burner 
having  fifteen  holes  and  a  seven-inch  chimney  and  consuming 
five  feet  of  gas  an  hour,  a  light  of  fourteen  candle-power.  It 
was  held  that  the  obligation  thus  imposed  on  the  gas  company 
was  fulfilled  in  1908  by  the  supply  of  gas  capable  of  producing 
a  light  of  the  given  candle-power  from  an  Argand  burner,  com- 
plying with  the  specified  conditions,  of  the  best  type  known, 
for  the  time  being,  though  it  was  not  capable  of  producing 
light  of  that  candle-power  from  Argand  burners,  complying 
with  the  specified  conditions,  of  the  best  type  known  at  the 
date  of  the  special  Act  of  1868.''°^ 

§  416.     Discontinuing  use  of  gas. 

A  contract  may  be  so  drawn  as  to  permit  a  change  from  the 
use  of  gas  to  electricity ;  and  this  is  frequently  done.*^  So 
it  is  not  infrequent  occurrence  to  draw  it  so  as  to  authorize 
the  discontinuance  of  some  of  the  lights  and  the  establishment 
of  others.  An  instance  of  this  kind  is  furnished  by  an  Iowa 
case.  There  the  contract  provided  a  city  should  take  gas  for 
lighting  the  streets  and  its  public  buildings  for  ten  years,  but 
also  provided  that  the  city  might  discontinue  the  use  of  gas 
lamps  in  the  business  district  after  a  certain  time,  less  than  ten 
years,  and  change  to  electric  light;  and  also  that  it  might 
discontinue  the  gas  lamps  in  the  other  parts  of  the  city  tempo- 
rarily or  permanently.  It  was  held  that  the  city  had  no  right 
to  use  other  means  to  light  the  streets  outside  of  the  business 
district  than  gas ;  and  if  it  choose  to  light  such  streets  it  must 
take  the  gas  from  the  gas  company.^'* 

46a  Brentford  Cas  Co.  v.  Chiswick  ^^  Capitol    City    Gaslight    Co.    v. 

Urban  Council,  G  L.  G.  R.   725;   72  Dcs  Moines,   93  la.  547;   Gl   N.   VV. 

J.  P.  378.  Rf'P-    106G;   48  Am.  and  Eng.  Corp. 

47  Gaslight   and  Coke   Co.  v.  New  Cas.  138. 
Albany,  139  Ind.  G60;  39  N.  E.  Rep. 
462. 


MUNICIPAL   GAS    CONTRACTS.  409 

§417.     Changing  contract. 

A  municipality  can  no  more  clian^o  a  liirlitiiifr  contract  it  has 
with  a  company,  than  can  an  individual  chaiiiro  a  contract  wiili 
such  company,  unless  the  ct)mpany  agrees  to  such  a  clianpc. 
Usually  such  contracts  provide  for  changes,  and  a  proportionate 
increase  or  decrease  of  the  amount  to  be  paid  according  to  the 
changes  made.  Where  the  guaranty  in  a  contract  was  that  the 
100  lights  provided  for  in  such  contract  would  furnish  good  and 
sufllcient  light  for  a  territory  equal  to  that  then  lighted  by  gas, 
it  was  held  that  it  became  inoperative  when  a  portion  of  the 
electricity  necessary  to  supply  tlu^  100  liglits  was  diverted  from 
the  street  lights  to  those  in  the  city's  jniblic  buildings.'"' 

§418.     Gas  furnished  not  covered  by  contract. —  No  contract. 

If  a  gas  company  furnishes  a  city  gas  for  lights  outside  of  its 
contract,  then  the  city  is  liable  f(U-  the  amount  thus  supplied, 
regardless  of  the  contract.  "  A  municipality,"  said  Justice 
Fields,  ''  cannot  avail  itself  of  the  property  or  lalwr  of  a  ])arty, 
and  then  screen  itself  from  responsibility  under  the  ])lea  that 
it  never  passed  an  ordinance  on  the  subject.  The  law  imjdies 
a  promise  to  pay  in  such  cases."  ^^  If  a  city  receives  gas  and 
uses  it  for  lighting  its  streets,  without  any  contract  relative 
thereto,  it  will  be  liable,  in  an  action  to  recover  therefor,  for 
the  value  of  the  gas  supplied. °^ 

49  Brush  Electric  Light,  etc.,  Co.  as  tlio  sol(»  business  for  which  the 
V.  Montgomery,  114  Ala.  433;  21  corporation  was  organized.  Keith 
So.  Rep.  OGO.  See  Southwest,  etc.,  v.  Joiinson,  10!)  Ky.  421;  59  S.  W. 
Co.  V.  Joplin,  113  Fed.  Rep.  817.  487;  22  Ky.  Law  Rep.  947. 

50  San  Francisco  Gas  Co.  v.  San  •'■i  Ilariein  Gaslight  Co.  v.  New 
Francisco,  9  Cal.  453.  York   City,  33  X.   Y.  309,   affirming 

Though  the  charter  of  a  gas  com-  3  Ilobt.  100.  In  this  case  it  was 
pany  states  that  the  business  and  lield  that  a  contract  fixing  the  price 
operations  of  the  company  shall  to  be  paid  for  a  particular  year 
consist  in  furnishing  a  certain  city  is  not  in  its  nature  an  agreement 
with  gaslight  in  pursuance  of  and  running  from  year  to  year,  and  can- 
according  to  the  terms  of  a  certain  not  fix  the  measure  of  componsa- 
ordinance  of  the  city,  the  company  tion  for  subse(|uent  use.  See  Con- 
may  acquire  a  new  franchise  for  yers  v.  Kirk,  78  Ga.  480;  3  S.  E. 
supplying   the    city   with   gas,   there  Rep.  442. 

being  no  intention  to  designate  the  Mere  delay  to  pay  elaim  for  extra 

carrying  out  of  the  existing  contract  lights    furnished    is    not    conclusive 

against   the    right   of   the   company 


470 
§419. 


OIL    AND   GAS. 

Municipality  extending  limits  after  making  contract. 


Contracts  usunllv  provide  for  new  torritxtry  aikled  to  that  of 
the  nmnicipality  after  it  is  entered  into,  or  else  tliey  are 
nsnally  of  sutKcient  elasticity  to  provide  for  such  additional 
territorv.  And  this  is  true  even  where  no  contract  has  been 
nindc  fur  lii;ht  iiiii',  l>iit  simply  the  riiilit  to  occupy  the  streets  with 
piix?s  or  mains  and  suj)ply  private  consumers  has  been  given. 
In  such  instances  the  gas  company  may  occupy  the  new  terri- 
tory without  further  contract  or  grant  and  collect  for  gas  used 
in  the  street  lamps.'''-  In  the  Missouri  ease  was  also  involved 
tlie  element  of  est()])])el,  Ixx-ause  of  the  fact  that  the  gas  com- 
pany had  occupied  the  added  territory  for  a  long  series  of 
years.  In  New  York  it  is  held  that  the  consent  of  the  city  is 
not  confined  to  the  streets  existing  at  the  time  the  consent  is 
given,  unless  that  be  the  natural  reading  of  the  consent.^^  And 
a  gas  company  does  not  violate  its  contract  with  a  municipality 
or  its  franchise  where  it  delivers  gas  to  a  consumer  within  the 
city,  knowing  at  the  time  the  consumer  will  not  use  it  until 
he  has  trans]:K)rtcd  it  beyond  the  municipal  limits.^'* 


to  pay  for  them.  Brush  Electric 
Light,  etc.j  Co.  V.  Montgomery,  114 
Ala.  4.'?3;  21  So.  Rep.  960;  but  if 
both  the  city  and  the  company 
thought  the  extra  lights  came  un- 
der the  general  contract,  then  no 
pay  for  them  up  to  the  date  that 
that  is  discovered  not  to  be  true  can 
be  claimed.     Id. 

52  St.  Louis  Gaslight  Co.  v.  St. 
Louis,  46  Mo.  121 ;  Cincinnati,  etc., 
Co.  V.  Avondale,  43  Ohio  St.  257;  1 
N.  E.  Rep.  .527 ;  Des  INIoines  v.  Des 
Moines  VV.  W.  Co.,  9.5  la.  348;  64 
N.  W.  Rep.  269;  People  v.  Deehan, 
153  N.  Y.  528;  47  N.  E.  Rep.  787. 
reversing  11  App.  Div.  175;  42  N. 
Y.  Supp.   1P71. 

53  People  V.  Deehan.  153  N.  Y. 
528;  47  X.  E.  Rep.  787,  reversing 
11  App.  Div.  175;  42  N.  Y.  Supp. 
1071.  See  the  English  case  of  Hud- 
dersfield  v.  Ravensthorpe  Urban  Dis- 


trict Council  [1897],  2  Ch.  121;  66 
L.  J.  Ch.  581;  reversing  [1897]  Ch. 
652;  66  L!  J.  Ch.  N.  S.  286;  76  L. 
T.   Rep.   377. 

54  Lawrence  v.  ]Methuen,  166 
Mass.  206;   44  N.  E.  Rep.  247. 

Under  a  Pennsylvania  statute  giv- 
ing an  exclusive  franchise  to  a  gas 
company,  if  the  city  limits  be  ex- 
tended another  company  will  not  be 
given  a  franchise  for  the  new  terri- 
tory. In  re  Levis  Water  Co.,  11 
Pa.    Ct.    Rep.    178. 

In  this  State  a  corporation  was 
organized  to  supply  a  village  with 
water.  It  accepted  the  provisions 
f)f  the  Pennsylvania  constitution  and 
the  Act  of  April  29,  1874.  and  its 
supplements  and  amendments  after 
the  repeal  of  the  exclusive  privi- 
leges given  to  water  companies  by 
Sec.  34.  clause  3,  of  that  Art.  by 
the   Act   of   June    2,    1887.     It   was 


MUNICIPAL   GAS    CONTRACTS.  471 

§420.     Municipality  receiving  light  under  a  void  contract. 

If  the  oontnu't  between  a  iiiuni('i])ality  jukI  a  lightinc;  eoiii- 
pany  is  void  iKH-ause  of  a  lack  of  power  on  the  ]iart  <if  tlu; 
former  to  bind  itself  by  the  kind  of  a  contract  in  whieh  it  at- 
tempted to  do  so,  yet  that  will  not  j^rmit  the  munieiixility 
to  wholly  escape  liability  to  reimburse  the  company  for  the 
liffht  actuallv  funiishcd.  Such  an  instance  is  where  the  niii- 
nicipality  has  attempted  to  g"ive  the  company  the  ri<iht  to  oc- 
cupy its  streets,  to  the  exclusion  of  all  other  companies.  In 
such  an  instance  the  validity  of  the  contract  in  the  feature 
alluded  to  is  no  defense  in  an  actioTi  to  recover  for  the  liuht 
furnished. °^  So  where  a  city  agreed  to  exempt  a  gas  com])aiiy 
from  city  taxation,  and  to  pay  it  with  money  out  of  its  sinking 
fund,  this  was  held  to  Ix?  no  defense  in  an  action  for  the  price 
agreed  upon,  for  in  that  respect  the  city  could  bind  itself,  and 
the  ultra  vires  provisions  did  not  invalidate  the  entire  contract.^" 
The  fact  that  the  contract  was  let  without  due  advertisement 
for  bids  is  also  no  defense  in  an  action  to  collect  rents. "'^"  If 
the  ordinance  be  void  under  which  tlie  gas  or  water  is  furnished, 
the  city  cannot  arbitrarily  pass  an  ordinance  fixing  the  rates  at 
any  rate  it  chooses.^^ 


held  that  it  could  not  obtain  an 
exclusive  right  or  privilege  to  sup- 
ply water  to  the  village.  Centre 
Hall  Water  Co.  v.  Centre  Hall,  186 
Pa.  St.  74;   40  Atl.   Rep.   153. 

A  grant  to  lay  pipes  in  the  streets 
of  a  city  and  in  "any  additions 
thereto"  covers  an  unplatted  addi- 
tion to  the  city.  Seattle  Lighting 
Co.  v.  Seattle,  54  Wash.  9;  102 
Pac.  Kep.  7G7. 

A  right  to  lay  pipes  in  the  streets 
was  granted  by  the  '"town  of  j\lill- 
Tille  and  its  vicinity."  At  the  time 
the  \-illage  of  Alillville  was  situated 
within  the  town  of  Millville.  It 
was  held  that  the  words  "town  of 
Millville  and  its  vicinity"  referred 
to  the  village  of  Millville  and  its 
vicinity,  and  not  to  the  township 
of  Millville.  McCarter  v.  Millville, 
Gaslight  Co.,  73  N.  J.  Eq.  73'J; 
69  Atl.   Rep.   248. 

55  Illinois  Trust,  etc..  Bank  v. 
Arkansas  City,  76  Fed.  Rep.  271;  22 
C.  C.  A.  171;  34  L.  R.  A.  18;  Cos- 
port  v.  Pritchard,  156  Ind.  400;  5!) 
N.    E.    Rep.    1134;    Higgins   v.    Sau 


Diego,  118  Cal.  524;  45  Pac.  Rep. 
824;  50  Pac.  Rep.  670;  Sandy  I^ike 
V.  Sandy  Lake,  etc..  Gas  Co.,  16 
Pa.   Super.   Ct.   234. 

58  Nebraska  City  v.  Nebraska  Citv, 
etc.,  Co.,  9  Neb.  339;  2  N.  VV.  Rep. 
870. 

*56  Nicholasville  Water  Co.  v. 
Nicholasville  (Ky.),  18  Ky.  L.  Rep. 
592;  3()  S.  W.  Rep.  549;  38  S.  W. 
Rep.  430. 

57  Des  Moines  v.  Des  Moines  W. 
W.  Co.,  95  la.  348;  64  N.  W.  Rep. 
269. 

Where  the  ordinance  was  void, 
the  price  fixed  in  it  was  held  not 
to  control,  but  the  company  could 
recover  what  the  gas  was  worth, 
not  being  limited  by  the  amount 
named  in  the  ordinance.  Klinira 
Gaslight  Co.  v.  Elmira,  2  Alli.  L. 
Jr.  392.  But  the  fact  that  that 
part  of  the  grant  giving  an  exclu- 
sive grant  is  void,  does  not  disturb 
the  price  fixed  upon  in  the  con- 
tract. East  St.  Ivouis  v.  East  St. 
Ivouis  Gaslight  and  Coke  Co.,  98 
111.  415. 


472  OIL   AND    GAS. 

§421.     Contracts  void  for  uncertainty. 

Occasionally  contracts  for  muiiicipal  lighting  are  so  uncertain 
as  to  be  void.  An  illustration  of  this  kind  arose  in  Indiana. 
A  city  agreed  with  a  gas  company  to  take  gas  for  a  ]x?ri<)d  of 
twenty-three  years,  and  in  the  contract  it  was  provided  that  if, 
at  any  time  during  the  period  of  the  contract,  the  city  deter- 
mined to  substitute  electric  for  gas  lights  the  gas  company 
should  "  make  the  substitution  of  such  electric  lights  instead  of 
as  many  street  lamps  as  may  be  agreed  upon  between  the  city 
and  the  company,  the  price  at  which  said  cloetric  lights  shall  be 
furnished  to  be  fixed  by  an  equitable  agreement  between  the 
city  and  the  company."  It  was  held  that  this  contract  was  so 
uncertain  that  it  was  void,  no  agreement  ever  having  been  made 
as  to  what  or  how  many  gas  lamps  were  to  be  removed  or  what 
should  be  the  price  of  the  electric  lights ;  and  so  the  court  re- 
fused to  enjoin  the  city  from  procuring  electric  lights  by  com- 
petitive bids.^^  ^Vliere  the  contract  was  to  be  paid,  after  a 
specified  time,  the  "  average  price  paid  by  other  cities  "  hav- 
ing efficient  works,  and  in  case  of  a  disagreement  the  amount 
should  be  settled  by  arbitration,  it  was  held  to  be  so  imprac- 
ticable, unreasonable,  and  indefinite  that  it  could  not  be  en- 
forced.^'' 

§422.     Moonlight  schedule. 

It  is  a  very  common  part  of  municipality  lighting  contracts 
that  no  charge  shall  be  made  for  light  on  nights  when  the  moon 
furnishes  a  certain  amount  of  light ;  and  usually  tliey  give  the 
municipality  the  power  to  furnish  a  schedule  of  the  nights,  or 
parts  of  nights,  upon  which  gas  is  not  to  be  furnished.  These 
arrangements  generally  prevail  more  frequently  in  the  smaller 
than  in  the  larger  cities.     AVhere  such  a  schedule  was  in  force, 

In  Grand  Island  Gas  Co.  v.  West,  Albany.  130  Ind.  fibO;  39  N.  E.  Rep. 

28  Neb.  852;  45  N.  W.  Rop.  242,  it  462. 

was  held  that  the  amount  could  not  sn  T>es   Moines   v.   Des  Moines   W. 

exceed  the  price  named   in  the  void  W.     Co..     95     la.    348;     64     N.    W. 

ordinance.  Kep.  269. 

58  Gaslight  and   Coke  Co.  v.  New 


MUNICIPAL   GAS    CONTRACTS.  473 

and  it  was  also  provided  in  a  proviso  that  tlio  city  should  not  be 
liable  for  rent  for  any  lamps  for  any  niulit  wlicn  lamps  were 
not  lighted,  it  was  held  that  fnll  force  and  elfect  must  ho  given 
to  the  entire  contract,  so  as  to  include  the  proviso,  and  that  the 
city  was  not  liable  for  the  rent  of  lamps  on  moonlight  nights, 
when  the  lamps  were  not  lighted."" 

§423.     The  price  to  be  paid. 

Elsewhere  has  been  discussed  the  price  to  be  paid  for  gas  as 
fixed  by  ordinance;  ''^  and  it  is  not  necessary  to  again  refer  to 
the  cases  there  cited.  The  municipality  has  the  right  to  agree 
to  the  price  to  be  paid  by  it  for  gas ;  and  it  is  not  a  sufficient 
charge  of  fraud  to  annul  such  contract  merely  to  allege  that 
the  price  agreed  ujion  was  higher  than  private  consumers  paid, 
"  The  price  to  be  paid  for  gas  was  within  the  discretion  of  the 
board  of  trustees  of  the  town,"  said  the  Supreme  Court  of  In- 
diana. "  The  only  allegation  concerning  fraud  is  that  the 
price  for  which  appellee  is  alwut  to  contract  is  three  times 
what  is  paid  by  private  consumers ;  and  for  that  reason  the 
proposed  contract  is  fraudulent.  There  is  no  allegation  that 
the  gas  plant  may  not  have  to  be  enlarged  to  furnish  the  gas 
provided  for  in  the  contract ;  or  that  the  plant  is  of  suthcient 
capacity  to  furnish  gas  to  light  the  town,  or  that  any  ]>erson  or 
company  will  furnish  the  gas  for  less  per  year  or  per  thousand 
feet,  or  that  the  gas  to  be  furnished  to  the  town  under  the  ]iro- 
posed  contract,  is  not  the  same  quality  as  that  furnislicd  to 
private  consumers,  or  that  the  board  of  town  trustees  or  any 
one  or  more  of  them  were  about  to  enter  into  this  contract  from 
any  improper  or  corrupt  motive"*  or  influence."*'* 

§424.     Free  light. 

Often  the  gi'ant  of  a  company  to  (K'cupy  the  streets  contains 
an  agreement  that  the  grantor  shall  have  a  certain  amount  of 
light    free    of    charge,    in    consideration    cf   the    grant.      Such 

"oWinfipld    V.    Winficld    Has    Co.,  "2  Sewn  id     v.    l.ihoriy.     Ifi     Ind. 

.37  Kan.  24;   14  Pac.  Rep.  40!).  551;    42    N.   F.    B^p.    :?9. 

«i  See  Sec.  394. 


474  OIL   AND    GAS. 

agreements  are  valid,  and  liiiuliiig  even  ^\\xlu  llic  assignee;  and 
this  is  true  even  though  the  original  resolution  was  not  properly 
signed  by  the  ofheers  of  the  municipality,  if  the  lighting  com- 
pany has  built  its  works,  and  occupied  the  streets  under  it; 
and  especially  so  is  this  true  if  it  has  furnished  free  light  for 
several  years."^  But,  in  the  same  State,  where  a  water  com- 
pany that  had  the  right,  under  a  statute,  to  enter  ufx)n  the 
streets,  it  was  held  by  another  court  that  a  municipal  permit 
was  unreasonable  if  granted  on  the  condition  that  the  company 
should  supply  the  municipality  with  water  and  twenty-five  water 
plugs  free  of  charge  for  all  time.***  AVliere  the  contract  with  a 
natural  gas  company  was  to  furnish  the  village  gas  free  of 
charge  "  for  all  street  lamps,"  it  was  held  that  the  kind  of 
lamps  intended  nuist  be  determined  by  the  common  use  of  the 
word  where  natural  gas  was  used  for  street  lighting;  and  as 
at  the  time  the  contract  was  executed  oj)en  lights  only  were 
used,  it  was  further  held  that  the  gas  company  could  not  re- 
quire the  village  to  use  enclosed  lights  in  order  to  reduce  the 
amount  of  gas  used."^  In  the  charter  of  a  gas  corporation  in- 
corporated for  a  certain  city  was  a  clause  requiring  the  com- 
pany to  furnish  gas  sufficient  to  supply  five  burners  for  the 
public  streets  for  the  first  year,  ten  for  the  second,  and  so  on, 
and  were  to  complete  all  necessary  works  for  the  manufacture 
of  gas  by  June  1,  1864.  The  company  sued  the  city  to  re- 
cover the  value  of  gas  furnished  it  between  the  years  1864 
and  1866,  and  it  was  held  that  the  charter  did  not  intend  that 
the  gas  company  should  receive  a  compensation  for  the  gas  it 
was  required  to  supply,  the  law  did  not  raise  an  implied  prom- 
ise to  pay  for  it,  and  that  after  the  time  a]>]K)inted  for  the 
completion  of  the  works  the  company  should  be  allowed  a 
reasonable  time  for  the  laying  of  gas  pipes  in  order  to  supply 


63  Sandy    T^ake    v.     Sandy    Lake,  cs  Saltpburw  Gas  Co.  v.  Saltsburg. 

etc..  Oas  Co.,  16  Pa.  Super.  Ct.  234.  138  Pa.  St.  2.50;   27  W.  N.  C.    120; 

«4Fortv  Fort  v.  Forty  Fort  Water  20  Atl.  Rep.  844;  10  L.  R.  A.  193. 
Co..  9  Kulp   (Pa.)   241. 


MUNICIPAL   GAS   CONTRACTS.  475 

the  city,  and  the  first  year  naiiuxi  in  the  contract  shoukl  begin 
after  snch  reasonable  time  had  elapsed."" 

§425.     Exemption  from  taxation  in  fixing  price  of  gas. 

While  a  municipality  has  no  power  to  exempt  a  gas  company 
from  taxation,  yet  it  may  agree  to  pay  it  so  much  per  lamp,  and 
such  an  additional  sum  per  lamp  as  will  be  equal  to  the  taxes 
paid  by  the  company.  Such  a  method  of  determining  the  price 
to  be  paid  is  not  an  exemption  from  taxation. ""^ 

§426.     Cost  of  light,  out  of  what  fund  paid. 

It  is  often  a  serious  question  with  a  municipality  heavily  in 
debt  whether  such  debts  or  the  expense  of  lighting  shall  be  first 
paid,  or  whether  the  money  intended  for  the  light  can  be  seized 
for  prior  debts.  An  expense  for  light  or  water  is  regarded  as  a 
"  current  expense,"  payable  out  of  "  current  revenues."  ''  ft 
is  tlie  items  of  exjiense  essential  to  the  maintenance  of  cor- 
porate existence,  such  as  light,  water,  labor  and  the  like,  that 
constitute  current  expenses  payable  out  of  current  revenues. 
The  authorities  agree  that  current  revenues  may  be  applied  to 
such  purposes  even  though  the  effect  Ije  to  postiX)ne  judgment 
creditors."  "* 

§427.     Appropriation  for  light,   when   necessary   to   validity   of 
contract. 

In  some  States  an  appropriation  must  first  be  made  l^efore  a 
contract  for  lighting  can  he  entered  into  by  a  municipality. 

60  Virginia  City  Gas  Co.   v.   Vir-  1:      40     Am.      Rep.     416;      Coy    v. 

ginia  City,   3   Nev.   320.  City    Council,    17    la.    1;    CoOin    v. 

If  two  companies  consolidate,  one  Davenport,  20  la.  515;  Scott  v.  Da- 

of  which    was   to    furnish   a  certain  venport,  34  la.  208;   Seward  v.  Lib- 

amonnt    of    free    gas.    the    consoli-  erty,    142   Ind.   551 ;    42   X.   E.    Rep. 

dated  company  will   be   bound   also  39;    Poland   v.    Frankton.    142    Ind. 

to   furnish   it.     Charity  Hospital  v.  546;  41  N.  E.  Rep.  1031:   Fowler  v. 

New   Orleans   Gaslight   Co.,   40   La.  F.  C.  Austin  Mfg.  Co..  r,    Ind.  App. 

Ann.  382;  4  So.  Rep.  433.  489;  32  N.  E.  Rep.  596;  Laycock  v. 

OT  Carterville    Improvement,    etc..  Baton  Rouge.  35  La.  .\nn.  475.     See 

Co.    V.   Carterville,   89   Ga.   683;    IB  Atlantic   City   W.   W.    Co.   v.    Reed, 

S.  E.  Rep.  25.  50  N.  J.  L.  665;   15  Atl.  Rep.   10. 

«8  Valparaiso  v.  Gardner,  97   Ind. 


4:76  OIL   AND    GAS. 

^^lloncvor  this  is  the  case,  a  contract  for  lighting  before  siicli 
appropriation  is  made  is  void.  Tliis  was  held  to  be  the  case 
where  the  following  statute  was  in  force:  "  No  executive  de- 
partment, officers  or  employee  thereof  shall  have  power  to  bind 
?ueh  city  by  any  contract  or  agreement,  or  in  any  way,  to  any 
extent  l)eyond  the  amount  of  money  at  the  time  already  appro- 
priated by  ordinance  for  the  purpose  of  such  department,  and 
all  contracts  and  agreements,  express  or  implied,  and  all  obliga- 
tions of  any  and  every  sort  beyond  such  ( xisting  appropriations, 
are  declared  to  be  absolutely  void."  The  contract  declared  void 
under  this  statute  was  one  for  street  lights  for  five  years,  at  a 
certain  price  ]^r  light  per  year,  payable  monthly.*^"  Similar 
results  have  been  arrived  at  in  other  States.'^" 

§428.     Exhaustion  of  appropriation  as  a  defense. 

In  a  suit  to  recover  for  gas  furnished,  it  is  no  defense  in  the 
city  to  set  up  that  the  appropriation  for  that  purpose  had  been 
exhausted,  and  that  the  debt  had  been  incurred  in  excess  of  the 
amount  appropriated.'^^ 


§429.     Tax  to  pay  for  gas  or  to  support  gas  plant. 

The  furnishing  of  light  for  the  streets  and  the  public  places 
of  a  city  or  town  is  such  a  work  of  public  character  as  will 

69  Indianapolis  v.  Wann,  144  Ind.  W.   Co.   v.   Reed,   50  N.   J.  L.   GG3; 

175;    42    N.   E.   Rep.   901;    Atlantic  15  Atl.  Rep.  10;  Pullman  v.  Mayor, 

City  W.  W.   Co.  V.  Reed,   50   N.  J.  40     Barb.     57.     Contra,     Leadville, 

L.  6«.3;    15  Atl.  Rep.   10.  etc.,   Co.   v.  Leadville,  9   Colo.   App. 

ToKiichli  v.   Minnesota,   etc.,  Co.,  400;    49    Pac.    Rep.    268. 
58  Minn.  418;  59  N.  W.  Rep.  1088;  7i  New  York  Mutual  Gaslight  Co. 

Garrison   v.    Chicago,    7   Biss.    480;  v.  New  York  City,  49  How.  Pr.  227. 

Superior    v.    Norton,    63    Fed.    Rep.  As   to    necessity   for   an    appropria- 

357;  Bladen  v.  Philadelphia,  60  Pa.  lion    under    a    statute,   see   Atlantic 

St.    464;    Philadelphia    v.    Flanigen,  City  W.   W.   Co.   v.  Reed,   50  N.   J. 

47  Pa.  St.  21;   Jonas  v.   Cincinnati,  L.  663;    15  Atl.  Rep.   10;   Taylor  v. 

18   Ohio   318;    Wallas   v.   San   Jose,  Lambertvillp    (N.  J.).   10   Atl.  Rep. 

5:9  Cal.  180;  San  Francisco  Gas  Co.  800.  and  Kiiehli  v.  Minnesota  Brush 

V.  Brickwedel.  62  Cal.  641;  Niles  W.  Light  Co..  58  Minn.  418;  59  N.  W. 

W.    Co.  V.   Niles,   .59  Mieh.   311;    26  Rop.  1088. 
N.  W.   Rep.   525;   Atlantic  City  W. 


MUNICIPAL.   G.VS    CONTRACTS.  477 

authorize  the  levying  of  a  t-ax  for  that  pnr]X)se."  But  gas  or 
water  rents  established  by  a  municipality  where  it  furuislies 
the  gas  or  water  are  not  taxes  which  may  be  collected  by  the  tax 
collector,  as  other  taxes  are  collected."  Power  to  levy  taxes 
for  gas  or  water  jmrposes  is  subject  to  the  limitatiim  of  a  gen- 
eral statute  providing  that  the  aggregate  of  a  municipal  tax 
shall  not  exceed  a  certain  fixed  limit.'*  Usually  a  city  may 
pay  out  of  its  general  fund  any  deficiency  for  gas  furnished, 
after  it  has  exhausted  its  special  levy  for  that  jmi-jiose.^^ 

§430.      Assessing  cost  of  public  lighting  upon  abutting  property 
—  cost  of  municipal  plant. 

Xot  infrequently  the  cost  of  public  lighting  is  assessed  upon 
private  property  abutting  u]X)n  the  territory  benefited,  just  as 
the  cost  of  improving  the  roadway  of  a  street  is  assessed.^"  And 
so  the  cost  of  building  a  gas  or  water  plant  is  often  assessed 
upon  the  private  property  abutting  upon  the  gas  or  water  mains 
or  plant;  and  this  is  considered  a  jierfeetly  legitimate  mctht  d 
of  providing  both  for  the  cost  of  the  light  or  of  the  construction 
of  the  plant.  Where  an  Act  of  Congress  authorized  the  com- 
missioners of  the  District  of  Columbia  to  lay  water  mains 
whenever  and  wherever  they  deeined  them  necessary  for  public 
safety,  comfort  or  health,  and  assess  the  cost  upon  the  abutting 
property,  notice  to  the  projierty  OA\mer  was  deemed  not  neces- 
sary to  support  tlie  water  nuiin  tax.^"  So  where  a  statute 
empowered  a  city  to  construct   and  establish  gas  works,  or  to 

72  Bronx    Gas,    etc.,    Co.    v.    New  will    not  justify   its   conduct   in    re- 

\ork  City,   17   N.  Y.  Misc.  43.3;   41  fusinjr  to  levy  the  lofjal  amount  fur 

N.   Y.    Supp.   358;    Fellows  v.    Wal-  siu-li  jjurposcs  for  a  subsequent  year. 

ker,    39    Fed.    Rep.    651     (a    case   of  State  v.   Kearney,   49  Neb.   337:    70 

natural  gas).  N.    W.    F.ep.   255;    49   Neb.    325;    GS 

7:*  Dixon  v.  Entriken,  G  Pa.  Dist.  N.   W.   Rep.  533. 

Rep.  447;    19   Pa.  Co.  Ct.  414.  7.1  Creston   W.   W.  Co.  v.   Creston. 

74  People  V.  Lake  Erie.  etc..  R.  R.  101   la.  087;   70  N.  W.  Rep.  7.39. 

Co.,    1G7    111.    283;    47    N.    E.    Rep.  7 r,  people  v.   Lake   Erie.   etc..   Co., 

518.  H)7   III.  283;   47  -V.  E.  Jli-y.  518. 

The    fact   that   a    city   had   levied  ''  I^arsons   v.    District    of    Coluni- 

for    several    years    a    tax    in    excess  l>ia.   170  V.  S.  45;    18  Sup.  Ct.  Rep. 

of  the   jnaximuni    liinit   to    pay    for  521. 
gas   furnished   it   under    a  contract 


478  OIL   AND   GAS. 

regulate  a  private  establislmieiit,  and  to  provide  by  ordinance 
what  part  of  the  ex|X?nse  of  lighting  the  street  shcjuld  be  ])aid 
by  the  owners  of  lots  fronting  thereon,  and  in  what  manner 
tlie  cost  should  be  assessed  and  collected ;  and  according  to 
another  section,  ujwn  petition  of  a  certain  number  of  lot  owners 
within  a  given  distance  fronting  on  a  street  for  lighting  such 
streets  according  to  the  city's  general  i)lan  of  improvements 
such  city  might  cause  such  part  of  the  street  to  be  lighted,  the 
cost  of  which  sliduld  be  estimated  according  to  the  length  of 
the  street  lighted,  per  running  foot ;  it  was  held  that  the 
abutting  projierty  was  liable,  under  a  proper  ordinance,  not 
only  for  the  general  gas  plant  by  the  city,  but  for  the  street 
fixtures,  such  as  pi|>es  and  lamp-posts,  the  assessment  being 
according  to  the  running  foot  and  not  according  to  the  assessed 
value.'** 

§431.     Majidamus  to  compel  auditing  or  payment  of  bills. 

If  a  city  has  a  board  of  audit  or  of  supei^visors  charged  by 
law  with  the  duty  of  auditing  bills,  mandamus  lies  to  compel 
such  board  to  pass  upon  a  bill  for  gas  furnished,  but  the  court 
does  not  necessarily  require  the  board  to  allow  the  account.  In 
allowing  or  rejecting  the  bill  it  has  a  discretion  either  to  allow 
or  reject  it,  and  the  court  cannot  in  this  respect  control  their 
action,  though  it  may  compel  it  to  pass  upon  the  bill.''^  But 
where  an  auditing  board  is  not  provided  for,  the  company  may 
sue  direct  for  the  amount  due,  and  is  not  compelled  to  resort 
to  a  writ  of  mandamus.^'' 

§432.     Action  to  recover  for  gas  supplied. 

Under  a  contract  or  ordinance  to  supply  gas  at  a  certain  price, 
the  gas  company  may  recover  from  a  city  for  all  the  gas  it  has 
furnished  under  the  contract,  in  an  action  based  on  the  contract 
or  ordinance. ^^     In  such  an  action,  bills  for  gas  furnished  dur- 

78  Nelson  v.  La  Porte,  33  Ind.  so  Gosport  v.  Pritchard,  156  Ind. 
258.  400;   59  N.    E.  Rep.    1058. 

79  People  V.  San  Francisco,  11  «i  London  Gaslifrht  Co.  v.  Vestry 
Cal.  42.  See  Richmond  County  of  Chelsea,  8  C.  B.  (N.  S.)  215;  9 
Gaslight  Co.   v.   Middletown,   59  N.  Gas  J.  292. 

Y.  228;    1  Hun  433. 


MUNICIPAL   GAS    CONTRACTS.  478a 

ing  the  iiidiillis  iiiiincdiatcly  pi-cccdiiii;-  \\w  iiiuiitlis  sikmI  for 
under  tlie  same  contract,  and  approved  by  the  city  council,  were 
held  admissible  to  show  the  number  of  lamps  lighted,  and  that 
the  city  recognized  the  validity  of  the  e(jntract  under  which  it 
was  furnished,  and  its  liability  to  pay  for  it.^"  It  is  no  defense 
that  tlie  gas  works  have  become  a  nuisance,  especially  where  no 
steps  to  have  them  declared  a  nuisance  have  been  taken  ;  and  the 
city  must  pay  for  the  gas  it  has  received.*^  The  company  has  a 
right  to  sue  for  the  gas  fnrnislicd,  and  is  not  comj^elled  to  re- 
sort to  a  writ  of  mandamus  to  compel  the  city  to  carry  out  the 
contract;  even  though  the  gas  was  to  bo  paid  with  by  the  issu- 
ance of  city  warrants  that  did  not  fall  due  for  several  months 
after  they  were  to  be  issued.** 

§433.     Interest. 

A  gas  company  is  entitled  to  recover  interest  on  its  bills  ])ast 
due;  such  bills  coming  within  the  general  interest  laws  of  the 
State.«=^ 

§434.     Lamps  —  posts. 

Where  the  word  "  lamps  "  is  used  in  a  contract  to  light  a 
city  with  natural  gas,  the  contract  contemplates  such  lamps  as 
are  commonly  used  in  the  natural  gas  region ;  and  where  only 
open  lamps  were  used  in  a  region  where  the  gas  was  to  be  fur- 
nished, it  w^as  held  that  the  city  could  not  bo  com|M'll(^d  to 
use  closed  lamps,  in  order  to  lessen  the  consumption  of  gas.®° 

82  Davenport  Gaslight  Co.  v.  Da-  In  a  suit  for  llio  price  of  p;a.» 
venport,  1.3  la.  229.  furnished  under  a  contract,  the  rec- 

83  Davenport  Gaslight  Co.  v.  Da-  ord  of  the  city  engineer  and  regis- 
venport,  supra.  ter   of   the   gas   inspector   was   lield 

»*  Gosport  v.   Pritchard,   ir)6   Ind.  to  be  competent  evidence.     St.  Louis 

400;   59  N.   E.  Rep.  lOoS.  Gaslight    Co.   v.    St.   Louis.    86   Mo. 

If   the   proper   municipal    author-  40.5. 

ity  has  passed  upon  and  allowed  the  85  Neosho  City  Water  Co.  v.  Ne- 

bill,  its  action  is  final  so  far  as  the  osho.  1.36  Mo.  498;  38  S.  W.  Rep.  89. 

city  is  concerned.    Metropolitan  Gas-  ««  Saltshurg  Gas  Co.  v.  Saltsburg, 

light  Co.  V.  Mayor,  4  N.  Y.  Weekly  138  Pa.  St.  2.50;  20  Atl.  Kcp.  844; 

Dig.   82.  10  L.  R.  A.   193. 


478b  01^   ^^ND    GAS. 

The  word  "  public  jxjsts  "  used  in  a  contract  for  a  supply  of 
gas  to  the  city,  includes  posts  used  and  erected  for  the  benefit 
of  the  public,  as  well  as  those  actually  owned  by  the  city.**^ 
Posts  put  up  by  the  company  to  light  the  streets  belong  to  it; 
and  it  may  nuiintaiu  an  action  of  trespass  for  an  injury  to 
them.  But  if  the  injury,  in  case  it  is  charged  to  have  occurred 
by  negligence,  is  occasioned  by  the  bad  condition  of  the  street, 
without  fault  of  the  defendant,  then  the  defendant  is  not  liable ; 
for  the  relation  Ix'tween  the  city  and  the  company  is  such  that 
whatever  would  have  been  a  good  defense  against  the  city, 
in  case  the  post  belonged  to  it,  would  be  a  good  defense  against 
the  gas  company.*''  Where  it  would  require  the  laying  of  one 
wiile  of  mains  to  put  up  six  lam]>posts  the  city  was  demanding 
ihe  court  refused  to  compel  the  company  to  set  them  up,  al- 
though a  statute  required  the  company  to  maintain  lamp-posts 
"  in  such  places  or  positions  as  shall  be  required  from  time  to 
time  by  the  local  board  for  tlio  purpose  of  lighting  in  a  proper 
and  effectual  manner  any  street."  ^°  U}X)n  the  expiration  of 
its  contract  with  a  city  to  furnish  it  light,  the  gas  company 
must  remove  its  lamp-posts  from  the  streets  —  the  right  c;  n- 
ferred  on  it,  even  by  its  charter,  to  lay  mains  in  the  streets 
•not  implying  that  erecting  lam]>posts  on  the  streets  and  re- 
taining them  there  indefinitely  if  it  ceases  to  furnish  gas  and 
its  contract  with  the  city  has  expired.®" 

8T  Davenport    Casliglit    nnd    Coke  A    corporation    linving   a   contract 

Co.   V.   Davenport,   13  Ta.  229.  1o   furnish    light    to   a   city   ha-s   no 

88  Roche    V.    IVIilwaukee    Gaslight  right  to  forcibly  detach  and  remove 

Co.,    5   Wis.    55.      See   Crystal   Pal-  burners   used   by   the   gas   company, 

ace' Gas  Co.  v.  Idris,  82  L.  T.  200;  and    attached   to    its    pipes    encased 

C4   J     P    452.  '"    *''*'    city's    lamp    posts,    and    to 

soWorksoj)    V.    Worksop    Gas    Co.,  replace    them    with   its    otcn    lamps, 

22  Gas.  J   96.  ^^^^^    .should    have    accomplished    its 

90  New    Orleans    Gaslight     Co    v.  purpose    in   a    legal    manner,   either 

Hart,  40  La.  Ann.  474;   4  So.  Rep.  by  contract  with  the  gas  company, 

2J5   '  or    by    enforcement    of    the    city's 

Carelesslv    damaging    lamp    post,  right    to    gas   on    reasonable    terms, 

liabilitv      Ashton  v.  Ecclcs  Corpora-  Public    Service    Corp.    v.    American 

tion,  71  J.  P.  55.  Lighting    Co.,    67    X.    J.    Eq.    122; 

57  A.  482. 


MUNICIPAL    GAS    CONTRACTS.  478c 

g435.     United  States  revenue  tax. 

In  ^Iis8<niri  it  was  held  that  a  p:as  company  was  autliorizod  to 
charge  against  a  city  consuming  gas  the  tax  imjwsed  hy  the 
United  States  n]K»n  ilhiminating  gas;°^  but  where  a  company 
had  contracted  to  funiisli  a  municiiiulity  wilh  gas  ''  free  nf 
charge,"  it  was  held  that  it  could  not  recover  the  amount  of  the 
tax  imposed  under  the  Internal  Eevenue  Act;  even  though  the 
Act  authorized  the  company  to  add  such  tax  to  the  contract  price 
of  gas  which  had  Ixu'u  previously  contracted.^'" 

§436.     Waiver  as  to  quality  of  gas  or  light. 

There  is  uo  doubt  that  a  city  may  waive  its  right  to  defend, 
when  sued  for  gas  supplied  it,  on  the  ground  that  tlie  quality  of 
the  gas  was  not  up  to  contract,  the  same  as  it  may  waive 
its  riglit  to  defend  when  sued  for  water  furnished  it,  on  the 
ground  that  the  water  was  impure.  Thus  a  usage  of  the  water 
for  a  year  without  objection  was  held  to  be  a  waiver  of  the 
right  to  defend  on  the  ground  that  it  was  impure.**^  And  even 
though  the  city  does  o])ject,  yet  accepts  the  water  furnished 
as  a  substantial  compliance  with  the  contract,  under  the  honest 
belief  that  such  acceptance  is  for  the  best  interest  of  the  city,  it 
cannot  set  up  as  a  defense,  when  sued  for  the  price,  that  the 
water  was  impure.®* 

91  St.  Louis  Gaslight  Co.  v.  St.  dend  payable,  the  income  tax  thereon 
Louis,  86  Mo.  495,  affirming  11  'Slo.  must  be  included.  Attorney  General 
App.  55.  V.    Ashton    Gas    Co.,    73    L.    J.    Ch. 

92  Pittsburg  Gas  Co.  V.  Pittsburg,  673;  [1904]  2  Ch.  621;  91  L.  T. 
101  U.  S.  219.  673;    53   W.    R.   49;    68   J.   P.   477; 

It  has  been  held  that  the  express  20  T.  L.   R.  601 ;   affirmed   75  L.  J. 

companies   could   add   to   its   charge  Ch.  1 ;  22  T.  L.  R.  82;   [1906]  A.  C. 

for    transportation    the    amount    re-  10;   93   L.  T.  676;    70  J.  P.    19;    13 

quired  to  be  paid  in  stamps  by  tlie  Mason   35. 

Internal  Revenue  Act  of  1898  upon  93  Lamar   \Yater,   etc.,   Co.   v.   Ka- 

each   article.  mar,    140   ^fo.    145;    39   S.   W.   Rep. 

When  a  gas  company  is  proliibitod  768. 

by  statute  irom  paying  a  dividend  in  94  Creston  W.  W.   Co.  v.   Creston, 

excess    of    a    certain    rate    fixed    by  101    la.    087;    70    X.    W.    Rep.    739, 

a    sliding    scale    dependent    on    the  citing  Philadelphia  v.  Hays,  93  Pa. 

price    charged    for     gas,    it    cannot  St.    72,   and    Winfield   Water    Co.   v. 

properly   pay   dividends   at   the   rate  Winfield,  51  Kan.  70;   32  Pac.  Rep. 

thus  fixed  free  from  the  income  tax.  603. 
In    calculating    the    maximum    divi- 


478(1  OIL    AND    GAS. 

§437.     Extending  mains,  failure  to  pay  for  light. 

Jt  is  as  imu-li  the  duty  of  a  city  or  a  town  to  promptly  pay  the 
gas  company's  bills  for  light  as  it  is  that  of  a  private  citizen; 
and  if  it  does  not  tlie  company  is  not  compelled  to  extend  its 
mains  and  erect  new  gas  posts,  as  it  had  agreed  to  do,  upon 
demand  of  the  municipal  authorities,  to  supply  gas  for  lights  not 
tlion  in  use."" 

§438.     Receiver  bound  by  contract. 

A  receiver  of  a  company  is  bound  by  such  company's  contract 
with  tlio  municipality  for  gas,  so  long  as  he  continues  to  fur- 
nish it ;  and  he  is  also  bound  by  the  rates  fixed  in  it  to  be  charged 
private  consumers.'"' 

§439.     Municipal  officer  interested  in  contract. 

Statutes  frequently,  if  not  universally,  forbid  municipal  offi- 
cers to  have  any  interest  in  municipal  contracts ;  and  if  they 
have,  generally  declare  such  contracts  void,  either  in  direct 
terms  or  by  construction.  In  a  ease  in  Nebraska  where  the 
secretary  and  treasurer  of  a  corporation  was  also  a  member  of 
the  city  council,  the  contract  of  the  corporation  to  light  the 
streets  of  the  city  was  held  void ;  and  it  was  also  held  that  any 
taxpayer  of  the  city  could  maintain  a  suit  to  have  it  cancelled; 
but  for  light  actually  furnished  under  it,  the  city  must  pay  what 
it  was  actually  worth,  not  to  exceed  the  contract  price."^  And 
the  same  result  was  reached  where  a  majority  of  the  members 
of  the  city  council  were  stockholders  in  a  water  company  sup- 
plying the  city  with  water."*  The  rule  in  some  instances,  how- 
ever, has  been  relaxed.  Thus  where  a  company  received  its 
charter  direct  from  the   legislature,  compelling  it  to  furnish 

9''  Ppnsacola     Gas    Co.     v.   Pensa-  for    hydrants,    can    be    brought    in 

cola,  33  Fla.  322;    14  So.  Rep.  826.  the  United  States  courts.     Keilil  v. 

88  Manhattan    Trust   Co.    v.    Day-  South    Bend,    44    U.    S.    App.    687; 

ton,    59    Fed.    Rep.    327;     16    U.    S.  22  C.  C.  A.  618;   76  Fed.  Rep.  921; 

App.  588:   :Manhattan  Trust  Co.   v.  36  L.   R.  A.  228. 

Dayton    Natural    Gas    Co.,    55    Fed.  operand  Island  Gas  Co.  v.  West, 

Rep.  181.  28  Neb.  852;  45  X.  W.  Rep.  242. 

A    suit    by    a    receiver    appointed  98:Milford   v.   Milford   Water   Co., 

by  a   Federal  court  for   rentals  due  124  Pa.  610;    17  Atl.  Rep.  185. 


MUNICIPAL   GAS    CONTRACTS.  479 

light  to  all  onstoinovs  of  a  certain  city  wliu  desired  it,  it  was 
held  that  the  eity  must  jiay  for  liiiht  received  under  a  contract 
with  the  coiii])aiiy,  ahhou<;h  (lie  mayor  (jf  the  city  Avas  presi- 
dent of  and  a  stockliolder  in  it.  The  charter  made  all  contracts 
with  the  city  void  in  which  a  city  officer  had  an  interest ;  but 
the  court  considered  that  this  particular  contract  was  not  void 
for  the  reason  that  it  was  one  created  by  the  cliarter  and  not  l»y 
the  parties  to  it."''  Where  a  statute  forbade  a  city  officer  to 
have  an  interest  in  a  contract  of  the  city,  the  taking  of  stock 
by  its  mayor  after  the  contract  had  been  let,  in  a  company  that 
succeeded  the  company  obtaining  such  contract,  and  before  such 
succession  took  place,  did  not  render  the  contract  void.^"°  Ihit 
the  holding  of  a  single  share  of  stock  by  a  city  councilman  ic 
a  company  applying  for  a  contract  is  a  violation  of  such  a 
statute.'" 

99  Capital  Gas  Co.  v.  Young,   109  loo  state  v.  Great  Falls,  19  Mont. 

Cal.    140;    41    Pac.   Rep.   8G9;    29   L.       518;   49  Pac.  Rep.  15. 
R.  A.  463.  101  Foster  v.  Cape  May,  GO  N.  J. 

L.  78;  3G  Atl.  Rep.  1089. 


CHAPTER  XXII. 

MONOPOLISTIC  GRANTS  AND  CONTRACTS. 

§440.     Division   of  subject. 

§441.     Legislature    may    authorize  monopolistic  grants. 

§442.     Same    continued. — Pennsylvania. 

§443.     Same  continued. 

§443a.  Curtailing  territory  occupied  by  gas  company. 

§444.     Statute  autiiorizing  exclusive  grant. 

§445.  A  grant  to  use  of  streets  to  exclusion  of  all  others  must  rest  on 
statutory  power. 

§446.     Grant  of  exclusive  franchise  strictly  construed. 

§44Ga.  Exclusive  grant  to  a  gas  company  not  preventing  grant  to  individual. 

§446b.  Consolidation    of    companies. 

§447.     Legislature  cannot  revoke  monopolistic  clause  of  company's  charter. 

§448.     Municipality  agreeing  not  to  compete  with  gas  company. 

§449.     Legislature  may  not  authorize  monopolistic  grants. 

§4.50.     Estoppel   to   contest  validity  of  monopolistic  grant,  ratification. 

§451.     A  federal  question. 

§452.     Monopolistic  clause  does  not  avoid  whole  contract. 

§45.3.     Enjoining  passage  of  ordinance. 

§454.     Forfeiture  of  exclusive  franchise. 

§455.     Exclusive  franchise  for  artificial  gas  does  not  exclude  natural  gas. 

§456.  Extension  of  time  for  completion  of  work. —  Additional  require- 
ments. 

§457.     Gas  works  built  under  void  grant  or  franchise. 

§458.     Municipality's  right  to  purchase  existing  works  is  optional. 

§45!t.     Unlawful  combinations  between  gas  companies. 

§460.  Granting  privilege  to  use  streets  does  not  require  a  general  ordi- 
nance.—  General  ordinance  regulating  streets. 

§461.     Contracts  for  light,  length  of  term. 

§462.     Dating  contract  ahead. 

§440.     Division  of  subject. 

The  siiLject  of  this  ('\iapter  is  divisible  into  two  branches: 
one,  concernino;  the  g:rant  of  tlie  use  of  the  streets  of  a  munici- 
pality to  a  gas  company  wherein  it  is  agreed  that  it  shall  have 
possession  of  the  streets  to  the  exclusion  of  all  other  gas  or 
lighting  companies,  either  in  perpetuity  or  for  a  designated 
number  of  years;  second,  concerning  contracts  with  gas  com- 
panies for  lighting  either  in  perpetuity,  or  for  a  long  term  of 

480 


MONOPOLISTIC    GRANTS    AND    CONTRACTS. 


481 


years.  This  description  imisl  constanlly  lie  Ixirne  in  mind,  <  r 
confusion  will  arise  in  exaniiniiii;'  the  cases.  Electric  lighting 
eases,  water  company  cases  and  street  railway  cases  are,  of 
conrse,  eases  analoii-ous  ti^  those  of  gas,  and  can  properly  be 
used  in  this  discussion.  In  discussing  the  question,  it  must 
be  l)orne  in  mind  that  in  some  States  constitutional  provisions^ 
forbid  the  granting  of  exclusive  privileges  to  individuals  and 
corporations;  and  wlioro  such  provisions  do  not  exist,  some  of 
the  cases  are  made  to  turn  upon  the  fact,  that  the  legislature 
has  not  cm|X)wered  the  municipality  to  grant  such  (>xelusive 
privileges.*^ 

§441.     Legislature  may  authorize  monopolistic  grants. 

The  cases  arc  not  uniform  u])on  the  ]X)wer  of  the  legislature  to 
make  or  authorize  the  uudviug  of  monopolistic  grants  or  con- 
tracts. One  of  the  leading  cases  arose  in  Wisconsin.  In  that 
State  the  legislature  granted  to  a  company  the  exclusive  privi- 
lege to  manufacture  and  supply  gas  to  the  city  of  ]\Iilwaukoe 
and  its  inhabitants;  and  this  Act  w^as  u])held,  the  court  saying: 
"  It  is  claimed,  or  rather  suggested,  that  oven  the  legislature 
could  not  confer  this  exclusive  right  upon  the  defendant  to 
manufacture  and  sell  gas  in  the  city  of  ^lilwaukee.  But  we 
are  not  aware  of  any  constitutional  princi}>lo  which  is  violated 
by  the  legislature  granting  such  an  exclusive  franchise.  It  is 
true  that  it  may  create  a  monopoly,  prevent  anything  like  a 
free  and  healthy  competition  in  the  supply  of  gas  to  consum- 
ers, and  thus  operate  to  the  detriment  of  the  public.  Uut  su]v 
pose  this  is  all  conceded;  u]ion  what  ground  can  the  court  say 
such  legislation  is  unconstitutional  'I      Of  course,  the  whole  mat- 

1  Beinville    Water    Supply    Co.    v.  essarily    excludes    all    other    street 

Mobile,    186  U.  S.  212;   22   Sup.  Ct.  railways    if    it    is   a    narrow    street, 

Rep.   820,   aflirming   175   U.   S.    109;  and  usually  if  it  is  a  wide  one      A 

20  Sup.  Ct.  Rep.  40.  niouoiwli.stic  grant  of  that  character 

*i  Gaslight  Co.  v.  South  River,  77  is  not  meant  by  the  use  of  the  tirni 

N.    J.    Ch.    487;    77    Atl.    Rep.    473.  as    used    in     this    discussion.        In- 

There  are  .some  things  that  by  their  dianapolis,   etc.,   R.    R.  Co.   v.   Citi- 

construction    are    necessarily    exclu-  zens'  Street  R.  R.  Co.,  127  Ind.  30!); 

sive.     Thus  a  grant  to  a  street  rail-  24  N.  E.  Rep.  1054;  8  L.  R.  A.  539; 

way  to  occupy  a  certain  street  nee-  20  N.  E.  Rep.  8'J3. 


482  OIL   AND    GAS. 

ter,  inulcr  onr  constitution,  is  nnder  the  control  of  the  legis- 
huuro,  which  can  take  from  the  defendant  this  cxchisive  privi- 
lege whenever  it  sees-fit  to  do  so.  The  public  concern,  in  having 
some  coniix'tition  in  the  supply  of  gas,  is  hy  no  means  without  a 
remedy.  It  can  apjx'al  to  the  legislature  to  withdraw  this 
exclusive  right  which  it  has  conferred  upon  the  defendant.  And 
■it  is  but  fair  to  assume,  that  whenever  the  monopoly  becomes 
oppressive,  the  legislature  will  repeal  the  special  privilege  it 
lias  granted.  At  all  events,  it  is  sufficient  to  sav  that  the  rem- 
edy  is  with  the  legislature,  which  has  ample  authority  to  do 
what  may  be  for  the  best  interests  of  the  citizens  of  Milwau- 
kee." ■  This  decision  is  made  to  rest  upon  the  theory  that  the 
legislature  can  revoke  that  part  of  the  company's  charter  giving 
it  an  exclusive  franchise ;  but  this  claim  has  not  been  upheld  by 
the  Supreme  Court  of  the  United  States,  as  we  shall  see  in 
the  next  section.  The  case  can,  therefore,  be  regarded  as  one 
of  doubtful  authority.  In  Tennessee,  whose  constitution  for- 
bids the  granting  of  "  perpetuities  and  monopolies,"  a  grant  of 
the  exclusive  use  of  the  streets  of  a  city  is  held  not  to  be  a 
monopoly,  and  so  not  forbidden."^  So  in  ]^ew  Jersey,  without 
any  special  statute  to  that  effect,  a  city's  contract  with  a  com- 
pany to  supply  it  with  water  so  long  as  the  company  com- 
plied with  the  obligations  of  the  contract,  was  upheld.*  A 
case  arose  in  Connecticut  concerning  a  water  company  that 
is  here  illustrative  of  this  question.  The  city  of  Bridge- 
port entered  into  an  agi'eement  with  a  water  works  company, 
giving  it  the  exclusive  right  to  lay  pipes  in  its  streets  so  long  as 
it  furnished  a  full  supply  of  fresh  water.  The  assignee  of 
this  agreement  expended  a  large  sum  of  money  in  putting  in 
water  w^orks;  and  this  assignee  was  authorized  by  a  special  Act 
of  the  legislature  to  acquire  all  the  right  of  the  assignor,  ^'  in- 
cluding the  right  to  the  sole  and  exclusive  use  of  the  public 
streets,"  etc.,  "  for  the  purpose  of  laying  pipes  therein  to  con- 

2  State  V.  Milwaukop  Gaslig:ht  Co.,  Co.  v.  TIankey,  31  Md.  346.  as  to  a 
29  Wis.  4.54;   9  Am.  Rep.  .598.  Avharf. 

3]\romphis  V.  Memphis  Water  Co.,  <  Atlantic  City  W.  W.  Co.  v.  At- 

5  Heisk.   495.     See   Broadway,  etc.,       lantie  City,  48  N.  J.  L.  378;  6  Atl. 

Hep.  24. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS. 


483 


(liR't  Avatcr  into  aiul  about  said  city."'  Thirty  years  afterward 
the  legishiture  g;ave  anotlicr  comjiany  the  right  to  lay  pi[)es  and 
supply  water  to  the  same  city;  and  it  was  held,  conceding  that 
the  city  had  no  power  in  the  first  place  to  grant  an  exclusive 
right,  that  the  legi?;lature  having  subsequently  recognized  this 
claim  of  jx)wer  and  authorized  tlie  assignee  to  acquire,  by  as- 
signment, such  exclusive  right,  and  the  assignee  having  ac- 
cepted the  provisions  of  the  statute  and  performed  what  was 
required  of  it,  there  was  a  contract  existing  between  it  and  the 
city  which  th(>  legislature  could  not  revoke  or  impair  so  I'nig 
as  the  assignee  supi)lied  the  city  with  abundance  of  jnire  water; 
and  that  the  second  grant  was  an  impairment  of  that  contract. 
It  was  so  held,  although  a  provision  in  the  first  charter  reserved 
to  the  legislature  the  |iK)wer  to  recall  the  franchise  at  its  pleas- 
ure, which,  it  was  said,  did  not  authorize  the  legislature  to 
impair  the  contract  which  the  city  had  entered  into  for  the 
exclusive  use  of  its  streets  so  long  as  it  should  supply  the  city 
witli  water. '^  Some  other  cases  u])lio](l  the  ])()wer  of  the  legis- 
lature to  create  gas  or  water  companies,  and  endow  them  with 
monopolistic  franchises,  or  to  authorize  municipalities  to  make 
such  grants." 


5  Citizens'  Water  Co.  v.  Bridge- 
port, etc.,  Co.,  55  Conn.  1 ;  10  At!. 
Rep.    170. 

6  Crescent  City  Gaslight  Co.  v. 
New  Orleans  Gasliglit  Co.,  27  La. 
Ann.  13S.  (In  this  Loui.siana  case 
it  was  hold  that  the  company  en- 
titled to  the  monopoly  might  en- 
join another  company  denying  its 
right,  on  the  ground  that  it  was  a 
slander  on  its  title.)  St.  Louis  v. 
Gaslignt  Co.,  5  Mo.  App.  484;  Jer- 
sey City  Gas  Co.  v.  Dwight,  29  N. 
J.  Eq.  242;  Das  Moines  St.  R.  R. 
Co.  V.  Des  MoineSj  etc.,  Co.,  73  la. 
513:  33  N.  W.  Rep.  610;  35  N.  W. 
602.  (In  tills  Iowa  case  there  was 
no  statute  specifically  authorizin':^ 
the  company  to  make  the  contract.) 
Memphis  v.  IMcmphis  Water  Co.,  5 
Ileisk.  495;  Bartholomew  v.  Austin, 


85  Fed.  Rep.  359;  ,52  U.  S.  App. 
512;  29  C.  C.  A.  568;  Newport  v. 
Newport  Light  Co.,  84  Ky.  166; 
Louisville  v.  Wible,  84  Ky.  290;  1 
S.  W.  Rep.  605;  Des  Moines  Gas 
Co.  V.  Des  Moines,  44  la.  505; 
Montgomery  Gas  Co.  v.  Montgom- 
ery, 87  Ala.  245;  6  So.  Rep.  113; 
4  L.  R.  A.  616;  Des  Moines  St.  Ry. 
Co.  V.  Des  Moines,  73  Ta.  513;  33 
N,  W.  Rep.  610;  35  N.  W.  Rep. 
002;  Jackson  County  Horse  Ry.  Co. 
V.  Interstate  Rapid  Transit  R.  R. 
Co.,  24  Fed.  Rep.  306;  Parkersburg 
Gas  Co.  V.  Parkersburg,  30  W.  Va. 
435;  4  S.  E.  Rep.  6.50;  Centre  Hall 
Water  Co.  v.  Centre  Hall,  186  Pa. 
St.  74;  40  Atl.  Rep.  153;  Lancaster 
(!as  and  Fuel  Co.  v.  Lancaster  Gas 
Co..  17  Pa.  Co.  Ct.  Rep.  4.53;  In  rr 
Light  and  Fuel  Co.,  17   Pa.  Co.  Ct. 


■18^  OIL   AND    GAS. 

§442.     Same  continued. —  Pennsylvania. 

The  Pennsylvania  Corporation  Act  of  April  20,  1874,  gives 
to  water  companies  the  right  to  introduce  into  boroughs  and 
cities,  wherever  they  may  be  located,  a  sufficient  supply  of  pure 
water;  and  when  completed,  its  right  in  the  locality  by  its 
works  is  exclusive,  until,  during  a  period  of  five  years,  tho 
conijiany  has  divided  among  its  stockholders  a  dividend  equal 
to  eight  per  cent  u^wn  its  capital  stock.     Then  it  is  made  law- 


r.op.  113;  4  Pa.  Dist.  Rop.  fiGS ;  In 
re  Lancaster  Gas  Co.,  5  Pa.  Dist. 
Rep.  244;  In  re  Williamsport  Gas 
Co.,  17  Pa.  Co.  Ct.  Rep.  45G;  2 
Lack.  L.  News  112;  .'5  Pa.  Dist.  Rep. 
251;  In  re  Pittsburg,  etc.,  Co.,  16 
Pa.  Co.  Ct.  Rep.  433;  Gas  and  Wa- 
ter Co.  V.  Dowington,  175  Pa.  St. 
341;  38  W.  N.  C.  37G;  34  Atl.  Rep. 
799;  District  of  Columbia  v.  Wash- 
ington Gaslight  Co.,  20  D.  C.  39; 
Suburban  Electric,  etc.,  Co.  v.  East 
Orange  (N.  J.),  41  Atl.  Rep.  8G5; 
Freeport  W.  W.  Co.  v.  Pragen,  3 
Pa.  Ct.  Rep.  371;  Tyrone  Gas  and 
Water  Co.  v.  Tyrone,  195  Pa.  St. 
5G6;  46  Atl.  Rep.  134;  Atlantic 
Water  Works  Co.  v.  Atlantic  City, 
39  X.  J.  Eq.  367. 

In  Atlantic  City  Water  Works 
Co.  V.  Consumers'  Water  Co.,  44  N. 
J.  Eq.  427,  15  Atl.  Rep.  581,  an  act 
giving  an  exclusive  franchise  to  a 
water  company  to  supply  Atlantic 
City  was  held  void,  for  the  reason 
that  it  was  special  or  private  legis- 
lation, a  kind  of  legislation  forbid- 
den by  the  State  constitution. 

A  statute  of  Maine  provided  that 
no  corporation  organized  under  its 
provisions  should  have  authority 
without  a  special  act  to  make  or  sell 
gas  in  any  city  or  town  in  which 
another  person  or  corporation  was 
making  or  selling  gas  without  the 
consent    of    such    other    person    or 


corporation.  It  was  held  that  au- 
thority given  one  person  or  corpora- 
tion the  right  to  supply  gas  was 
piT)hibition  of  the  right  of  another 
company  to  supply  gas  unless  by 
consent  or  special  legislative  author- 
ity. Twin  Village  Water  Co.  v. 
Damariscotta  Gaslight  Co.,  98  Me. 
325;   56  Atl.  Rep.   1112. 

If  a  gas  company  has  a  lawful 
monopolistic  grant  to  use  the  streets 
of  a  city,  it  has  such  a  special  inter- 
est therein  that  it  may  maintain  a 
suit  in  equity  to  enjoin  another 
company  using  them  or  laying  its 
pipes  therein.  Ft.  Smith  Light  & 
T.  Co.  v.  Kelley,  94  Ark.  467;  127 
S.  W.  Rep.  975. 

Unless  the  legislature  authorizes 
it,  a  municipality  cannot  ent^r  into 
a  contract  giving  a  gas  company  an 
exclusive  right  for  a  term  of  years 
to  occupy  its  streets.  Water,  etc.. 
Gas  Co.  V.  Hutchinson,  144  Fed. 
Rep.  256.  See  Smith  v.  Avon-on-the- 
Sea,  68  N.  J.  L.  243;  52  Atl.  226. 

If  a  company  has  the  exclusive 
right  to  occupy  the  streets  of  a 
city,  another  company  cannot  insist 
that  its  grant,  made  subsequent  to 
tho  first  one,  is  valid  because  the 
first  company  has  not  exercised  its 
rights.  Twin  Village  Water  Co.  v. 
Damariscotta  Gaslight  Co.,  98  Me. 
325;  56  Atl.  Rep.  1112. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS.  485 

fill,  after  twenty  years  from  the  intrcicluotion  of  the  water, 
for  the  municiiiality  to  become  the  owner  of  the  water  works, 
hy  payinsi'  the  net  cost  of  erect  iiii;-  mid  iiiaintuiiiiiiii;  the  same, 
with  interest  thereon  at  the  rate  of  ten  ])cr  cent  ])er  annum,  de- 
ducting from  the  interest  the  dividends  theretofore  dechired. 
An  Act  of  May  23,  1874,  passed  at  the  same  session  of  the 
legislature  as  the  previous  Act,  provided  that  cities  of  the  tliird 
class,  should  have  power  in  tneir  corporate  capacity,  to  "  supply 
with  water  the  city  and  such  persons,  partnerships  and  corpora- 
tions therein  as  may  desire  the  same,  at  sudi  price  as  may  be 
agreed  upon  and  for  that  ]mr]»se  have  at  all  times  the  unre- 
stricted right  to  make  and  erect  all  proper  works,  machinery, 
buildings,  cisterns,  reservoirs,  pipes  and  conduits  for  the  raising, 
reception,  conveyance  and  distribution  of  water,  or  tx)  make 
contracts  with,  and  authorizing  any  pers^)n,  company  or  asso- 
ciation to  erect  all  proper  water  works,  machiiiory,  buildings, 
cisterns,  reservoirs,  pipes  and  conduits  for  the  raising,  rece[>- 
tion,  conveyance  and  distribution  of  water,  and  give  such  per- 
sons, company  or  association  the  exclusive  privilege  of  furnish- 
ing water  as  aforesaid  for  any  length  of  time  not  exceeding  ten 
years."  It  was  held  that  there  was  such  a  repugnancy  between 
the  two  Acts  that  both  systems  of  water  works  could  not  be  in 
operation  at  the  same  tin)e;  and  if  the  city  had  first  authorized 
a  private  company  to  put  in  water  works  it  could  not,  within 
the  ten  years'  period  build  water  works  for  itself.  It  was  con- 
sidered, in  effect,  that  there  was  only  one  thing  to  be  granted, 
namely,  the  right  to  su])ply  the  city  with  water,  and  when  that 
was  granted  the  power  was  exliausted  for  the  city  to  make  a 
grant,  as  it  w'ere,  to  itself,  or  rather  assume  the  right  to  erect 
and  maintain  Avater  works,  when  it  had  already  granted  away 
that  right.  If  the  city  desired  to  sui)]>ly  its  citizens  with  water, 
it  must  [)urchase  the  company's  works.''      Several  rulings  df  the 

7  White  V.  Meadville,  177  Pa.  St.  108,  27  Pitts.  L.  J.  (X.  S.)   102;  :}5 

643;  27  Pitts.  L.  J.    (N.  S.)    97;  39  Atl.    Rep.    1134    (ovcrrulinn:    Ix-lii{,'li 

W.    N.    C.    102;    35    Atl.    Rep.    095;  Water    Co.'s    Appeal.     102    Pa.    St. 

34  L.  R.  A.  5G7;   Met/.ger  v.  Beaver  rA'^)  :    In   re  Millvale  Boiou<rli.    102 

Falls.    178    Pa.   St.    1;    39   W.   N.  (".  Pa.   St.  374;   29  Atl.  Rep.  041.  044; 


486 


OIL   AND    GAS. 


rxi'ciitivo  (Icpai'tnieiit  (if  that  State  have  been  made  concerning 
this  statute  in  the  granting  of  franchises.  Thus  the  exclusive 
franchise  expires  when  the  company  has  for  five  years  declared 
a  dividend  equal  to  eight  per  cent  uix)n  its  capital  stock,  al- 
though the  earnings  have  been  largely  apiilied  to  betterments 
i'ov  which  the  stuck  tlividends  have  been  issued,  until  the  original 
cai)ital  has  been  doubled.^  The  exclusive  franchise  only  em- 
braces the  territory  described  in  the  application  for  it,  and  can- 


benefit  not  only  of  the  company 
cl.aimin^  the  privileges,  but  of  the 
two  other  companies  owned  by  the 
same  persons  and  doing  a  much 
more  extensive  business,  under  cir- 
cumstances which  made  it  much 
more  advantageous  and  easy  for 
such  company  to  fail  to  divide  8 
per  cent  per  annum  for  an  in- 
definite period.  Consolidated  Gas 
Co.  V.  Mitchell,  1  Dauph.  Co.  Rep. 
71.  For  other  cases,  see  People's 
Natural  Gas  Co.  v.  Pittsburgh,  1 
Penn.  C.  C.  Rep.  311;  Appeal  of 
Meadville  Fuel  Gas  Co.  (Pa.),  4 
Atl.  Rep.  733,  reversing  1  Penn.  C. 
C.  Rep.  448 ;  Lancaster  Gaslight 
and  Fuel  Co.  v.  Lancaster  Gas  Co., 
17  Pa.  Co.  Ct.  Rep.  453;  /n  re  Light 
and  Fuel  Co.,  17  Pa.  Co.  Ct.  Rep. 
113;  4  Pa.  Dist.  Rep.  668;  In  re 
Charter  Lancaster  Gas  Co.,  5  Pa. 
Dist.  Rep.  244;  In  re  Williamsport 
Gas  Co.,  17  Pa.  Co.  Ct.  Rep.  456;  2 
Lack.  L;  News  112;  5  Pa.  Dist.  Rep. 
251;  In  re  Pittsburg  Illuminating 
Gas  Co.,  16  Pa.  Co.  Ct.  433;  In  re 
Levis  Water  Co..  11  Pa.  Co.  Ct. 
Rep.  178;  Rienker  v.  Lancaster,  14 
Lane.  L.  Rev.  b93;  Centre  Hall 
Water  Co.  v.  Centre  Hall.  186  Pa. 
St.  74;  40  Atl.  Rep.  153;  Carlisle 
Gas  and  Water  Co.  v.  Carlisle 
Water  Co.,  182  Pa.  St.  17;  37  Atl. 
Rep.  821. 

8  Citizens'  Water  Co.'s  Charter,  6 
Pa.  Dist.  Rep.  80. 


Wilson  V.  Rochester,  180  Pa.  St. 
509;   38  Atl.  Rep.  136. 

Where  the  controversy  was  be- 
tween two  rival  companies  for  the 
same  territory,  an  act  repealing 
the  clause  giving  an  exclusive  fran- 
chise was  upheld.  Luzerne  Water 
Co.  V.  Toby  Creek  Water  Co.,  148 
Pa.  St.  568;  24  Atl.  Rep.  117. 

The  exclusive  territorial  franchise 
acquired  by  a  gas  company  under 
the  Pennsylvania  Act  of  April  29, 
1874,  was  not  repealed  by  the  Act 
of  June  24,  1895,  of  that  State. 
Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781.  Contra,  Consolidat- 
ed Ga">  Co.  V.  Mitchell,  1  Dauph. 
Co.  Rep.  71.  An  exclusive  franchise 
may  be  sold  to  another  company. 
Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781. 

Under  the  Pennsylvania  Act  of 
June  2,  1887,  an  exclusive  franchise 
can  be  granted  to  a  gas  com- 
])any  only  when  incorporated  for 
the  manufacture  of  ga.s  for  light 
alone.  Charters  of  Gas  Companies, 
5  Pa.  Dist.  Rep.  396;  18  Pa.  Co. 
Ct.  Rep.  136.  Contra,  in  re  Phila- 
delphia Gas  Works  Co.,  1  Dauph. 
Co.   Rep.   55. 

This  statute  was  held  to  not  ap- 
ply where,  from  the  nature  of  the 
case,  an  exclusive  right  cannot  in 
fact  be  obtained,  and  the  only  effect 
would  be  to  prevent  competition 
throughout    a    large    city    for    the 


MONOPOLISTIC   GRANTS    ANO    CONTRACTS.  487 

iidt  iiu'ludc  "the  districts  adjaoont  "  to  a  city,  altliougli  em- 
braced in  the  ajiplication.  The  exclusive  franchise  must  be 
for  the  city  (or  a  certain  named  jxirtion  of  it)  in  whicli  the 
company  applies  for  a  franchise,  and  it  can  embrace  no  m(ire 
territory  than  is  occupied  by  a  single  city,  nor  can  "  clastic 
territory  "  be  embraced  in  the  grant.  A  case  of  doubt  as  to 
an  exclusive  franchise  should  be  resolved  against  the  corpora- 
tion." The  executive  department  holds  that  the  consent  of  a 
corporation  already  in  existence  and  having  an  exclusive  fran- 
chise cannot  authorize  the  granting  of  the  same  franchise  to 
another  corporation  in  the  same  district.^"  When  application 
is  made  for  a  franchise  covering  a  territory  covered  by  a  prev- 
ious franchise,  it  must  be  shown  that  the  company  first  granted 
a  franchise  has  never  perfected  it.^^ 

§443.     Same  continued. 

A  statute  gave  a  gas  company  the  exclusive  right  to  supply  a 
certain  city  with  gas  for  twenty  years,  giving  to  the  city  the 
right  to  purchase  the  gas  works  in  either  twenty  or  twenty-five 
years,  viz.,  in  1860  or  18G5,  under  certain  conditions,  with 
promise  that  if  the  city  did  not  purchase  at  either  of  these  dates 
the  charter  should  continue  in  force  until  ISDO.  In  184G  the 
city  agreed  to  give  up  its  right  to  purchase  the  works  in  1800, 
the  company  agreeing,  without  the  consent  of  its  stocldiolders, 
that  if  the  city  should  not  buy  in  1865  it  might  do  so  in  1870, 
or  at  the  end  of  any  five  years  thereafter.  In  1860  the  city 
desired  to  purchase  the  works,  but  the  company  declined  be- 
cause of  the  contract  of  1846.  In  1870  the  city  again  took 
steps  to  purchase,  but  the  company  resisted  it,  now  alleging 
that  the  contract  of  1846  was  void,  and  therefore  the  time  fixed 


oNevv   Castle  Water  Co.  v.  West  n  South   Side   Gas   Co.   v.   South- 
New  Castle  Water  Co.,  6  Pa.  Dist.  ern    Illuminatinjr    Co.,    18    Pa.    Co. 
Rep.    10;    18  Pa.  Co.   Ct.  498;   New  Ct.  529;  Southern  Illuminatinn:  Co., 
Gaslight  Co.,  7  Pa.  Dist.  Rep.   1.51;  5  Pa.  Dist.  Rep.  781. 
1  Dauph.  Co.  Rep.  22.  See  «renerally.  Centre  llnll   W:iter 

10 /n   re  Philadelphia   Gas   Works  Co.  v.  Centre  Hall.   ISO   Pa.  St.  74; 

Co.,    1  Dauph.  Co.    Rep.   .55.  40   Atl.    Rep.    153. 


488  OIL   AND   GAS. 

liv  till'  cliartcr  had  expired.  In  1873  another  contract  was  en- 
tered into  hy  botli  the  city  and  the  coni])any  and  a  second  gas 
company,  by  which  it  was  agreed  that  the  contract  of  1846 
should  be  cancelled,  all  pending  litigation  dismissed,  and  the 
first  company  should  release  its  exclusive  right  in  a  certain 
portion  of  the  city,  besides  other  provisions  immaterial  here. 
It  was  held  that  the  right  conferred  ujion  the  city  to  purchase 
the  works  was  simply  a  privilege  to  become  a  purchaser  in 
]860  and  1805,  laying  the  city  under  no  obligation  to  do  so  at 
either  of  these  times ;  that  the  gas  company  was  estopped  to 
set  up  the  contract  of  1840  as  ultra  vires;  and  that  the  contract 
of  1873  was  not  uKra  vires  on  the  part  of  the  company  as  an 
attempt  on  its  part  to  absolve  itself  from  the  performance  of  a 
corporate  duty,  that  of  furnishing  gas  to  a  portion  of  the  city, 
for  the  right  to  exclude  competition  was  solely  for  the  benefit 
of  the  company,  and  therefore  one  it  might  surrender.^^ 

§  443a.     Curtailing  territory  occupied  by  gas  company. 

Where  a  gas  company  is  granted  the  right  to  furnish  gas 
through  a  municipality,  neither  the  latter  nor  the  legislature 
can  thereafter  restrict  it  to  less  territory  than  that  occupied 
by  such  municipality ;  and  any  attempt  to  do  so  may  be  suc- 
cessfully resisted,  especially  after  the  gas  company  has  entered 
upon  the  erection  of  gas  works  adequate  to  supply  the  entire 
territory.  Such  an  arbitrary  interference  with  property  rights 
is  protected  by  the  Federal  Constitution  and  it  cannot  be  justi- 
fied as  an  exercise  of  the  police  power.^-*^ 

12  St.  Louis  V.  St.  Louis  Gaslight  i^a  Dobbins  v.  City  of  Los  Angclos, 

Co.,  70  Mo.  69,  reversing  5  Mo.  App.  25  S.  Ct.  18;    195  U.  S.  223;   49  L. 

484.  Ed.  169,  reversing  judgment  (1903), 

Under    the    original    contract    it  72  P.  970;   139  Cal.  179;  96  Am.  St. 

was  held  with  reference  to  this  same  Rep.   95;    Daly  v.   Elton,   25   S.   Ct. 

company  that  if  the  area  of  the  city  22;    195  U.   S.   242;   49  L.  Ed.   177, 

was    enlarged,    the    exclusive    grant  reversing     judgment     In     re     Daly 

followed    into    the    new    area.      St.  ( 1903) ,  72  P.  1097;   139  Cal.  216. 
Louis  Gaslight  Co.  v.  St.  Louis,  40 
Mo.  121. 


MONOPOLISTIC    GRANTS   AND    CONTRACTS.  489 

§444.     Statute  authorizing  exclusive  grant. 

In  Connecticut  a  statute  authorized  in  direct  terms  a  gas  com- 
pany to  lay  its  })ii>es  in  the  streets  of  a  certain  town,  to  the  ex- 
clusion of  all  other  gas  companies.  Xo  duty  of  supplying  the 
public  with  gas  was  imposed.  This  statute  was  held  void,  and 
so  was  an  ordinance  of  the  same  tenor.  The  court  referred  to 
those  instances  where  the  crown  granted  franchises  to  build 
bridges  or  maintain  ferries  and  collect  tolls  for  their  use,  and 
said  that  unless  the  grants  recpiired  the  grantees  to  serve  the 
public,  they  were  void  for  lack  of  consideration,  and  then  said: 
"  It  is  the  duty  as  well  as  the  prerogative  of  the  government  to 
provide  necessary  and  convenient  roads  and  bridges ;  and,  to 
enable  it  to  accomplish  this  object,  it  has  ever^^vhere  what  is 
called  '  the  right  of  eminent  domain  ' ;  the  right  over  individual 
estates  to  resume  them  for  this  and  other  public  purposes. 
Such  a  prerogative  connected  with  a  corresponding  duty,  with 
the  power  to  execute  it  by  the  exercise  of  the  right  of  eminent 
domain,  necessarily  implies  that  it  belongs  to  the  government 
to  determine  what  improvements  are  of  sufficient  importance  to 
justify  the  exercise  of  the  right,  and  when  and  how  it  shall 
be  exercised ;  and  if  a  particular  bridge  or  ferry  is  considered 
sufficient  for  a  particular  locality,  it  may  stipulate  that  within 
such  reasonable  limits  the  particular  bridge  or  ferry  tolls  shall 
not  be  diminished  by  any  other  improvements  of  the  sort.  But 
it  is  no  part  of  the  duty  of  the  government  to  provide  the  com- 
munity with  lights  in  their  dwellings  any  more  than  it  is  to 
provide  them  with  the  dwellings  themselves  or  any  part  of  the 
necessaries  or  luxuries  which  may  be  deemed  important  to  the 
comfort  or  convenience  of  the  community.  And  if  it  be  assured 
that  there  could  be  no  impropriety  in  the  lighting  of  the  streets 
under  the  control  and  directions  of  the  sovereign  jwwer,  tliis 
would  be  merely  as  a  regulation  of  public  power  or  an  incident 
to  the  duty  to  provide  safe  and  convenient  ways.  And  in  case 
the  power  to  provide  for  lighting  the  streets  is  of  no  importance, 
because  nothing  was  done  to  secure  the  object,  unless  the  ])l:iin- 
tiff  chose  to  assume  it;  and  whether  they  would  do  so,  would 
probably   depend   upon  whether  it  could  be  made   profitable. 


490  OIL    AND    GAS. 

As,  then,  110  consideration  whatever,  either  of  a  puhlic  or  jiri- 
vate  character,  was  reserved  for  the  grant ;  and  as  the  business 
for  manufacturing  and  selling  gas  is  an  ordinary  business,  like 
the  manufacture  of  leather  or  any  other  article  of  trade,  in 
respect  to  which  the  government  has  no  exclusive  prerogative, 
we  think  that  so  far  as  the  restriction  of  other  persons  than  the 
plaintiff  from  using  the  streets  for  the  purpose  of  distributing 
gas  by  means  of  pipes  can  fairly  be  view  as  intended  to  operate 
as  a  restriction  ii]X)n  its  free  manufacture  and  sale,  it  comes 
directly  w-ithin  the  definition  and  description  of  a  monopoly; 
and  although  we  have  no  direct  constitutional  provision  against 
a  monopoly,  yet  the  whole  theory  of  a  free  government  is  op- 
jx)sed  to  such  grant,  and  it  does  not  require  even  tlie  aid  which 
may  be  derived  from  the  Bill  of  Rights,  which  declares  '  that  no 
men  or  set  of  men  are  entitled  to  exclusive  public  emoluments 
or  privileges  from  the  community,'  to  render  them  void.  .  .  . 
While,  then,  we  are  not  called  upon  to  question  the  power  and 
authority  of  the  legislature  to  grant  to  the  plaintiff  the  right  to 
lay  down  their  own  pipes  for  the  distribution  of  gas  through 
the  streets  for  their  own  private  purposes,  we  think,  consider- 
ing that  the  streets,  subject  to  the  public  easement,  are  private 
property,  that  it  does  not  possess  the  power  to  exclude  others 
from  using  them  for  similar  purposes."  ^^ 

§445.     A  grant  to  use  of  streets  to  exclusion  of  all  others  must 
rest  on  statutory  power. 

In  Indiana  a  statute  gave  towns  absolute  control  over  its 
streets.  .  A  subsequent  statute  provided  that  a  to"wn  should 
have  the  "  power  to  provide  by  ordinance  reasonable  regula- 
tions for  the  safe  supply,  distribution  and  consumption  of 
iiatural  gas  within  "  its  limits,  "  and  to  require  persons  or 
companies  to  whom  the  privilege  of  using  the  streets  and  al- 
L?ys  ...  is  granted  for  the  supply  and  distribution  of 
such  gas  to  pay  reasonable  license  for  such  franchise.and  privi- 
lege."    The  trustees  of  a  town  of  that  State  granted  a  natural 

13  Norwich   Gaslight   Co.    v.  Norwich  City  Gas  Co.,  25  Conn.  19. 


MONOPOLISTIC    (iK'ANTS    AM)    (( )N  llJAt    rs.  4J0a 

gas  company  the  exclusive  jirivileiic  ef  layiui;  pijK's  and  mains 
in  the  streets  and  alleys  (d"  their  t<i\vn  fctr  the  purpose  of  supi)ly- 
ing  it  and  its  inhabitants  with  natural  gas;  and  in  consideration 
of  this  grant  the  company  agreed  to  furnish  natural  gas  to  each 
alternate  street  lam])  free,  and  also  to  furnish  gas  for  lights  in 
front  of  the  cliurch  Imildings  of  the  town  without  charge.  The 
grantee  of  these  privileges  accepted  them  and  laid  its  pipes  and 
mains  in  the  street.  Thereafter  another  gas  ('umj)any,  with- 
out any  permit  from  the  town,  on  the  assumption  that  the  grant 
was  void,  entered  ii|)Mn  its  streets  and  began  digging  trenches 
therein  and  laying  ])i]ies.  The  town  brought  an  action  to  en- 
join them,  on  the  theory  that  the  grant  given  the  first  company 
excluded  all  other  companies.  The  court  held  that  without  per- 
mission of  the  town  board  of  trustees  the  second  company  could 
not  lay  its  pipes  in  the  streets,  and  for  that  reason  alone  it 
should  be  enjoined ;  and  that  it  was  not  precluded  by  its  illegal 
grant  to  the  first  company.  The  court  also  held  that  inasmuch 
as  the  legislature  had  not  empowered  the  town  to  grant  an  ex- 
clusive franchise,  or  one  excluding  all  other  comjianies  than 
the  grantee  —  it  had  no  power  to  make  such  a  grant.  But  the 
discussion  of  the  question  ran  farther  than  this.  "  A  numici- 
pal  corporation,"  said  the  court,  "  cannot  grant  to  any  fuel  or 
gas  supply  company  a  monopoly  of  its  streets.  There  is  nothing 
in  the  nature  of  the  business  of  such  a  company  making  its 
use  of  the  streets  necessarily  exclusive.  The  spirit  and  policy 
of  the  law  forbid  municipal  corporations  from  creating  monopo- 
lies, by  favoring  one  corporation  to  the  exclusion  of  others.  It 
is  probably  true  that  a  municipal  corporation  may  make  a  con- 
tract with  a  gas  company  for  supplying  liglit  to  the  ]yulilic 
lamps  for  a  limited  time,  even  thouuh  it  be  for  a  nmnber  of 
years;  on  this  point,  however,  there  is  some  conflict,  but  there 
is  no  conflict  on  the  pro])osition  that,  in  the  absence  of  express 
legislative  authority,  a  numicipal  corporation  camiot  grant  to 
any  corporation  the  exclusive  ]>rivilege  of  using  its  streets. 
There  is,  we  know,  much  conflict  among  the  authorities  u]ion 
the  question  of  the  power  of  the  legislature  to  grant  an  exclu- 
sive right  to  a  gas  company  to  use  the  highways  of  a  municipal 


490b 


OIL    AND    GAS. 


corporation;  and,  under  nur  constitutioii,  it  is  very  doubtful 
whether  the  legislature  possesses  such  authority.  But  we  are 
not  here  concerned  with  that  phase  of  the  question,  since  the 
legislature  has  not  attempted  to  vest  an  exclusive  privilege  in 
any  corporation."  "  Some  of  the  courts,  however,  go  very  far 
in   upholding  grants   of  this   kind,   under   the  general   statute 


14  Citizens'  Gas,  etc.,  Co.  v.  El- 
wood,  114  Ind.  332;  16  S.  E.  Rep. 
624;  20  Am.  and  Eng.  Corp.  Cas. 
263;  Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1;  1!)  Sup. 
Ct.  Rep.  77;  Indpls.  Cable  St.  R.  R. 
Co.  V.  Citizens'  Street  R.  R.  Co., 
127  Ind.  309;  24  N.  E.  Rep.  1054; 
26  N.  E.  Rep.  893 ;  8  L.  R.  A.  539 ; 
Crowder  v.  Sullivan,  128  Ind.  486; 
28  N.  E.  Rep.  94;  13  L.  R.  A.  647; 
Rushville  v.  Rushville  Natural  Gas 
Co.,  132  Ind.  575;  28  N.  E.  Rep. 
853;  15  L.  R.  A.  321;  43  Am.  and 
Eng.  Corp.  Cas.  483;  Westfield  Gas, 
etc.,  Co.  V.  Mendenhall,  142  Ind. 
538;  41  N.  E.  Rep.  1033;  State  v. 
St.  Louis,  145  Mo.  551;  46  S.  W. 
Rep.  981 ;  State  v.  Cincinnati  Gas- 
light and  Coke  Co.,  18  Ohio  St.  262; 
Saginaw  Gaslight  Co.  v.  Saginaw, 
28  Fed.  Rep.  529;  16  Am.  and  Eng. 
Corp.  Cas.  562 ;  Garrison  v.  Chicago, 
7  Biss,  480;  Jackson  County  Horse 
Co.  V.  Inter-State,  etc.,  Co.,  24  Fed. 
Rep.  300;  Atchison  Street  Ry.  Co. 
V.  Missouri  Pacific  Ry.  Co.,  31  Kan. 
600;  3  Pac.  Rep.  284;  Davis  v. 
Mayor,  14  N.  Y.  506;  67  Am.  Dec. 
186;  Illinois,  etc.,  Co.  v.  St.  Louis, 
^  Dill.  70;  Memphis  Gayoso  Gas  Co. 
V.  Williamson,  9  Heisk.  314;  Hamil- 
ton V.  Hamilton  Gaslight  and  Coke 
Co.,  11  Ohio  Dec.  513;  Parkersburg 
Gas  Co.  V.  Parkersburg,  30  W.  Va 
435;  4  S.  E.  Rep.  650;  Capital  City 
etc.,  Co.  V.  Talahassee,  42  Fla.  402 
28  So.  Rep.  810;  Kirkwood  v.  Mera 
mec  Highlands  Co.,  94  ]\Io.  App 
637;  68  S.  W.  Rep.  761;  Water,  L 
&  G.  Co.  V.  Hutchinson,  144  Fed 
Rep.   25G. 


The  following  are  some  instances 
of  grants  of  exclusive  franchises  or 
monopolistic  contracts  or  gi-ants: 
Logan  V.  Pyne,  43  Iowa  524;  22 
Am.  Rep.  261  (an  omnibus  line, 
not  upheld)  ;  Gale  v.  Kalamazoo,  23 
Mich.  344;  9  Am.  Rep.  80  (a  mar- 
ket house,  void)  ;  Montjoy  v.  Pil- 
low, 64  Miss.  705;  2  So.  Rep.  108; 
Louisville  V.  Wible,  84  Ky.  290;  1 
S.  W.  Re]).  ()05  (.-emoving  the  dead 
animals  of  a  city,  five  years'  con- 
tract sustained)  ;  Chicago  v. 
Rumpff,  45  111.  90;  92  Am.  Dec.  190 
(slaughtering  animals  for  city's  use, 
void);  Le  Claire  v.  Davenport,  13 
la.  210  (a  market,  sustained) ,  over- 
ruling Davenport  v.  Kelly,  7  la. 
102;  S  .  Louis  v.  Jackson,  25  Mo. 
37  (sale  of  meat  in  a  market  house, 
sustained);  Bloomington  v.  Wahl, 
46  111.  489  (sale  of  meat,  not  sus- 
tained) ;  Her  v.  Ross,  63  Neb.  — ; 
90  N.  W.  Rep.  869  (right  to  collect 
ashes,  void).  See  St.  Louis  v.  We- 
ber, 44  Mo.  547;  Bowling  Green  v. 
Carson,  10  Bush.  64;  Buffalo  v. 
Webster,  10  Wend.  100;  B)ish  v. 
Seabury,  8  Johns.  418;  Tugnian  v. 
Chicago,  78  111.  405;  Bethune  v. 
Hughes,  28  Ga.  560;  Caldwell  v. 
Alton,  33  111.  417  (sale  of  vegetables 
during  certain  hours  of  the  day,  not 
sustained)  ;  Smith  v.  Westerly,  19 
R.  I.  437;  35  Atl.  Rep.  526;  West- 
erly W.  W.  Co.  v.  Westerly.  80  Fed. 
Rep.  611;  Westerly  W.  W.  Co.  v. 
Westerly.  75  Fed.  Rep.  181 ;  76  Fed. 
Rep.  467. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS. 


490c 


giving  }X)wer  to  a  city  over  its  streets  and  to  light  them,  or  seeure 
a  company  to  furnish  light  for  that  ]nir|)Ose,  and  to  it.s  inhal>- 
itants.  It  has  been  held  in  a  number  of  well  considered  cases 
that  a  municipality  had  the  jiower  to  grant  an  exclusive  fran- 
chise." In  a  leading  Xew  York  case  a  statute  authorized  a  city 
to  enter  into  a  contract  for  lighting  its  streets,  but  did  not  specify 
the  length  of  time  it  was  to  run  ;  and  it  was  held  that  it  did  not 
confer  power  to  make  an  absolute  and  binding  contract  for  a 
term  of  years;  and  that  the  statute  could  be  re])ealed  while  a 
contract  yet  had  several  years  to  run.  It  was  considered  that 
the  city  could  revoke  the  contract  at  any  time  it  saw  tit.'*' 

§446.     Grant  of  exclusive  franchise  strictly  construed. 

Courts  do  not  look  with  favor  upon  grants  to  give  exclusive 
rights  to  occupy  th(>  streets  and  furnish  lights  to  the  municipal- 
ity's inhabitants.  Such  a  grant  is  strictly  construed,  in  fact, 
it  may  be  said  very  strictly  construed.  Thus  an  exclusive  right 
to  furnish  gas  light  will  not  confer  a  right  to  furnish  light  by 
electricity  without  the  consent  of  the  eity.^'  And  the  ukm-c  fact 
that  a  gas  company  has  the  right  to  lay  its  pipes  in  the  streets. 


i5Des  IMoines  St.  Ry.  Co.  v.  Des 
Moines,  73  la.  513;  33  N.  W.  Hop. 
610;  35  N.  W.  Kep.  ti02;  Newport 
V.  Newport  Light  Co.,  ^4  K3'.  1G(J; 
Fergus  Falls  Water  Co.  v.  Fergus 
Falls,  05  Fed.  Rep.  58G:  Illinois 
Trust  and  Savings  Bank  v.  Arkan- 
sas City,  7G  Fed.  Rep.  271;  22  C.  C. 
A.  171;   34  L.  R.  A.  518. 

16  Riclimond  Co'mtv  Gaslight  Co. 
V.  Middletown,  59  N.'Y.  228,  affirm- 
ing 1  T.  and  C.  143. 

Power  not  expressly  given,  will 
not  be  presumed,  unless  necessarily 
or  fairly  implied  or  incident  to 
other  powers  expressly  given  —  not 
simply  convenient,  but  indispensable 
to  them.  JjOS  Angeles  v.  Ix)s  An- 
geles City  W.  Co..  177  U.  S.  558; 
20  Sup.  Ct.  Rep.  730;  IMroit  Citi- 
zens' St.  Ry.  Co.  v.  Detroit  Ry.,  171 
U.  S.  48;'  18  Sup.  Ct.  Rep.  732; 
affirming  110  Mich.  384;  68  N.  W. 
Rep.  304;  Park  Com'rs  v.  Common 
Council.  28  :\rich.  228. 

"State  legislatures  may  not  only 
exercise  their  sovereignty  directly, 
but  may  delegate  such  portions  of 
it  to   inferior   legislative  bodies   as. 


in  their  judgment,  is  desirable  for 
local  purposes."  Walla  Walla  v. 
Walla  Walla  W.  Co.,  172  U.  S.  1; 
10  Sup.  Ct.  Rep.  77. 

A  lease  giving  the  exclusive  right 
to  cross  lands  with  pil)e  lines  is 
void,  because  against  public  policy; 
and  the  lessee  is  not  entitled  to  com- 
pensation for  the  invasion  of  his 
exclusive  right  in  condenination 
proceedings  by  another  of  a  sim- 
ilar right  of  way  across  the  same 
lands:  nor  is  the  lessor  entitled  to 
compensation  for  loss  of  rent  be- 
cause of  the  abandonment  by  the 
holder  of  the  exclusive  rigiit  of  the 
lease  under  which  such  right  is 
claimed.  Calor  Oil  &  Has  Co.  v. 
Franzell.  128  Kv.  715;  100  S.  W. 
Rep.  328;   33  Kv.  L.  Rep.  08. 

17  New[)ort  v.  Newport  Light  Co. 
(Kv.),  11  Kv.  L.  Rep.  840;  12  S. 
W.Rep.  1040:  Saginaw  Caslight  Co. 
V.  Saginaw,  28  Fed.  Rep.  52!) ;  Par- 
kersburg  (!as  Co.  v.  Parkersburg.  30 
W.  Va.  435;  4  S.  E.  Rep.  ()5(l:  He- 
lena V.  Helena  W.  W.  Co.,  122  Fed. 
Rep.   1. 


490d 


OIL    AND    GAS. 


the  city  agreeing  to  take  a  certain  amount  of  gas  from  it  for 
a  certain  time,  from  lamps  placed  on  the  street  by  the  company, 
does  not  give  it  exclusive  right.^^  Nor  does  a  statute  give  a 
gas  company  an  exclusive  franchise  merely  because  it  requires 
the  company  to  furnish  the  city  gas  within  three  years,  and 
authorizes  it  to  make  and  sell  gas  for  fifty  years.^°  An  ex- 
clusive franchise  to  ojx^rate  a  street  horse  railway  does  not  pre- 
vent the  municiaplity  granting  a  franchise  to  an  electric  railway 
company.^"  Where  a  company  secured  the  exclusive  right  to 
supply  a  city  with  water  from  a  certaiii  creek,  which  was  the 
most  accessible  source  for  the  city's  water  supply,  it  was  held 
that  this  did  not  prevent  the  city  granting  to  another  company 
the  right  to  supi>ly  the  city  with  water  taken  from  some  other 
source.'^  So  where  the  charter  of  a  company  authorized  it  to 
take  water  from  a  certain  pond  with  water  for  domestic  pur- 
poses, and  forbade  those  who  had  mill  privileges  on  the  pond  to 
cut  below  the  pipes  of  the  company  or  interfere  with  the  water  or 
obstruct  the  works ;  it  was  held  that  this  did  not  give  the  com- 
pany the  exclusive  right  to  the  water  of  the  pond  for  the  pur- 
poses designated ;  and  the  legislature  could  gTant  to  another 
company  the  right  to  take  water  from  such  pond.^^  In  Xew 
Jersey,  however,  a  different  rule  of  interpretation  was  allowed 
to  prevail  in  one  case.  A  gas  company  was  authorized  to  lay 
its  pipes,  with  the  consent  of  the  abutting  property  owners,  in 
a  certain  city.  It  did  so,  and  then  another  company  proceeded 
to  do  so  without  any  legislative  authority  whatever.  The  first 
company  sought  and  obtained  an  injunction  against  the  second; 
and  it  was  held  "  that  the  grant  of  a  franchise  by  the  State  is, 
by  its  own  extensic  force,  and  without  express  words,  exclusive 
against  all  persons  but  the  State,  and  that  any  attempt  to  exer- 

i«  Vincennes  v.  Citizens'  Gaslight  See  Des  Moines  St.  Ry.  Co.  v.  Des 

and  Coke  Co.,   132  Ind.   114;   31  N,  Moines,  etc.,  Ry.  Co.,  73  la.  513;  33 

E.  Rep.  573;   16    L.  E.  A.  485.  N.  W.  Rep.  610;  35  N.  W.  Rep.  602. 

10  Memphis    Cayoso    Gas    Co.    v.  21  stein  v  Bienville  Water  Supply 

Williamson.  0  Heisk.  314.     See  also  Co.,  .34  Fed.  Rep.   145;   affirmed  141 

Sheffield    United    Gas    Co.    v.    Shef-  U.  S.  67 ;  11  Sup.  Ct.  Rep.  802. 

field  Consumers'  Co..  2  Gas  J.  360.  22  x?ofkland  Water  Co.  v.  Camden, 

20  Omaha  Horse  Ry.  Co.  v.  Cable  etc..    Water    Co.,    80    Me.    544;     15 

Tramway    Co.,    30    Fed.    Rep.    324.  Atl.  Rep.  785. 


>IOKOPOLlSTlC    GUAM'S    AND    CONTUACTS. 


4i»l 


cise  like  rights  and  privilcucs  witluuit  Iciiislativc  autlxirity  is  a 
fraud  and  unwarranted  usui'pation  ot"  power."  "'  In  Penn- 
sylvania it  was  held  that  a  eharter  "  fur  sui)phing  light  and 
heat  by  means  of  natural  gas  "  in  a  certain  city  did  not  contlict 
with  the  charter  of  another  company  for  "  the  manufacture  and 
supply  of  gas  for  fuel  heat,"  at  the  same  ])lace,  both  grants 
being  exclusive."*  80  a  grant  to  supjjly  "  heat  to  the  public 
from  gas  "  was  held  not  to  contlict  with  another  grant  for  the 
same  territory  "  for  the  purpose  of  supplying  heat  to  the  public 
by  means  of  natural  gas  conveyed  from  such  adjoining  counties 
as  may  be  convenient."  '''  In  the  absence  of  words  giving  an 
exclusive  franchise,  a  contract  between  a  municipality  and  a 
company  for  gas  cannot  be  construed  as  such  a  franchise. *^'^ 
A  vote  of  the  town  authorizing  the  town  council  to  give  a  town 
the  right  to  lay  pipes  in  the  streets,  followed  by  the  towni's  silence 
for  five  years  without  taking  action  relative  to  the  purchase  of 
the  plant  (which  it  had  a  right  to  make),  of  the  use  of  the  water 
by  the  town  for  its  own  hall  and  drinking  fountains  whore  a 
certain  quantity  of  water  was  to  have  been  furnished  as  a  con- 
dition of  the  grant  of  the  use  of  the  streets  —  nor  a  vote  of  the 
town  to  purchase  the  company's  works  — •  does  not  give  an 
exclusive  franchise  to  the  company.""  The  courts  will  not  adopt 
such  a  construction  of  a  statute  incorporating  a  water  com])any 
as  will   prevent  the  State  or  a  municijiality   from   ever   after 


23  Jersey  City  Gas  Co.  v.  Dvvight, 
29   N.   J.    Eq.    242. 

24  Erie  Mining  and  Natural  Gas 
Co.  V.  Gas  Fuel  Co.,  15  W.  N.  C. 
399.  See  Emerson  v.  Common- 
wealth, 108  Pa.  St.  Ill;  Carother's 
Appeal,  118  Pa.  St.  468;  12  All. 
Rep.  314;  11  Cent.  Rep.  48;  John- 
ston V.  People's,  etc.,  Gas  Co.  (Pa.), 
5  Cent.  Rep.  564;  Sterling's  Appeal, 
111  Pa.  St.  35;  2  Atl.  Rep.  105;  2 
Cent.  Rep.  49;  Wilkes- Barre  Light 
Co.  V.  Wilkes-Barre,  etc.,  Co.,  4 
Kulp  47;  In  re  Johnston  (Cal.),  6!) 
Pac.  Rep.   973. 

25  Emerson  v.  Commonweal tli.  108 


Pa.  St.  Ill;  15  W.  X.  C.  425;  42 
I.eg.  Int.  81. 

*-'5  Bartholomew  v.  Austin,  85 
Fed.  Rep.  359;  52  U.  S.  App.  512; 
29  C.  C.  A.  568 ;  Long  Island  Water 
Supply  Co.  V.  Brooklyn,  166  U.  S. 
685;  17  Sup.  Ct.  Rep.  718, 
Skaneateles  W.  W.  Co.  v.  Skaneate- 
les,  161  N.  Y.  1.54;  55  N.  E.  Rep. 
562;  affirming  33  N.  Y.  App.  Div. 
642;   54   N.  Y.  Supp.   1115. 

26  Westerly  W.  W".  ("n.  v.  West- 
erly. 80  Fed.  i:.-p.  I'.ll.  See  West- 
(M-ly  W.  W.  Cn.  V.  Westerly.  75  Fed. 
Rep.  ISl:  70  Fed.  Rep.  467;  Smith 
V.  Westerly,  1!»  H.  1.  437;  35  Atl. 
Hep.  526. 


492 


OIL   AND    GAS. 


using  the  waters  of  a  stream  it  has  appropriated  to  its  use,  for 
public  or  municipal  purposes,  without  making  compensation  to 
such  company,  unless  the  legislative  intent  is  beyond  doubt. "^ 
Several  cases  arose  in  New  Orleans  over  the  attempted  annul- 
ment by  constitutional  provisions  of  exclusive  franchises  prev- 
iously granted  ;  and  these  provisions  were  held  to  be  void  by  the 
Supreme  Court  of  the  United  States.  In  one  of  these  cases 
an  ordinance  of  the  city  gave  the  lessee  of  a  hotel  a  right  to 
supply  the  hotel  with  water  drawn  from  the  ]\Iississippi  river 
many  blocks  away  through  mains  laid  in  the  streets,  and  this 
was  held  to  impair  an  exclusive  franchise  previously  granted 
to  a  water  company  to  supply  the  city  and  its  inhabitants  with 
water,  although  there  was  a  clause  in  such  franchise  reserving 
to  the  city  power  to  grant  to  any  person  who  was  "  contiguous 
to  the  river,  the  privilege  of  laying  pipes  to  the  river,  exclusively 
for  his  own  benefit."  It  was  said  that  no  lot  could  be  con- 
tiguous unless  it  actually  fronted  on  the  river,  or  was  separated 


27  St.  Anthony  Falls  Water  Power 
Co.  V.  Board,  168  U.  S.  349;  18 
Sup.  Ct.  Rep.  157.  See  Syracuse 
Water  Co.  v.  Syracuse,  116  N.  Y. 
167;  22  N.  E.  Rep.  381;  5  L.  R.  A. 
646;  In  re  City  of  Brooklyn,  143 
N.  Y.  596;  38  N.  E.  Rep.  983;  26 
L.  R.  A.  270;  Helena  v.  Helena 
W.  W.  Co.,  122  Fed.  Rep.  k 

As  an  iflustration  how  strictly 
contracts  for  an  exclusive  riglit  to 
supplj'  a  municipality  with  gas  is 
construed,  see  a  New  York  case 
where  it  was  held  that  a  contract 
of  the  l)oard  of  improvements  of  a 
town  with,  a  gas  company  to  lay  its 
pipes  in  its  streets  did  not  prevent 
otlier  officers  becoming  vested  with 
the  power  to  determine  whether 
leave  should  he  granted  to  other 
companies  to  lay  pipes  in  the  streets, 
nor  prevent  them  exercising  the 
power.  Parfitt  v.  Furguson.  3  N.  Y. 
App.  Div.  176;  38  N.  Y.  Supp.  460; 
affirmed  159  N.  Y.  Ill;  53  ^.  E. 
Rep.  707. 

Granting  a  compniiy  the  right  to 
occupy  all   the   streets   in  a   city   is 


not  the  granting  of  an  exclusive 
franchise.  Walla  Walla  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1;  19 
Sup.  Ct.  Rep.  77;  60  Fed.  Rep.  957; 
Hughes  v.  Momence,  1G3  111.  535; 
45  N.  E.  Rep.  300;  Long  Island 
Water  Supply  Co.  v.  Brooklyn,  166 
U.  S.  685;  17  Sup.  Ct.  Rep.  718; 
In  re  City  of  Brooklyn,  143  N.  Y. 
596 ;  38  N.  E.  Rep.  983 ;  26  L.  R.  A. 
270. 

A  special  act  will  not  be  con- 
strued to  give  a  monopoly  unless  it 
clearly  appears  to  be  so  intended. 
La  Campagine  pour  L'Eclairage  an 
Gas  V.  La  Campagine,  etc.,  25  Can. 
S.  C.  168;  Atlantic  City  W.  W.  Co. 
V.  Consumers'  Water  Co.,  44  N.  J. 
Eq.  427:  15  Atl.  Rep.  581;  West- 
erly W.  W.  Co.  V.  Westerly,  80  Fed. 
ReJD.  611;  Helena  v.  Helena  W.  W. 
Co.,    122   Fed.    Rep.    1. 

A  grant  to  one  company  to  fur- 
nish gas  does  not  prevent  a  similar 
errant  to  another  company.  Sapulpa 
v.  Sapulpa  Oil  &  Gas  Co!  (Okl.),  97 
Pac.  Rep.  1007. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS. 


493 


from  the  river  only  by  a  public  higlnvay,  with  no  private  owner 
intervening,  or  possibly,  on  a  block  or  square  so  located.^' 

§  446a.    Exclusive  grant  to   a  gas   company  not  preventing 
grant  to  an  individual. 

As  a  fair  illustration  of  the  strictness  with  which  the  grant 
of  an  exclusive  franchise  is  construed,  is  a  case  that  arose  in 
Maryland.  There  certain  companies  were  authorized  to  supply 
the  city  of  Baltimore  and  the  counties  of  Baltimore  and  ^Vnne 
Arundel  counties  with  gas;  and  it  was  provided  that  no  gas 
company  chartered  in  any  other  county  in  the  State  should 
have  the  right  to  lay  mains  or  sell  gas  in  such  two  counties, 
nor  should  any  other  gas  company  within  such  city  and  such 


28  New  Orleans  >  >  ater  Works  v. 
Rivers,  115  U.  S.  G74;  G  Sup.  Ct. 
Rep.  273;  New  Orleans  W.  W.  Co. 
V.    Ernst,   32    Fed.   Rop.   5. 

The  grant  of  an  exclusive  fran- 
chise docs  not  prevent  a  city  from 
imposing  on  a  gas  company  the  cost 
of  changes  in  the  location  of  its 
pipes  and  mains  under  the  city 
streets,  noccssitated  by  tlio  con- 
struction of  municipal  drainage. 
New  Orleans  Gaslight  Co.  v.  Drain- 
age Commission,  197  U.  S.  453; 
25  Sup.  Ct.  Rep.  471;  49  L.  Ed. 
831,  affirming  111  La.  838;  35  So. 
929. 

What  is  not  an  exclusive  right 
of  way  over  lands  for  pipe  lines, 
though  the  lease  of  the  lands  to 
bore  for  gas  is,  see  Brookshire  Oil 
Co.  V.  Casmolia,  etc.,  Co.,  150  Col. 
211;   103  Pac.  Rep.  9:^7. 

A  natural  gas  company  incorpo- 
rated to  produce  and  deal  in  natural 
gas  for  light,  neat  and  other  pur- 
poses, which  has  supplied  a  munic- 
ipality and  its  inhabitants  with  nat- 
ural gas  for  light,  is  not  prevcntcvi 
from  continuing  so  to  do  by  the 
organization  of  another  company 
under  anotlier  statute,  although  the 
latter  companj'  has  the  exclusive 
privilege  to  manufacture  gas  for 
light  only,  as  authorized  by  such 
latter  act.  Hagan  v.  Fayette  Gas- 
Fuel  Co.,  21   Pa.  Co.   Ct.  "Rep.  503; 


29  Pittsb.  Leg.  J.  (N.  S.)  229.  latere 
is  no  limit  to  the  number  of  com- 
panies a  oity  may  authorize  to 
furnish  gas  within  us  limits,  unless 
some  other  company  has  the  ex- 
clusive right.  Hagan  v.  Fayette 
Gas-FueJ  Co.,  supra. 

Where  the  charter  of  a  gas  com- 
pany provided  that  no  public  street 
should  be  injured  without  permis- 
sion of  the  city  first  obtained,  a 
license  by  the  city  to  use  the  streets 
was  held  to  vest  in  the  company  a 
perpetual  property  in  the  lands  con- 
stituting the  streets,  which  would 
not  be  taken  from  it  only  for  cause 
by  due  process  of  law.  Attorney 
General  v.  Consolidated  Gas  Co.,  124 
X.  Y.  App.  Div.  401;  108  X.  Y. 
Supp.  Rep.  823,  affirming  50  X.  Y. 
Misc.  Rep.  49;  lOG  N.  Y.  Supp.  Rep. 
407. 

The  granting  of  a  right  to  supply 
gas  in  a  county  wherein  is  a  city 
in  which  a  gas  company  has  the 
exclusive  right  to  furnish  gas  does 
not  render  the  grant  void.  Com- 
monwealth V.  Consumers'  Gas  Co., 
214   Pa.   72;    03  Atl.   Rep.  4G3. 

A  gas  company  may  be  granted 
an  exclusive  franchise  until  it  has 
dividetl  among  its  stockliolders  a 
certain  amount  of  dividends.  Com- 
monwealth V.  Consumers'  Gas  Co., 
supra. 


494 


OIL   AND    GAS. 


two  counties  should  be  chartered  to  furnish  gas  therein.  It 
was  held  that  this  statute  did  not  prohibit  the  granting  of  a 
franchise  to  an  individual."^* 

§  446b.     Consolidation  of  gas  companies. 

Statutes  not  infreijuently  permit  gas  companies  operating 
within  a  municipality  under  a  franchise  from  a  city  to  con- 
solidate or  merge  their  respective  rights  and  privileges,  and 
thereafter  operate  as  a  single  company.-^''  A  city  in  granting 
a  franchise  may  insert  a  condition  that  the  company  shall 
not  consolidate  with  any  other  company ;  but  the  granting  of  a 
franchise  to  a  subsequent  company  in  which  the  privilege  of 
consolidation  with  other  companies  is  inserted  estops  it  to 
declare  a  forfeiture  where  the  first  company  consolidates  with 
the  latter.-^*^  In  such  an  instance  a  majority  of  the  stock- 
holders of  one  of  the  companies  have  the  power,  in  the  absence 
of  fraud  or  unfairness,  to  exchange  its  franchise  for  that  of  the 
new  corporation;  and  one  of  the  original  companies  has  im- 
plied power  to  purchase  its  gas  from  the  other,  instead  of 
manufacturing  it  itself.-^'' 


28a  Consolidated  Gas  Co.  v.  Com- 
missioners, 99  Md.  403 ;  58  Atl.  Rep. 
214. 

-8b  People  V.  People's  Gaslight  & 
Coke  Co.,  205  111.  482 ;  C8  N.  E.  Rep. 
950.  This  case  involves  whether  or 
not  the  act  under  consideration  is  a 
special  law,  and  whether  or  not  the 
title  to  the'  act  was  broad  enough 
to  cover  its  subject  matter,  and 
whether  or  not  two  subject  matters 
were  embraced  in  its  provisions. 

zscTheis  v.  Spokane  Falls  Gas- 
light Co.,  49  \Yash.  477;  95  Pac. 
Rep.  1074. 

28(1  Theis  V.  Spokane  Falls  Gas- 
light Co.,   supra. 

A  grant  of  a  franchise  in  consider- 
ation of  which  the  gas  company 
agrees  to  pay  the  city  annually  a 
certain  sum  and  containing  a  provi- 
sion tliat  such  payments  will  con- 
tinue only  as  long  as  the  company 
enjoys  its  franchise  w'ithout  com- 
petition, is  not  contrary  to  public 
policy,  not  tnnding  to  destroy  com- 
petition    and    create     a    monopoly 


Richardson  Gas  &  Oil  Co.  v.  Altoona, 
79  Kan.  466;    100  Pac.  Rep.  50. 

A  statute  preventing  gas  com- 
panies extending  their  mains  to  a 
municipality  already  existing  is 
valid  and  not  void  on  the  ground 
that  it  tends  to  create  a  monopoly. 
Millville  Imp.  Co.  v.  Pitman,  etc., 
Gas  Co.,  76  N.  J.  L.  826;  71  Atl. 
Rep.    1134. 

'I he  Massachusetts  statute  (Rev. 
Laws,  c.  121,  §§  1,  5,  6,  8,  14,  15, 
26,  34,  35)  creating  a  board  of  gas 
and  electric  light  commissioners, 
with  power  to  exercise  general  super- 
vision over  gas  and  electric  lighting 
companies,  and  with  authority  to 
fix  the  maximum  price  for  gas  and 
electricity,  takes  control  of  such 
companies  so  far  as  necessary  to 
prevent  the  abuse  of  monopoly. 
Weld  V.  Gas  &  El.  Light  Commrs., 
197  Mass.  556;  84  X.  E.  Rep.  101. 

Tlie  charter  of  a  gas  company  au- 
thorized it  to  furnisli  tos  li.'Jflit  to  a 
city,  and  did  not  authorize  it  to 
furnish  any  other  light.     It  had  no 


MONOPOLISTIC   GRANTS    AND    CONTRACTS.  495 

§  447.     Legislature  cannot  revoke  monopolistic  clause  of  com- 
pany's   charter. 

In  the  previous  section,  it  is  said  that  the  legislature  had  the 
power  to  revoke  the  monopolistic  feature  of  a  gas  company's 
charter  or  franchise,  and  this  is  said  of  a  charter  where  the 
right  to  change  or  revoke  that  feature  was  not  reserved  in  the 
original  grant.  The  Supreme  Court  of  the  United  States  does 
not  take  this  view  of  the  matter.  The  Louisiana  legislature 
granted  to  a  gas  company  the  exclusive  right,  for  tifty  years, 
to  lay  pipes  in  the  streets  of  New  Orleans  and  furnish  gas  to 
the  inhabitants  of  that  city.  The  company  laid  its  pipes  in  the 
streets,  built  its  works,  and  supplied  gas  for  several  years. 
The  legislature  then  granted  to  another  company  the  right  to 
also  lay  pipes  in  the  streets  and  furnish  gas ;  and  upon  applica- 
tion of  the  first  company,  the  second  company  was  enjoined, 
on  the  theory  that  the  second  grant  infringed  upon  the  rights 
of  the  first  company.-"-*  The  court  was  careful  to  state  that  the 
granting  of  the  franchise  giving  the  grantee  the  exclusive  right 
to  furnish  gas  to  the  city  did  not  prevent  the  city  adopting 
proper  police  regulations  for  the  control  of  the  gas  company  so 
far  as  they  related  to  the  health  and  protection  of  the  inhabit- 
ants of  the  city,  and  the  control  of  the  city's  property  and 
streets.    Other  decisions  of  this  court  follow  this  case.^"     The 

facilities  to  furnish  any  other  light.  sales  of  the  property  of  a  gas  oom- 
A  city  granted  it  the  exclusive  right  pany  to  incorporate  for  tlie  purj^se 
to  use  the  streets  to  furnish  gas  of  supplying  gas.  Atillville  Imp. 
and  "other  illuminating  light."  It  Co.  v.  Pitman,  etc.,  Cas  Co.,  7(J  N. 
.was  held  that  the  grant  as  to  "other  J.  L.  82(5;  71  Atl.  Rep.  li:U. 
illuminating  light"  was  void.  Peo-  A  statute  authoriz-ing  city  to  fur- 
pie's  El.  Light,  etc.,  Co.  v.  Capitol  nish  gas  is  not  repealed  by  a  later 
Gas,  etc.,  Co.,  116  Ky.  76;  75  S.  W.  statute  authorizing  to  contract  with 
Rep.   280;    25   Ky.   L.   Rep.   .327.  a   gas   company   for  gas.     Smith   v. 

In  ilaine,  prio'r  to  18(15,  tlie  legis-  Avon-by-the-Sea,  68  N.  ,J.  L.  24,3; 
lature  reserved  tlie  right  to  deter-  52  Atl.  Hep.  226. 
mine  whether  the  public  good  de-  -^  New  (irleans  Gas  Co.  v.  Ivouis- 
manded  franchises  to  be  granted  iana  Light,  etc.,  Co.,  115  U.  S.  650; 
at  all  for  supplying  municipalities  6  Sup.  Ct.  Rep.  252  (reversing  4 
with  gas  or  electricty,  and  whether,  Woods  90)  ;  Crescent  City  (lasljght 
when  such  franchise  had  been  Co.  v.  New  Orleans  Gaslight  Co.,  27 
granted  in  certain  towns,  to  deter-  I^a.  Ann.  138;  liridge  Proprietors  v. 
mine  if  it  would  be  for  the  public  Iloboken,  1  Wall.  116;  Hinghamton 
good  to  permit  indiscriminate  com-  Bridge,  3  Wall.  51.  Contra,  Ham- 
petition.  Twin  Village  Water  Co.  ilton  Gaslight  and  Coke  Co.  v.  Hani- 
V.  Damariscotta  Gaslight  Co.,  98  ilton,  37  Fed.  Rep.  832. 
Me.  325;   56  Atl.  Rep.   1112.                           3o  Nevv  Orleans  W.  W.  Co.  v.  Liv- 

Validity    of    New    Jersey    statute  ers,   115  U.  S.  674;   6  Sup.  Ct.  "Ron. 

permitting  purchasers  under  judicial  273    (reversing  4   Woods    131)      >t. 


496  OIL   AND    GAS. 

same  rule  was  applied  to  a  gas  company  created  in  Kentucky, 
even  though  the  constitution  of  that  State  provided  "that  all 
freemen,  when  they  form  a  social  compact,  are  equal,  and  that 
no  man  or  set  of  men  are  entitled  to  exclusive,  separate  emolu- 
ments or  privileges  from  the  community,  but  in  consideration 
of  public  services."  In  1838  a  charter  was  granted  to  a  gas 
company ;  and  in  1856  the  legislature  provided  that  thereafter 
"all  charters  and  grants  of  and  to  corporations,  or  amend- 
ments thereof,  shall  be  subject  to  amendment  or  repeal  at  the 
will  of  the  legislature,  unless  a  contrary  intent  be  therein  ex- 
pressed." In  1869  this  charter  of  1838  was  amended,  grant- 
ing to  a  gas  company,  in  such  amendment,  an  exclusive  right 
to  occupy  the  streets  of  Louisville.  In  1872  another  statute 
was  passed  authorizing  another  gas  company  to  lay  its  pipes, 
with  the  consent  of  the  city  council,  in  the  streets,  and  to 
furnish  gas  to  its  inhabitants.  This  latter  Act  was  held  void, 
because  it  was  clear  that  the  Act  of  1869  gave  the  company  the 
right  to  continue  to  enjoy  the  franchise  it  then  possessed  for 
the  term  therein  named  without  being  subject  to  have  its 
charter  in  that  respect  amended  or  repealed  at  the  will  of  the 
legislature.'^  In  ^Missouri  one  of  the  Appellate  Courts  drew  a 
distinction  between  the  power  of  the  legislature  to  authorize  a 
gas  company  to  occupy  streets  to  the  exclusion  of  others,  and 
the  power  to  authorize  an  exclusive  right  to  vend  gas  for  the 
same  time  in  a  city — holding  the  former  a  valid  grant,  and 
the  latter  void,  because  prohibited  both  by  the  common  law 
and  by  a  clause  in  the  constitution  prohibiting  the  granting 
of  special  privileges.^- 

Tammany  W.  W.  v.  Xpw  Orleans  W.  1G3  Til.  5.35;  45  N.  E.  Rep.  300. 
W.,   120  U.   S.  64;   7   Sup.  Ct.  Rep.  A  State  cannot  even  by  a  consti- 
405;     NeAV    Orleans    W.    W.    Co.    v.  tutional    provision   abrogate   the  ex- 
Ernst,  32  Fed.  Rep.  5.  elusive  clause   in  the  franchise  of  a 

31  Louisville  Gas  Co.  v.  Citizens'  vi^ater  company;  and  in  such  an  in- 
Gas  Co.,  115  U.  S.  683;  6  Sup.  Ct.  stance  a  city  cannot  insist  on  fur- 
Rep.  265;  reversing  81  Ky.  263.  See  nishing  the  water  under  the  plea 
Hovelman  v.  Kansas  City  Horse  R.  that  it  will  furnish  a  purer  and 
R.   Co.,  79  Mo.  632.  more  suitable  supply.    St.  Tammany 

32  St.  Louis  Gaslight  Co.  v.  St.  W.  W.  Co.  v.  New  Orleans  W.  W. 
Louis,  etc.,  Co.,  16  Mo.  App.  52.  Co.,   120  U.  S.  64;   7  Sup.  Ct.  Rep. 

An    ordinance    for    the    laying    of  405;    14  Fed.   Rep.   194. 

pipes   in   certain    streets    is   not    in-  But    see    Beinville   Water    Supply 

validated  by  the  fact  that  pipes  of  Co.  v.  Mobile    (U.,  S.),  22   Sup.   Ct. 

a  private  company  exist  on  some  of  Rep.  820:    affirming  175  U.  S.   109; 

the    streets.      Hughes    v.    IVtomence,  20  Sup.  Ct.  Rep.  40. 


MONOPOLISTIC     UKANTS    AND    CON  IKACTS.  -197 

§448.     Municipality  agreeing  not  to  compete  with,  gas  company. 

A  municipality  inay  bind  itself  not  to  compete  with  a  gas 
company  to  which  it  has  granted  a  right  to  furnish  gas  to  it 
and  its  inhahitants,  by  agreeing  in  the  grant  ncit  to  ongagt'  in 
furnishing  gas  as  a  municipal  enterprise  for  a  named  jK'riod. 
But  it  may  well  be  doubted  if  it  could  thus  bind  itself  in  jx^r- 
petuity.  Thus  in  the  State  of  Washington  a  city  was  chartered 
by  a  special  Act  of  the  legislature,  and  was  authorized  to  issue 
its  bonds,  not  to  exceed  fifty  thousand  dollars  in  amount,  to 
build  water  works,  or  to  authorize  a  company  to  build  them. 
The  city  authorized  a  company  to  put  in  a  water  works  system, 
upon  the  condition  that  it  would  furuisli  free  water  for  city 
hydrants  and  for  flushing  the  sewers ;  and  agTeed  to  not  build 
water  works  of  its  own  for  twenty-five  years.  It  was  also  pro- 
vided that  if  the  service  of  the  company  should  prove  unsatis- 
factory, the  city  might  a])])ly  t(j  the  courts  to  secure,  for  suffi- 
cient cause,  a  revocation  of  the  grant.  After  the  company  had 
constructed  its  w^orks  and  for  several  years  had  supplied  water, 
"without  securing  a  revocation  of  its  grant,  it  submitted  the  ques- 
tion, pursuant  to  a  general  statute,  to  the  jx^ople  whether  or  not 
it  should  build  water  works  on  its  ovm  account;  and  the  vote 
being  favorable  to  the  building  of  them,  enacted  an  ordinance 
for  their  construction,  and  provided  for  an  issue  of  one  hun- 
dred and  sixty  thousand  dollars  of  bonds  for  that  ])ur])oso.  The 
court  restrained  the  city  from  entering  u])on  the  entorj^rise  of 
building  its  own  water  works,  holding  that  so  long  as  the  first 
grant  remained  unrevoked  it  could  not  do  so ;  and  that  the  con- 
tract not  to  engage  in  a  competitive  work  of  supplying  waiter 
was  binding  upon  the  city.^^  The  mere  grant  of  a  right  to  build 
a  gas  plant,  lay  pipes  in  the  street,  and  supply  the  city  and 
its  inhabitants  with  gas,  accom])aiii(Ml  by  contracts,  at  ditfcM'ciit 
times,  for  lighting  the  streets,  docs  not  ]>revent  the  city,  when 
such  contracts  are  at  an  end,  building  its  own  gas  plant  ard 
supplying  itself  and  its  inhabitants  with  gas;  and  that,  too,  even 

33  Walla  Walla  v.  Walla  Walla 
Walter  Co..  172  U.  S.  1;  10  S.  Ct. 
Rep.  77,  affirming  GO  Fed.  Rep.  957- 


498  OIL    AND    CAS. 

though  tlie  city  liad  several  times  fixed  the  price  of  gas,  under 
a  statute,  at  which  it  should  be  sold  to  the  inhabitants  of  the 
city.^*  And  a  statute  providing  that  when  any  existing  com- 
pany refuses  to  extend  its  lines,  make  connections,  or  perform 
certain  other  duties  when  rcMpiired  to  do  so  by  the  nninicijial 
authorities,  its  charter  should  be  forfeited,  and  the  city  be  at 
liberty  to  establish  and  maintain  gas  w^orks  of  its  o^vn,  passed 
after  the  company  had  been  granted  a  franchise,  does  not  impair 
the  obligation  of  contracts,  within  the  meaning  of  the  Federal 
Constitution,  although  the  value  of  the  existing  company's  fran- 
chise is  diminished  by  the  city's  erecting  its  own  works.^^  The 
fact  that  the  city  owns  its  own  gas  works  does  not  enable  it  to 
ju'event  a  gas  ('om])any,  having  the  right  to  do  so,  from  extend- 
ing its  mains  and  sujjplying  gas  to  the  city's  inhabitants  at  a 
rate  below  that  at  which  the  city  can  manufacture  and  supply 
it,  thereby  rendering  its  enterprise  a  losing  one."'^  It  has  been 
sometimes  held  that  statutes  were  so  peculiar  in  their  terms 
that  a  municipality  could  not  engage  in  the  enterprise  of  fur- 
nishing water,  where  it  had  granted  the  right  to  a  private  cor- 
poration, even  though  such  grant  was  not  an  exclusive  one. 
Such  is  a  case  already  cited. ^^  In  Xew  York  a  case  arose  which 
rests  on  such  a  statute  —  a  very  peculiar  statute.  Tn  that  Stat^ 
it  has  been  decided  that  the  fact  of  a  municipality  granting  t- 1 
a  water  company  the  right  to  furnish  the  city  and  its  inhabitant ; 
w^ater,  containing  no  grant  of  an  exclusive  character,  did  nc  c 
prevent  it  from  making  the  same  kind  of  a  grant  to  another 
water  company ;  ^^  and  that  rule  is  adhered  to  in  the  case  no"v* 

34  State  V.  Hamilton,  47  Ohio   St.  IS'orth    S{>rinffs   Water    Co.   v.    Tact,- 

52;  23  N.  E.  Rep.  935;  29  Am.  and  ma,    21    Wash.    517;    58    Pac.    Rep. 

Eng.   Corp.   Cas.  208;    Westerly   W.  773;   47   1.  R.  A.  214. 

W.    Co.   V.   Westerly.    80   Fed.    Rep.  3g  Hamilton  v.  Hamilton  Gaslight 

Oil;   75  Fed.  Rep.  181;  70  Fed.  Rep.  Co.,    11    Ohio    Dec.    513. 

407 ;   Helena  v.  Helena   W.   W.  Co.,  st  See  the  case  of  White  v.  ]\Iead- 

122  Fed  Rep.  1.  ville,   supra.     See   Welsh   v.   Beaver 

.'•5  Hamilton     Gaslight    and     Coke  Falls    (Pa.) ,  40  Atl.  Rep.  784. 

Co.  V.  Hamilton.   146  U.  S.  258;   13  3S /„    re    City    of    Brooklyn,    143 

Sup.  Ct.  Rep.  90;  affirming  37  Fed.  N.  Y.    596;    38  I'.   E.   Rep.   983;    26 

Ren.    832;     State    v.    Hamilton,    47  1..  R.  A.  270;  Syracuse  Water  Co.  v. 

Ohio    St.    -52:    23    N.    E.    Rep.    9."5;  Syraense.    110  N.  Y.   167:    2-2   N.   E. 

29   Am.   and   Eng.   Corp.   Cas.    208;  Rep.  381;  5  L.  R.  A.  540;  Power  v. 


MONOPOLISTIC  GRANTS  AND  CONTRACTS. 


4n8a 


under  discussion.  A  village  gave  a  lum-exelusive  fraiiehise  to  a 
^vateI•  coiupanj  to  construct  a  water  system.  After  the  ex- 
piration of  the  franchise,  the  village  did  not  j)urchase  the  sys- 
tem, as  the  law  provided  it  might,  but  began  the  construction 
of  its  own  system  under  a  statute  which  authorized  it  to  levy 
a  tax  where  the  net  wat(>r  receipts  were  insutlicient  to  ])ay  the 
indebtedness  incurred  in  building  the  systcMii  when  due,  and  to 
"  establish  a  scale  of  water  rates  for  the  use  of  water  and  also 
rates  for  the  fire  protection  to  be  assessed  on  all  real  property 
abutting  on  the  mains  or  within  two  hundred  feet  of  the  hy- 
drants, or  on  such  real  property  so  abutting  or  within  said 
distance  as  such  boards  may  deem  beneficial,  upon  which  real 
property  the  water  is  not  used,  by  the  owner  or  occupant 
thereof  for  domestic  or  manufacturing  purjx)ses."  After  the 
work  of  constructing  a  municipal  plant  was  begun,  the  existing 
private  water  company  brought  suit  to  enjoin  its  construction, 
claiming  that  the  alxjve  section  was  invalid ;  and  the  court  sus- 
tained its  claim.  The  basis  of  the  decision  was  that,  if  the 
net  receipts  were  not  sufficient  to  pay  the  debt  incurred  in 
putting  in  the  plant,  the  village  had  the  power  to  tax  the  ])ri- 
vate  company's  plant  and  all  its  consumers  of  water ;  but  if  such 
consumers  would  abandon  it,  and  take  water  from  the  village 
*'  for  domestic  or  manufacturing  purposes,"  then  their  ]>roper- 
ties  were  exempt  from  the  tax.  The  court  regarded  this  as  such 
an  unfair  provision  that  it  violated  that  provision  in  the  Fed- 
eral Constitution  prohibiting  a  State  impairing  the  obligation 
of  a  contract.^® 


Athens,  99  N.  Y.  592;  2  N.  E.  Rep.  by    implication.     T\ronc     Oas    and 

609.  Water   Co.   v.   Tyrone.    105    Pa.   St. 

39  Skanea teles    Water    Works    Co.  5GG ;   46   Atl.   R*>p.    134. 
V.    Skaneateles,    161    N.    Y.    154;    55  If  a  gas  company  has  the  exdu- 

N.  E.  Rep.  562;   affirminj^  33  X.  Y.  sive  ripht  to  furnish  {jas  to  a  city. 

App.  Div.  642;  54  N.  Y.  Supp.  1115.  it  may   maintain   a   bill   to   restrain 

8ee  Warsaw  W.  W.  Co.  v.  Warsaw,  the   city   procecdinjr   under   its  pen- 

16   N.  Y.  App.   Div.  502;   44   N.  Y.  eral  powers  to  hiiild   a   plant.     Has 

Supp.  876.  and    Water   Co.   v.   Dowinpton.    175 

The  contract  of  a  city  not  to  con-  Pa.   St.   .341;    38   W.   N.   C.  376;    34 

struct  a  plant  of  its  own  may  arise  Atl.  Rep.  799.     See  Southwest  Mis- 


498b 


OIL.   AND   GAS. 


§  449.     Legislature  may  not  authorise  monopolistic  grants. 

Notwithstanding  what  has  ])een  said  in  llio  former  sections, 
there  are  quite  a  number  of  cases  which  liohl  that  tlie  legisla- 
ture cannot  itself,  nor  authorize  a  municipality  to,  grant  an 
exclusive  franchise,  nor  even  enter  into  a  contract  with  a  gas 
or  water  company  to  take  gas  or  water  from  it  for  a  long 
period  of  years  and  agree  to  exclude  all  competitors.  Such 
grants  or  contracts  are  held  to  create  such  a  monopoly  as  the 
usual  clause  in  a  constitution  against  monopolies  prohibits.*" 
The  granting  of  an  exclusive  right  of  way  to  lay  pipes  in  the 
streets  or  highways  is  void  under  the  Texas  constitution.*^ 

§  450.    Estoppel  to  contest  validity  of  monopolistic  grant. — 
Ratification. 

A  municipality  is  not  estopped  to  deny  the  validity  of  a 
monopolistic  contract  if  it  could  not  make  it ;  for  to  allow  an 
estoppel  would  be  to  bind  the  corporation  by  a  grant  or  eon- 
tract  it  had  no  power  to  make.    A  city  or  town  being  a  public 


aoiiri  Light  Co.  v.  Joplin,  113  Fed. 
Rep.   817. 

A  city  cannot  insist  on  furnishing 
water,  to  tlie  exclusion  of  a  water 
company,  under  tlie  plea  that  it  will 
furnish  a  purer  and  more  suitable 
supply.  St.  Tammany  W.  W.  Co. 
V.  New  Orleans  W.  W.  Co.,  120  U. 
S.  64;  7  Sup.  Ct.  Rep.  405;  14  Fed. 
Rep.   194. 

Under  the  Connecticut  Acts,  181)3, 
p.  386,  c.  231,  §  13,  providing  that 
if  a  city,  deciding  to  build  a  light- 
ing plant,  thereafter  refuses  to  pur- 
chase a  private  plant  operated  by  a 
gaa  company  incorporated  by  the 
legislature,  it  may  be  compelled  to 
do  so,  and  a  commission  appointed 
by  the  court  to  adjudicate  whether 
the  plant  should  be  purchased,  and 
what  the  price  and  conditions  of  the 
sale  should  be,  the  commiseion  has 
no  power  to  pass  on  the  validity 
of  the  statute.  Norwich  Gas  &  El. 
Co.  V.  Norwich,  76  Conn.  565,  57 
Atl.  Rep.  746. 

40  Brenham  v.  Brenham  Water 
Co.,  67  Tex.  542;  4  S.  W.  Rep.  143; 
Janeway  v.  Duluth,   65   Minn.   292; 


68  N.  W.  Rep.  243.  See  Des  IMoines 
Gas  Co.  v.  Des  Moines,  44  Iowa  505. 
In  Bartholomew  v.  Austin,  85  Fed. 
Rep.  359;  52  U.  S.  A])p.  512;  29 
C.  C.  A.  568,  the  United  States 
Court  of  Appeals  disapprove  of  this 
case  in  passing  upon  the  clause  in 
tiie  con-stitution  of  Texas  against 
monopolies.  Edwards  County  v. 
Jennings,  89  Tex.  618;  35  S.  W. 
Rep.  1053;  33  S.  W.  Rep.  585;  Da- 
venport V.  Kleinschmidt,  6  Mont. 
502;  13  Pac.  Rep.  249;  Minturn  v. 
La  Rue,  23  How.  435  (a  ferry 
right)  ;  Long  v.  Duluth,  49  Minn. 
280;  51  N.  \V.  Rep.  913;  Atlantic 
(  itv  W.  W.  Co.  V.  Cons"me'-s'  V'-- 
ter  Co.,  44  N.  J.  Eq.  427;  15  Atl. 
Rep.  581;  diametrically  opposed  to 
Atlantic  City  W.  W.  Co.  v.  Atlan- 
tic  City,   48  N.   J.  L.  378. 

41  Edwards  County  v.  Jennings, 
89  Tex.  618;  35  S.  W.  Rep.  1053; 
anirming  33  S.  W.  Rep.  585.  See 
People  V.  Bowen,  30  Barb.  24;  af- 
firmed 21  N.  Y.  517;  Elmira  Gas- 
light Co.  V.  Elmira,  2  Ala.  L.  Jr. 
392. 


MONOPOUSTIC   GRANTS    AND    CONTRACTS.  499 

corporation,  those  Avho  contract  with  it  are  as  much  hound 
to  know  its  powers  and  limitations  as  its  inhabitants  and 
officers;  so  that  it  cannot  be  successfully  said  that  those  con- 
tracting with  it  were  in  ignorance  of  its  power  to  ])ind  itself 
or  were  misled  by  the  representations  of  its  oiricers/-  Silence 
for  five  years  without  taking  any  action  to  purchase  the  plant 
under  a  contract,  as  it  had  a  right  to  do,  or  by  use  of  the 
water  for  town  purposes,  or  a  vote  of  the  town  to  notify  the 
company  of  an  intention  to  purchase  its  plant,  or  all  these 
together  will  not  estop  the  city  so  as  to  prevent  it  setting  up  the 
invalidity.*^  So  a  clause  in  a  company's  charter  granting  it  the 
right  to  lay  its  pii>es  in  the  streets  of  a  certain  town  for  nii 
indefinite  period,  but  not  granting  to  or  recognizing  any  au- 
thority in  the  town  council  to  make  an  exclusive  grant  of  a 
right  therein,  will  not  constitute  a  ratification  of  an  unauthor- 
ized exclusive  grant  made  by  it.**  And  tlio  fact  that  the  coiniiany 
has  used  the  streets  for  twenty  years,  even  under  ]wnnission  of 
the  city  council,  will  not  prevent  the  court  from  inquiring  into 
its  right  to  an  exclusive  use  of  the  streets,"  and  the  fact  that 
others  have  not  exercised  a  similar  riiilit  does  not  make  the  com- 
pany's uses  the  exercise  of  a  right  to  exclude  others.*^ 

§451.     A  federal  question. 

The  granting  of  a  second  or  other  franchise  impairing  the 
benefit  given  by  an  earlier  franchise,  or  its  revocation,  raises  a 
question  under  the  Constitution  of  the  United  States  giving  the 
Federal  courts  jurisdiction  when  pro]T€rly  raised.*'' 

*2  Smitli    V.    Westerly,    19    R.    I.  pany    for   a    lon<j   time   is   estopped 

437;    35   Atl.    Kep.   o'iG.  to  set  up  the  invniidity  of  sucli  com- 

*3  Westerly    W.    W.    Co.    v.    West-  pany's       nrf,Mnizat  ion.        Wyandotte 

erly,  80  Fed.  Rep.   611.     See   West-  Klectric    Liglit    Co.    v.     Wyandotte, 

erly  W.  W.  Co.  v.  Westerly,  75  Vvd.  124  Mich.  43;   82  N.   W.   Rep.  821; 

Rep.    181;    76   Fed.   Rep.    467.  Atlantic   City   W.   W.   Co.    v.    Roe.i. 

*4  Smith    V.    Westerly,    19    R.    I.  50  N.  J.  L.  665;   15  .Ml.  R-p.   10. 

437;    35    Atl.    Rep.    526.  40  Walla    Walla    v.    Walla    Wall  i 

<5  State    V.    Cincinnati,    etc.,    Co.,  Water  Works  Co..   172   l".   S.    1;    1!» 

18    Ohio    St.    262;    Cincinnati    Gas-  Sup.   Ct.  Rep.   77;    Ln.,'ansnort.  etc., 

light  and  Coke  Co.  v.  Avondale,  43  fJas  Co.  v.  Peru.  89  Fed.  Rep.  185; 

Ohio  St.  257;  1  N.  E.  Rep.  527.          .  Southwestern  Missouri   l.i;.'ht    Co.  v. 

A   city   dealing  with   a   gas   com-  Joplin,   113   Fed.    Rep.    817. 


500  OIL    AND    GAS. 

§452.     Monopolistic  clause  does  not  avoid  whole  contract. 

A  clause  to  furnish  gas  or  water  in  which  is  an  objectionable 
monopolistic  clause  will  not  avoid  the  whole  contract.  'J'he 
agreement  to  ]>ay  for  the  gas  or  water  remains  in  force  and  the 
city  or  town  entering  into  the  contract  is  bound  thereby.''^ 

§453.     Enjoining  passage  of  ordinance. 

A  court  has  no  power  to  enjoin  the  passage  of  an  ordinance 
granting  to  a  second  company  a  franchise  which  is  a  direct  vio- 
lation of  a  previous  grant  made  by  it,  or  is  in  violation  of  a 
statute  giving  such  an  exclusive  franchise.  The  court  will  wait 
until  a  contest  may  arise  between  the  claimants  under  the  two 
franchises  or  in  some  other  way  arising  after  the  ordinance  has 
been  enacted.** 

§454.     Forfeiture  of  exclusive  franchise. 

A  gas  or  water  com]>any  given  an  exclusive  privilege  to  sup- 
ply a  city  with  gas  or  water  will  lose  such  ]u-ivilege,  so  far  as  it 
is  exclusive,  unless  it  complies  with  the  duty  imposed  u]X)n  it 
to  furnish  gas  or  water.  It  must  provide  adequate  mains  for 
ihe  delivery  of  gas  or  water  to  all  parts  of  the  city  in  sufficient 
rpiantities  for  the  wants  of  tlie  inhabitants;  not,  however,  being 
com]xdlcd  to  enter  those  regions  where  the  number  of  consumers, 
and  where  public  lights  or  water  are  not  needed,  or  will  be  so  few 
as  to  make  the  cost  of  supplying  them  out  of  all  proportion  to 
the  amount  of  the  income  derived  from  the  sale  of  gas  or  water.*** 
And  before  a  court  will  protect  it  in  its  exclusive  franchise  it. 
must  show  some  honest  and  active  efforts  to  assert  and  exer- 
cise the  right  claimed  by  it.^° 

47  Illinois  Trust  .ind  Ravings  Bank  24.5;  0  So.  Rep.  11.3;  4  L.  R.  A. 
V.  Arkansas  City,  76  Fed.  Rep.  271;       010. 

40  U.  R.  App.  2.57;  22  C.  C.  A.  171;  «  N^^  Orleans  Water  Works  Co. 

34   L.    R.   A.   518;    Jackson   County  v.  Rivers,  11.5  U.  S.  674;  6  Rup.  Ct. 

Horse   Ry.   Co.   v.   Interstate   Rapid  Rep.  273;   New  Orleans  W.  W.  Co. 

Transit  R.  R.  Co.,  24  Fed.  Rep.  300;  v.    Ernst,   32    Fed.    Rep.    .5. 

Levis  v.  Newton,  75  Fed.  Rep.  884.  s"  Where    the    public   policy   of    a 

48  Des  Moines  Gas  Co.  v.  Des  State,  as  evidenced  by  years  of  legis- 
Moines,  44  la.  505;  Montgomery  lation,  is  to  permit,  with  t'le  sane- 
Gaslight  Co.  y.  Montgomery,  87  Ala.  tion    of    the    municipal    authorities, 


MONOPOLISTIC    GRANTS    AND    CONTRACTS. 


501 


§455.     Exclusive    franchise    for   artificial   gas   does   not   exclude 
natural  gas. 

We  liiive  :ni  illnstrati(iii  how  strictly  an  oxclusivo  francliisc  is 
construed  in  several  natural  gas  cases.  Thus  an  early  statute 
in  a  State  authorized  the  uiving  to  a  cor|x»ration  tiie  exclusive 
right  to  supply  a  town  with  gaslight,  and  to  erect  the  necessary 
huildings  to  manufacture  and  distrihute  the  gas.  It  was  held 
that  this  exclusive  franchise  did  not  prcNcnt  the  town  giving  to 
a  natural  gas  company  the  right  to  furnish  gas,  although  such 
company  would  snpply  gas  for  lighting  purix)scs.°* 

^456.     Extension  of  time   for   completion   of   work.     Additional 
requirements. 

If  a  gas  or  water  company  fails  to  complete  the  works  it  has 
undertaken,  in  compliance  with  the  requirements  imposed  upon 
it  hy  the  city,  such  city  may  impose  additional  terms  or  exact 
additional  requirements  in  extending  the  time  for  the  comple- 
tion of  such  works.^" 


the  freest  possible  competition  in 
the  use  of  tlie  pul)lic  streets  for  the 
laying  of  gas  pipes,  a  gas  company 
having  such  a  franciiise  is  not  en- 
titled to  recover  damages  against 
another  company,  which,  with  the 
municipal  consent,  exercised  a  sim- 
ilar franchise,  because  the  latter  had 
failed  to  comply  with  some  statutory 
requirement,  especially  wiiere  such 
franchise  was  exercised  for  several 
years,  during  which  the  State  took 
no  action  in  the  matter.  Cumber- 
land fJaslight  Co.  V.  West  Va..  etn.. 
Gas  Co.,  182  Fed.  fi(i7 ;  affir  .ed  188 
Fed.  585.  It  will  not  lie  permitted 
to  copy  the  conduct  of  tlie  "dog  in 
the  manger."  Scranton  I']lectric 
Light  and  Heat  Co.  v.  Scranton,  etc., 
Co.,  3  Pa.  Co.  Ct.  Rep.  628. 

51  Warren  GIa.slight  Co.  v.  Penn- 
Rvlvania  Cas  Co.,  101  Pa.  St.  510; 
29  Atl.  Rep.  101 ;  Hagan  v.  Favetto 
Oas-Fuel  Co..  21  Pa.  Co.  Ct.  "Pep. 
503:  29  Pitt«b.  Ug.  J.  (N.  S.) 
229;  Circleville  Light  &  P.  Co.  v. 
Buckeye  Gas  Co..  (19  Ohio  St.  250; 
€9  N.'E.  Rep.  430;  Quimby  v.  Con- 
sumer.s'  Gas  Trust  Co.,  140  Fed. 
Rep.  362;  Columbus  v.  Cohunbus 
Gas  Co.,  76  Ohio  St.  309;  81  N.  E. 


Rep.  440;  Cumberland  Gas  Co.  v. 
West  Va.,  etc..  Gas  Co.,  188  Fed. 
585,   aflirming   69   N.   K.  436. 

A  charter  t'^  "manufacture  and 
sell  calcium  carbide  ami  its  product, 
and  j)urposes  incident  thereto  and 
connected  therewith,"  does  not  come 
in  conflict  with  one  giring  an  ex- 
clusive franchise  for  the  supply  of 
gaslight.  Lebanon  Gas  Co.  v.  I^eb- 
anon  Fuel,  etc.,  Co.,  5  Pa.  Dist.  Rep. 
529;  IS  Pa.  Co.  Ct.  Rep.  223;  .Toim- 
ston  V.  People's,  etc..  Gas  Co.  (Pa.), 
7  Atl.  Rep.  167;  5  Cent.  Rep.  564. 

For  analogous  cases,  see  Malone 
v.  Lancaster,  etc.,  Co.,  182  Pa.  St. 
309;  40  W.  R.  C.  434;  15  Nat.  Corp. 
Rep.  98;  14  Lane.  L.  Rev.  321:  37 
Atl.  Rep.  932;  Wilkes-Barre  Light 
Co.  v.  Wilkcs-Uarre.  etc.,  Co.   (Pa.), 

4  Kulp  47;  Fmmcrson  v.  Common- 
wealth, 108  Pa.  St.  Ill;  Carother'a 
Appeal.  118  Pa.  St.  468;  12  Atl. 
Rep.  314:  11  Cent.  Rep.  48;  Sterl- 
ing's Apj)eal,  111  Pa.  St.  35;  2 
Atl.  Rep.  105:  2  Cent.  Rep.  49;  In  rr 
Johnston    (Cal.).   69    Pac.    Rep.   973. 

•'•-  Eureka  l.ight-lce  Co.  v.  Eureka, 

5  Kan.  App.  669;  48  Pac.  Rep. 
935. 


502  oil-    AM)    (iAS. 

§457.     Gas  works  built  under  void  grant  or  franchise. 

Ill  a  iiunilH'r  (if  instances  gns  and  water  works  have  been  built 
under  contracts  with  niuni('i]ialit ics  extendini:-  exclusive  rights 
to  furnish  gas  or  water  for  the  city  and  its  inhabitants,  some- 
times in  perpetuity,  but  usually  for  a  long  term  of  years;  and 
under  these  grants  the  companies  have  gone  on  at  a  great  ex- 
pense, liuilt  their  works,  bonded  them,  aixl  furnished  gas  or  wa- 
ter for  several  years,  before  the  question  of  validity  of  the  grant 
or  franchise  was  raised.  Usually  the  question  in  such  instances 
is  raised  in  a  suit  against  the  municipality  to  recover  pay  for 
gas  or  water  furnished,  and  then  it  is  quickly  settled,  the  court 
holding  that  in  such  an  instance  the  validity  of  the  grant  can- 
not be  litigated. ^^  But  in  other  instanc<^s  where  the  question 
is  ])roperly  raised  the  courts  will  not  hold  the  contract  void 
until,  at  least,  after  a  reasonable  time  has  exj)ired  after  it 
Avas  made,  especially  where  the  uuniicipality's  conditions  have 
not  changed  as  to  population  and  assessed  valuation,  where 
no  better  facilities  are  offered  upon  more  reasonable  terms,  and 
where  the  company  would  suffer  irreparable  loss.^* 

§458.     Municipality's  right  to  purchase  existing  works  is  optional. 

Statutes  frequently  give  munici])alities  the  power  to  ])urelnse 
from  a  ]U"ivate  company  putting  in  works  under  contract  with 
them,  its  plant,  and  providing  machinery  to  determine  the  price 
that  shall  l^e  paid.  Usually  in  all  cases  it  is  entirely  optional  with 
the  mimicipalities  to  ]Hirehase  these  plants.^''     In  such  instances 

53  state  V.  Great  Falls.    1!)    Mont.  158;  Monislnwn  v.  East  Tennessee, 

518;   49.Pae.  Rep.   15;    Sandy  Lake  etc.,   Co..    ll.")   Fed.   Ron.   304;    Bein- 

V.  Sandy  Lake,  etc.,  Gas  Co.,  16  Pa.  villo    Water    Supptv    Co.    v.    Mobile 

Sup.  Ct.  Rep.  234.  (U.  S.).  22  Sup.  Ct.  Ren.  820;   af- 

5*  Columbus  Water  Co.  v.  Coluni-  firminsi  17.5  U.  S.  109;    20  Sup.  Ct, 

bus.  48  Kan.  378;  2!)  Pac.  Rep.  762;  Rep.    40. 

15  L.  R.  A.  .3.54;   Illinois  Trust  and  •'■••'■>  Skaneatolos  Water  Works  Co.  v. 

Savinjrs  Rank  v.  Arkansas  City,  76  Skaneateles.    161   N.   Y.   154;   55  N. 

Fed.   Rep.  271;   40  U.  S.  App.  257;  K.  Rep.  562:  affirminir  33  N.  Y.  App. 

22  C.  C.    A.   171;   .34  L.  R.  A.  518;  Div.    642:    54    N.    Y.    Supp.    1115; 

Anoka    W.    W..    etc..    Co.    v    Anoki.  Crescent   City  Gasliijbt  Co.   v.   New 

100     Fed.     Ren.     580.     bondholder's  Orleans   Gaslight   Co.,   27    La.   Ann. 

rights.    See  Madison  v.  Morristown,  138. 
etc.,  Co.    (N.  J.  Ch.),  52  Atl.  Rep. 


MONOPOLISTIC    GRANTS    AND    CONTRACTS.  503 

the  iity  must  exercise  its  option  at  the  time  desifjimted  in  the 
contract.  If  the  price  to  be  paid  is  to  l)e  settled  by  ai-hiti-ators 
to  be  chosen,  one  by  the  city  and  the  other  by  the  company,  for 
instance,  the  city  cannot  insist  that  the  company  enter  into  an 
arbitration  before  such  city  has  determined  to  exercise  its 
option  and  buy  the  works.  If  the  company  refuse  to  select 
an  arbitrator,  the  city  may  insist  that  it  has  forfeited  its 
franchise,  especially  is  this  true  where  the  grant  is  illegal 
because  it  is  an  exclusive  one.''"  Where  a  statute  provided  that 
if  a  municipal  corporation  after  deciding  to  establish  a  munic- 
ipal lighting  plant,  refuses  to  purchase  a  private  plant  operated 
under  a  statute,  it  might  be  eompi^led  to  do  so,  and  a  conunission 
appointed  by  the  court  to  adjudicate  whether  the  plant  shoidd 
be  purchased  and  what  the  price  and  conditions  of  the  sale 
should  be,  it  was  held  that  the  commission  had  no  power  to 
pass  on  the  constitutionality  of  the  statute.  This  statute  pro- 
vided that  the  city  should  purchase  the  plant  at  its  fair  market 
value,  including  as  an  element  of  value  the  earning  capacity, 
based  on  actual  earnings,  and  it  was  held  that  in  determining 
the  price  the  commission  might  properly  consider  the  changes 
needed  for  the  reasonable  improvement  of  the  plant,  the 
amount  of  the  output,  the  fact  that  the  company  had  an  estab- 
lished business  built  up  at  the  risk  of  private  capital,  and  the 
policy  of  the  State  as  shown  by  the  statute.  This  statute 
also  provided  that  when  the  city  decided  to  set  up  a  plant,  if 
a  company  engaged  in  furnishing  gas  in  the  city  should  elect 
to  sell  its  plant,  the  city  should  purchase  it  at  its  fair  value 
less  the  amount  of  any  encumbrance,  but  the  city  might  re- 
quire it  to  be  transferred  free  from  encumbrance,  unless  the 
court,  through  its  commission,  should  determine  otherwise. 
It  also  provided  that  the  gas  company  desiring  to  sell  its  prop- 
erty should  appoint  a  special  commission  for  the  purposes 
just  stated,  and  their  report  must  be  confirmed  by  the  court 
unless  a  remonstrance  be  filed  by  either  party,  and  if  the 
matter  of  the  remonstrance  be  found  true,  the  report  might 
be  set  aside  in  whole  or  in  part,  and  another  commission  be 
appointed,  and  like  proceedings  had  until  the  report  of  the 

50  Montgomery     Gaslight     Co.     v.  purchased    by    the   city    is   sufTiciont 

Montgomery,    87    Ala.    372;     5    So.  evidence  of  a  disagreement  between 

Rep.  735;   4  L.   R.  A.  (116.  tlie  company  and  the  eity  as  to  the 

'Jhe    bringing    of    a    suit    for    the  value   of   such    property.      Hraiiitrec 

appointment  of  commissioners  to  as-  Water  Supply  Co.  v.  Braintree,   146 

sess  the  value  of  the  property  to  be  Mass.   482;    16   N.   E.    Hep.    420. 


5U4  OIL   AND    GAS. 

commissioners  covering  all  the  questions  should  be  confirmed; 
niul  it  authorized  equitable  process  to  compel  compliance  with 
the  final  decree.  It  was  held  that  on  confirmation  of  such  a 
report,  adjudging  that  the  city  purchase  llic  plant  of  the  peti- 
tioner, it  was  justified  in  providing  that  the  sale  and  transfer 
should  take  place  at  the  expiration  of  ninety  days  from  the 
acceptance  of  the  report,  and  that  it  could  settle  the  form  of 
deed  and  bill  of  sale  to  be  used,  and  the  manner  of  their  de- 
livery, though  none  of  these  details  w'ere  contained  in  the 
report  of  the  commission.  It  appeared  that  the  plant  was 
encumbered  by  a  mortgage  securing  long-time  bonds,  paying 
interest  at  a  greater  rate  than  that  at  wdiich  the  city  could 
have  borrowed  money.  The  commission  reported  that  the  sale 
should  be  made  subject  to  this  mortgage,  and  in  confirming 
this  report  the  court  provided  that  if  the  petitioner  should  in 
the  future  pay  any  part  of  the  mortgage  debt  it  should  recover 
the  sum  so  paid  from  the  city,  with  interest ;  and  this  was 
held  proper ;  and  it  was  also  held  proper  to  order  the  sale  be 
made  subject  to  such  mortgage.  In  their  report  the  consumers 
stated  that  in  fixing  the  price  they  had  considered  the  "powers 
and  policy  of  the  state,"  and  it  was  held,  on  appeal,  that  in  the 
absence  of  proof,  this  statement  could  not  be  regarded  that 
the  "powers  and  policy  of  the  State"  had  been  considered 
as  an  element  of  price ;  that  it  was  proper  to  value  the  plant 
as  a  wdiole  without  specifying  the  particular  considerations 
leading  to  the  result ;  that  the  question  of  the  validity  of 
the  bonds  could  not  be  considered  on  remonstrance  to  the 
confirmation  of  the  report  on  the  ground  that  the  report  was 
against  the  weight  of  the  evidence ;  that  the  commission  having 
viewed  the  plant  it  was  not  error  in  the  court  to  refuse  to 
interfere  with  its  decision  as  to  the  value  of  the  property ;  that 
it  was  proper  for  the  judgment  to  fix  the  fixed  amount  of 
purchase  money  to  be  paid  by  computing  the  exact  amount  due 
on  a  mortgage  debt  that  was  to  be  deducted  from  the  price 
paid ;  that  it  w^as  proper  to  order  the  issuance  of  an  execution 
for  the  price  at  the  expiration  of  ninety  days,  and  that  the 
petitioner  recover  of  the  city  the  value  of  certain  supplies 
and  materials  connected  with  the  plant,  and  to  be  sold  with  it, 
of  which  the  mode  of  valuing  had  been  agreed  upon.^''* 

Gca  Norwich  Gas  &  El.  Co.  v.  Xor- 
M-icli,  76  Conn.  565;  57  Atl.  Rep. 
746. 


MONOPOLISTIC    GRANTS   AND    CONTRACTS. 


505 


§  459.     Unlawful  combinations  between  gas  companies. 

Combinations  between  two  gas  or  lighting  companies  some- 
times assume  monopolistic  features  and  are  void.  Thus  an 
agreement  between  two  companies  that  neither  would  furnish 
gas  to  the  consumers  of  the  other  is  void,  and  furnishes  a  basis 
for  a  monopoly;  and  because  of  that  fact  the  courts  may  de- 
clare their  franchises  forfeited. '^^  So  much  so  is  a  contract  of 
this  character  void  that  a  person  undertaking  to  secure  an 
agreement  between  two  companies  to  divide  the  territory  of 
the  city  between  them,  and  the  one  not  to  compete  in  the  terri- 
tory assigned  to  the  other,  cannot  recover  for  his  services.'** 


67  State  V.  Portland  Natural  Gas 
and  Oil  Co.,  153  Ind.  483;  53  N.  K. 
Rep.  10S9;  53  L.  R.  A.  413;  74  Am. 
St.  Rep.  314;  Consumers'  (Jil  Co.  v. 
Nunneniaker,  142  Ind.  560;  41  N.  E. 
Rep.  1048;  51  Am.  St.  Rep.  193; 
Gibbs  V.  Consolidated  Gas  Co.,  130 
U.  S.  390;  9  Sup.  Ct.  Rep.  553; 
Chicago  Gasliglit  and  Coke  (^o.  v. 
People's  Gasliglit  and  Coke  Co.,  121 
111.  530;  13  N.  E.  Rep.  169;  Pitts- 
burgh Carbon  Co.  v.  Philadelphia 
Co.,  130  Pa.  St.  438;  18  Atl.  Rep. 
732. 

58Gibbs  V.  Consolidated  Gas  Co., 
130  U.  S.  390;  9  Sup.  Ct.  Rep.  553. 

A  contract  between  the  holder  of 
a  50-year  franchise  to  furnish  natu- 
ral gas  to  the  inhabitants  of  a  city, 
and  a  gas  corporation  owning  nat- 
ural gas  wells  and  a  system  for 
distribution  in  the  city,  on  one  side, 
and  a  lighting  corporation  author- 
ized to  furnish  gas  and  to  buy  and 
sell  the  same,  on  the  other,  which 
bound  the  gas  company  to  furnish 
gas  during  the  life  of  the  franchise 
to  the  lighting  company  for  sale 
to  the  inhabitants  of  the  city,  etc., 
Avas  in  eO'ect  a  sale  of  the  franchise 
to  the  lighting  company,  and  hence 
was  not  in  violation  of  tlie  Arkansas 
anti-trust  law  ol  1905  (Acts  1905.  p. 
1),  f)rohibiting  combinations  among 
comjictitors.  Ft.  Smith  Light  & 
Traction  Co.  v.  Kelley,  94  Ark.  401  ; 
127  S.  W.  975. 

Such  a  contract  at  best  was  only 
in  partial  restraint  of  trade,  and 
therefore  not  void.  Ibid.  Such  a 
contract  is  for  the  benefit  of  the 
lighting  company,  and  it  was  enti- 
tled under  its  contract  to  avail  itself 
of  that  privuegc  by  contracting  with 


others  to  furnish  cheajjer  gas,  with- 
out making  such  contract  cover  the 
same  period  of  time  covered  by  the 
contract  with  the  gas  company. 

A  contract  between  the  holder  of 
a  franchise  to  furnish  natural  gas 
to  the  inhabitants  of  a  city  and  a 
gas  corporation  owning  natui-al  gan 
wells  and  a  system  for  distribution 
in  the  city,  and  a  lighting  corjxjra- 
tion,  authorized  to  furnish  gas 
for  di  mestic  uses  in  the  city 
and  to  buy  and  sell  gas,  iKiund 
the  gas  company  to  furnish  natural 
gas  to  the  lighting  com])any,  to  be 
SK)\(1  by  it  in  the  city,  and  stipulated 
that  both  parties  would  "promote 
and  protect  the  interests  of  each 
other,  and  above  those  of  any  other 
person  or  corporation,"  and  that  the 
lighting  company  init;lit  purcliase 
natural  gas  from  others  furnisjiinf; 
the  same  at  lower  figures,  piovided 
tlie  lighting  company  should,  before 
making  any  contract  therefor,  give 
to  the  gas  corporation  an  opportu- 
nity to  meet  ^uch  prices,  etc.  Held, 
that  the  quoted  provision  merely 
referred  to  the  mutu;iJ  jjrotection 
of  the  parties  in  matters  where 
their  common  interests  cunlliot^^d 
with  that  of  a  third  person,  and 
did  not  prohibit  eacii  party  from 
promoting  his  own  interest  when  it 
conllict^'d  witii  that  of  the  adverse 
party,  and  that  the  lighting  com- 
l)any  did  not  violate  the  contract  by 
organizing  a  competing  corjwration 
in  the  production  and  sale  of  gas, 
and  bringing  it  into  the  field  to 
ccmipete  with  the  gas  company  so  as 
to  obtain  from  such  compc'ting  cor- 
poration gas  at  lower  prices  not  met 
by  the  gas  company.     Ibid. 


506  OIL  AND  GAS. 

§  460.  Granting  privilege  to  use  streets  does  not  require  a 
general  ordinance — general  ordinance  regulating 
streets. 

A  municipal  authority,  however,  whetlior  it  is  forbidden  or 
not  empowered  to  give  an  exclusive  grant  to  a  gas  company  to 
use  its  streets,  may  practically  achieve  the  same,  end,  by  grant- 
ing to  a  special  company  the  right  to  use  its  streets,  and  refrain- 
ing from  granting  it  to  others.  Such  action  of  the  municipality 
is  not  void,  nor  (lo(>rf  it  violate  any  clause  of  a  constitution  or 
statute  forbidding  the  granting  of  special  privileges.  Speaking 
of  an  ordinance  of  this  character,  the  Supreme  Court  of  Indiana 
said:  ''  It  does,  it  is  true,  grant  a  right  to  use  the  streets  of  the 
town,  but  it  does  not  exclude  their  use  by  competing  companies. 
It  does  not  throttle  competition,  for  it  merely  grants  a  license 
to  use  the  streets.  It  cannot  be  held  that  permission  to  one 
company  to  use  the  streets  excludes  others ;  on  the  contrary,  the 
grant  of  such  a  license  leaves  plenary  |X)wer  in  the  municipality 
to  grant  licenses  to  rival  companies  at  any  time.  A  licensee 
who  obtains  a  right  to  use  streets  does  not  obtain  a  monojx)ly. 
The  right  to  grant  other  license  remains  open  and  unobstructed. 
Xot  only  does  the  right  to  license  other  companies  remain  ojien^ 
but  the  right  to  prescribe  reasonable  police  regulations  by  a 
general  ordinance  also  remains  unim]>aired.  A  ])rivate  corpora- 
tion that  obtains  a  license  to  use  the  streets  of  a  municipality 
takes  it  subject  to  the  power  of  the  municipality  to  enact  a  gen- 
eral ordinance ;  for  a  governmental  power,  such  as  that  exercised 
in  enacting  police  regulations,  cannot  be  surrendered  or  bar- 
tered away  even  by  express  contract.  But  there  is  here  no 
attempt  to  surrender  or  barter  away  this  governmental  power, 
for  there  is  nothing  more  than  a  license  to  use  the  streets  of  the 
town.  .  .  .  Where  a  municipality  attempts  to  regulate  the 
mode  of  using  its  streets  it  must  do  so  by  a  general  ordinance, 
but  it  does  not  follow  that  a  general  ordinance  is  essential  to 
the  validity  of  a  license  granted  to  a  designated  com]>any.  It 
is  one  thing  to  specially  license  a  corporation  to  lay  ]>i])es  in  a 
street  or  construct  electric  lines,  and  quite  anotlicr  to  regulate 
the  entire  subject  of  sn])plying  light,  fuel,  or  the  like,  for  where 
the  municipal  authorities  assume  to  legislate  upon  the  entire 
subject  a  general  ordinance  is  required ;  but  where  they  simply 


MONOPOLISTIC   GRANTS    AND    CONTRACTS.  50V 

grant  a  privilege  to  use  the  strci'ts,  and  do  not  undertake  to  regu- 
late the  entire  subject,  a  general  ordinance  is  not  indispensably 
necessary  to  authorize  the  licensee  to  use  tlie  streets.  But 
neithor  by  a  general  ordinance  nor  by  a  special  license  can  dis- 
criminations be  made  or  monopolistic  privileges  be  created. 
It  is,  however,  often  true  that  a  i>riviloge  is  in  its  nature 
niono|)olistic,  and,  .  .  .  when  this  is  so,  the  grant  of  the 
franchise  is  of  necessity  the  part  of  nionoiX)listic  right ;  but  in 
such  a  case  the  corjwrate  grant  does  not  create  tlie  uionopnly. 
In  this  instance  there  is  nothing  more  than  the  grant  of  a 
license;  there  is  no  attempt  to  create  exclusive  privileges,  nor 
any  attempt  to  regulate  the  entire  subject.  The  rights  ac- 
quired under  a  mere  |x>rmissive  license  are  subject  to  control 
under  the  delegated  governmental  jwwer  vested  in  the  munici- 
pality, for  no  licensee  can  acquire  rights  not  subject  to  regu- 
lation under  the  f>olice  ]wwer  delegated  to  the  local  gnvern- 
mentel  instrumontalitics.  Wo  have  here  no  <picstion  of  con- 
tract rights,  for  the  question  presented  by  the  record  is  whether 
a  special  ordinance  granting  a  ]X3rmissive  license  to  a  desigiiated 
corjx)ration  is  eflfeetive."  ^'■'  In  a  case  arising  in  the  Federal 
Circuit  Court  of  the  Eastern  District  of  Michigan  it  was  said: 
"  It  is  true  it  may,  in  eifect,  grant  such  exclusive  right  by  re- 
fusing to  any  other  company  the  franchise  or  privilege  it  has 
granted  to  one;  but  this  presup]x>ses  a  continued  and  abiding 
consent  on  the  part  of  the  city  to  keep  alive  its  contract,  and 
it  is  quite  distinct  from  the  right  of  the  city  to  surrender  its 
power  to  make  another  contract,  and  to  vest  in  the  plaintiff  tha 
right  to  determine  for  itself  whether  a  rival  company  shall  be 
permitted  to  enter  its  domain."  *^° 

§461.     Contracts  for  light,  length  of  term. 

Another  kind  of  nnuiicipal  grants  or  contracts  having  in  them 
monopolistic  features  is  a  contract  to  furnisli  a  niuiii('i]»al- 
ity  all  the  light  it  needs  for  a  term  of  years.  These 
contracts  in  a  measure  are  exclusive  grants ;  for  by  them  the  gas 

59  Crowder   v.   Sullivan.    128    Iiul.  so  Saginaw  Gaslight  Co.   v.   Rajji- 

486;  28  N.  E.  Hop.  04;    K?  L.  U.  .\.  naw.  28  Fed.  Rep.  .520;   10  .\m.  and 

647.     Roe   also   Stato   v.    rincinnati  En?.  Torp.  Cas.  .'ifi2.     Roo  Garrison 

Gaslight  and  Coke  Co,  18  Ohio  St.  v.    Chicago,    7    Biss.   480. 
262. 


508  OIL   AXD    GAS. 

companies  usually  have  the  right  for  a  term  of  years  to  supply 
the  municipality  Avilh  all  the  ^as  or  liulit  it  needs  and  also  its 
inhabitants;  and  frequently  they  contain  agreements  not  to  give 
similar  grants  to  other  companies  while  the  contract  remains  in 
force.  A  case  of  this  character  arose  in  Indiana  where  it  has 
been  declared  that  a  iiuiiiiciiKility  cannot  give  an  exclusive 
grant  to  a  gas  company,  although  this  declaration  was  made 
many  years  after  the  case  here  referred  to  arose.  A  gas  com- 
pany was  empowered  by  its  legislative  charter  "  to  manufacture 
and  sell  gas  .  .  .  for  the  purpose  of  lighting"  a  certain 
city  or  its  streets,  "  and  any  buildings,  manufactories,  public 
places,  or  houses  therein  contained,"  ''  for  the  term  of  twenty 
years."  The  same  charter  authorized  the  city,  "  in  its  corporate 
capacity  ...  to  contract  with  the  said  company  to  fur- 
nish gas  for  the  purpose  of  lighting  the  streets,  engine  houses, 
nuirket  houses,  or  any  public  places  or  buildings,  and  may  pro- 
vide means  to  pay  for  the  same  in  such  manner  as  they  may 
deem  best."  The  general  law  for  the  incorporation  of  cities  of 
a  later  date  empowered  them  "  to  construct  and  establish  gas 
Avorks,  or  to  regiilate  the  establishment  thereof  by  individuals 
or  companies,  or  to  regulate  the  lighting  of  streets,  pul)lic 
grounds  and  buildings,  and  to  provide,  by  ordinance,  what  part, 
if  any,  of  the  expense  of  lighting  any  street  or  alley  shall  be 
paid  by  the  owners  of  lots  fronting  hereon."  In  1876  a  city 
entered  into  a  contract  with  a  gas  company,  in  the  form  of  an 
ordinance,  whereby  the  latter  agreed  to  furnish  gas  of  a  quality 
specified  in  an  ordinance  of  1866  for  the  supply  of  all  the  street 
lamps,  city  offices,  engine  houses,  and  all  other  places  where  gas 
was  required  for  the  use  of  the  city  in  its  cor|X)rate  capacity, 
in  consideration  of  an  agree^  comjTcnsation,  the  contract  to  be 
in  full  force  and  operation  for  the  term  of  five  years  from  its 
date,  and  a  further  term  of  five  years,  if  the  city  so  elected. 
It  was  agreed  that  this  contract  of  1876  should  not  be  taken  to 
alter,  modify  or  suspend  the  )>rovision  of  a  contract  then  in  ex- 
istence between  them,  entered  into  by  them  in  1866  for  a  term 
of  twenty  years,  except  so  far  as  to  give  effect  to  its  terms ;  and 
when  the  contract  of  1876  terminated,  either  by  the  expiration 
of  the  time  limited,  or  by  the  failure  or  refusal  of  the  city  to 


MONOPOLISTIC    GRANTS   AND    CONTRACTS.  508a 

perform  its  part,  then  the  contract  of  186G  wa^-  in  "  stand  and 
continue  fur  the  parties  hereto  ...  in  all  resi)eets  as 
though  this  contract  luul  never  been  made."  The  eitv  had  tlu' 
power  under  these  contracts  to  clean  and  repair,  at  the  com- 
pany's expense,  tlie  street  lamps  if  it  did  not ;  and  to  make 
certiiin  deductions  for  failure  to  light  lamps  and  keep  them 
burning.  The  city  denied  the  validity  of  the  contract  of  187(5; 
but  the  court  upheld  it,  saying  that  it  was  undoubtedly  valid. 
No  discussion  was  entered  u^wn  concerning  the  contract  of  18GG, 
but  it  seems  to  be  conceded  that  it  was  valid.  ''  By  the  con- 
tract we  are  considering,"  said  the  Supreme  Court,  ''  the  city 
of  Indianapolis  is  not  restricted  in  any  respect  from  the  legiti- 
mate exercise  of  its  public  powers  touching  the  subject  matter 
of  the  contract,  but  expressly  reserves  its  administrative  author- 
ity to  keep  the  posts,  lamps  and  burners  in  good  order  and 
repair,  if  the  gas  company  should  fail  to  do  so;  and  also  re- 
serves the  right  to  test  the  quality  of  the  gas  furnished  by  the 
company,  and  the  capacity  of  the  burners,  at  all  times.  We 
cannot  see  wher(>in,  l)y  the  contract,  the  city  is  restricted  from 
extending  its  streets,  establishing  an  additional  number  of 
lamps  obtaining  gas  from  other  sources,  or  establishing  its  own 
gas  works,  as  the  public  interests  might  require,  and  all  this  it 
can  do  without  violating  its  contract.  Xo  exclusive  right  is 
granted  to  the  gas  company."  ^^      Tt  will  be  observed  that  in  this 

61  Indianapolis     v.      Indianapolis,  upon  between  Gale  and   tlie  lessees, 

etc..   Co..   GG   Ind.   3!IG.  the  rent  to  be  paid  to  him,  and  t!ic 

The  court  called  attention  to  the  contract  to  run  ten  years.  Tlie  vil- 
case  of  Garrison  v.  Chicago,  7  Biss.  lage  was  to  appoint  a  manager  of 
480,  relied  upon  by  the  city,  where  the  market,  and  there  was  to  be  no 
a  ten-year  contract  was  declared  other  market  house  in  the  village, 
void,  to  the  fact  that  it  had  been  and  no  marketing  elsewhere  during 
declared  void  because  no  appropria-  market  hours.  "  The  vice."  said  the 
tion  for  it  had  been  previously  made  Indiana  court,  "  of  this  contract  lay, 
as  the  city  charter  expressly  re-  not  in  its  agreement  to  have  a  mar- 
quired.  The  court  also  pointed  out  ket  house  built,  but  in  the  fact  tliat 
that  the  case  of  Gale  v.  Kalamazoo,  the  public  authorities  had  undcr- 
23  Mich.  344,  was  an  instance  where  taken  to  part  with  tiieir  control  over 
the  city  has  authorized  Gale  to  build  it  when  built,  and  place  its  ninn- 
a  market  house,  to  be  put  under  agemcnt  in  the  power  of  private 
the  control  of  the  city  authorities,  speculators.  This  they  could  not 
the    stalls    to    be    rented    as   agi'ced  do." 


508b  OIL    ASD    GAS. 

case  the  court  held  the  live-year  contract  valid,  althuiigh  it 
was  devoid  of  the  exclusive  features  so  often  characteristic  of 
these  contracts,  such  as  the  contracts  of  18GG.  Statutes  fre- 
quently ennxjwcr  cities  to  make  (exclusive  contracts  with  gas 
aiul  water  companies,  for  a  certain  number  of  years,  and  these 
are  u{)held  by  the  courts;  but  the  statutes  are  also  limitations 
U}K)n  the  jK)wers  of  cities,  for  the  limitation  therein  named  can- 
not be  exceeded;  but  if  the  attempt  is  made  to  exceed  that 
limit,  the  entire  contract  will  not  be  invalid  if  the  excess  can  be 
distinctly  separated  from  the  remainder  of  the  contract.  Thus 
where  a  statute  jicrmittod  a  city  to  enter  into  a  contract  for 
twenty  years,  and  a  city  entered  into  a  contract  for  twenty 
years  with -a  provision  that  it  should  remain  in  force  for  an 
additional  twenty  years  if  the  city  had  not  purchased  the  works 
before  the  expiration  of  the  first  term,  the  contract  was  held 
valid  for  the  original  twenty  years.""  A  contract  for  thirty 
years  has  been  held  not  so  long  a  time  that  the  court  would 
say  as  a  matter  of  law  it  was  unreasonable.*"''  A  statute  em- 
powering a  municipality  to  contract  for  water  from  year  to 
year,  is  sufficient  to  uphold  a  contract  to  extend  for  twenty 
years  from  the  time  of  making  it.''*  A  contract  to  take  a  cer- 
es Xeosho  City  Water  Co.  v.  Ne-  required.  Lawrence  v.  Hennessy, 
osho.  1.36  Mo.  498;  38  S.  W.  Rep.  1(55  Mo.  659;  65  S.  W.  Rep.  717. 
89;    State  v.   Laclede   Gaslight   Co.,  VVliile     an     exclusive     grant     for 

102  Mo.  472;  14  S.  W.  Rep.  974;  twenty  years  is  void  so  far  as  the 
15  S.  W.  Rep.  383.  See  Maniiattan  limit  is  concerned;  yet  the  company 
Tiust  Co.  V.  Dayton,  59  Fed.  Rep.  under  it  have  the  right  to  put  its 
327;    16  U.  S.  App.  588.  pipes   in  the  street,   no   limit  being 

CT  Oconto  City  Water  Supply  Co.       fixed    when    its    rights    shall    cease. 
V.   Oconto.    105    Wis.   76;    80   N.    W.        Hamilton  v.  Hamilton  Gaslight  Co., 
Rep.  1113;   Fergus  Falls  Water  Co.        11  Ohio  Dec.  513. 
V.  Fergus  Falls,  65  Fed.  Rep.  586;  In    the    following   cases    the    con- 

Des  Moines  etc.,  R.  R.  Co.  v.  Des  tracts  were  hel<l  invalid,  not  be- 
Moines,  etc.,  Co.,  73  la.  513;  33  N.  cause  of  the  length  of  the  term,  but 
W.  Rep.  610;  35  N.  W.  Rep.  602  (25  l>ecause  tlie  city  had  no  power  to 
years).  execute      an       exclusive      contract: 

04  Light,  H.  and  W.  Co.  v.  Jack-  Long  v.  Duluth,  49  Minn.  280;  51 
son,  73  Miss.  598;  19  So.  Rep.  771.  N.  W.  Rep.  913  (30  years)  ;  Bren- 
If  the  city  council  are  expressly  ham  v.  Rrenham  Water  Co.,  67  Tex. 
authorized  to  grant  an  exclusive  542;  4  So.  W.  Rep.  143  (25  years)  ; 
privilege,  the  consent  of  the  people  Davenport  v.  Kleinschmidt,  6  Mont. 
■of  the  citv  to  such  franchise  is  not       502;    13   Pac.  Rep.   249    (25  years). 


MONOPOLISTIC     (iUANTS     AX1>    CONTKACTS.  oO'J 

tain  amount  of  gas  for  a  special  period  of  time,  leaving  it  the 
unrestricted  right  to  either  manufacture  or  purchase  as  nnich 
as  it  desires,  is  not  a  iiituKipolistic  contract,  and  is  not  invalid 
even  in  those  States  where  the  statute  or  constitution  prohibit 
exclusive  grants,  and  contracts.""  The  rule  that  members  of  a 
legislative  body  of  a  city  may  not  so  act  or  contract  as  to  de- 
prive their  successors  of  the  unimpaired  govenuiiental  or  legis- 
lative power  does  not  apply  to  the  exercise  of  the  business  or 
property  proprietary  powers  of  the  city,  such  as  is  exercised  in 
entering  into  a  contract  for  gas  or  water.®® 

§462.     Dating  contract  ahead. 

It  is  a  favorite  scheme  of  promoters  to  secure  an  exclusive 
right  to  occupy  the  streets  of  a  city  or  town  for  the  pur]X)se  of 
speculation,  and  not  with  the  intention  of  themselves  putting 
in  a  plant,  unless  they  are  not  able  to  dib|M)sc  of  the  rights  they 
have  obtained.  If  these  grants  do  not  require  com]>leti()n  of 
the  works  for  several  years,  then  the  municipal  anth(jrities  in 
office  have,  in  a  measure  at  least,  anticipated  and  exorcised  the 
authority  of  future  officers  of  the  city  (ir  tmvn  —  a  thing  neither 
the  legislature  nor  the  courts  are  dis|X)sed  to  sanction.  Courts, 
therefore,  are  inclined  to  construe  grants  giving  rights  to  occupy 
streets  and  maintain  ])Iants  as  re(]uire  immediate  action  on  the 
part  of  the  grantees,  or  within  a  reasonable  time  thereafter. 
Thus  where  a  statute  provided  that  from  and  after  its  ])assage 
any  gas  company  should  have  the  ])Ower  to  extend  its  mains  or 
lay  its  pipes  for  conducting  gas  in  any  of  the  jtublic  liigliways 
of  the  towns  where  located,  with  the  written  consent  of  the  pub- 
lic board  of  improvement,  and  under  such  reasonable  regulations 
as  it  might  prescribe,  it  was  held  that  when  such  a  company 

«5  Vinconnes  v.  Citizens'  Gaslijrlit  jrrants    in    these    cases    forliade    the 

Co..    132    Ind.    114;    31    N.    E.    Rep.  city  or  State  dealin-i  with  any  other 

.573;    10    L.    R.    A.   485;    Valparaiso  persfin    or    company. 
V.  Gardner.  97  Ind.   1;  40  Am.  Rep.  c.n  Illinois  Trust  and  Savin.ii<  I'.ank 

416.     The    co\irt    calls    attention    to  v.   Arkansas.    70   Fed.   Rep.  271  ;    22 

Davenport    v.    Kleinschmidt,    supra,  (".  (".  A.  171:  40  I'.  S.  App.  2.")7  ;  34 

and  Matter  of  Union  Ferry  Co..  98  L.  R.  A.   518. 
N.  Y.  139,  by  pointing  out  thai  the 


510 


OIL    AND    GAS. 


seeks  to  extend  its  mains  or  lay  its  pi]x?s  it  was  the  duty  of 
such  board  to  then  exercise  its  judgment  as  to  whether  consent 
shall  be  given  ;  and  it  could  not  contract  in  advance  that  no  other 
could  have  its  consent  to  extend  its  mains  or  lay  its  pipes." 


sTParfitt  V.  Furj^uson.  3  N.  Y. 
App.  176;  73  N.  Y.  St.  Rep.  G21;  3.S 
N.  Y.  Supp.  406;  159  N.  Y.  Ill;  53 
N.  E.  Rep.  707. 

A  statute  providpcl  tlmt  no  fran- 
chise should  be  granted  for  a  longer 
period  than  twenty  years.  An  ordi- 
nance granted  the  right  to  lay  gas 


pipes  in  the  streets  for  twenty  years 
from  the  date  of  its  taking  efTept. 
It  was  passed  several  months  before 
it  took  efTect.  It  was  held  that  the 
grant  was  valid.  State  v.  Excelsior 
Coke  &  Gas  Co.,  69  Kan.  45;  7G 
Pac.  Rep.  447. 


CHAPTER  XXIII. 

STREETS  AND  HIGHWAYS. 

§463.  Definitions. — Street  a  highway. 

§404.  Control  of  streets  or  liighways. 

§405.  Use   for  private  purposes. 

§400.  Consent  of  municipality  to  occupy  streets  necessary. 

§407.  Right  to  grant  a  franchise  not  property  of  municipality. 

§408.  When  consent  of  municipality  not  necessary. 

§46!>.  Nature  of  a  grant  to  occupy  streets  or  highways. — A  mere  privilege. 

§470.  Nature  of  a  grant  to  occupy  streets  or   highways. — A   franchise. 

§471.  Acceptance  of  grant. 

§472.  Gas  company  must  comjily  with   conditions  of  grant. 

§473.  Grant  to  occupy  streets  construed  strictly. 

§474.  What  streets  company  may  occupy. — Sidewalk. 

§475.  Territory   annexed    to   another   municipality   after   grant   made. 

§470.  New  streets,  right  to  occupy. — No  streets  .specified. 

§477.  Sale  or  assignment  of  right  in  streets. 

§478.  Change  of  use  of  franchise. — Natural  gas. 

§478a.  Use  of  streets  to  carry  jris  to  anotlier  municipality. 

§479.  Ordinance   void. — Estoppel. 

§480.  Gas  company  occupying  streets  is  subject  to  municipal  regulationsi. 

§481.  Injunction  to  protect  company's  rights  in  streets. 

§482.  Grant  before  company  is  organized. 

§483.  Length  of  grant  of  franchise. 

§484.  Termination  of  life  of  corporation  before  expiration  of  franchise. 

§485.  Consolidation  of  gas  companies. — Division  of  territory. 

§480.  Town  becoming  a  city. 

§487.  Injunction  to  restrain  laying  of  pipes  in  streets. 

§488.  Pipe  laid  in  street  unlawfully  laid  out. 

§489.  Revocation   of   grant. 

§490.  Forfeiture  of  right  to  occupy  streets  for  failure  to  perform  duty. 

§491.  Action  to  declare  forfeiture. — Quo  warranto. 

§492.  Waiver  of  right   to   declare   forfeiture. 

§493.  Changing  grade  of  streets. 

§493a.  Construction  of   sewers    interfering  with   pipes. — ^Cost   of    removing 

pipes. 

§494.  Tearing  up  streets. — Obstruction. — Indictment. 

§495.  Cutting  into  modern  pavements. — Repairs. — Permission. 

§495a.  Gas  company  repairing  street. 

§490.  Injury  to  pipes  in  repairing  streets. 

§497.  Support  of  gas  mains. 
Gas  boxes  in  street. 

511 


512  OIL    AND    GAS. 

§490.     Tx>aving  gas  posts  in  street. 

§500.     Pipes  in  streets  not  an  adilitional  burden. 

§501.     Pipes  laid  in  navigable  river. 

§502.     Grant  of  right  to  use  subiirl)an  liighway. — Compensation  to  abutting 

landowner. 
§503.     Condemnation  of  landowner's  interest  in  highway. 
§504.     Lando\\Tier  acquiescing  in  occupation  of  rural  highway. — Injunction. 

— Estoppel. 
§505.     Pipe  lines  in  country  highway  an  additional  burden  on  easement. 
§500.     Consent  of   county. — Public   highways,   crossing. 
§507.     Revocation  of  license  to  use  highway. 
§508.     Abutting  landowner  removing  pipe  lines. 
§509.     Removal  of  pipes  unlawfully  laid  in  rural  highway. 
§510.     Pipes  on  surface  of  highway  of  street. 
§51{)a.  Size  of  pipes. — Number  of  pipes. 
§5 10b.  Pipes  interfering  with  other  pipes. 

§463.     Definitions. —  Street  a  highway. 

The  term  "  highway "  is  generic.  It  includes  all  public 
ways,  and  means  a  way  which  every  person,  whether  an  inhab- 
itant or  stranger,  may  use  for  passage  or  traffic.  It  includes 
streets  in  a  city  or  town,  turnpikes,  plankroads,  footways, 
sidewalks  and  bridges.^  A  public  alley  is  as  much  a  public 
highway  as  a  public  street.  In  iisage  the  term  street  is  ap- 
plied to  Avays  in  a  city  or  town,  and  is  seldom  applied  to  a 
public  way  in  the  country.^  But  as  has  been  aptly  said,  "  Every 
street  is  a  highway,  but  every  highway  is  not  a  street."'^  A 
cul  de  sac  may  be  a  public  highway,  according  to  the  later  and 
better  considered  cases,*  depending,  however  on  the  facts  in 
each  instance.^ 

§464.     Control  of  streets  or  highways. 

Control  of  streets  in  a  city  or  town  is  almost  universally 
vested  in  the  city  or  town  ;  ^^''  and  it  is  an  anomalous  case  where 

1  Mobile  and  Ohio  R.  R.  Co.  v.  12;  Brace  v.  New  York  Central  R. 
Davis,  1.30  111.  146;  22  N.  E.  Rep.  K.  Co..  27  N.  Y.  269;  Heiple  v.  E.ist 
850;  State  v,  Wilkinson,  2  Vt.  480;        Portland.   13  Ore.  97. 

Davis    V.    Smith,    130    Mass.     113;  *  Adams  v.  Harrington,    114   Ind. 

State  V.  Mathis,  21  Ind.  277;  State  66;    14   N.   E.   Rep.   603;    Sheafe  v. 

V.    Berdetta.    73    Ind.    185;    20    Am.  People.  87  111.  189 ;  29  Am.  Rep.  49; 

I.aw  Reg.  .342;    38  Am.  Rep.    117.  People  v.  Kingman,  24  N.  Y.  559. 

2  A  notable  exception  is  tlie  old  ■''>  State  v.  Frnzior.  28  Ind.  196; 
Roman  road  in  England,  called  Bateman  v.  Bluck,  14  Eng.  L.  and 
"  Watling   Street."  Eq.  69. 

3  Indianapolis  v.  Croas,  7  Ind.  9,  *5  Hughes    v.    Momence,    163    III. 


STREETS    AND     1 1  K.  11  \V A YS.  513 

this  is  not  true."  In  the  case  of  puUlic  country  higlnvays,  control 
over  tlieni  is  nsnallv  vested  in  the  county*"  although  there  is 
some  variance  from  this  rule.  The  entire  matter  is  usually 
the  subject  of  statutory  provisions ;  and  such  statutes  nuist 
be  considered  in  determining  the  jiower  of  a  city,  town  or 
county  over  the  streets  or  highways  and  the  rights  of  a  gas 
company  therein/ 

§465.     Use  for  private  purposes. 

Public  highways  and  streets  are  for  the  use  of  the  public, 
and  not  for  private  use.  An  individual  in  jiassing  along  them, 
is  not  devoting  them  in  the  strict  sense  of  the  term,  to  his  own 
private  use.  "A  grant  of  public  street  or  highway  through 
either  town  or  country,  cannot  be  considered  otherwise  than 
as  a  grant  to  the  public.  It  confers  no  exclusive  right ;  but 
ex  vi  termini,  absolutely  excludes  the  idea  of  private  ai>pr()- 
priation."  *^  The  same  court  from  wliicli  this  quotation  is 
made  has  declared  that  "  public  highways  belong,  from  side 
to  side  and  end  to  end,  to  the  public";  *  and  this  necessarily 
carries  with  it  the  corollary  that  no  one  can  take  a  public 
highway  for  his  own  private  use;  for  if  he  do,  the  public  are 
excluded  from  it  by  his  occupation  of  its  surface.     "A  man 

5.35;    45   X.   E.   Rep.   30C;    State   v.  to   pnss  an  ordinance  authorizing  a 

St.   Ix)uis,    145   ]\lo.   551;    46   S.  W.  gas   company   to   lay   mains    in    tlie 

Rep.   8i)l;    Sharp   v.   South   Omaha,  streets   to   supply   gas   for   domestic 

53    Xeb.    700;    74   N.    W.    Rep.    76;  purposes.     Ransberry  v.  Keller,  9  Pa. 

Coffeyville,  etc.,  Co.  v.  Citizens'  etc.,  Co.  Ct.  Rep.  299. 
Co.,  55  Kan.  173;  40  Pac.  Rep.  32G;  As  to  power  of  Board  of  County 

Mueller  v.  Egg  Harbor  City,  55  X.  Commissioners  to  grant  right  to  lay 

J.    L.    245;    26    Atl.    Rep.    89;    Chi-  j)ip('S   in  villages  of  the  county,  see 

cago,  etc..  Co.    .\   Lake,   130    111.  42;  Consolidated    Has    Co.    v.    Baltimore 

22  X.  E.  Rep.  616;  affirming  24  111.  Co.,  99  Md.  403;  58  Atl.  Rep.  214. 
App.    346.  Under      the      "general      welfare" 

6  Bennington  v.  Smith,  29  Vt.  254.  clause,  a  city  crtnnot  confer  a  fran- 
See  Philadelphia  Co.  v.  Freeport,  chise  for  the  o\\'ning  and  ojK'rating 
167  Pa.  St.  27:   31  Atl.  Rep.  571.  of  waterworks,  and  for  other  things 

*o  Consumers'    Gas    Trust    Co.    v.  collateral    thereto.     National    Foun- 

Huntsinger,    12    Ind.    App.    285;    40  dry,    etc.,    \Vorks    v.    Oconto    Water 

X.   E.  Rep.   34;    Board  v.  Indianap-  Co.,  52  Fed.  Rep.  29. 
olis,  132  Ind.  27;  33  X.  E.  Rep.  972.  *7  Conner     v.      Xew      Albany,      1 

7  A   power    in    a   municipality   "to  Blackf.  43. 

light  the  streets;   to  provide  a  sup-  «  State  v.   lU'rdetta,   73    Ind.    1S5; 

ply  of  water  for  the  use  of  the  in-  20  Am.  Law  Reg.  342;  38  Am.  Rep. 
liabitants,"  docs  not  confer  the  right       117. 


514  OIL    AND    GAS. 

has  no  right,"  was  said  in  an  old  case,  "  to  eke  out  the  inconven- 
ience of  his  own  premises  by  taking  the  public  highway  into 
his  timber  yard."  *"  Thus  it  has  been  held  that  a  fruit  stand 
in  a  street  is  a  nuisance  pei^  se  "  and  so  are  hayscales,*"  a  stair- 
way,'" a  railroad." 

§466.     Consent  of  municipality  to  occupy  streets  necessary. 

Where  a  municipality  has  control  over  its  streets  and  public 
ways,  its  consent  to  occupy  such  streets  and  ways  with  gas 
pipes  or  mains  must  be  obtained  before  a  company  can  lay  them 
therein.  Any  such  occupation  without  such  consent  is  illegal.'" 
But  the  building  of  a  plant  for  the  manufacture  of  gas,  and 
not  for  distribution  is  a  very  different  thing,  and  permission 
from  the  city  or  town  to  build  it  is  no  more  necessary  than  if  it 
were  any  other  kind  of  a  manufacturing  establishment.  It 
cannot  be  said  that  the  manufacture  of  gas  is  so  dangerous  as 
the  manufacture  of  gun  powder  or  dynamite ;  and  that  its 
manufacture  comes  within  the  power  of  a  municipality  to 
j)revent  the  manufacture  and  storage  of  dangerous  and  highly 
explosive  materials  within  its  boundaries.  Although  a  city 
has  no  express  power  itself  to  lay  pi|Tcs  in  its  streets,  yet  under 
a  general  power  or  right  to  legislate  fully  in  regard  to  lighting 
its  streets,  authority  by  implication  is  given  it  to  direct  by 
ordinance  that  gas  pipes  l>e  laid  in  the  streets  for  the  purpose 

*8Kiiig   V.   Jones,    3    Camp.    230;  drants.     Smith  v.  Lincoln,  170  Mass. 

Rex  V.  Cross,  3  Camp.  224.  488:   49  N.  E.  Rep.  040. 

9  State  V.   Berdetta,   sxipra.  A  city   cannot  authorize  an   indi- 
*9  Emerson     v.    Babcock,     GO     la.  vidual   to  use  a  street  for  his  own 

257;  55  Am.  Rep.  273.  private  use.     Labry  v.  Cilmour,  121 

10  Pettis  V.  Johnson,  5G  Ind.  130.       Ky.    367;    89    S.    W.    Rep.    231;    28 

11  Commonwealth  v.  Nashua,  etc.,       Ky.  L.  Rep.  311. 

R.    R.    Co.,    2    Gray    54;     Common-  12  Carlisle  Gas  and   Water   Co.   v. 

wealth    V.    Old    Colony,    etc.,    R.    R.  Carlisle  Water  Co.,  182  Pa.  St.  17; 

Co.,   14  Gray  93;    Scliwede  v.  Hem-  37  Atl.  Rep.  821;  Appeal  of  City  of 

rich  Bros.  Brewing  Co.   (Wash.),  69  Pittsburgh    (Pa.),  7  Atl.  Rep.  778; 

Pac.  Rep.  362.  Chicago,  etc.,  v.   Lake,   130   111.   42; 

The  use  of  waterworks  is  a  public  22  N.  E.  Rep.  616;  affirming  24  111. 

one,   if  every  inhabitant  of  the  city  App.    346.      Under   the    constitution 

along  the  pipe  lines  can  obtain  water  of  California    (Art.   11,   Sec.   19),  a 

if    he    desires    it    even    though    the  permit     is     not     necessary.      In     re 

city   does   not  use   the  water   in   its  Johnston,  137  Cal.  115;  69  Pac.  Rep. 

public    buildings   or    supply   its   by-  973. 


STREETS    ANP    HICJIIWAYS. 


515 


of  lighting.  In  fact,  it  is  said,  a  municipal  corporation  has 
the  inherent  power  to  lay  gas-pipes  in  its  streets  for  the  benefit 
of  its  inhabitants.'"'  A  statute  which  authorizes  corporations 
to  exercise  all  powers  necessary  to  carry  into  effect  the 
objects  for  which  they  are  formed  does  not  authorize  a  gas 
company,  incorporated  for  a  particular  town,  to  lay  its  pipes 
in  the  streets  of  such  town  without  the  consent  of  the  mu- 
nicipal authorities.'* 


A  city  may  require  a  gns  company 
to  paj'  for  tlip  privilege  cf  using  tlio 
streets,  and  sucli  requirement  is  not 
open  to  the  objection  tliat  it  is  a 
means  to  raise  general  revenue  and 
thereby  imposing  an  additional  tax 
on  the  gas  company  not  authorized 
bj-  law.  Columbus  v.  Columbus  Gas 
Co.,  76  Ohio  8t.  309;  81  X.  E.  Rep. 
44. 

13  Ftrawbridgc  v.  Philadelphia 
(Pa.),  13  Rep.  216;  13  Phila.  173. 
As  to  whether  a  gas  plant  is  a  dan- 
gerous agency,  see  Sec.  389  and  the 
chapter  on  Nuisances. 

As  to  what  municipal  body  grants 
permission  to  occupy  the  streets  of 
New  York  City,  see  Ghee  v.  North- 
ern Union  Gas  Co.,  158  N.  Y.  510; 
53  N.  E.  Rep.  692,  reversing  34  N. 
Y.  App.  Div.  551;  56  N.  Y.  Supp. 
450. 

That  a  gas  company  must  first 
obtain  permission  from  a  munici- 
pality to  occupy  its  streets,  see  ]\Iis- 
souri  V.  Murphy,  170  U.  S.  78;  18 
Sup.  Ct.  Rep.  505;  Witcher  v.  Hol- 
land W.  W.  Co.,  66  Hun  619;  20 
N.  Y.  Supp.  560;  Philadelphia  Co. 
V.  Freeport,  107  Pa.  St.  279;  31 
Atl.  Rep.  571;  Carlisle  Gas  and 
Water  Co.  v.  Carlisle  Water  Co., 
182  Pa.  St.   17;   37  Atl.  Rep.  821. 

1*  Chicago,  etc.,  Co.  v.  Lake,  130 
HI.  42;  22  N.  E.  Rep.  616,  affirming 
24  111.  App.  346. 

A   consent   secured   by   bribery    is 


invalid.  Keogh  v.  Pittston,  etc.,  Co., 
5   Lack.   lx>g.   N.  242. 

An  ordinance  <>f  w  Ijorougli  in 
Pennsylvania  authorizing  a  gas  com- 
pany to  lay  its  mains  in  the  streets 
was  held  void,  where  the  borough 
had  no  power  to  authorize  tlie  sup- 
plying of  gas  U}  its  inliabitants. 
Ransberry  v.  Kellar,  9  Pa.  Co.  Ct. 
Rep.    299. 

Under  Pennsylvania  statute.  Act 
May  29,  1885  (P.  L.  34,  §  12),  the 
courts  settle  disputes  between  nat- 
ural gas  companies  and  boroughs. 
Ft.  Pitt  Gas  Co.  v.  Sewickley,  198 
Pa.  201;  47  Atl.  Rep.  957.  Edge- 
wood  v.  Scott,  29  Pa.  Super.  Ct.  156. 

An  ordinance  granting  a  gas  com- 
pany the  privilege  of  using  the 
streets  for  laying  pipes,  which  is 
passed  in  accordance  with  the  re- 
quirements of  a  city  charter,  is 
valid.  Morris  v.  Municipal  Gas  Co., 
121  La.   1016;   46  So.   1001. 

A  statute  empowering  a  nuniici- 
pality  to  grant  the  use  of  its  streets 
to  lay  pipes  and  drains  to  supply 
heat  and  power,  does  not  autliorize 
the  grant  of  a  use  to  lay  pipes  to  a 
company  for  the  benefit  of  its  own 
private  us^e  for  an  automatic  pack- 
age delivery,  operated  by  compressed 
air.  Ampt  v.  C'inciiinaii.  (i  Ohio  N. 
P.  401. 

Where  an  ordinance  r(M|iiircs  a 
city  to  keep  a  maj)  showing  street 
lines,    location    of    sewers    and    gas 


516 


OIL    AND    GAS. 


mains,  it  will  be  prcsuniod  that  tin- 
map  was  kept;  and  the  city  is 
chargeable  with  knowledge  of  the 
location  of  a  gas.  main  in  a  street. 
Manuel  v.  Cumberland,  111  Md.  196; 
73  Atl.  Rep.  705. 

An  ordinance  requiring  a  deposit 
of  $10  for  a  permit  to  excavate  in 
a  street,  $3  to  be  retained  after  the 
excavation  had  been  filled,  and  $5 
if  the  street  is  paved  with  asphalt, 
and  that  no  excavation  shall  remain 
open  over  twenty-four  hours,  is  un- 
reasonable in  the  amount  of  the  de- 
posit. Ft.  Pitt  Gas  Co.  v.  Sewickley, 
30  Pittsb.  Log.  J.  (N.  S.)  419,  af- 
firmed 108  Pa.  201;  47  Atl.  Rep. 
Of)!. 

The  use  must  be  a  public  one. 
Witcher  v.  Holland  W.  W.  Co.,  60 
Hun  619;  20  N.  Y.  Supp.  560; 
Schwede  v.  Hemrich,  etc.,  Co. 
(Wash.),  69  Pac.  Rep.  362. 

^Yhcre  no  question  of  an  exclu- 
sive franchise  is  involved,  or  a  mu- 
nicipality has  no  power  to  grant  it, 
a  company  may  be  authorized  to  lay 
its  pipes,  in  a  street  in  which  an- 
other company  has  its  pipes,  or  the 
city  may  lay  its  own  pipes  there. 
Hughes  V.  Momence,  163  111.  535; 
45  N.   E.   Rep.  300. 

The  borough  Act  of  1897  of  New 
Jersey,  providing  that  the  borough 
council  may  prescribe  the  manner 
in  which  individuals  or  corporations 
may  exercise  any  privilege  granted 
them  in  the  use  of  the  street,  only 
authorizes  the  regulation,  not  the 
prohibition,  of  such  privileges.  An 
ordinance  giving  the  street  commit- 
tee of  the  borough  arbitrary  power 
to  refuse  a  permit  to  tear  up  the 
streets  for  the  purpose  of  laying 
pipes  therein  is  void.  Madison  v. 
Morristown  (N.  J.  Ch.),  52  Atl. 
Rep.    158;    Hardman    v.    Cabot,    60 


W.    Va.    (.64;     55    S.    E.    Rep.    756; 
7  L.  R.  A.    (N.  S.)    506. 

A  grant  to  lay  pipes  in  the 
streets  of  a  city  has  been  held  not 
to  authorize  the  laying  of  pipes  in  a 
bare  country  road  within  such  city 
witliout  compensation  to  the  abut- 
ting landowners.  Richards  v.  Citi- 
zens' Water  Supply  Co.  (X.  Y. ),  104 
N.   Y.   Supp.   Rep.   927. 

The  consent  is  valid,  although  no 
compensation  be  paid  the  city  for  it. 
La  Harpe  v.  Elm  Tp.,  etc.,  Co., 
69   Kan.   97;    76   Pac.   Rep.  448. 

The  right  to  use  a  public  highway 
to  lay  gas  pipes  in  nuxy  be  granted 
to  a  natural  person.  Hardman  v. 
Cabot,  60  W.  Va.  664;  55  S.  E.  Rep. 
756;   7  L.  R.  A.    (N.   S.)    506. 

Under  a  power  to  enact  ordinances 
for  the  government  of  a  city  not  in- 
consistent witli  the  laws  of  the  State 
to  secure  order,  health,  quiet,  and 
safety,  a  city  cannot  grant  a  gas 
francliise  including  the  right  to  pipe 
streets  for  furnishing  gas  to  cus- 
tomers. Elizabeth  City  v.  Banks, 
150  X.  C.   407;    64  S.  E.  Rep.   189. 

If  a  council  has  the  power  to  con- 
fer a  franchise  on  a  gas  comapny.  by 
passing  resolutions  contemplating 
and  providing  for  the  execution  of 
contracts  with  a  gas  company  for 
lighting  certain  territory  of  the  city, 
it  gives  the  consent  requisite  to  con- 
fer a  franchise  on  the  company. 
People  V.  Littleton,  185  X.  Y.  605; 
78  X.  E.  Rep.  1109;  affirming  110 
N.  Y.  App.  Div.  728;  96  X.  Y. 
Supp.  "44. 

If  the  statute  does  not  specify  in 
what  manner  the  consent  to  occupy 
a  highway  shall  be  given,  oral  con- 
sent is  a  literal  compliance  with  its 
terms;  and  it  is  sufficient  even  if 
given  after  the  line  is  constructed. 
People  V.  Priest,  126  X.  Y.  Supp. 
472. 


STREETS   AND    HIGHWAYS.  517 

§467.     Right  to  grant  a  franchise  not  property  of  municipality. 

The  right  uf  a  iiiunicipality  to  grant  ixTinission  to  a  gas 
company  to  Lay  down  pii>es  in  its  streets  to  siipjily  gas  is  not 
a  part  of  the  niuiiic'ii>ality's  proi.>erty,  to  which  the  corjwrate 
autliority  of  such  innnicipality  is  to  revert  for  purjwses  of 
revenue.  The  nmnicipality  is  not  bound  to  sell  such  ix^nuis- 
sion  or  treat  it  as  a  ])art  of  the  uiunici|wl  jn-opcrty  wliich  ii- 
to  be  used  for  the  purix);ses  of  municipal  revonue.^'^ 

§468.     When  consent  of  municipality  not  necessary. 

Occasionally  the  charter  of  a  gas  or  water  company  is  so 
drafted  by  the  legislature  as  to  give  the  company  the  right  to» 
enter  upon  and  lay  its  pipes  or  mains  in  the  streets  of  the 
municipality  for  which  it  is  chartered  without  the  consent 
of  the  municipal  authorities.  Thus  where  the  charter  of  a 
company  expressly  authorized  it  to  lay  its  pipes  under  any 
highway  or  street  of  a  particular  city,  it  was  held  that  the 
company  need  not  first  obtain  the  consent  of  the  city  before 
putting  down  its  mains  in  the  streets,  and  that  a  statute  giving 
the  board  of  public  works  of  the  city  exclusive  control  over 
the  use  of  all  the  streets  of  such  city  did  not  repeal  that  pro- 
vision of  the  company's  charter  conferring  upon  it  the  right 
to  so  lay  its  pipes.^** 

Where  a  statute  provided  that  a  company  might  "  lay  its 
wires  underground  as  the  same  may  be  necessary  and  in  so 
many  streets,   squares,   highways,   lanes   and   public  places  as 

A  power  to  grant  a   privilege  or  as  to  enable  it  to  lay  them   in   an- 

franchise    "by    ordinance"    in    Ten-  other     and     distinct     municip.ility. 

nessee    cannot   be    niade   by   a   mere  Madison  v.  Morristown  Casliglit  Co. 

resolution;    and   if  such   a   grant   is  (X.  J.),  54  Atl.  Rep.  4.30. 

made    by    ordinance,    it    cannot    be  is  Smith  v.  ifetroixjlitan  Gaslight 

amended    by    a    resolution.      ^Morris-  Co..  12  How.  Pr.  1S7. 

town    V.    East,    etc.,    Co.,    115    Fed.  is  Louisville    v.    Ivoui.sville    Water 

Rep.  304.  Co..    105    Ky.    754:    4n    S.    W.    Rep. 

In  Washington  only  the  city  coun-  760;   Atlanta  v.  Gate  City  Gaslight 

cil    can    make    the    grant,    not    the  Co.,  71   Ga.   lOG;    La  Harju'  v.   Klni 

board  of  jjuhlic  works.     Schwede  v.  Tp.,  etc.,  Co.,  G!)  Kan.   07;    70   Pac. 

Hemrich    Bros.,    etc.,    Co.     (Wash.),  Rep.  448;    Dorrance  v.    Bristol    Ror- 

60    Pac.    Rep.    302.  ough,    224    Pa.    404;     73    Atl.    R.-p. 

Permission  to  lay  its  pipes  in  the  1015.     See  Xew  York   City  v.   X.  \. 

streets   of    one   municipivlity   cannot  Mut.    Gaslight    Co.     (N.    Y.),     120 

be  so  stretched  by  a  gas  company  X.   Y.  Supp.  Rep.   770. 


518 


OIL   AND   GAS. 


may  be  deemed  necessary  for  the  purjx^se  of  supplying  elec- 
tricity and  gas  for  light,  power  and  lioating,  the  whole  how- 
ever without  doing  any  unnecessary  damage  and  providing  all 
proper  facilities  for  free  passage  through  the  said  streets, 
squares,  highways,  lanes  and  imhlic  places  while  the  works  are 
in  progress,"  it  was  held  that  the  power  to  break  the  surface 
of  the  streets,  and  to  excavate  them  for  the  purpose  stated  in 
the  statute  was  such  a  right  as  would  be  protected  by  injunc- 
tion, to  restrain  the  municipality  from  iiitcrfering  with  its 
laying  the  pipes  in  the  streets.^^  A  statute  gave  extensive  pow- 
ers to  electric  lighting  companies,  conferring  upon  them  the 
right  to  use  the  streets,  avenues,  highways  and  alleys  in  the 
State  for  the  purpose  of  erecting  poles  to  sustain  necessary 
wires,  with  the  proviso  that  no  poles  should  be  erected  in  any 
street  of  any  incorporated  "  city  or  town  "  without  first  ob- 
taining from  such  incorporated  "  city  or  town  "  a  designation 
of  the  streets  in  which  it  desired  to  place  such  poles,  and  the 
manner   of   placing   the    same.      It   was   held    that   an    electric 


17  Montreal  v.  Standard  Light 
and  Power  Co.  [1897],  App.  Cas. 
527;  66  L.  J.  P.  C.  113;  77  L.  T. 
115;  Hill  V.  Wallasey  L.  B.  [1894], 
1  Ch.  133;  63  L.  J.  Ch.  1;  69  L.  T. 
641;  42  W.  R.  81  ;  7  Rep.  51. 

In  England  where  the  Public 
Health  Act  of  1875  vests  in  urban 
authority  only  such  property  in  the 
soil  of  the  street  as  is  necessary  for 
the  control,  protection,  and  main- 
tenance of  the  street  as  a  highway 
for  public  use,  it  confers  upon  them 
no  authority  to  make  excavations 
in  the  soil  below  tlie  surface  for  the 
purpose  of  public  convenience 
(Tunbridge  Wells  Corporation  v. 
Baird  [1896],  App.  Cas.  434;  65 
L.  J.  Q.  B.  451:  74  L.  T.  385;  60 
J.  P.  788)  ;  and  it  was  held  that 
an  electric  lighting  company,  which 
had  illegally  broken  up  the  surface 
of  a  street  within  a  vestry  district 
pnd  placed  its  pipes  and  wires  two 
feet   below   the   surface,   would   not 


be  compelled,  at  the  suit  of  the 
vestry,  to  remove  such  pipes  and 
wires,  there  being  no  continuing 
trespass  upon  or  interference  with 
any  right  of  the  vestry;  for  such 
vestry  did  not  own  the  soil  at  the 
depth  where  the  pipes  and  wires  lay. 
Vestry  of  St.  Mary  v.  County,  etc., 
Co.  [1899],  1  Ch.  474;  68  L.  J.  Ch. 
238;  80  L.  T.  31;  15  T.  L.  Rep. 
1/5. 

For  a  case  where  a  statute  au- 
thorized a  gas  company  to  cross  a 
public  highway  without  first  secur- 
ing authority  so  to  do  from  local 
authority,  although  not  to  lay  its 
pipes  along  such  highways,  see  Con- 
sumers' Gas  Trust  Co.  v.  Huntsinger, 
12  Ind.  App.  285;  40  N.  E.  Rep.  34. 

A  right  given  to  lay  pipes  in  a 
street  gives  authority  to  lay  lateral 
as  well  as  main  pipes,  and  to  place 
gas  boxes  in  such  street.  District  of 
Columbia  v.  Washington  Gaslight 
Co.  20  D.  C.  39. 


STREETS    AND    HIGHWAYS.  518a 

company  could  place  its  polos  in  the  liijj^liway  of  a  townsliij) 
svitliont  leave  of  the  county  or  t(»\vn.sliip  authorities,  the  words 
"  city  or  town  "  not  including;  such  territories  of  the  State.'"* 
A  statute  authorized  a  company  to  lay  its  conductors  and  mains 
under  all  the  streets  of  the  City  of  Xew  York,  in  consideration 
of  a  reduction  by  the  company  of  the  price  of  gas.  A  subs2- 
quent  statute  repealed  this  statute,  but  provided  that  the  re- 
peal should  "  not  effect  or  impair  any  act  done,  or  rijiht  ac 
cruing,.  accrued,  or  ac(piired "  under  the  rei)ealed  act,  and 
that  *'  the  same  may  be  asserted  and  enforced  as  fully  and  to 
the  same  extent  as  if  such  law  had  not  been  repealed."  It  was 
held  that  such  company  was  not  deprived  of  its  right  to  lay 
new  mains  necessary  to  complete  unfinished  work,  and  to  make 
connections  between  the  mains  previously  laid  by  it.^" 

§469.     Nature   of  a   grant  to   occupy   streets   or  highways. —  A 
mere  privilege. 

There  is  much  confusion  in  the  books  and  opinions  of  courts 
concerning  the  nature  of  the  grant  to  a  gas,  water  or  other 
com|iany  to  occupy  the  streets  of  a  municipality  or  a  public 
highway  in  the  country  with  its  pipes  or  railroad  tracks.     In- 

18  Suburban,  etc.,  Co.  v.  East  Or-  lion  over  the  riglit  of  the  company 
ange    (N.  J.),   44  Atl.  Rep.  G28.  to    occupy    the    streets   Mill    not    be 

19  People  V.   Gilroy,  G7   Hun  323;  ordered.   Gasliglit  Co.  of  New  l^runs- 
22  X.  Y.  Supp.   271.  wick  v.   South   River,   77   X.  J.  Eq. 

A  statute  empowering  city  coun-  487 ;   77  Atl.  473. 
cils   to   pass   ordinances    prescribing  Where  a  company  was  autliorizeil 

the   manner    in    which    corporations  to  construct,  lay  and  operate  pneu- 

shaill  exercise  any  privilege  granted  matic    tubes    \\-dthiii    and    between 

in  the  use  of  any  street  or  in  dig-  citesi,  it  was  held  that  this  did  not 

ging  up  the  same  for  any  purpose,  by  itself  empower  it  to  lay  its  tubes 

is   a  mere  regulative  one,   and  does  along  the  suspension  bridge  between 

not  authorize   an   arbitrary    refusal  Xew  York  City  and  Rrooklyn  with- 

to  permit  a  gaslight  corporation  to  out    the    consent    of    the    ofliccrs    in 

lay  its  mains  in  the  streets  of  the  control  of  it.     Xew  York  Mail,  etc., 

citj',  and  the  arbitrary  refusal  of  the  Co.  v.  Shea,  30  X.  Y.  App.  Div.  2G6; 

mayor   of   a    city    to   grant    such   a  51  X.  Y.  Supp.  563,  reversing  40  X. 

permit  amounts  to  a  prohibition  and  Y.     Supp.    951.      See     Glasgow     v. 

is    unauthorized.      Gaslight    Co.    v.  Glasgow,    etc.,    R.     R.    Co.     [IS!).")], 

South  River,  77  X.  J.   Ecj.  4S7;    77  App.   Cas.  37G;  C4  L.  J.  P.  C.   171; 

A.    473.  72  L.  T.  809;  59  J.  P.  788;    11  Rep. 

Removal   of   pipes   pending   litiga-  226. 


518b 


OIL   AND   GAS. 


deed,  no  writer  upon  the  subject  can  escape  falling  into  that 
confusion  in  the  use  of  terms  as  he  api)lies  them  to  sudi 
grants.  Sometimes  they  are  called  "  franchises,"  sometimes 
'*  })rivileges,"  occasionally  "  grants."  Xow  it  is  obvious  to 
any  one  reflecting  on  the  subject  that  a  franchise  is  a  very 
different  thing  from  a  contract  —  although  a  franchise  has 
within  it  the  elements  of  a  contract  —  a  license  or  a  privilege. 
The  granting  of  a  franchise  is  the  act  of  a  sovereign  power. 
An  old  definition  of  it  is  that  it  "  is  a  royal  privilege  or  branch 
of  the  king's  ])r(>rogative  subsisting  in  the  hands  of  the  subject, 
and  being  derived  from  the  crown  must  arise  from  the  king's 
grant."  "°  Franchises  has  been  defined  by  the  Supreme  Court 
of  the  United  States  as  "  special  ])rivileges  conferred  by  gov- 
ernment upon  individuals,  and  which  do  not  belong  to  the 
citizens  of  the  country  generally,  of  common  right."  ^^  In  a 
]^\ew  York  decision  is  both  a  definition  and  description  of  a 
franchise:  "  Francliises  are  privileges  conferred  by  grant 
from  government  and  vested  in  private  individuals.  They 
contain  an  implied  covenant  on  the  part  of  the  government  not 


A  company  in  Pennsylvania  in 
good  faith  having  laid  pipes  in  the 
streets  of  a  city,  without  consent 
of  the  city,  prior  to  May  29,  1885, 
comes  within  the  exception  to  Sec. 
IG  of  that  Act.  Appeal  of-  Allegha- 
ney    (Pa.),   11  Atl.  Rep.  658. 

A  statute  may  be  broad  enough 
to  authorize  a  water  company  lo- 
cated in  one  village  to  lay  its  pipes 
through  another  village,  without  the 
latter's  consent,  in  order  to  reach 
a  third  village  it  has  contracted  to 
supply  with  water.  Tarrytown  v. 
Pocontico  W.  W.  Co.,  1  N.  Y.  Supp. 
394.  See  also  Public  Service  Corp. 
V.  De  Grote,  70  N.  J.  Ch.  454;  G2 
Atl.  Rep.  65. 

As  to  California  constitutional 
provisions,  see  In  re  Johnston,  137 
Cal.  115;  69  Pac.  Rep.  973. 

A  statute  providing  that  no  street 
should  be  dug  into  without  permis- 


sion of  the  city  was  held  to  con- 
stitute a  mere  gratuitous  delegation 
of  authority  to  the  city  to  control 
the  time,  manner,  method  for,  in, 
and  by  which  the  streets  might  be 
opened,  and  did  not  restrict  a  gas 
company's  power  to  lay  gas  pipes  in 
the  street.  Attorney  General  v.  Con- 
solidated Gas  Co.,  124  N.  Y.  App. 
Div.  401;  108  N.  Y.  Supp.  Rep. 
823;  affirming  56  N.  Y.  Misc.  Rep. 
49;   106  N.  Y.  Supp.  Rep.  407. 

If  consent  to  lay  the  pipes  in  a 
street  is  not  necessary,  then  so  long 
as  they  are  in  use  the  municipality 
cannot  compel  their  removal.  New 
York  City  v.  New  York,  etc.,  Co.  (N. 
Y.),  120  N.  Y.  Supp.  Rep.  776.  See 
Gaslight  Co.  v.  South  River,  77  N.  J. 
Eq.  487;    77  Atl.  Rep.  473. 

20  Board   v.   People,    91   111.   80. 

21  Bank  of  Augusta  v.  Earl,  13 
Pet.  519,  595. 


STREETS    AND    HIGHWAYS.  519 

to  invade  tlio  riijhts  vested,  and  on  the  ]>nrt  of  the  parties  to 
execute  the  conditions  and  (hities  prcscril)ed  in  the  <i::rant."  *" 
A  gas  company  may  be  incorporated  and  its  charter  aiithoriz;^ 
it  to  make  ahd  sell  gas,  although  it  have  no  privilege  to  lay 
its  pipes  in  the  streets  of  the  munici]iality  where  located  ;  and 
yet  it  Avonld  possess  a  franchise  granted  l)y  tlie  sovereign  State 
imaccompanled  by  any  privilege  of  laying  its  pi]X^s  in  tlu' 
streets,  and  have  no  contract  with  the  municipality  to  furnish 
it  gas;  and  should  it  after  receiving  the  privilege,  enter  into  a 
contract  to  furnidi  public  lights  at  so  much  per  light  ;^ — the 
distinction  between  such  a  contract  and  the  company's  fran- 
chise is  quite  clear.  Usually,  if  not  universally,  a  gas  company 
is  organized  under  a  general  statute  authorizing  its  incorpora^ 
tion  and  its  articles  of  incorporation  contain  a  statement  of  the 
place  of  its  home  office  and  where  it  will  operate ;  unless  it  is 
chartered  by  a  special  act  of  the  legislaiure,  and  then  the  field 
of  its  future  operations  is  almost  universally  specified.  Such 
a  company  has  no  right  to  enter  upon  the  streets  of  a  munici- 
pality without  its  consent  to  lay  its  pipes,  unless  its  charter  or 
some  statute  expressly  gives  it  that  privilege.  Usually  the  act 
of  incorporation  and  the  grant  of  a  right  to  use  the  streets  are 
almost  simultaneous  acts;  and  out  of  their  coincidence  in 
point  of  time  has  grown  up  tlie  confusion  between  a  franchise 
and  the  grant  of  a  right  or  privilege  to  occupy  the  streets.  The 
two  things  are  entirely  different ;  and  yet  there  is  dire  confu- 
sion about  their  natures  in  both  the  text  books  and  the  written 
opinions  of  the  courts.  The  Supreme  Court  of  Michigan  has 
pointed  out  the  distinction  we  are  endeavoring  to  show.  "''  The 
exercise  of  the  power  of  using  streets  for  laying  gas  pipes  is 
rather  an  easement  than  a  franchise,  and  a  similar  power 
is  used  as  often  for  private  drainage  and  other  purjxises  as  for 
more  general  purposes.  It  is  a  matter  peculiarly  local  in  its 
character,  and  which  should  always  be  to  a  reasonable  extent 
under  a  municipal  sujiervision  to  prevent  clashing  nninng  the 


22  Thompson  v.  Peo[;lc,  23  Wend.       III.    G5;    Bridgeport    v.    New    York, 
537,  579.     Sec  State   v.   Weathcrby,       etc.,  R.   R.   Co..  3G  Conn.  2GG. 
45   Mo.    17;    People   v.    Ridgely,   21 


520 


OIL    AND   GAS. 


niaiiy  n»Tivoiiient  uses  t()  wliicli  ways  must  necessarily  l>o  suh- 
jcctcd,  f(^r  water,  draiiiaije  and  other  nrLan  needs.  But  the 
jieriiiission  to  hiy  these  pijx^s  does  not  differ  in  any  respect  from 
that  r(M]uircd  for  hayinij  railways  over  land,  or  ditches  through 
it.  It  i-^  nut  a  State  franchise,  hut  a  mere  tyrant  of  auth  irity 
which,  whether  coniiiiG;  from  ])rivate  owners,  or  public  agents, 
rests  in  contract  or  lictMise,  and  in  nothing  else.  It  in  no  way 
concerns  the  State  Avhctlicr  th(>  ]X)wor  is  granted  or  withheld, 
nor  whether  the  corjioration  has  or  has  not  fulfilled  its  agree- 
ments." -^ 

§470.     Nature  of  grant  to  occupy  streets  or  highways. —  A  fran- 
chise. 


^Notwithstanding  the  line  of  reasoning  pursued  in  the  fore- 
going section,  some  courts  have  held  that  the  grant  of  a  city  to 
a  gas  company  to  occupy  its  streets  with  lines  of  pi|>es  t> 
furnish  gas  is  something  more  than  a  mere  license  or  privilege 


23  People  V.  Mutual  Gaslight  Co., 
38  Mich.  154.  In  this  case  leave 
to  file  an  information  in  the  nature 
of  a  quo  warranto  to  have  the  char- 
ter of  a  gas  company  declared  for- 
feited, because  it  had  violated  its 
contract  with  the  city  wherein  it 
was  located,  was  denied.  In  the 
same  line  see  Palestine  Water,  etc., 
Co.  v.  Palestine,  91  Tex.  540;  44 
S.  W.  Rep.  814;  Providence  Gas 
Co.  V.  Thurber,  2  R.  I.  15;  55  Am. 
Doc.  G21.  Tliat  it  is  a  license  or 
permit,  see  Sandy  Lake  v.  Sandy 
Lake,  etc.,  Co.,  16  Pa.  Super.  Ct. 
234 ;  Great  Falls  W.  W.  Co.  v.  Great 
Xorthcrn  Ry.  Co.,  21  Mont.  487;  54 
Pac.  Rep.  963;  Chicago,  etc.,  Co.  v. 
Lake,  130  111.  42;  22  N.  E.  Rep.  6L6; 
afTirming  24  111.  App.  340;  Chicago 
R.  R.  Co.  v.  People,  73  111.  541;  New 
Orleans  Gaslight  Co.  v.  Drainage 
Commission,  111  La.  838;  35  So. 
Rep.  929;  affirmed  197  U.  S.  453;  25 
Sup.  Ct.  Rep.  471;  49  L.  Ed.  831. 

A  gas  franchise  is  property,  a 
vested  right  protected  by  the  consti- 


tution, while  a  license  is  a  mere  per- 
sonal privilege,  and  revocable,  except 
in  rare  instances  and  under  peculiar 
conditions.  Elizabeth  City  v.  Banks, 
150  N.  C.  407;  64  S.  E.  Rep.  189. 

The  Civil  Code  provides  that  the 
attorney  general  may  maintain  an 
action  against  a  person  who  usurps, 
intrudes  into,  or  unlawfully  holds 
or  exercises  a  franchise  within  the 
State.  Under  this  provision  it  is 
held  that  the  attorney  general  may 
not  maintain  an  action  against  a  gas 
company  to  prevent  further  exercise 
of  its  rights  in  certain  streets  on  the 
ground  that  municipal  grants  or  con- 
sents to  use  such  streets  have  ter- 
minated by  expiration  of  the  period 
for  which  they  were  given,  since 
such  consents  are  not  "franchises" 
within  the  statute,  and  since,  if  they 
were,  the  matter  is  a  local  one,  with- 
in the  control  of  the  city,  whicli  may 
by  appropriate  proceedings  effectuate 
anj^  withdrawal  of  its  consents. — 
People  V.  Consolidated  Gas  Co.,  115 
N.  Y.  S.  393. 


STREETS    AND    IIICIIWAYS.  521 

—  it  is  a  franchise.  Chief  among  these  is  the  New  V<irk 
Court  of  Api^eals.  In  one  case  it  was  said:  "At  the  tliresli- 
olcl  of  the  consideration  of  these  qnestions,  it  will  he  well  to 
have  in  mind  the  legal  eifect  of  the  consent  which  the  mnnicij;al_ 
authorities  are  authorized  to  give  hv  the  transportation  corixn-a- 
tion  act.  It  operates  to  create  a  franchise,  by  which  is  vested 
in  the  corporation  receiving  it  a  perpetual  and  indispensable 
interest  in  the  land  constituting  the  streets  of  a  nmnici]>ality. 
It  is  true  that  the  franchise  comes  from  the  State,  Init  the  act 
of  the  local  autliorities,  who  represent  the  State  by 
its  permission  and  for  the  purpose,  constitute  the  act 
upon  which  the  law  o]>erates  to  create  the  franchise.  The 
State  might  grant  the  francJiise  directly  to  the  corporation 
without  the  consent  of  the  local  authorities,  and  has  done  so 
in  many  instances ;  but  the  tendency  of  later  years,  which  is 
well  grounded  in  reason,  is  for  the  State  to  confer  u]X)n  the 
local  municipal  authorities  the  right  to  represent  it  in  the 
matter  of  granting  franchises  to  the  extent  that  the  final  act 
necessary  to  the  creation  of  franchises  must  be  exercised  by 
such  authorities.  The  legal  effect  of  the  consent,  therefore,  is 
the  same  as  if  the  local  authorities  in  form  granted  the  fran- 
chise and  the  interest  in  the  land."  '*  In  this  same  case  it  was 
conceded  that,  "  The  consent  of  the  town  authorities  conferred 
upon  the  relator  a  franchise  to  carry  on  its  business  in  the 
town,  and  to  lay  conductors  in  the  streets  and  highways  for 
the  purpose  of  delivering  gas;  that  such  a  franchise  is  ])ro]ierty 
that  cannot  be  destroyed  or  taken  from  it  or  renewed  unless 
by  the  arbitrary  act  of  the  village  authorities  in  refusing  the 
permit  to  place  the  conductors  under  the  streets."  -'  It  should 
be  observed  that  in  New  York  City,  where  this  doctrine  had 
its  origin,  the  fee  of  the  streets  is  in  the  City  and  not  in  the 

24  People    V.    Deehan,    153    N.    Y.  People  v.   O'Brien.   Ill  N.  Y.   1:    18 

528;    47   X.   E.   Rep.   787,   reversing  N.  E.  Rep.   G02;   Railroad  Company 

11   X.  Y.  App.  Div.   175;   42  N.  Y.  v.  Railroad  Co.,  32  Rarh.  358,  304; 

Supp.    1071.  Rrookh-n  v.  Jourdan,   7   Abb.   X.  C. 

2r.  People    V.    Doehan,    153    X.    Y.  23. 
528;   47   X.  E.   Rep.   787.     See  also 


522 


OIL   AND    GAS. 


aliiittiuii:  projiorty  owner, 
been  adopted.^" 


In  other  States  a  similar  nile  has 


§471.     Acceptance  of  grant. 

In  whatever  "vvay  a  grant  may  be  regarded,  whether  as  a  gift, 
donation  or  a  contract,  it  is  not  complete  nntil  accepted;  and 
nntil  it  is  accepted  it  may  be  revoked.  Acceptance  is  essen- 
tial to  its  validity.'"  T'snally  the  ordinance  granting  the  right 
requires  the  company  to  file  with  the  municipality  a  written 
acceptance  of  the  grant ;  but  where  no  such  requirement  is 
exacted  it  is  not  necessary.  An  acceptance  may  be  evidenced 
by  acts  alone.  Thus  where  the  grantee  was  required  by  the 
ordinance  to  commence  furnishing  gas  within  five  years  at 
specified  rates ;  and  within  four  months  it  ])urchased  land  on 
which  to  erect  its  works,  and  in  nine  months  made  contracts; 
it  was  considered  that  these  acts,  having  been  performed  in 
good  faith,  constituted  a  sufficient  acceptance,  and  it  was  too 
late  thereafter  to  repeal  the  ordinance. ^^  The  acceptance  must 
\k'  of  the  exact  terms  of  the  grant;  a  qualified  acceptance 
is  invalid.      ]^ot  only  must  the  acceptance  be  as  broad  as  the 


26  Jersey  City  Gas  Co.  v.  Dwight, 
29  N.  J.  Eq.  242;  Palestine,  etc., 
Co.  V.  Palestine,  01  Tex.  540;  44 
S.  W.  Rep.  814;  National  Foundry, 
etc.,  Co.  V.  Oconto  Water  Co.,  52 
Fed.  Eep.  29;  Sharp  v.  South 
Omaha,  53  Neb.  700;  74  N.  W.  Rep. 
70;  People's  Gaslight  and  Coke  Co. 
V.  Hale,  04  Til.  App.  406;  Commer- 
cial, etc.,  Co.  V.  Tacoma,  17  Wash. 
661;  50  Pac.  Rep.  592;  Joliet  Gas- 
light Co.  V.  Sutherland,  68  111.  App. 
230. 

The  limiting  of  the  time  within 
which  a  gas  company  shall  begin 
work  does  not  effect  the  life  of  the 
corporation.  In  re  Consolidated  Gas 
Co.,  56  N.  Y.  Misc.  Rep.  49;  106 
N.  Y.  Supp.  Rep.  407,  affirmed  124 
N.  Y.  App.  Div.  401;  108  N.  Y. 
Supp.  Rep.  823;  Elizabeth  City  v. 
Banks,  150  N.  C.  407;  04  S.  E.  Rep. 


189;  San  Francisco  v.  Oakland  Wa- 
ter Co.,  148  Cal.  331;  83  Pac.  Rep. 
61;  Stockton  Gas  &  El.  Co.  v.  San 
Joaquin  County,  148  Cal.  313;  83 
Pac.  Rep.  54. 

27  Metropolitan  Gas  Co.  v.  Hyde 
Park,  27  111.  App.  301;  affirmed  130 
HI.  42;  22  N.  E.  Rep.  010;  People's 
Gaslight  and  Coke  Co.  v.  Hale,  94 
111.  App.  406. 

The  acceptance  completes  the  con- 
tract. Sandy  Lake  v.  Sandy  Lake, 
etc.,  Co.,  10  Pa.  Co.  Ct.  Rep.  234; 
Morristown  v.  East,  etc.,  Co.,  115 
Fed.  Rep.  304. 

28  Metropolitan  Gas  Co.  v.  Hyde 
Park,  27  111.  App.  361;  affirmed 
130  111.  42;  22  N.  E.  Rep.  616; 
Clarksburg  Electric  Light  Co.  v. 
Clarksburg,  47  W.  Va.  739;  35  S. 
E.   Rep.   994;    50   L.   R.   A.    142. 


STREETS    AM)     II  I(i  11  WA YH.  5l*3 

grant,  l)ut  when  nuule  it  will  be  construed  as  an  agreement  to 
obey  all  the  valid  ordinances  of  the  niunicipality  in  relation 
to  the  grant  and  its  subject  matter.  Thus  where  a  gas  com- 
pany was  granted  the  privilege  of  laying  its  ])ijX's  in  the  streets 
of  a  city,  subject  to  the  conditions  of  a  prior  ordinance  fixing 
the  conditions  generally  (in  wliicli  a  conipany  could  occupy 
streets  with  its  pipes ;  and  the  com])any  by  resolution  filed  with 
the  city  agreed  to  comply  with  the  general  ordinance  "  except- 
ing so  far  as  any  of  the  terms  of  said  ordinance  may  be  held  or 
adjudged  illegal  or  unreasonable  by  courts,"  it  was  held  that 
as  the  city  council  had  never  consented  to  such  qualifications  of 
the  acceptance,  and  the  company  having  enjoyed  the  privileges 
of  such  ordinance  under  its  acceptance,  it  could  not  refuse  to 
comply  with  certain  provisions  of  the  ordinance  on  the  ground 
that  after  its  acceptance  it  had  been  adjudged  to  be  void.^"  It 
is  not  necessary  to  name  all  of  the  sections  of  an  ordinance  in 
an  acceptance,  where  an  attemjrt  is  to  accept  it  by  sections; 
for  the  acceptance  of  a  single  section  will  carry  with  it  an 
acceptance  of  all  the  provisions  of  the  ordinance.'"^  A  mere  nom- 
inal acceptance  is  sufficient  to  bind  the  company  after  it  has 
enjoyed  the  whole  or  a  part  of  the  privileges  granted. ^^ 

§472.     Gas  company  must  comply  with  conditions  of  grant. 

A  gas  company  that  desires  to  retain  its  rights  in  the  streets 
must  substantially  comply  with  the  conditions  of  the  grant;  and 
if  it  fail  to  do  so,  it  may  forfeit  its  rights  therein.^'  The  con- 
dition may  1m?  a  precedent  or  a  subsequent  one.  Thus  where 
a  natural  gas  company  was  required  to  have  one  or  more  gas 
wells  in  operation  within  a  year  as  a  condition  precedent  t<i 
the  right  to  lay  pipes  in  the  streets,  its  right  to  lay  such  pipes 

zoAllepheny  v.  People's,  etc..  Co..  172    Pa.    St.    (V.Vl:    20    Pittsh.    L.    .F. 

172  Pa.  St.  6.32;   37  W.  N.  C.  442;  (N.  S.)    410;    37   W.  N.  C.  442;   .3.3 

33   Atl.  Rep.   704.  Atl.  Rep.   704. 

•■">  Sewickley    v.    Ohio   Valley    Gas  ••?2  Capital      City     Water      Co.     v. 

Co..  f)  Pa.  Co.  Ct.  Rep.  09.  reversed  State.    lO.'i    Ala.    406;     18    So.    Rep. 

but  not  on  this  point,  1  Monau'han.  02;  29  L.  R.  A.  743;  Sandy  Lake  v. 

97.  Sandy    Lake,    etc.,    Co..    16    Pa.    Co. 

31  Allegheny  v.  People's,  etc.,  Co.,  Ct.  Rep.   234. 


524  OIL    AND    GAS. 

was  held  not  to  accnic  until  it  had  at  least  one  well  in  opera- 
tion and  that  within  the  year.^^  Where  the  condition  was  that 
the  company  must  furnish  gas  within  one  year,  it  was  held  that 
the  accpiisitioii  of  a  two-years'  lease  of  gas-works  was  not  a 
compliance  with  the  condition,  so  as  to  enable  the  company, 
after  the  expiration  of  the  year,  to  enjoin  the  town  in  its  at- 
tempt to  prevent  it  laying  its  own  pipes  in  the  streets;  nor  was 
the  condition  complied  with  by  building  a  gas  apparatus  under 
cover,  and  withholding  all  knowledge  of  it  from  those  who  w^ere 
to  receive  the  company's  advantages  until  the  year  specified  had 
elapsed.^* 

§473.     Grant  to  occupy  streets  construed  strictly. 

Grants  to  occu]>y  the  streets  of  a  city  are  strictly  construed. 
As  it  is  the  use  of  public  ])ro})erty  for  private  gain,  courts  are 
careful  to  see  that  the  rights  of  the  public  are  protected ;  and 
also  to  see  that  the  company  receives  nothing  beyond  what  has 
been  fairly  granted.  Nothing  passes  by  implication  except  that 
which  is  necessary  to  carry  into  effect  the  grant. "^  In  the  Xew 
York  case  cited  the  court  said :  "  The  rule  that  public  grants 
are  to  be  construed  strictly  against  the  grantee  means  simply 
that  nothing  shall  pass  by  implication  except  it  he  necessary  to 
carry  into  effect  the  obvious  intent  of  the  grant.  But  the  ol> 
vious  intention  of  the  parties,  when  expressed  in  plain  lan- 
guage, cannot  be  ignored  in  a  public  any  more  than  in  a  private 
grant.  A  construction  that  would  lead  to  false  consequences 
or  unjust  or  inconvenient  results,  not  contemplated  or  intended, 
should  be  avoided  in  a  grant  as  well  as  in  a  statute.  It  is  well 
known  that  business  enterprises  such  rs  the  relat^  r  is  engaged  in 
are  based  U]>on  cnlonlations  (if  future  growth  and  expansion. 
A  franchise  for  supplying  gas  not  cmly  confers  a  privilege,  but 

33  Newark  Gas,  etc.,  Co.  v.  New-  additional  tax  on  the  gas  company 
ari<,  8  Ohio  S.  and  C.  P.  Dec.  418;  not  authorized  by  hnv.  Columbus  v. 
'   Ohio  N.   P.  76.  Columbus  (Jas  Co.,  76  Ohio  St.  3U9; 

34  Chicago,   etc.,   Co.   v.   Lake,   130  81   N.   E.  Rep.  44. 

111.    42;     22    X.    E.    Rep.    616;    af-  3:;  people    v.    Deehan,    153    N.    Y. 

firming    27    111.    App.    346,    for    last  528;    47    N.    E.   Rep.    787;    State   v. 

proposition.  Boyce,    43    Oliio    St.    4G;     1    N.    E. 

A   city  may  require  the  gas  com-  Rep.   17;   Pensacola  Gas  Co.  v.  Pen- 

pany    to    pay    for    the    privilege    of  sacola,    33    Fla.    322;     14    So.    Rep. 

using    the    streets;    and    such    a    re-  826;    Tampa   v.  1  ampa  W.   W.   Co., 

quirement  is  not  void  on  the  ground  45  Fla.  COO;  34  So.  Rep.  631;  Sapul- 

that  it  is  a  means  to  raise  general  pa  v.  Sapulpa  Oil  &  Gas  Co.   (Okl.), 

revenue,    and    thereby    imposing   an  97  Pac.  Rep.  1007. 


STREETS    AM)     II  I(.  11  WAYS.  525 

imposes  an  obligation,  nj)on  the  cor[)oratiun  to  serve  the  ))uhlic 
in  a  reasonable  way.  The  relator  is  bound  to  snp])ly  gas  to 
the  people  of  the  town  upon  certain  conditions  and  uiidtT  certain 
circumstances,  and  it  would  be  most  unjust  to  give  such  a 
construction  to  the  consent  as  to  disable  it  from  performing  its 
obligations."  ^^ 

§474.     What  streets  company  may  occupy. —  Sidewalk. 

Where  the  ordinance  granting  the  gas  company  the  right  to 
furnish  gas  to  a  munici])ality  designates  the  streets  it  may 
occupy,  it  necessarily  follows  that  it  can  occujiy  no  other  streets 
than  those  named  without  a  further  permit  from  the  munici- 
pality, unless  it  has  a  charter  which  gives  it  the  absolute  right 
to  occupy  the  streets  without  consent  of  municipal  authorities. 
But  if  an  ordinance  gives  it  the  right  to  occupy  the  streets,  and 
is  silent  as  to  what  streets,  then  the  company  can  make  its  own 
selection ;  and  it  cannot  be  successfully  urged  that  the  ordinance 
is  void."  As  the  sidewalks  are  a  part  of  the  street,  a  city  may 
authorize  a  gas  company  to  lay  its  gas  mains  therein.''^ 

§475.     Territory   annexed   to   another   municipality   after   grant 
made. 

If  a  gas  company  is  given  authority  to  occupy  the  streets  of 
a  municipality ;  and  thereafter  a  part  of  the  territory  of  such 
municipality  is  cut  off  and  annexed  to  another  or  erected  into 
a  new  and  separate  nninicipality,  the  com]iany  lias  the  right  to 
continue  in  the  use  of  the  part  so  cut  off,  and  even  t(»  occupy 

38  See    Appeal    of    Pittsburg,    115  •''7  Kalamazoo   v.   Kalamazoo,  etc., 

Pa.  St.  4;  7  Atl.  Rep.  778;  Western  Co.,    1:24   Mich.    74;    S2    N.   \V.    Rep. 

Paving,    etc.,    Co.    v.    Citizens'    etc.,  811. 

Co.,    128    Ind.    525;    26    N.    E.    Rep.  ^s  McDevitt    v.    Philadelphia    C;as 

188;  28  N.  E.  Rep.  88.  Co.,   160   Pa.   St.   .3(i7 :    28  Atl.    Re|'- 

A    gas    comp^iny    cannot    lose    its  948. 

right    to    occupy    the    streets    of    a  In    Pennsylvania    a    ga-i    or    other 

municipality  by  the  municipality  be-  public   company,   in   tlic  a[)plicat ion, 

ing  abolished.     Public  Service  Corp.  must  sjiecify  the  territory  it  desires 

V.   De  Grote,  70  N.  J.   Eq.   454;    62  to  occupy.     /»  re  Consiiolwicken  Cas- 

Atl.  Rep.  65.  light  Co',  5  Pa.  Co.  H«p.  oSf). 

Limiting    the    time    in    the    grant  A  statute  requiring  a  company  to 

within  which  the  company  can  o[Km  state  in  its  application  what  streets 

the  streets  ha.s  no  effect  on  the  life  it  desires  to  occupy  is  complied  with 

of   the   corporation.      Attorney    fieii-  by   a  general   designation  of  all   the 

era!  v.  Cons(didated  Has  Co.,   124  N.  streets  of  the  city.     .Myers  v.   Ilud- 

Y.  App.   Div.  401;    108  N.  Y.  Supp.  s(m,  etc.,  Co.    (N.*  J.),"44   Atl.   Kep 

Rep.   82.3,   allirming  56   N.   Y.   Misc.  713;    reversing  37  Atl.  Rep.  618. 
Rep.  49:   106  N.  Y.  Supp.  Rep.  407. 


526  OIL    AND    GAS. 

new  streets  opened  n])  in  that  part  of  the  territory  so  severed 
from  the  t)hl  iinini('i{)al  eor]K)ration. "" 

§476.     New  streets,  right  to  occupy. —  No  streets  specified. 

If  a  li'ii.s  ctiiiipany  Ih>  given  the  right  generally  to  supply  gas 
to  a  nuinicipality  and  to  occupy  its  streets  for  that  purpose,  it 
has  the  right  to  occu})y  streets  o|x>ned  therein  after  the  grant, 
as  well  as  streets  laid  out  in  new  territory.  Thus  where  the 
grant  was  the  "  power  of  laying  conductors  for  conducting  gas 
in  and  through  the  public  streets  and  liighways  of  the  town," 
it  was  held  that  the  grant  was  co-extensive  with  the  limits  of 
the  town,  and  was  not  confined  to  any  ], articular  street,  high- 
way, or  other  local  division.  The  lower  court  held  that  the 
grant  did  not  apply  to  streets  not  ojx^n  when  the  grant  was 
made;  but  its  holding  was  reversed  on  appeal,  the  A'lpellato 
Court  saying:  "  It  cannot  reasonably  be  contended  that  the 
relator  is  obliged  to  apply  for  a  new  grant  whenever  a  new 
street  is  opened  or  an  old  one  extended,  as  would  be  the  case 
if  the  consent  applied  only  to  the  situation  existing  when  made. 
AVhen  tlie  right  t.)  use  the  streets  has  been  once  granted  in 
general  terms  to  a  corporation  engaged  in  suy>plying  gas  for 
public  and  private  use,  such  grant  necessarily  contemplates 
that  new  streets  are  to  be  opened  and  old  ones  extended  from 
time  to  time,  and  so  the  ])ri\'il(>go  may  be  exercised  in  tho 
new  streets  as  well  as  in  the  old.  Such  a  grant  is  generally  in 
]5erpetuity  or  during  the  existence  of  the  corporation  or  at  least 
for  a  long  period  of  time,  and  should  be  given  effect  according 
to  its  nature,  purpose,  and  duration.  There  is  no  good  reason 
for  restricting  its  operation  to  existing  highways,  unless  that 
purpose  appears  from  the  language  employed.  It  is  not  claimed 
that  any  such  limitation  was  expressed,  and  none  can  be  im- 

89  People    V.    Deehan,    15.3    N.    Y.  Tp.  v.  IVIillville  Gaslight  Co.,  72  N. 

528;    47   N.   E.   Rep.   787;    reversing  J.  Eq.  .347:  (iS  All.  Rep.  716. 
11   N.  Y.   App.  Div.   175;    42   N.   Y.  An   ordinance   granting   tlie    right 

Supp.    1071;     Richards    v.    Citizens'  to   use   tho   streets  of  a  city    is  not 

etc.,  Co.    (N.  Y.),   104  N.   Y.   Supp.  invalid  because  it  provides  that  the 

Rep.   927.  riglit  shall  extend  to  territory  there- 

A  statute  may  be  so  worded  as  to  after    annexed.      Truesdale    v.    New- 

not  authorize  it  to  lay  pipes  in  the  port    (Ky.),    90    S.    W.    Rep.    589; 

streets  of  annexed  territory.    Landis  28  Ky.  L.  Rep.  840. 


STREETS    AND    IIICIIWAYS. 


527 


plied  from  tlic  iiatiirc  of  tlic  ciisc.  Tlw  1;iiiirnap:o  of  coiisnit 
confers  the  riijlit  to  place  llic  coiuluctdrs  in  tlic  streets,  ii|hiii 
ooTii])lianee  with  nil  reasonable  reij;nlatioiis,  not  only  as  tl'.e 
streets  then  existed,  bnt  as  subsequently  enlarjied.  That  is 
what  the  grant  contemplated  when  made,  and  such  is  the  fair 
meaniiiii-  of  the  lang-uaize  used."  *^ 

§477.     Sale  or  assignment  of  right  in  streets. 

If  the  rig-lit  to  lay  ])i]K's  in  a  street  to  sn]i])ly  gas  oi-  water 
be  regarded  i.s  a  franchise^,  then  under  the  general  ])rineij)les  of 
cor]K)ration  law  the  rigl.it  cannot  be  assigned,  unless  a  statute 
autluu-izes  it.*"  ]>nt  if  the  right  be  regarded  as  a  mere  ease^ 
ment,  license  or  privilege,  then  it  may  be  assigned,  unless  the 
ordinance  containing  the  grant  forbid  it.'*''  The  assignment 
does  not  prevent  the  grantor  or  the  State,  having  a  forfeiture 
declared  in  the  hands  of  the  assignee,  even  for  acts  of  the 
assignor.**  A  gas  company  cannot  lease  its  plant  without  the 
consent  of  the  municipality.*^  The  city  or  town  may  agrt^e 
that  the  grant  may  he  assigned;  and  a  grant  to  the  coiujiany  or 
its  assigns  is  sutheieiit  to  authorize  an  assignment  witln'iil  tlic 
farther  consent  of  the  eitv.*°     Where  the  sale  and  assi<>-nm(Mit 


■•i  People  V.  Deehan,  15.3  N.  Y. 
528;  47  N.  E.  Rep.  787;  reversing 
11  X.  Y.  App.  Div.  175;  42  N.  Y. 
Supp.  1071;  People  v.  Cromwell.  89 
N.  Y.  App.  Div.  291;  85  N.  Y.  Supp. 
Rep.  878;  Attorney  Ceneral  v.  (  on- 
solidated  Gas  Co.^  124  N.  Y.  App. 
Div.  401;  108  N.  Y.  Supp.  Kep. 
823,  affirming  56  N.  Y.  jNlisc.  Itep. 
49;    10<5  N.  Y.  Supp.  Rep.  407. 

For  the  right  of  a  company  to 
cross  unimportant  stree-ts  without 
a  permit,  in  order  to  complete  its 
system,  see  National  Oas  Co.  v. 
Pittsburg,  1  Pa.  Co.  Ct.  Rep.  311. 

4-  Thomas  v.  Railroad  Co.,  101 
U.  S.  71;  York,  etc.,  R.  R.  Co.  v. 
Winans,  17  How.  30;  Black  v.  Dela- 
ware, etc.,  R.  R.  Co.,  22  N.  .1.  Yx]. 
130;  Gihhs  v.  Consolidated  Cas  Co., 
130  r.  S.  390;  9  Sup.  Ct.  Rep.  553; 
Chicago  (Jaslight  and  Coke  Co.  v. 
People's  etc.,  Co.,  121  111.  530;  13 
N.  E.  Rep.  169;  2  Am.  St.  Rep.  124; 
reversing  20  111.  App.  473;  Bruns- 
wick Gasliglit  Co.  v.  United,  etc., 
Co.,  85  Me.  .532;  27  Atl.  Rep.  525; 
35  Am.  St.  Rep.  385. 

As  for  an  instance  not  amounting 


to  an  assignment  or  lease,  see  ^farl- 
borough  Gaslight  Co.  v.  Neal,  166 
Mas^.  217;   44  N.  E.  Rep.  139. 

■••''  Commercial,  etc.,  Co.  v.  Taco- 
ma,  17  Wash.  661;  50  Pac.  Rep. 
592;  Joliet  Gasliglit  Co.  v.  Suther- 
land, 68  111.  App.  230;  State  v. 
Laclede  Gaslight  Co.,  102  Mo.  472; 
14  S.  W.  Kep.  974;  15  S.  W.  Rep. 
383;  22  Am.  St.  Rep.  789;  In  re 
Southern  Illuminating  Co.,  5  Pa. 
Dist.  Rep.  781. 

44  City  Water  Co.  v.  State  (Tex.), 
33  S.  W.  Rep.  259. 

4"'  Visiilia  Gas,  etc.,  Co.  v.  Sims, 
104  Cal.  326;  37  Pae.  Rep.  1042; 
P.ath  Gaslight  (  o.  v.  Clufly,  74  Ilun 
038;  26  N.  Y.  Supp.  287. 

40  Los  Angeles  v.  Jam^  Angeles 
Water  Co.,  177  U.  S.  558;  20  Sup. 
Ct.  Rep.  730;  American  Water 
Works  Co.  v.  Farmers'  I>oan  an«l 
Trust  Co.,  73  Fed.  Ren.  956:  20  C. 
C.  A.  133;  36  U.  S.  Anp.  563-  Snn 
Luis  Water  Co.  v.  Estrada,  117  Cal. 
168;  48  Pac.  Rep.  1075;  State  v. 
Laclede  GasligliL  Co.,  102  Mo.  472; 
14  S.  W.  Rep.  974;  15  S.  W.  Rep. 
383. 


528  oil,    A.ND    GAS. 

of  a  I'ranchiso  is  pcrniittcil,  the  i)urcliasor  or  assignee  succeeds 
to  all  the  rights  aiul  i)i-i\'i leges  of  tlie  assignor,  oven  to  the  extent 
of  excluding  all  other  coni{)anies  where  the  franchise  assigned 
is  of  that  character;  *^  and  assumes  all  its  burdens,  even  to'the 
extent  of  furnishing  the  city  free  gas  Avhen  that  privilege  is 
contained  in  the  original  contract.'"*  And  the  city,  consenting 
to  the  assigiunent  if  that  is  necessary,  is  bound  to  carry  out 
with  the  assignee  its  agreements  made  with  the  assignor. "'^ 


'to' 


§478.     Change  of  use  of  franchise. —  Natural  gas. 

A  gas  company  cannot  use  its  powers  for  any  purpose  than 
those  specified  in  its  f rancliise ;  and  it  cannot  use  the  streets 
for  any  other  pur|>ose  than  those  named  in  the  contract  with 
the  municipality.  Illustrations  of  this  have  been  given  in  dis- 
cussing the  question  of  exclusive  franchises  or  monopolistic 
contracts.  Tn  the  construction  of  special  legislative  grants  all 
doubts  are  to  be  construed  against  the  grantee,  and  liberally 
in  favor  of  the  public.^''  As  has  been  stated,  an  exclusive  fran- 
chise to  maintain  a  horse  car  line  is  not  violated  by  the  grant 
of  a  franchise  to  maintain  a  car  line  by  the  use  of  electricity.^^ 
Nor  does  an  exclusive  franchise  to  furnish  light  by  gas  prohibit 
the  introduction  of  public  electric  lights  by  another  company.^^ 
So  a  statute  upon  the  subject  of  gas,  enacted  long  before  natu- 
ral gas  came  into  use  in  the  State,  has  no  reference  to  natural 


4T  South    Side   Gas    Co.   v.    South-  send    v.    Brown,    24    N.    J.    L.    80 ; 

ern,  etc.,   Co.,    18   Pa.   Co.   Ct.   Rep.  Black   v.  Delaware,  etc.,  Co.,  24  N. 

529.  J.   Eq.  4-55,  474;   Tampa  v.  Tampa 

48  Sandy    Lake    v.     Sandy    Lake,  W.  W.  Co.   (Fla.),  34  So.  Rep.  631 ; 

etc..    Gas    Co.,     16     Pa.    Supr.     Ct.  Quimby    v.    Consumers'    Gas    Trust 

Hep.    2,34;     Freeport    v.    Enterprise  Co.,  140  Fed.  Rep.  302. 

Natural  Gas  Co.,   18   Pa.   Supr.  Ct.  si  Omaha,  etc.,  Co.   v.   Cable,  etc., 

73.  Co.,  30  Fed.  Rep.  324. 

•*»  Austin     V.     Bartholomew,     107  •'"'2  Newport  v.  Newport  Light  Co., 

Fed.  Rep.  340;  46  C.  C.  A.  327.  11  Ky.  L.  Rep.  840;    12  S.  W.  Rep. 

s"  State    V.    Payne.    120    ^Mo.    468;  1040;    Saginaw  Gaslight  Co.  v.  Sag- 

.''.1    S.    A\'.    Ren.    707;    .'V?    L.    R.    A.  inaw,    28    Fed.    Rep.    529;    Parkcrs- 

576:    rontrnl    Trnnspovtation   Co.   v.  burg  Gas  Co.  v.  Parkersburg,  30  W. 

Pullp^nn   Palace  Cnr  Co..  139  V.  S.  Va.    435;    4    S.   E.    Rep.    050.      Nor 

24;  11  Sup.  Ct.  Rep.  478;  Town-  may  the  gas  company  furnish  elec- 
tricity. State  V.  Murphy,  170  U.  S. 
78;  18  Sup.  Ct.  Rep.  505. 


STREETS    AM)     11  Kill  WAYS.  .Sl'U 

gas.'"'  The  natural  ('(inclusinn  i'miii  tli(>sc  cases  to  be  drawn 
is  that  a  ^as  ('()in])anv  <iiv('n  the  jirivilcjic  to  use  the  streets  in 
order  to  furnish  gas  for  public  lighting  cannot  furnish  electri- 
city for  light.  Such  in  fact  is  the  case.  So  a  like  conclusion 
is  reasonably  reached  that  a  conii)any  given  the  privilege  of 
the  streets  to  lay  pipes  therein  in  order  U>  furnish  artificial  gas 
cannot  use  such  pijK}s  in  order  to  supply  natural  gas;  and  so 
it  is  decided.'"*  Keeping  in  mind  the  strict  construction  and 
the  cases  already  cited,  it  seems  to  l)e  a  rational  conclusion  that 
an  artificial  gas  company  having  its  pij^s  in  the  streets  cannot 
use  them  for  the  pur]X)se  of  supplying  natui'al  gas  ;  ami  a  natural 
gas  company  cannot  use  its  pipes  to  supply  artificial  gas.  Xor 
is  it  going  beyond  the  legitimate  course  of  reasoning  from  the 
decided  cases  to  say  that  a  comj)any  given  a  franchise  to  furnish 
gas  for  light,  and  the  right  to  use  the  streets  for  that  jjurjxjse, 
cannot  use  such  streets  to  supply  gas  for  heating  purposes.  It 
makes  no  ditTerence  that  the  gas  Ix^longs  to  the  consumer  as 
soon  as  it  has  passed  through  the  meter  (when  meters  are  used), 
and  the  company  thereafter  has  no  control  over  it ;  for  it  is 
the  use  of  the  street  in  the  transportation  of  the  gas  that  is 
perverted.  The  grant  is  for  the  purpose  of  transporting  gas 
for  the  purposes  of  light  and  not  for  heat ;  and  whenever  the 
company  connives  at  the  use  of  the  gas  so  transported  it  vio- 


S3  See  §742.  Warren  Gaslight  Co.  10  L.  R.  A.  (N.  S.)  787;  Chilli- 
V.  Pennsylvania  Gas  Co.,  13  Pa.  Ct.  cothe  v.  Logan  Natural  Gas  Co., 
Rep.  310;  affirmed  IGl  Pa.  St.  510;  8  Ohio  X.  P.  88;  11  Ohio  S.  &  C. 
29  Atl.  Rep.  101;  Quimby  v.  Con-  P.  Dec.  24;  Cline  v.  Springfield,  7 
sumers'  Gas  Trust  Co.,  140  Fed.  Ohio  N".  P.  626;  10  Ohio  S.  &  C.  P. 
Rep.  362;  Circleville  L.  &  T.  Co.  v.  Dec.  389.  See  Xairin  v.  Kentucky 
Buckeye  Gas  Co.,  G9  Ohio  St.  259;  Heating  Co.  (Ky.),  86  S.  W.  Hep. 
69  N.  E.  Rep.  436;  Harmer  v.  Brent-  676;  27  Ky.  L.  Rep.  o.'il. 
ford  Gas  Co.,  13  Ont.  W.  Rep.  873;  •'■*  Findlay  Gaslight  Co.  v.  Find- 
Wilson  V.  Tennant,  170  X.  Y.  546;  lay,  2  Ohio  Cir.  Ct.  Rep.  237:  1 
71  N.  E.  Rep.  1142;  affirming  61  Ohio  Cir.  Dec.  463;  Kentucky  Heat- 
N.  Y.  App.  Div.  100;  70  X.  Y.  ing  Co.  v.  l^uisville  Gas  Co.  (Ky.), 
Supp.  2.  63  S.  W.  Rop.  651;   23  Ky.  L.  Rep. 

But     a     statute     may     be     broad  730. 

enough    to    include    both    kinds    of  The  Pennsylvania  corporation  act 

gas.     Compton   v.   People's  Gas  Co.,  of   1874,  or  the  inc<)ri><)ration  of  gas 

75    Kan.    572;    89   Pac.   Rep.    1039;  companies,    contemplates   only   com- 


530 


OIL   AND   GAS. 


lates  the  privileges  extended  to  it,  and  under  cover  of  one 
privilege  is  insisting  on  another.^'* 

§  478a.     Use  of  streets  to  carry  gas  to  another  municipality. 

A  statute  may  authorize  a  gas  company  to  lay  its  pipes  in 
the  streets  of  any  municipality  for  distribution  of  gas  and  to 
use  such  pipes  within  tlie  boundaries  of  such  municipality  for 
the  conveyance  of  gas  to  another  municipality  in  whose  streets 
it  has  lawful  authority  to  lay  its  pipes  for  the  distribution 


panics  snpplyin<r  the  manufactured 
product,  and  does  not  authorize  the 
creation  of  a  corporation  to  supply 
natural  gas.  Emerson  v.  Common- 
wealth, 15  W.  N.  C.  425;  108  Pa. 
St.  Ill;  Sterling's  Appeal,  111  Pa. 
St.  35;  2  Atl.  Rep.  105;  2  Cent. 
Rep.  49.  But  where  a  corporation 
was  formed  to  supply  gas  for  light, 
or  heat,  or  both,  and  for  other  pur- 
poses, and  its  cliarter  made  no  re- 
strictions as  to  usesi  it  was  held 
that  it  could  supply  natural  gas  for 
ligliting,  unless  some  other  com- 
pany had  the  exclusive  right  to  do 
so.  Hagan  v.  Fayette  Gas  Fuel 
Co..  21  Pa.  Co.  Ct.  Rop.  503;  29 
Pittsb.  Leg.  J.  (N.  S.)   229. 

55  See  Warner  Gaslight  Co.  v. 
Pennsylvania  Gas  Co.,  161  Pa.  St. 
510;  29  Atl.  Rep.  101;  Hagan  v. 
Fayette  Gas  Fuel  Co.,  21  Pa.  Co. 
Ct!^  Rep.  503;  29  Pittsb.  L.  -J. 
(N.  S.)  229;  Lebanon  Gas  Cb.  v. 
T^banon  Fuel,  etc.,  Co.,  5  Pa.  Dist. 
Rep.  529;  18  Pa.  Co.  Ct.  Rep.  223. 
A  contract  to  supply  natural  gas  for 
heat  is  not  one  to  furnish  it  for 
light.  Philadelphia  Gas  Co.  v.  Park 
Bros.,  138  Pa.  St.  340:  22  Atl.  Rep. 
8G.  See  Johnston  v.  People's  etc.. 
Gas  Co.  (Pa.),  7  Atl.  Rep.  1G7;  5 
Cent.  Rep.  564.  See  Xairin  v.  Ken- 
tucky Heating  Co.  (Ky.),  86  S.  W. 
Rep."  676;   27  Ky.  L.  Rep.  551. 

In  Pennsylvania  a  single  corpora- 
tion cannot  bo  chartered  to  manu- 
facture and  supply  gas  and  also  to 
sunply  heat  by  means  other  than 
ras  (nor  to  portions  of  two  coun- 
ties). New  Gaslight  Co.,  7  Pa.  Dist. 
Rep.    151;    1    Dauph.    Co.    Rep.    22. 


But  see  Wilkes-Barre  Light  Co.  v. 
Wilkes-Barre,  etc.,  Co.,  4  Kulp.  47. 

In  Kentucky,  see  Xairin  v.  Ken- 
tucky Heating  Co.  (Ky.),  86  S.  W. 
Rep.' 676;  27  Ky.  L.  Rep.  551. 

A  charter  for  the  manufacture 
and  supply  of  gas  generally  does  not 
conflict  with  a  prior  franchise  for 
the  manufacture  and  supply  of  gas 
for  light  only,  but  carries  with  it 
no  authority  to  supply  gas  for  light. 
In  re  Philadelphia  Gas  Works,  1 
Dauph.  Co.  Rep.  55;  In  re  Charter 
of  Gas  Companies,  18  Pa.  Co.  Ct. 
Rep.  136;  5  Pa.  Dist.  Rep.  396. 
See  Altoona  Gas  Co.  v.  Gas  Co.  of 
Altoona,  17  Pa.  Co.  Ct.  :pep.  662. 

A  corporation  under  a  special  Act 
chartered  to  build  works  which  may 
improve  trade,  may  engage  in  the 
production  and  delivery  of  natural 
gas.  Carother's  Appeal,  118  Pa. 
St.  468:  12  Atl.  Rep.  314;  11  Cent. 
Rep.  48. 

A  corporation  whose  business  is 
limited  by  its  charter  to  supplying 
a  city  and  its  inhabitants  "with 
light  and  motive  power  generated 
by  electricity,  steam,  or  other  arti- 
ficial means,  and  to  furnishing  and 
supplying  either  said  light,  power  or 
heat,"  has  no  power  to  purchase  or 
operate  a  gas  plant.  Covington  Gas 
Co.  (Ky.),  58  S.  W.  Rep.  805;  22 
Ky.  L.  Rep.  796. 

The  fact  that  a  consumer  put  the 
gas,  after  it  passed  through  his 
meter,  to  a  use  for  wliich  the  gas 
company  was  not  authorized  to  fur- 
nisli  gas,  will  not  work  a  forfeiture 
of  the  franchise.  People  v.  I^os 
Angeles  Independent  Gas  Co.,  150 
Cal.   557;    89  Pac.   Rep.    108. 


STREETS    AM)    IlKillWAYS. 


531 


of  gas.  Such  a  statute  is  ooiistitulional.''"'  A  stututu  which 
authorized  a  gas  company  to  extend  its  main  lines  to  any 
"neighboring"  municipality,  has  been  held  sufficient  to  make 
the  act  applicable  to  municipalities  of  the  county  to  which 
gas  may  be  conveniently  carried  from  a  central  plant.  Such 
an  ordinance  is  not  bad  because  failing  to  limit  the  right  to 
those  municipalities  in  which  the  gas  company  has  lawful 
authority  to  lay  pipes  to  furnish  gas."** 

§  479.     Ordinance  void. — Estoppel. 

If  the  ordinance  granting  the  right  to  occupy  the  streets  be 
void,  yet  if  the  company  accept  it,  perform  all  its  requirements, 
by  constructing  its  works  and  laying  its  mains,  the  munic- 
ipality will  be  estopped  to  set  up  that  the  company  is  in  the 
streets  without  right;  and  if  it  has  a  contract  with  the  mu- 
nicipality to  furnish  gas,  has  furnished  it  and  received  pay  in 
part,  the  latter  will  also  be  stopped  to  set  up  that  such  con- 
tract is  void.^^ 


55a  Public  Service  Corporation  v. 
De  Grote,  70  N.  J.  Eq.  454;  62 
Atl.  Rep.  65. 

55b  Millville  Imp.  Co.  v.  Pitman, 
etc.,  Gas  Co.,  76  X.  J.  L.  826:  71 
Atl.  Rep.  1134;  Landis  v.  Millville 
Gaslight  Co.,  70  X.  J.  Eq.  454;  65 
A'tl.  Rep.  716. 

56  Illinois  Trust,  etc.,  Bank  v. 
Arkansas  City,  76  Fed.  Rep.  271; 
22  C.  C.  A.  171;  40  U.  S.  App.  257; 
34  L.  R.  A.  518.  See  Morristown 
V.  East,  etc.,  Co.,  115  Fed.  Rep. 
304. 

A  statute  prohibiting  a  town  en- 
tering into  a  contract  for  public 
lights,  but  no  contract  sliould  go 
into  operation  until  authorized  by 
a  vote  of  its  inliabitants,  does  not 
prevent  it  entering  into  such  a  con- 
tract with  a  company  duly  organ- 
ized by  a  vote  of  such  inliabitants 
without  another  vote.  Lima  Gas 
Co.  V.  Lima,  4  Ohio  Cir.  Ct.  Rep. 
22;  22  Wkiy.  L.  Bull.  272;  2  Ohio 
Cir.  Dec.  396. 

Vetoing  an  ordinance  after  the 
time  allowing  a  veto  will  not  annul 
a  contract  made  under  it.  Penn- 
sylvania Globe  Gas  Co.  v.  Scrautou, 
97  Pa.  St.  538. 


If  a  gas  company  acquires  private 
property  and  avails  itself  of  the 
rights  and  benefits  conferred  by  a 
void  ordinance  it  is  e.sto])ped  to  ques- 
tion the  constitutionality  of  any 
part  of  its  provisions.  Wilor  v. 
Logan,  etc.,  Co.,  27  Ohio  Cir.  Ct. 
Rep.  257. 

If  a  gas  company  enter  on  the 
streets  under  a  void  ordinance,  and 
occupy  them  with  its  pipes  and 
mains,  it  cannot  set  up  that  tiie 
grant  is  void.  Sandy  Lake  v.  Sandy 
Lake,  etc.,  Co.,  16  Pa.  Super.  Ct. 
Rep.   234. 

If  a  gas  company  occupy  tlie 
streets  without  a  i>crmit,  when  one 
is  necessary,  tne  city  can  maintain 
an  action  to  enjoin  it,  and  also  to 
enjoin  the  further  use  of  its  pipes 
alreadv  in  use.  Landis  Tp.  v.  Mill- 
ville Ga-slight  Co.,  72  X.  J.  Kq. 
347;    65  Atl.   Rep.   716. 

An  ordinance  giving  a  gas  com- 
pany the  privilege  to  occupy  its 
streets  is  not  void  because  it  does 
not  provide  payment  for  the  use  of 
the  streets.  Ijji  Ilarpo  v.  Elm.  Tp., 
etc.,  Co.,  69  Kan.  97;  76  Pac.  Rep. 
448. 


532  OIL   AND   GAS. 

§480.     Gas  company  occupying  streets  is  subject  to  municipal 
regulations. 

A  gas  company  occupying  the  streets  of  a  municipality  is  sub- 
ject to  the  reasonable  rules  and  regulations  of  such  municipjil- 
ity  with  reference  to  its  opening  iind  use  of  its  streets ;  and  it 
makes  no  difference  whether  such  coiii])any  has  the  right  to  oc- 
cupy such  streets  without  the  consent  of  the  municipality  or 
not.  The  rules  and  regulations  must  of  course  be  reasonable.^^ 
Usually  re(iuirements  with  reference  to  opening  streets  and 
laying  pi])es  therein  are  inserted  in  the  grant  to  the  gas  com- 
pany; frequently  they  are  in  general  ordinances  in  force  at  the 
time  of  the  grant,  and  occasionally  in  the  statutes  of  the  State. 
In  whatever  phase  they  are  presented,  they  must  be  obeyed  by 
the  coni]iany.  In  fact,  there  is  nothing  to  ])revent  the  munici- 
pality ado])ting  such  regulations  after  the  grant  to  a  company 
has  been  made,  so  long  as  they  are  reasonable,  which  are  neces- 
sary for  the  protection  of  projierty  and  of  the  public,  hav- 
ing a  (hie  regard  far  the  rights  of  the  coinpanv.  Thus,  it  is 
a  frequent  requirement,  one  almost  universally  required,  that 
the  trenches  in  a  street  in  which  the  pipes  are  laid  shall  bo 
filled  so  as  to  leave  the  streets  in  as  good  a  condition  as  they 
were  before  such  trenches  were  opened ;  and  under  such  an 
agreement  a  municipality  has  the  right  to  insist  on  the  work 
being  done  under  such  reasonable  conditions  and  restrictions 
as  shall  make  it  certain  that  the  work  will  be  properly  done.^* 

57  Reading  V.  Consumers' Gas  Co.,  Traverse   City    (Mich.),    89    N.    W. 

2  Del.  Co.  Rep.    (Pa.)   437;    Benton  Rep.  574;   Jn  re  Jolinston,   137  Cal. 

V.    Elizabeth,    (il    N.    ,J.    L.    693;    40  11.5;  09  Pac.  Rep.  974. 

Atl.    Rep.     1132,    alUrming    39    All.  •''jS  Kalamazoo    v.    Kalamazoo,   etc., 

Rep.   083;   Appeal  of  Citv  of  Pitts-  Co.,    124   Mich.   74;    82   N.   W.  Rep. 

burg,    115    Pa.    St.    4;    7    Atl.    Rep.  811. 

778;   Heman  v.  St.   Jvouis,  etc.,  Co.,  In   Pennsylvania  the   courts   have 

75    Mo.    App.    372;     Kalamazoo    v.  power   to   supervise   the   location    of 

Kalamazoo,  etc.,  Co.,   124  Mich.  74;  mains  and  pipes  of  a  gas  company 

82   N.   W.   Rep.   811:    State  v.   ]\Iur-  laid   in   highways;    but  a   decree  re- 

phy,  170  U.  S.  78;   18  Sup.  Ct.  Rep.  quiring  tlie  company  to  lay  its  pipes 

505;    Walla   Walla   v.   Walla    Walla  on  one  side  of  a  highwav  throughout 

Water  Co.,  172  U.  S.  1;   19  Sup.  Ct.  all     the     territory     covered     by     its 

Rep.  77;  affirming  00  Fed.  Rep.  957;  charter,    witliout   regard    to   circum- 

Palestine,   etc.,   Co.  v.   Palestine,   91  stances    is    an    improper   exercise   of 

Tex.  540;  44  S.  W.  Rep.  814;  People  such  power.     Springfield   Water  Co. 

V.   Chicago  Gas  Trust   Co.,    130   111.  v.  Suburban  Gas  Co.,  8  Del.  Co.  Rep. 

268:    22   N.   E.   Rep.    798;    8   L.   R.  130;    14  York  Leg.   Rec.  135. 
A.   497;    Traverse   City    Gas   Co.   v. 


STREETS    AND    HIGHWAYS.  533 

The  regulations,  altli(iui;;li  adopted  subsequent  to  the  date  nf  the 
grant,  may  relate  to  the  manner  of  laying  the  pipes,  altering, 
inspeeting,  and  repairing  them,  and  the  character  thereof  with 
rGSjx?ct  to  the  safety  of  the  public  and  its  convenience,  of  course 
not  contravening  any  statute.'*"  The  grant  may  require  the 
pipes  to  be  laid  a  certain  distance  l)clow  the  surface  of  the 
street;  but  if  that  depth  should  conflict  with  the  ojx^n  sewers 
and  the  flow  of  the  water  in  them,  then  that  fact  must  be  taken 
into  consideration  ;  and  if  the  city  reserves  the  right  for  its 
council  to  determine  where  the  piix^s  of  a  water  company  shall 
be  located,  and  to  employ  an  engineer  to  see  that  the  water 
works  are  so  constructed  as  to  properly  protect  the  intetrests  of 
the  city,  that  does  not  confer  on  the  engineer  emjjloycd  jiower 
to  determine  the  location  of  the  pipes.  In  s;ich  an  instance, 
if  the  company  locate  and  put  in  its  pipes  without  any  deter- 
mination or  direction  of  the  council  as  such,  its  adoption  of  the 
j)lans  of  the  engineer  in  no  wise  changes  its  responsibility.''" 
If  the  contract  with  the  company  be  that  the  pipes,  even  on 
private  land,  shall  be  "  well  and  sufficiently  closed  up,"  and  the 
land  and  premises  be  "  made  good,"  it  is  not  a  compliance  with 
such  contract  to  leave  the  soil  covering  the  ])ipes  in  the  trenches 
in  places  from  two  to  two  and  a  half  feet  above  the  original 
level.*'^  A  municipality  may  adopt  an  ordinance  to  prohibit 
gas  companies  laying  pipes  in  the  streets  during  the  winter 
months,  so  as  to  prevent  the  streets  becoming  obstructed."-      If 

59  Appeal  of  City  of  Pittsburg,  Whore  an  ordinance  required  re- 
115  Pa.  St.  4;  7  Atl.  Rep.  778;  He-  pairs  to  be  made  vvitliin  a  specified 
man  v.  St.  Louis  etc.,  Co.,  75  Mo.  time  after  notice  given  by  tbe  city 
App.  .372;  Benton  v.  Elizabeth,  (jl  to  make  them;  and  upon  receiving 
N.  J.  L.  61)3;  40  Atl.  Rep.  1132,  such  a  notice  work  was  begun  with- 
affinning  30  Atl.  Rep.  683.  in  two  days  thereafter  and  prosecut- 
es Montgomery  V.  Capital  City  ed  with  due  diligence,  but  not  coni- 
Water  Co.,  92  Ala.  361 ;  9  So.  Rep.  pleted  until  the  day  after  the  time 
339.  for  completing  the  wojk  h:ul  ex- 
81  Chisholm  V.  Halifax-.  29  Nov.  jrired.  it  was  held  ilint  there  was 
Sco.  402.  a  compliance  witli  the  requirements 
In  this  case  it  was  also  held  tliat  of  the  ordinance.  lleman  v.  St. 
putting  stones  in  the  trenches  so  Louis  etc.,  Co.,  75  ]Mo.  .\pp.  372. 
that  they  interfered  with  plowing  "2  Xnrth  Liberties  v.  North  Lib- 
the  ground  was  not  a  breach  of  the  erties  (ias  Co..  12  Pa.  St.  318. 
contract. 


534 


OIL   AND    GAS. 


there  be  a  general  drdiiiaiiee  in  force,  when  the  rii^lit  t<j  (lecupy 
the  streets  is  iirantcd,  |ir(i\i(lini;'  thai  all  pipes  laid  in  the  streets 
should  be  hiid  a  certain  dej^th,  and  undei-  the  snjjervision  of 
the  street  eonmiissioners ;  and  sueh  grant  is  ex])ressly  made 
subject  to  all  ordinances  then  or  thereafter  in  force,  such  pipes 
must  be  laid  under  the  supervision  of  such  street  commis- 
sioners.''' An  ordinance  oranting  the  right  to  lay  and  maintain 
pijx's  in  the  streets,  reserving  tludr  location  to  the  common 
council,  does  not  mean  when  the  location  has  once  been  deter- 
mined upon  and  fixed  that  the  nnmicipality  has  exhausted  its 
power  in  that  respect  and  has  no  further  power  to  regulate  and 
change  the  location."''  Tn  its  regrdations  all  companies  must 
be  treated  alike;  and  one  cannot  be  denied  privileges  granted 
others.  Thus  where  an  ordinance  required  a  special  ])ermit 
of  the  board  of  supervisors  before  poles  for  electric  lighting 
could  be  erected  in  the  streets,  and  a  permit  was  issued  to  one 
company  and  denied  to  another,  it  was  said  that  the  latter 
company  could  maintain  an  action  for  a  mandamus  to  compel 
the  issuance  to  it  of  a  proper  permit,  but  it  was  also  said  that 
it  could  not  enjoin  the  other  company  from  erecting  its  poles.®^ 
T>ut  mandamus  will  not  lie  to  compel  a  city  to  grant  jiermits  to 
lay  wires  in  a  street,  wdiere  the  com])any  by  virtue  of  its  charter 
claims  the  right  to  lay  them  without  complying  with  reasonable 
police  regulations  on  th(>  subject  adopted  by  the  city,  such  com- 
pany not  having  offered  to  comply  with  them.''" 


63  Wilkinsburg  Gas  Co.  v.  Wilk- 
insbuifr,  25  Pitts.  L.  J.    (N.  S.)   42. 

A  company  having  its  pipe  line, 
although  occupying  a  private  right 
of  way,  to  transport  oil  through 
land  which  is  traversed  by  a  piiblic 
street  of  a  city,  is  subject  to  an 
ordinance  prescribing  the  manner  in 
which  the  pipe  shall  be  laid  and 
used.  Benton  v.  Elizabeth  61  N.  J. 
L.  69.3;  40  Atl.  Rep.  1132;  afTirm- 
ing  30  Atl.  Rep.  683. 

64  Montgomery  v.  Capital,  etc., 
Co..  92  Ala.  361 ;  9  So.  Rep.  339. 

6  5  Mutual    Electric    Light    Co.    v. 


Ashvvorth,  118  Cal.  1;  50  Pac.  Rep. 
10.  See  atso  State  v.  St.  Louis.  145 
Mo.  551;  46  S.  W.  Rep.  981,  where 
mandamus  was  held  the  proper  writ 
to  compel  the  granting  of  certain 
permits  to  a  company  already  oc- 
cupying the  streets.  In  this  case 
it  was  hold  that  an  ordinance  was 
not  void  because  it  did  not  reserve 
to  the  city  control  over  the  works 
or  business  of  the  company  or  re- 
quire it  to  serve  the  public. 

60  State  v.  Murphy.  170  U.  S. 
78:    18    Sup.    Ct.    Pep.    505. 

Where  the  constitution  of  a  State 


STREETS    AND    IIIUIIWAYS. 


535 


^481.     Injunction  to  protect  company's  rights  in  streets. 

If  a  compiiny  has  been  j)ru}X'rly  granted  the  jjrivilege  to  use 
the  streets  of  a  eity  —  or  has  been  granted  a  franchise  in  such 
streets,  as  is  usually  said — a  court  of  equity  will  protect  its 
rights  by  an  injunction."^  But  where  a  municipality  is  not 
empowered  to  grant  an  exclusive  franchise,  a  gas  company  with 
the  grant  of  such  a  right  cannot  obtain  an  injunction  to  restrain 
another  C()mj>niiy  dbtaiiiing  a  subsequent  grant  of  the  right  to 
occupy  the  same  streets.''^ 

§482.     Grant  before  company  is  organized. 

It  is  no  objection  to  the  grant  to  a  gas  company  of  a  right  to 
lay  pipes  in  the  streets  that  it  was  made  l-)efore  the  company 
was  incorporated,  if  it,  after  its  organization,  accept  the  ordi- 
nance and  enter  upon  the  work  of  laying  pipes  before  objection 
was  made."** 


gives  corporations  the  right  to  lay 
gas  mains  or  water  pipes  in  the 
streets  of  municipal  corporations, 
under  the  direction  of  the  superin- 
tendent of  streets,  such  municipali- 
ties cannot  adopt  an  ordinance  re- 
quiring a  corporation  to  first  ob- 
tain a  permit  before  laying  its  pipes 
in  the  streets,  the  exercise  of  such 
authority  not  being  an  exercise  of 
the  police  power.  In  re  .Tolmston, 
137  Cal.  115;  69  Pac.  Rep.  973. 

Even  though  a  gas  company  has 
the  authority  without  the  consent  of 
a  city  to  occupy  the  streets,  yet  it 
is  subject  to  proper  police  regula- 
tion of  the  city,  to  prevent  the  im- 
pairment of  the  streets  for  public 
travel.  DorraT">e  v.  Bristol,  224  Pa. 
464;   73  Atl.  Rep.   1015. 

A  city  may  require  a  gas  company 
to  lay  its  pipes  in  the  alleys  when- 
ever practicable  if  ordered  by  its 
council,  under  a  clause  in  a  statute 
empowering  such  city  to  impose  rea- 
sonable regulations  upon  gas  com- 
panies using  its  streets.  Traverse 
City  Gas  Co.  v.  Traverse  City 
(Mich.),  89  N.  W.  Rep.  574. 

A  city  may  require  water  mains 
to    be    removed    and    j)laced    else- 


where, when  no  longer  needed  in 
tlie  place  wliere  they  are  located. 
Aslier  V.  Hutchinson  Water,  etc.,  Co., 
71  Pac.  Rep.  813. 

67  Jersey  City  Gas  Co.  v.  Dwight, 
29  N.  J.  Eq.  242;  Natural  Gas  Co. 
v.  Pittsburg,  1  Pa.  Co.  Ct.  Rep. 
311;  Goodson  v.  Richardson,  L.  R. 
9  Ch.  221;  43  L.  J.  Ch.  790;  30 
L.  T.  (N.  S.)  142;  22  W.  R.  337; 
La  Harpe  v.  Elm  Tp.,  etc.,  Co.,  64 
Kan.  97 ;  76  Pac.  448. 

If  a  gas  company  does  not  have 
an  exclusive  franchise  in  a  city, 
it  cannot  enjoin  another  gas  com- 
pany from  laying  pipes  in  the  streets 
of  sucli  city,  unless  it  show  a  special 
damage,  either  partially  accom- 
plished or  threatened  to  it.  Atlan- 
tic Citv  Water  Co.  v.  Consumers' 
Gas  &  Fuel  Co.,  72  N.  J.  Eq.  340; 
65  Atl.  Rep.  1119. 

«8  Coflfeyville,  etc.,  Co.  v.  Citi- 
zens', etc.,  Co.,  55  Kan.  173;  40 
Pac.    Rep.    326. 

flo  Clarksburg  Electric  Light  Co. 
V.  Claj-ksburg.  47  W.  Va.  7.39;  35 
S.  E.  Rep.  094;  50  L.  R.  A.  142; 
Sharp  V.  South  Omaha,  53  Neb. 
700;  74  N.  W.  Rep.  76.  See  Peo- 
ple V.   Bowen,  30  Barb.  24. 


536  OIL   AND    GAS. 

§  483.     Length  of  grant  franchise. 

Unless  the  charter  or  a  statute  fixes  a  limit,  or  the  contract 
with  the  city  determines  it,  the  length  of  time  a  gas  company 
may  maintain  its  pipes  in  the  streets  is  unlimited;  ^°  and  such 
limitation  cannot  be  shortened  by  subsequent  legislation.  The 
grant  of  the  right  is  in  perpetuity ;  ^^  and  such  is  the  pre- 
sumption.'^ 

§484.     Termination  of  life  of  corporation  before  expiration   of 
franchise. 

Strictly  speaking,  a  franchise  expires  with  the  corporation ; 
but  instances  have  occurred  where  grants  of  rights  and  privi- 
leges have  been  made  to  gas  companies  for  a  length  of  time  that 
exceeded  its  corporate  life;  and  some  difficulties  have  arisen  on 
that  score.  In  an  instance  of  that  kind  an  ordinance  was  held 
not  to  be  void.  In  the  instance  referred  to  the  grant  was  to 
the  company  or  its  assigns ;  and  the  ordinance  provided  that 
the  company  might  transfer  all  of  its  rights,  privileges,  prop- 
erty and  franchise  conferred  by  it  to  any  organized  gas  com- 
pany which  should,  within  twenty  days  after  the  transfer,  file 
its  written  acceptance  of  the  ordinance's  terms  and  give  bond 
for  the  performance  of  all  the  agreements  required  of  the  origi- 
nal company.  The  grant  extended  beyond  the  limit  of  the 
corporate  existence ;  but  the  contract  with  the  city  was  upheld. ^^ 
But  such  an  ordinance  cannot  prolong  the  life  of  the  corpora- 
tion, it  being  construed  as  a  valid  contract  only  so  long  as  the 
company  has  a  corporate  existence,  as  fixed  by  the  statute  or 
original  articles  of  incorporation.''* 

70  People  V.  Dechan,  153  N.  Y.  port  (Ky.),  90  S.  W.  Rep.  589; 
528;    47   X.   E.  Rep.  787;    11   N.   Y.       28  Ky.   L.  Rep.  840. 

App.  Div.  175;  42  N.  Y.  Supp.  1071.  hastate  v.   Laclede   Gaslight   Co.^ 

71  People  V.  O'Brien,  111  N.  Y.  1;  102  Rio.  472;  14  S.  W.  Rep.  974; 
18   N.   E.  Rep.   692.  15  S.  W.  Rep.  383;  22  Am.  St.  Rep. 

72  Suburban    Electric    Light,    etc.,  789. 

Co.    V.    East    Orange    (N.    J.    Ch.),  74  State   v.   Payne,    129   Mo.   468; 

41  Atl.  Rep.  865j  Truesdale  v.  New-       31  S.  W.  Rep.  797;  33  L.  R.  A.  576. 


STREETS    AND    IIIGIIWAYS.  53Ga 

§  485.     Consolidation  of  gas  companies. — Division  of  territory. 

Statutes  may  authorize  two  or  more  gas  companies  to  con- 
solidate ;  and  when  consolidated  the  new  companies  become 
vested  with  all  the  rights  of  the  consolidating  companies,  and 
become  bound  by  all  the  duties  and  obligations  imposed  on 
them  by  the  statute  or  by  the  several  ordinances  granting  them 
rights  to  furnish  the  uninicipality  and  its  inhabitants  with 
gas."'^  But  a  statute  authorizing  a  consolidation  of  two  or 
more  companies  does  not  authorize  an  existing  company  to  con- 
solidate with  a  company  of  individuals  not  yet  incorjwrated  as 
a  company.'"  The  ordinance  by  which  a  company  is  author- 
ized to  occupy  the  streets  may  be  such  as  to  forbid  a  consolida- 
tion with  another  company.  Thus  where  the  grant  was  upon 
the  condition  that  the  company  would  not  enter  into  any  com- 
bination with  another  company  with  respect  to  rates  to  l>e 
charged  for  gas,  it  was  held  that  an  agi'cement  with  another 
company  in  the  city  for  a  division  of  the  territory  to  bo  lighted 
was  a  violation  of  the  condition  in  the  ordinance,  although  not 
such  a  breach  as  to  work  a  forfeiture  of  the  right  to  lay  ]upes 
in  the  streets  named  in  the  grant. ^^  An  agreement  of  two 
gas  companies  to  divide  the  territory  between  them,  where  their 
respective  grants  cover  the  same  ground  and  not  to  invade  each 
other's  separate  territory  is  void,  because  of  public  policy.^* 

75  People's  Gaslight  and  Coke  Co.  the  ridits.  title  and  interest  in  and 
V.  Hale,  94  111.  App.  406.  See  Bai-  to  such  company,  and  with  all  the 
ley  V.  Citizens'  Gaslight  Co.,  27  N.  rights,  privilegrs.  and  franchises  of 
J.  Eq.^  19G.  the  corporation,"  and  that  such  per- 

76  Xew  Orleans,  etc.,  Co.  v.  Ixiuis-  son  might  organize  a  new  coryiora- 
iana,  etc.,  Co.,   11    Fed.  Rep.   277.  tion,  as  a  body  politic  and  corporate. 

77  Detroit  v.  :Mutual  Gaslight  Co.,  It  was  held  that  such  person  as  an 
43   Mich.   504;    5   X.   W.    Rep.    1039.  individual    had   no   power   to  convey 

78Gil)bs  V.   Consolidated  Gas  Co.,  such    franchise    to    another    person; 

130  V.  F-.  39G;  9  Sup.  Ct.  Rep.  553;  and    that    when    a    corporation,    the 

Cliicago   Gaslight   and    Coke   Co.    v.  lessee  of  the   person  to  whom   such 

People's  Gaslight  and  Coke  Co.,  121  franchise     was      attempted      to      Ihj 

111.    530;    13    X.    E.    Rep.    1G9;    St.  conveyed,   proceeds   to  exercise   such 

Louis  V.  St.  Louis  Gaslight  Co.,  70  franchfse  by  opening  ami  occupying 

^^o-  6^-  the  streets,    it  would    l)e   restrained. 

A  statute  provided  that  a  person  McCarter   v.   Vineland   L.  &   P.  Co., 

for  whose  account  a  purchaser  at  a  73    X.    J.    Eq.    703;    70    Atl.    Rep! 

receiver's   sale  of  all   the   franchises  177. 

of  a   gas   company   sliould   purchase  The  New  York  Stock  Corporation 

such    franchise    should    "be    a    b(jdy  Law,    Laws    1S90.    p.    1073,    c.    5G4 

politic  and  corporate,  vested  with  ail  §40,  as  amended  by  T^ws   1902,  p! 


536b 


OIL    AND   GAS. 


§486.     Town  becoming:  a  city. 

Tf  a  town  has  authorized  a  gas  company  to  occupy  its  streets 
with  its  pii")es,  and  has  entered  into  a  contract  with  it  for  gas, 
and  afterwards  hecomos  a  citv,  the  riiiht  of  the  company  to  oc- 
cupy such  streets  is  not  afFcrted  by  the  change,  nor  is  the  con- 
tract annulled.  In  other  words,  the  succession  of  one  munici- 
pality to  the  territory  of  another  does  not  change  the  rights  of 
an  existing  gas  company  in  the  territory. ^'^ 


1751,  c.  601,  permits  a  stock  cor- 
poration to  purchase  stock  of  an- 
other corporation,  if  authorized  by- 
its  certificate  of  incorporation,  or 
if  the  corporation  whose  stock  is 
purchased  is  engaged  in  a  business 
simihxr  to  that  of  the  purchasing 
corporation.  Stock  Corporation 
Law,  Laws  1890,  p.  10G9,  c.  5G4, 
§  7,  as  amended  by  Laws  1897,  p. 
313,  c.  384,  provides  that  no  corpora- 
tion shall  combine  with  any  corpora- 
tion or  person  for  the  creation  of  a 
monopoly  or  the  unlawful  restraint 
of  trade  or  for  the  prevention  of 
competition  in  any  necessary  of  life, 
and  Laws  1897,  p.  310,  c.  383,  and 
Laws  1899,  p.  1515,  c.  690,  were 
enacted  to  destroy  monopolies  and 
prev^it  combinations  in  restraint 
of  competition  or  the  free  pursuit 
of  any  lawful  business.  It  was  held 
that  the  consolidation  under  Laws 
1884,  p.  448,  c.  307,  of  six  companies 
engaged  in  the  manufacture  and  sale 
of  gas  and  electricity  into  a  corpora- 
tion to  continue  such  business,  and 
tlie  subsequent  purchase  by  such 
consolidated  company  of  all,  or  a 
controlling  interest  in,  the  shares 
of  other  similar  corporations,  pur- 
chased to  prevent  competition,  did 
not  create  a  monopoly  in  contraven- 
tion of  said  acts,  as  it  left  the  field 
open  to  any  company  that  might  be 
organized  with  the  approval  of  the 
commission  provided  for  by  Public 
Service  Commissirn  Law,  Laws  1907, 
p.  889,  c.  429.  Order,  In  re  Consoli- 
dated Gas  Co.  of  New  York  (1907), 
106   N.    Y.   S.    407;    56  Misc.    Rep. 


49,  affirmed  Attorney  General  v. 
Consolidated  Gas  Co.  of  New  York, 
108  N.  Y.  S.  823;  124  N.  Y.  App. 
Div.  401. 

A  contract  between  the  holder  of 
a  fifty-year  franchise  to  furnish  nat- 
ural gas  to  the  inhabitants  of  a  city 
and  a  gas  corporation,  owning  nat- 
ural gas  wells  and  a  system  for  dis- 
tribution in  the  city,  on  one  side, 
and  a  lighting  corporation,  author- 
ized lo  furnish  gas  and  to  buy  and 
sell  gas,  on  the  other,  which  bound 
the  gas  company  to  furnish  gas  dur- 
ing the  life  of  the  franchise  to  the 
lighting  company  for  sale  to  the 
inhabitants  of  the  city,  and  which 
provided  that  the  gas  company 
should  control  the  prices  of  natural 
gas  to  the  consumers  for  all  pur- 
poses except  for  illumination,  and 
that  the  lighting  company  might 
fix  the  rate  for  illuminating  gas, 
and  which  provided  that  tlie  ligliting 
company  could  purchase  gas  from 
others  at  lower  figures  if  the  gas 
company  refused  to  meet  the  lower 
prices,  etc.,  is  not  invalid  as  in  re- 
straint of  trade,  for  it  is  impossible 
for  the  consumers  to  be  oppressed 
by  a  monopoly  in  natural  gas  under 
the  terms  of  the  contract.  Ft. 
Smith  L.  &  T.  Co.  v.  Kellev,  94 
Ark.   461;    127   S.   W.  Rep.  975. 

79  People  V.  Deehan,  11  N.  Y. 
App.  Div.  175;  42  N.  Y.  Supp. 
1071;  reversed  153  N.  Y.  528;  47 
N.  E.  Rep.  787;  Grand  Rapjds  v. 
Grand  Rapids  Hydraulic  Co..  66 
Mich.  606;  33  N.  W.  Rep.  749. 


STKKKTS     AM)     II  H,  II  WAV: 


^487.     Injunction  to  restrain  layings  of  pipes  in  streets. 

It  has  been  lu'kl  Unit  llic  laying'  nf  iiipcs  in  tlu-  street  is  not 
such  a  nuisance  as  will  authorize  a  court  of  equity  to  restrain 
the  persons  laying  thein.**"  But  this  was  a  suit  hrought  hy  an 
abutting  ])roixn-ty  owner  who  did  not  own  the  fee  in  tlie  street, 
and  the  obstruction  of  the  street  would  last  only  two  or  three 
days.^^  But  mIum-c  there  is  an  invasion  of  private  grounds  ad- 
joining the  street,  an  injunction  will  be  granted  \\\»>]\  pr(i]HT 
application/"  Of  course,  a  niuuici])ality  nuiy  always  maintain 
a  suit  to  prevent  a  gas  company  invading  its  streets  and  laying 
down  pipes  therein  without  its  or  the  State's  consent;^''  and 
so  nuiy  a  ]u-ivate  land  owner  whenever  the  gas  pijies  will  bo 
an  additional  burden  on  the  fee  of  the  highway.'** 

§488.     Pipe  laid  in  street  unlawfully  laid  out. 

If  a  pipe  line  be  laid  in  a  street  which  has  been  unlawfully 
laid  out,  and  the  proceedings  laying  it  out  are  declared  void 
and  set  aside,  because  of  the  unconstitutionality  of  the  statute 
authorizing  its  laying  out,  the  owner  of  the  pi]>e  will  not  lose  it 
nor  can  he  be  deprived  of  its  use  by  the  abutting  land  owner, 
if  no  question  concerning  the  validity  of  the  law  was  raised  at 
the  time  the  lands  were  taken  for  the  ]iurixise  of  a  street.**'' 
The  laying  out  of  the  street  in  such  a  case  will  be  regarded  the 
same  as  if  a  street  that  could  be  lawfully  laid  out  had  been 
laid  out  by  de  facto  officers. 


80  Attorney  General  v.  Cambridge 
Consumers'  Gas  Co.,  L.  R.  4  Ch. 
71;  38  L.  J.  Ch.  94;  19  L.  T.  (N. 
S.)  508;  17  W.  R.  145,  overrulinf; 
L.  R.  0  Eq.  282;  38  L.  J.  Ch.  94, 
111;  17  W.  R.  145;  17  Gas  Jr. 
427,  593.  8f.7. 

81  Decision  to  the  same  point.  At- 
torney G«»neral  v.  SheflTield  Gas  Con- 
sumers' Co.,  3  De  Gex.  McN.  and 
G.  304;  17  Jiir.  077;  22  L.  J.  Ch. 
811 ;  2  Gas  ,T.  390,  419;  19  E.  L.  and 
Eq.  039;  1  W.  R.  185.  Otherwise 
if  he  owned  tlie  fee.  Go<idson  v. 
Richardson,  L.  R.  9  Ch.  221;  43  L. 
J.  Ch.  790:  30  L.  T.  (N.  S.)  142; 
22  W.  R.  337:  Deere  v.  Guest.  1 
My.   and   C.  510;    0   L.  J.  Ch.  09. 

82  Chapman  v.  Grays'  Gas  Co.,  13 
Gas  J.  448.  Where  an  action  for 
damages     would     furnish     adequate 


relief,  an  injunction  was  refused. 
Norwich  Gaslight  Co.  v.  Nc.rwioh 
City  Gas  Co.,  25  Conn.   19. 

8^  Brooklyn  v.  Fulton  TMiinicipal 
Gas  Co.,  7'  Abb.  N.  C.  19;  Landis 
Tp.  V.  Millville  Gaslight  Co.,  72 
N.  .T.  Eq.  347;  05  Atl.  Rep.  701 
(enjoininir  cnntiiniing  use  of  pipes 
already  laid  in  the  street). 

84  Goodson  V.  RJchardson,  L.  R. 
9  Ch.  221;  45  L.  J.  Ch.  790;  30 
L.  T.  (N.  S.)  142;  22  W.  R.  337; 
Selbv  V.  Crystal,  etc.,  Co.,  4  DcG. 
F.  and  J.  240;  31  L.  J.  Ch.  595; 
8  Jur.  (N.  S.)  83(>;  6  L.  T.  (N.  S.) 
790;    10  \V.  R.  030. 

s'-King  y.  Pliilidel|)hia  Co..  154 
Pa.  St.  100;  20  Au.  Rep.  308;  21 
L.  R.  A.  141;  41  Am.  and  Eng. 
Corp.  Cas.  221. 


538  OIL    AND    GAS, 

§489.     Revocation  of  grant. 

The  grant  of  a  ])rivilog-e,  license  or  franchise,  by  whatever 
name  it  may  be  called,  to  occupy  the  streets  of  a  municipality 
with  gas  pij^es,  for  the  purpose  of  supi)lying  the  public  with 
gas,  vests  such  a  right  in  the  gas  company  that  the  municipality 
cannot  revoke  or  deprive  it  of  such  grant,  unless  it,  by  its 
course  of  action,  has  laid  itself  liable  to  a  decree  of  forfeiture. 
The  grant,  when  accepted,  and  especially  after  its  terms  have 
been  complied  with,  becomes  a  contract  protected  by  the  Fed- 
eral Constitution.^"  The  only  way  it  can  be  deprived  of  such 
a  gi'ant  is  for  cause,  and  by  due  legal  process.*^  "  The  privi- 
lege of  the  use  of  the  public  streets  of  a  city  or  town,  when 
granted  by  ordinance,  is  not  always  a  mere  license,  and  re- 
vocable at  the  pleasure  of  the  muni('i])ality  granting  it;  for  if 
the  grant  is  for  an  adequate  consideration,  and  is  accepted  by 
the  grantee,  then  the  ordinance  ceases  to  be  a  mere  license,  and 
becomes  a  valid  and  binding  contract.  And  the  same  result  is 
reached  where,  in  case  of  a  mere  license,  it  is,  prior  to  its 
revocation,  acted  upon  in  some  substantial  manner,  so  that  to 
revoke  it  would  be  inequitable  and  unjust."  ^*  Such  an  ordi- 
nance cannot  be  repealed.*'* 

sel^uisvillp  Oas  Co.  v.  Citizens'  472;  14  S.  W.  Rep.  974;  15  S.  W. 
Gas  Co.,  115  U.  S.  68.3;  6  Sup.  Ct.  Rep.  383;  22  Am.  St.  Rep.  789. 
Rep.  265;  (Jibbs  v.  Consolidated  Gas  Where  a  city  ordinance,  granting 
Co.,  130  U.  S.  396;  9  Sup.  Ct.  Rep.  to  a  gas  company  the  right  to  lay 
553;  People's  Gaslight  Co.  v.  Hale,  its  pipes  in  the  city  streets,  and 
94  111.  App.  406;  Walla  Walla  v.  providing  that  the  privilege  was 
Walla  Walla  Water  Co.,  172  U.  granted  on  the  condition  that  the 
S.  1 ;  19  Sup.  Ct.  Rep.  77;  affirming  gas  company  should  annually  pay 
60  Fed.  Rep.  957 ;  Chicago,  etc.,  to  the  city  a  sum  specified,  declared 
Co.  V.  Lake,  130  111.  42;  22  N.  E.  that  nothing  therein  should  be  con- 
Rep.  616;  affirming  24  111.  App.  strued  as  granting  exclusive  rights 
346;  Southwest  Missouri  Light  Co..  or  preventing  any  other  company 
V.  Joplin,    113   Fed.   Rep.  817.  from  furnishing  gas  to  tlie  citizens 

87  People    V.    Deehan,    153    N.    Y.  of   the   city,    the   gas   company   was 

528;    47   N.  E.   Rep.   787;    reversing  not  relieved  of  liability  to  make  the 

11   N.   Y.  App.  Div.    175;    42  N.   Y.  payments  specified  by  reason  of  the 

Supp.   1071.  fact  that  the  city  subsequent  to  the 

8s  Chicago,  etc.,  Co.  v.  T>ake,   130  grant    permitted    other    gas   compa- 

III.  42;    22  N.  E.   Rep.   616;    affirm-  nies   to   lay   pij>es   in  its  .streets   for 

ing  24  111.  App.  346;    Illinois  Trust,  the    purpose    of    supplying    gas    for 

etc.,  Bank  v.  Arkansas  City,  76  Fed.  public    and    private    use.      City    of 

Rep.    271;    22   C.   C.   A.    171;    40   U.  Columbus   v.   Columbus  Gas  Co.,  81 

S.  App.  257;  34  L.  R.  A.  518;  State  N.   E.  440;    76  Ohio  St.  309. 

V.    Laclede    Gaslight    Co.,    102    Mo.  « a  People  v.  Kent    (111.),   12  Nat. 

Corp.    Rep.    193. 


STKKKTS    AM)     11  K;  11  WAYS. 


5:ji) 


§490.     Forfeiture  of  right  to  occupy  streets  for  failure  to  per- 
form duty. 

There  is  no  doubt  of  the  ri^iit  of  a  city  to  enforce  a  forfeitnre 
of  the  right  of  a  gas  cc)iu{)any  to  occupy  its  streets  with  its 
pipes  on  a  continued  faihirc  to  comply  with  its  agreement.  A 
single  instance  of  failure  would  not,  of  course,  be  sulHcient,  al- 
though it  might  give  a  right  of  action  to  recover  damages;  but 
a  continued  failiuH'  will  be.  An  illuslratimi  (if  tbis  can  be 
found  in  the  case  of  a  water  company,  where  the  court  was  of 
the  opinion  that  a  city  might  enforce  a  forfeiture  for  a  con- 
tinued failure  to  su]>ply  wholesome  water  in  a  sufficient  (pmn- 
tity,  even  independent  of  a  provision  in  the  contract  and  ordi- 
nance that  the  exclusive  franchise  granted  should  be  forfeited 
for  such  cause.'*"  A  promise  on  the  part  of  the  company  to 
do  better  in  the  future  is  no  defense.'"*^ 


Notice  of  ail  intention  to  revoke 
its  rights  to  the  streets  must  be 
given  to  a  gas  company  before  the 
revocation  takes  place.  Jersey  City, 
etc.,  Co.  v.  Passaic  (X.  J.  L.),  52 
Atl.  Rep.  242. 

90  Palestine  Water,  etc.,  Co.  v. 
Palestine,  91  Tex.  540;  44  S.  W. 
Rep.  814;  affirming  41  S.  W.  Rep. 
659. 

See  where  the  word  "pure"  in  a 
statute  was  construed  to  be  "whole- 
some" with  respect  to  water.  Com- 
monwealth V.  Towanda  Water 
Works  (Pa.),  15  Atl.  Rep.  440. 
Sand  in  water  damaging  elevators, 
liability  to  damages.  Scottish, 
etc.,  Co.  V.  Toronto,  24  Ont.  App. 
208. 

91  Capital  Water  Co.  v.  State, 
105  Ala.  40G;  18  So.  Rep.  62;  29 
L.  R.  A.  743. 

The  owner  of  a  franchise  to  lay 
pipes  in  the  streets  of  a  city,  con- 
tracted \\nth  another  to  form  a 
gas  company,  the  owner  to  furnish 
the  franchise  and  the  other  to  fur- 
nish all  the  money  to  build  the 
plant  and  lay  the  pipes.  After 
such  other  person  had  laid  some  of 
the  pipes,  he  abandoned  the  work. 
It  was  held  that  since  the  pipes  had 
become  attached  to  the  casement  be- 


longing to  its  owner,  such  owner 
became  the  owner  by  rea>.iin  of  the 
abandonment,  and  such  other  person 
had  lost  all  rights  in  the  pipes. 
Joliet  Gaslight  Co.  v.  Sutherland, 
68  111.  App.  230.  The  same  line 
of  reasoning  would  lead  to  the  con- 
clusion that  the  gas  company  would 
also  lose  its  rights  to  remove  ivS 
pipes,  if  it  was  to  abandon  the  en- 
terprise before  its  completion;  and 
perhaps  where  a  forfeiture  was  de- 
clared. Quaere,  if  such  were  the 
case,  would  the  city  or  abutting 
property  owners  become  the  owners 
of  the   pipes? 

Where  an  ordinance  granting  a 
gas  company  the  right  to  enter  a 
municipality  and  occupy  its  streets 
is  silent  as  to  the  duration  of  the 
franchise,  and  the  company  volunta- 
rilj'  forfeits  its  right  to  exorcise  its 
privileges  within  the  municipality, 
and  withdraws  therefrom,  the  mu- 
nicipality has  no  riglit  to  prevent  it 
from  removing  its  jiroperty  or  to 
take  possession  of  and  make  use 
of  the  same,  nor  to  grant  the  right 
to  use  it  to  another  company  with- 
out due  pnx'css  of  law.  Kast  Ohio 
Gas  Co.  V.  Akron,  81  Ohio  St.  33; 
90  N.  E.  Rep.  40. 


540  OIL   AND   G.VS. 

§491.    Actions  to  declare  forfeiture. — Quo  warranto. 

There  is  not  such  a  uniformity  in  the  decisions  with  refer- 
ence to  the  enforcement  of  a  forfeiture  of  a  franchise  because 
of  a  violation  of  a  contract  witli  a  municipality  as  is  desirable. 
In  Michigan  a  petition  for  leave  to  file  an  information  in  the 
nature  of  a  quo  ivarnnilu  to  declare  a  forfeiture  of  a  franchise 
of  a  gas  com])any,  on  the  ground  that  it  had  failed  to  keep  its 
contract  with  the  city  was  refused;  the  court  declaring  that  the 
right  under  the  contract  to  occupy  the  streets  with  gas  pipes 
was  a  mere  license,  and  one  in  which  the  State  had  no  concern, 
its  violation  being  merely  a  matter  between  the  company  and 
the  city.°^  A  similar  decision  was  made  in  New  York."'^  But 
there  are  a  nmiilicr  of  instances  where  it  is  held  that  the  State 
may  bring  the  suit  to  have  the  charter  declared  forfeited  be- 
cause of  a  persistent  violation  of  the  company's  contract  with 
the  city."*  In  one  case  it  was  also  held  that  the  fact  of  the 
city  having  the  power  to  proceed  against  the  company  for  in- 
fractions of  its  duty,  which  was  enforced  by  its  charter  and 
the  contract,  Avas  not  a  bar  to  the  State  to  bring  an  action  be- 
cause of  such  infractions."^  And  the  reverse  of  this  was  held 
where  the  city  brought  the  suit  to  amend  the  contract  because 
of  the  violation  of  its  terms.""  No  doubt  the  State  may  bring 
an  action  to  have  a  forfeiture  declared  in  all  those  instances 
where  the  company  is  guilty  of  a  violation  of  the  laws  of  the 
State,  aside  from  the  violation  of  its  contract  with  or  grant 
from  the  municipality ;  for  such  is  a  violation  of  the  general 
corporation  laws."^  Such  is  an  instance  where  a  statute  fixes 
the  price  at  which  gas  must  be  sup]di(>d  ;  "^  or  where   it   has 

92  People  V.  ]\lutual  Gaslight  Co.,  oe.  Palestine  Water,  etc.,  Co.  v. 
38  Mich.    154.  Palestine.   91   Tex.   540;   44    So.   W. 

93  People  V.  Bowen.  30  Barb.  24;  Rep.  814;  affirming  41  S.  W.  Kep. 
affirmed  21  N.  Y.  517.  G59. 

94  Capital  City  Water  Co.  v.  97  state  v.  Cincinnati,  etc.,  Co., 
State,  105  Ala.  406;  18  So.  Rep.  Crl;  18  Ohio  St.  262;  State  v.  Colum- 
29  L.  R.  A.  743;  Commonwealth  v.  bus,  etc.,  Co.,  34  Ohio  St.  572;  State 
Towanda  Water  Works  (Pa.),  15  v.  New  Orleans,  etc.,  Co.,  2  Rob. 
Atl.  Rep.  440;  State  v.  Janesville.  (La.)  529;  Wandsworth,  etc..  Co.  v. 
etc..  Co.,  92  Wis.  496;  66  N.  W.  Wright,  19  Gas.  J.  407;  18  W.  R. 
Rep.   512.  728. 

95  Capital  City  Water  Co.  v.  98  State  v.  Columbus,  etc.,  Co., 
State,  105  Ala.  406;  18  So.  Rep.  62;  supra. 

29  L.  R.  A.  743. 


STREETS    AND    HIGHWAYS.  541 

usurped  the  exclusive  privilege  of  furnisliing  gas  in  a  citj'  in 
violation  of  a  statute."*  The  State  may,  however,  by  its  con- 
duct or  acquiescence  be  estopped  to  (jucstion  the  right  (jf  the 
company  to  continue  as  a  corporation  ;  especially  so  where  tin; 
illegal  acts  took  })lace  long  time  before  —  as  eight  years  for 
instance  —  and  where  some  of  the  present  stockholders  were 
guilty  of  abetting  such  violation.*""  A  pretended  sale  of  all 
the  company's  property  will  not  deprive  the  State  of  its  right 
to  forfeit  its  charter,  even  in  the  hands  of  the  vendee,  for  a 
failure  to  i^erforni  a  corporate  duty."" 

§492.     Waiver  of  right  to  declare  forfeiture. 

By  its  course  of  conduct  a  munici})ality  may  waive  its  right 
to  declare  a  forfeiture  for  failure  to  comply  with  the  terms  of 
a  contract,  just  as  it  may  l>e  estopped  to  have  a  void  contract 
set  aside.  Thus  where  a  city  in  an  ordinance  prranting  a  fran- 
chise provided  that  if  certain  things  should  not  be  done  within 
fifteen  months  the  company  should  forfeit  its  rights,  it  was 
considered  that  the  city  had  waived  any  forfeiture  by  recog- 
nizing the  ordinance  in  force  after  the  fifteen  mouths,  by  uuiin- 
taining  its  own  wires  u]xm  the  electric  company's  poles,  in 
assessing  and  collecting  taxes  on  the  fi-anchise  granted,  and  in 
failing  to  set  up  a  claim  of  forfeiture  in  a  number  of  suits 
brought  by  the  company  against  it  to  enforce  certain  rights 
given  by  the  contract."^ 

§493.     Changing  grade  of  street. 

The  fact  that  a  contemplated  change  of  the  grade  of  a  street 
will  interfere  with  the  gas  company's  pipes  does  not  prevent  the 

s)!>  State    V.    Milwaukee     G.islight  antliorize  a   decree  of  forfeiture,  al- 

Co.,  20  Wis.  454.  thoiiiili   it   may  be  frrounds   for  eon- 

100  State  V.  Janesville  Water  tempt  proeeedinjjs.  Xewark  v.  Xew- 
Power  Co.,  92  Wis.  49G ;  06  N.  W.  ark  W.  W.  Co..  4  Ohio  N.  P.  .141: 
Rep.    .512.  0  Oiiio   Dee.   filS. 

101  City  Water  Co.  v.  State.  88  102  Commereial.  etc..  Co.  v.  Ta- 
Tex.  600;  32  S.  W.  Rep.  10.3.3;  33  eoma.  17  Wash.  661;  fiO  Pae.  Rep. 
S.   W.   Rep.   259.  592.     See    Walla    Walla    v.    Walla 

A  violation  of  an  iniunction  Walla  Water  Co..  172  Feil.  Rep.  1  ; 
apainst  the  enforeenent  of  iinroa-  19  Sup.  Ct.  Rep.  77,  alTirniin;;  i'O 
sonable    rules    is    not    sufTicient    to       Fed.   Rep.  957. 


542  OIL    AND    GAS. 

change,  nor  lay  the  city  liable  for  damages  to  the  company 
occasioned  thereby.  Nor  is  the  city  liable  to  the  company  for 
the  expense  incurred  in  lowering  or  otherwise  changing  its 
pipes  so  as  to  conform  to  the  new  grade.'"''  Nor  can  the  gas 
company  impose  upon  adjacent  lot  owners,  the  expense  it  has 
incurred  in  taking  up  and  relaying  its  pipes,  required  by  a 
change  of  grade ;  it  must  make  such  changes  at  its  own  cost.'"* 
If  it  is  necessary  to  place  drainage  pipes  or  sewers  in  the 
street,  the  municipal  authorities  may  compel  the  company  to 
raise  or  lower  its  pipes,  if  such  action  be  necessary  to  secure  a 
proper  location  for  them.'"^  Under  a  statutory  power  to  con- 
tract for  lighting  of  its  streets  upon  such  terms  and  conditions 
as  it  shall  deem  expedient,  a  city  is  empowered  to  agree,  in  the 
original  grant  of  a  franchise,  that  it  will  reimburse  the  gas 
company  for  all  damages  occasioned  it  by  a  change  in  the 
grade  of  a  street.'"" 

§  493a.     Construction  of  sewers  interfering-  with  pipes. — Cost 
of  removing  pipes. 

A  right  extended  to  a  gas  company  to  lay  its  pipes  in  the 
streets  of  a  city,  so  as  to  produce  the  least  inconvenience  to 
the  city  or  its  inhabitants,  gives  no  vested  right  to  occupy  any 
particular  position  in  the  street.  It  only  accjuires  an  imper- 
fect right  contingent  and  conditional  in  its  nature,  controlled 
l)y  law  and  the  regulation  of  the  police  authorities.  The  priv- 
ies Belfast  Water  Co.  v.  Belfast,  471;  49  L.  Ed.  831,  affirming  111 
92  Me.  52;  42  Atl.  Rep.  235;  Colum-  La.  838;  35  So.  Rep.  929. 
bus,  etc.,  Co.   V.   Columbus,  50  Ohio  i" * /n.  re  Decring,  93   X.   Y.  361; 

St.  65;  33  N.  E.  Rep.  292;  19  L.  R.  Pocatello  Water  Co.  v.  Standley 
A.  510;  Jamaica  Pond,  etc.,  Co.  v.  (Idaho),  Gl  Pac.  Rep.  518;  South- 
Brooklino,  121  Mass.  5;  Roanoke  wark,  etc.,  Co.  v.  Wandsworth 
Gas  Co.  V.  Roanoke,  88  Va.  810;  [1898],  2  Ch.  603;  67  L.  J.  Ch. 
14  S.  E.  Rep.  065;  Brenham  v.  657;  79  L.  T.  132;  47  W.  R.  107; 
Brenham   Water   Co.,   67   Tex.   543;       62  J.  P.  756. 

4  S.  W.  Rep.  143;   National  W.  W.  io3  Bryn     Mawr     Water     Co.     v. 

Co.    V.    Kansas    City,    20    Mo.    App.       Lower   ^Marion   Tp.,    15   Pa.   Co.   Ct. 
237;  National  W.  W.  Co.  v.  Kansas       Rep.   527;    4   Pa.   Dist.   Rep.    157. 
City,   28    Fed.   Rep.    921;    Rockland  loc  Parfitt   v.    Furguson,   3   N.   Y, 

W.  W.  Co.  V.  Rockland,  83  Me.  267;       App.   Div.    176;    73  N.  Y.   St.   Rep. 
22  Atl.  Rep.  166;  New  Orleans  Gas-       621;  38  N.  Y.  Supp.  466;   affirming 
light   Co.    V.    Drainage    Commission,       159  N.  l'^.  Ill;  53  N.  E.  Rep.  707. 
197    U.    S.    453;    25    Sup.    Ct.    Rep. 


STREETS    AND    HIGHWAYS.  543 

ilege  is  accepted  subject  to  the  inalienable  right  of  the  State 
to  construct,  or  authorize  the  city  to  construct,  sewers  under 
the  streets  whenever  it  is  of  the  opinion  that  pul)lic  interest 
demands  their  construction ;  and  may  compel  the  company  to 
change  the  location  of  its  pipes  at  its  own  expense.'""" 

§  494.    Tearing  up  streets. — Obstructions. — Indictment. 

No  one  can  open  streets  and  lay  down  pipes  with  which  to 
supply  the  inhabitants  of  the  municipality  with  gas  or  water 
unless  authorized  so  to  do.  If  he  do  so,  witliout  proper  au- 
thority, he  is  subject  to  indictment  and  punishment.'"'  If  a 
company  open  mure  streets  than  is  necessary,  at  any  cine  lime, 
it  may  be  indicted;  but  if  it  has  agreed  to  pay  the  municipality 
so  nmeh  per  square  yard  for  all  of  the  surface  removed,  it 
cannot  defend  on  the  ground  that  in  so  doing  it  was  liable  to 
indictment  and  therefore  the  agreement  Avas  void.^°^  It  is  not 
an  indictable  nuisance  to  temporarily  obstruct  a  street  in  lay- 
ing down  pipes  under  authority  given.'"''  But  where  the  high- 
way was  eight  yards  wide,  and  the  gas  company  dug  tliree 
trenches,  two  across  it  aiul  one  ])arallel  with  it,  these  three 
trenches  being  ke})t  open  at  night  but  closed  at  three  o'clock  in 
the  morning;  and  later  other  trenches  were  opened  from  eleven 
at  night  until  two  o'clock  next  afternoon,  it  was  held  that  the 
company  was  liable  to  an  indictment  for  unnecessarily  oh- 
structing  a  highway.""     And  where  a  gas  company  had  no  au- 

106a  New   Orleans  Gasliglit   Co.   v.  General    v.    Qimbridge    Consumers' 

Drainage     Commission,     197    U.    S.  Gas   Co.,    L.    R.    Ch.    71;    38    L.   J. 

453;    25   Sup.   Ct.   Rep.   471;    49   L.  Ch.   94;    19  L.  T.    (X.   S.)    508;    17 

Ed.  831;   affirming  111  La.  838;   35  W.    R.    145. 

So.  Rep.  929.  ifs  Edgoware    Tligliway    Board    v. 

107  Attorney    General    v.    Sheffield  Harrow   District  Gas  Co.,  L.   R.    10 

Gas    Consumers'    Co.,    3    De    G.    M.  Q.  C.  92;  44  L.  J.  Q.  B.  1;  31  L.  T. 

and   G.    304;    22   L.   J.   Ch.   811';    17  (X.  S.)    402;    23  W.   R.  90. 

Jur.   G77;    1   W.  R.   185;   2  Gas.  Jr.  io9  Preston     v.     Fulhvootl,    supra. 

396,  419;    19  Eng.  L.  and  Eq.  639;  But  see  H.awkins  v.  Robinson,  37  J. 

Regina   v.   Sheffield  Gas   Consumers'  P.    662,    and   Wright   v.    Stears,    48 

Co.,    18    Jur.    146,    note;    Regina   v.  Gas   J.    10'68. 

Longtcn  Gas  Co.,  2  E.  and  E.  651;  no  Regina    v.    Colne    Valley    Gas 

29  L.  J.  iL  C.  118;  6  .Jur.   (X.  S.)  Co.,    29    Gas    J.    498,    781;    30    Gaa 

601;   2  L.  T.    (X.   S.)    14;   8  W.  R.  J.  218. 
293;    8    Cox    C.    C.    317;    Attorney 


544  OIL   AND    GAS. 

tlioritv  to  lay  its  ]>i]K's  in  tlio  street.  Mil  aliiittinfi;  ]>roporty  owner 
who  took  up  the  pavement,  placed  bricks  and  earth  therein,  so 
as  to  obstruct  the  hichway,  to  put  in  a  service  pipe,  was  held 
subject  to  an  indictment,  and  that  he  could  not  justify  his 
actions  on  the  o-round  that  every  householder  had  the  riirht 
to  uiake  such  temporary  obstruction  of  a  footway  or  highway 
as  was  necessarily  incident  to  the  enjo^^ment  of  his  property.^" 

§495.     Cutting  into  modern  pavements. —  Repairs. —  Permission. 

The  G^i-ant  of  a  right  by  a  municipality  to  lay  and  repair 
mains  in  its  streets  cannot  l)e  subsequently  taken  away  from  it 
on  the  ground  that  new  and  other  methods  of  improving  the 
streets  have  been  introduced  since  the  original  grant  has  been 
made;  and  especinlly  is  this  true  where  the  grant  bound  the 
company  to  speedily  repair  the  portions  of  the  street  it  had 
opened  for  the  purpose  of  laying  and  repairing  its  mains.  A' or 
can  a  municipjality  by  a  subsequent  ordinance  require  a  com- 
pany to  first  obtain  permission  of  it  to  lay  or  repair  its  maihs, 
when  it  had  that  right,  without  first  obtaining  such  permission, 
under  its  original  grant  or  franchise.  "  The  appellee,"  said  the 
Indiana  Su])rcme  Court,  "  had  been  granted  the  right  to  use 
the  streets  for  the  purpose  mentioned,  and  the  mere  fact  that 
any  ]mrticular  street  was  thereafter  paved  with  brick  or  maca- 
dam would  not  deprive  appellee  of  exercising  its  rights  under 
the  ordinance  upon  which  it  relies.  This  is  manifest  when 
we  recognize  that  the  conditions  of  the  bond  required  of  the 
corporation  availing  itself  of  the  franchise  granted  were,  that 
all  streets  should  be  restored  to  as  good  a  condition  as  they  were 
before,  and  to  maintain  the  pavement  in  good  repairs  where 
the  city  had  an  agreement  with  the  contractor  to  like  effect. 
As  said  by  the  learned  counsel  for  appellee:  '  If  a  macadam- 
ized pavement  covers  up  the  apiTellee's  rights,  so  would  one 
constructed  of  gravel,  and  so  would  even  slight  repairs,  for 
the  conditions  of  the  streets  would  be  changed  from  what  it  was 

iiiRegina  v.   Longton   Gas  Co.,  2        118;    8  Gas  J.   165;    9  Gas  J.   114; 
Ell.  and  Ell.  651;    2  L.  T.    (N.  S.)        6  Jur.  (N.  S.)   601;  8  W.  R.  293. 
14;  8  Cox  C.  C.  317;  29  L.  J.  M.  C. 


STREETS    AND    HIGHWAYS.  545 

when  tlic  ordinance  was  accepted.'  It  is  evident,  we  think,  tli::t 
the  cinitenlion  has  no  snpjxirt."  Of  the  ordinance  reciniriiii; 
permission  of  the  city  board  of  works  liefore  a  pavement  wdild 
be  cut  into  for  re]>airs,  the  court  also  said:  "We  jndiciallN' 
know  that  by  reason  of  changes  occurrin<T;  from  ext(>nsivc  heat, 
cold  and  pressure,  leaks  will  and  do  occur  in  gas  pijies,  which 
require  immediate  repair.  If,  then,  it  should  be  held  that  in 
making  these  repairs  —  wherein  it  would  be  necessary  to  un- 
cov'er  the  mains  —  the  appellee  must  await  the  pleasure  of  the 
council  and  board  of  aldermen  in  giving  consent,  it  would  be 
virtually  in  the  same  condition  as  thongh  it  had  not  secured 
the  rights  and  franchise  under  "  the  prior  ordinance.""  So 
an  ordinance  forbidding  a  gas  company  to  excavate  in  a  paved 
street  in  order  to  lay  pipes  from  its  mains  to  the  opposite  side 
of  the  street  is  so  unreasonable  as  to  be  void."^ 

§495a.     Gas  company  repairing  street. 

As  a  rule  the  gas  company  must  restore  the  street?  it  opens 
in  order  to  lay  therein  its  pipes.  But  unless  there  be  some 
special  agreement  between  it  and  the  municipality  concerning 
repairs,  it  is  only  required  to  leave  them  in  the  same  condi- 
tion in  which  it  found  them  and  is  not  bound  to  keep  them 
in  repair  that  portion  of  them  which  it  temporarily  digs  up.^^^" 
Where  a  city  council,  under  a  statute  reinstated  the  surface 
of  a  street  that  had  been  broken  up  by  a  gas  company  under 
statutory  powers,  it  was  held  that  the  city  was  entitled  to 
recover,  as  part  of  the  expense  of  reinstating"  the  surface,  the 
expense  of  placing  a  course  of  concrete  where  there  had  been 
previously  no  concrete,  oi*  the  cost  of  placing  an  extra  thick- 
ness of  concrete  where  there  had  previously  been  concrete,  if 
the  concrete  or  extra  concrete  was  necessary  in  order  that  the 

112  Indianapolis  v.  Consumers'  ii3a  Seltzer  v.  Amesburv,  etc.,  Co., 
Gas  Trust  Co.,  140  Ihd.  107;  39  188  Mass.  242;  74  N.  E."  Rop.  33!); 
N.  E.  Rep.  433;  27  L.  R.  A.  514.  Pottsvilie  v.  Pottsville  Cas  Co.,  33 
See  Western  Paving,  etc.,  Co.  v.  Pa.  Super.  Ct.  480.  Tn  tliis  last 
Citizens'  etc.,  Co.,  128  Ind.  525;  20  case  was  involved  a  charge  of  (he 
N.  E.   Rpp.    188;    28   N.   E.   Rep.   SS.  city    for    inspection    at    $3    per    (hiy 

113  Northern  Liberties  v.  North-  and  the  length  of  time  the  inspec- 
ern    Liberties   Gas    Co.,    12    Pa.    St.  tion  was  to  continue. 

318. 


546  OIL    AND    GAS. 

surface  should  be  made  as  good,  and  should  remaiu  as  good 
as  it  had  been  before  the  excavation.^ ^^'^ 

§496.     Injury  to  pipes  in  repairing  streets. 

A  municipality  has  the  right  to  repair  the  streets  in  which 
g:as  pipes  are  lawfully  laid,  but  it  must  in  doing  so  have  a  jusL 
regard  for  the  jjroperty  of  the  gas  company.  It  may  not  re- 
pair them  in  a  manner  to  injure  such  pipes,  when  at  least  the 
rejiairs  can  be  so  made,  although  in  a  less  convenient  way. 
Thus  wliere  the  fee  of  the  street  was  vested  in  the  vestry  of  the 
parish,  the  ])ipcs  were  lawfully  located  in  the  street,  and  in  re- 
pairing them  it  used  a  steam  roller,  being  a  mode  of  repair 
most  advantageous  to  both  the  taxpayers  and  the  public,  but 
the  roller  was  so  heavy  as  to  injure  the  pii)es;  the  court  not 
only  gave  damages  to  the  gas  company,  but  declared  that  it  was 
entitled  to  an  injunction  to  restrain  the  use  of  the  roller  in 
such  a  way  as  to  injure  the  pipes.^^*  In  Ireland  an  injunction 
w^as  entered  "'  ao'ainst  using  anv  steam  roller  on  aiiv  road  under 
which  the  gas  pipes  of  the  plaintiffs  have  been  laid  so  as  to 
break  or  injure  any  pipes  then  properl}^  laid  under  such  road, 
regard  being  had  to  what,  at  the  time  of  the  laying  of  such 
pipes,  was  then  the  ordinary  traffic,  and  the  then  reasonable 
means  of  repairing  and  maintaining  the  road."  ^^^  If  a  city 
let  a  contract  to  construct  a  sewer  to  a  contractor  it  knows  to 
be  incompetent,  it  will  be  liable  for  damages  to  a  gas  company's 
pipes  which  he  may,  because  of  such  incompetency,  occasion 
them."**  But  the  city  is  not  liable  Avhere  it  builds  a  sewer 
itself,  and  injures  the  pipes  of  a  company,  if  the  injury  is  not 
inflicted    because    of   negligence  on  its  part."^     Where  a  gas 

ii'h  Commercial   Gas    Co.   v.   Pop-  negligence  against  the  municipality, 

lar  Borough  Council,  94  L.  T.  222;  Driscoll  v.   Public  Board  of  Works, 

70  J.  P.   178;   4  L.  G.  K.  207.  14   T.   L.    Hop.   !)!);    02   J.   P.   40. 

ii^Casliglit  and  Coke  Co.  v.  Ves-  noNorwalk  Gaslight  Co.   v.  Nor- 

try  of   St.   Mary,    15  Q.   B.   Div.    1;  walk,  03  Conn.  495;  28  Atl.  Rep.  32. 

54  L.  J.  Q.  B.  4M;  53  L.  T.  457;  33  n^  Brunswick      Gaslight      Co.      v. 

W.   R.   892;    49   J.   P.  459.  Brunswick,  9-2  Me.  493;  43  Atl.  Rep. 

115  Alliance,  etc..  Gas  Co.  v.  Pub-  104;    New    Orleans   Gaslight   Co.   v. 

lin,  Gas  Jr.,  June  20,  1900,  p.  1733,  Drainage  Commission,  197  U.  S.  453; 

and  July   10,   1900,  p.    100.     See  49  25    Sup.    Ct.    Rep.    471;    49    L.    Ed. 

Gas  Jr.'765,  811;   50  Gas  Jr.   1018.  831,  affirming   111   La.   838;   35   So. 

Where    a    heavy    roller    broke    a  Rep.   929. 

gas  main,  whereby  gas  escaped  into  A  city  in  })utting  in  its  own  gas 

a    house   and   caused    an    injury,    it  works    is    liable    for    trespass    if    it 

was  held  that  there  was  evidence  of  interfere  with  and  injure  a  private 


STREETS    AND    HUi  1 IWA VS.  547 

company,  in  ignuraneo  of  the  true  local itm  of  its  pipe  line  iii 
a  certain  street,  tlmunli  Initli  its  Ixiokkcciici-  and  collector  tnltl 
a  street  railway  it  was  in  the  middle  of  such  street,  the  book- 
keeper and  collector  believing  the  statement  to  be  trne,  and 
the  railway  company  having  made  the  inquiry  in  order  that, 
it  might  avoid  laying  its  track  over  sncli  pipe  line,  all  <<\'  which 
the  gas  coniixiny  knew  at  the  time  it  gave  the  suj)p<>scd  locatinn 
of  its  pi])e  line;  and  thereu]X)n  the  railway  company  laid  its 
track  on  one  side  of  the  street  but  immediately  over  the  ]>ipe 
line,  being  misled  by  such  statements  as  to  its  tiaic  lucation, 
it  was  held  that  the  gas  comjniny  was  not  estoj)])('d  tn  take 
up  its  pi]ie  in  order  to  re]>air  it,  although  in  so  doing  it  had  ti> 
remove  the  track  i)i'  lli(>  i-ailway  coiujiauy.  The  court  did  not 
consider  that  the  bookkeeper  and  collector  were  such  agents  as 
to  make  their  statements  about  the  location  of  the  pi]x>  line 
binding  upon  the  gas  company.  Tt  was  declared,  though,  that 
it  was  the  gas  com]>any's  '*  duty  to  know  the  precise  location 
of  their  pipes,  and  to  be  able  to  give  correct  information  con- 
cerning the  same  to  those  who  had  a  right  to  demand  it ;  and 
if  a  gas  company  wrongly  represents  the  location  of  its  ]upes, 
so  as  to  lead  a  railway  company  to  lay  its  track  over  thcni  when 
it  was  seeking  to  avoid  them,  then  such  company  would  be 
estopped  from  claiming  the  right  to  disturb  the  track,  even 
though  the  gas  company  was  mistaken  in  regard  to  the  location 
of  the  pi])es  at  the  time  the  representations  were  made."  ^'^ 

eystem    for    supplying    gas    therein,  putting    them.      The    old    company 

which    has    been    established    under  then  brought  a  suit  against  the  new 

authority   of   law.      lioyer   v.   Little  company,  praying  for  an  injunction, 

Falls,  5  N.  Y.  App.  Div.  1;  38  N.  Y.  for    the    purixjse   of   luurassiiig    and 

Supp.   1114.  delaying  tlie  installation  of  tlie  new 

118  Davenport,     etc.,     Ry.     Co.     v.  company's  plant.     It  was  lield  that 

Davenport  Gaslight  Co.,  43  la.  301.  it   was   estopped    from   objecting   to 

Before    commencing    to     lay    gas  slight    deviations    in    the    new   com- 

mains,  a  company  gave  a  rival  com-  pany's  pcj'e  line  from  the  course  pre- 

pany   notice   of   the    proposed    work  scribed    by    statute.      Atlantic    City 

and    requested    it    to    disclqse    the  Gas  &  W.  Co.  v.  Consumers'  (Jas  &, 

position  of  its  mains,  in  order  that  F.  Co.  (N.  J.  L.),  65  Atl.  Rep.  111!); 

the  new  mains  might  Ik*  laid  at  tlie  afTirming  70  N.  J.  Eq.  53G;   (il   Atl. 

statutory     distance     from     the     old  Rep.   750. 

mains.     The  old  company  absolutely  A  contractor  constructing  a  sewer 

refused    to   disclose    the    position    of  in   a    street    wherein   are   gas    pipes, 

its  mains,   whereupon  the  new  cum-  is  not  an   insurer  against   injury  to 

pany    proceeded.      An    attendant    of  the    pipes;    but   removing  the  earth 

the   old    company    was    present,    but  from  Itencatli  tlicin  and  not  furnish- 

made  no  objection    to  the  laying  of  iiig  them  with  support  whereby  they 

pipes   where   the   new   company  was  break,   is  a   failure  to  use  ordinary 


548  OIL   AND   GAS. 

§497.     Support  of  gas  mains. 

If  a  eoinjxiny  has  a  rifjht  to  lay  its  pipes  in  a  street,  it  has 
a  riiiht  to  a  support  for  ihom  of  the  underlyinc;  soil ;  and  if 
the  owner  of  the  underlying  soil,  or  any  one  mininc;  therein, 
even  with  a  right  so  to  do,  take  away  such  support  and  injure 
the  ]iiiies,  he  will  1k'  liable  in  damages;  and  that,  too,  even 
though  he  is  entitled  to  damages  under  an  arbitration  proceed- 
ing for  the  extra  burden  of  the  pipes  upon  the  fee  of  the  high- 
way. What  is  true  of  one  occupying  the  highway,  is  also  true 
of  one  rightfully  occupying  a  private  right  of  way."^  But 
if  tlie  gas  company  has  laid  its  pi]ie  line  in  the  soil  of  another 
without  license  so  to  do,  then  it  is  not  entitled  to  support;  nor 
to  compensation  in  damages  for  a  failure  to  give  it.^"*' 

§498.     Gas  boxes  in  street. 

A  gas  box  in  the  street,  giving  access  to  a  cock  in  the  service 
pipes  conducting  gas  from  the  main  to  the  house  or  building 
supplied  with  gas,  is  a  part  of  the  company's  apparatus;  and 
although  lawfully  in  the  street,  the  company  is  bound  to  exercise 
care  to  prevent  injury  to  persons  using  the  street  or  sidewalk.^^^ 

care  not  to  injure  them.     Millville  Sweeten,   75    N.    J.   L.    23;    f)8   Atl. 

Gaslight   Co.   v.    Sweeten,    75   N.   J.  Rep.   1007. 

L.  23;  68  Atl.  Rep.  1067.  i2oMicldlL',    etc.,    Co.    v.    Oakbank 

As  to  notice  to  a  gas  company  by  Oil  Co.,  18  Ct.  Sess.  Cas.,  4th  Series 

a  street  railway  of  an  intention  to  788. 

lay  its  track  in  a  street  where  gas  i-i  Washington    Gaslight    Co.    v. 

pipes  were  located,   and  arbitration  District    of    Columbia,    161    U.    S. 

thereon   under   a   statute,    see    Has-  316;     16     Sup.    Ct.    Rep.    564;     24 

tings  Tramway  Co.  v.  Hastings,  etc.,  Wash.    L.    Rep.    470,    affirming    20 

Gas   Co.,   76   L.   J.   Ch.   60;    [190G]  D.  C.  39.     In  this  case  the  consumer 

2  Ch.  578;  70  J.  P.  540;  23  T.  L.  R.  paid  the  cost  of  putting  in  the  box. 

95;   95  L.  T.   684;   5  L.  G.  R.   142.  The    city    was    allowed    to    recover 

iioNormanton    Gas    Co.   v.    Pope,  from    the   company    the    amount   of 

52  L.  J.  Q.  B.  C29;   32  W.  R.  134;  damages    it   had   l>een   compelled   to 

49   L.   T.   798.      See   Benfieldside   L.  pay  a  person   injured   by   reason  of 

B.  V.  Consett  Iron  Co.,  3  Exch.  Div.  the   company   having   permitted  the 

54;    47   L.   J.   Exch.   491;    38   L.   T.  gas   box  to   get   out   of   repair.      In 

530;   26  W.  R.   114.  England     apparatus     of     this     kind 

To  remove  the  soil  from  beneath  seems    to    belong   to    the    consumer, 

a    gas    pipe,    in    excavating    to    put  Ward   v.    Folkstone   W.    W.   Co.,   24 

in  a   sewer,   and   failing  to   support  Q.  B.  Div.  334;   59  L.  J.  M.  C.  65; 

it,   whereby   it   breaks,   is   a   failure  62  L.  T.  321;   38  W.  R.  426;   54  J. 

to  use  ordinary  care  not  to   injure  P.    628;    Folkstone   v.   Downing,    54 

the  pipe.     Millville  Gaslight  Co.  v.  Gas.   J.   313. 


STREETS    AND    HIGHWAYS.  54!) 

The  court,  howovor,  fainmt  say  as  a  iiiattor  of  law  lliat  a  Itox 
seven  and  a  lialf  iiiclics  Idn^  and  live  and  a  <|nart('r  wide,  l>y 
one  and  a  half  hiuh,  cxtemlino;  t)nc  and  a  half  inches  int<i  the 
traveled  jiortion  of  a  sidewalk  is  not  a  nuisance,  in  the  ahsence 
of  any  evidence  showing  the  exigencies  of  public  travel  in  the 
street.'" 

§499.     Leaving  gasposts  in  streets. 

When  gas  jx)sts  are  no  longer  used,  it  is  the  duty  of  the  gas 
company  to  remove  them,  for  they  are  an  ol)strnction  in  the 
street.  A  gas  company  has  the  right  to  maintain  gas  p(^)sts  in 
a  street  solely  by  reason  of  the  fact  that  it  supplies  light  for 
the  streets;  and  when  it  ceases  to  supply  the  light,  it  must  re- 
move its  posts,  or  else  lay  itself  liable  for  such  damages  as 
may  be  occasioned  thereby.''^ 

§500.     Pipes  in  streets  not  an  additional  burden. 

Pipes  of  a  gas  company  laid  in  the  streets  of  a  mimicipality 
are  not  an  additional  burden  on  the  fee  of  the  street  for  which 
the  abutting  lot  owner  is  entitled  to  compensation.  Such  a 
burden  is  contemplated,  in  legal  contemplation,  when  the  streets 
are  dedicated,  or  ground  taken  for  them  under  the  power  of 
eminent  domain.'^*  Of  course,  the  duty  to  serve  the  public  is 
always  an  element  underlying  all  grants  of  a  right  to  use  the 
streets;  and  this  is  considered  the  compensation  that  the  abut- 
ting property  ow^ier  receives  for  the  use  of  his  projDcrty.^"^ 

122  staples  V.  Dick.«on,  88  :^re.  337;  4  Am.  and  Enp.  Corp.  Cas. 
3G2;  34  Atl.  Rep.  1G8.  But  see  554;  Cheney  v.  Barker,  1!)8  Mass. 
Loan   V.    Boston,    lOG   Mass.   450.  35G;    84    N.    E.    Rep.    492;    Consoli- 

123  New  Orleans  Gaslight  Co.  v.  dated  Gas  Co.  v.  Commissioners,  !)9 
Hart,  40  La.  Ann.  474;  4  So.  Rep.  Md.  403;  58  Atl.  Rep.  214;  Hard- 
415.  man   v.    Calwt,   GO   W.   Va.   GG4;    55 

124  Smith  V.  Goldsboro,  121  N.  C.  S.  E.  Rep.  75G;  7  L.  R.  A.  (N.  S.) 
350;  28  S.  E.  Rep.  479;  Boston  v.  50G;  Baltimore  County,  etc.,  El.  Co. 
Richardson,  13  Allen  IGO;  Crooke  v.  Dubrcnil,  105  Jld.  424;  G(>  Atl. 
V.  Flatbush  \V.  W.  Co.,  29  Hun  245;  Rep.  439;  9  L.  R.  A.  (N.  S. )  GS4 ; 
West  V.  Bancroft,  ^2  ,  t.  3G7;  Pal-  Aurora  E!.,  etc.,  Co.  v.  McWcthy. 
mer  v.  Larclimont,  etc.,  Co.,  158  N.  104  111.  App.  479;  anirmcd  202  III. 
Y.  •231;  52  N.  E.  Rep.  1092  (eiec-  218;  G7  N.  E.  Rep.  9  (city  owned 
trie    lif,'iit    poles).       See    Columbia  fee  of  streets). 

Conduit    Co.    v.    Commonwealth.    90  i-"' Ampt    v.     Cincinnati,     «      Oliio 

Pa.  St.  307;  Quincy  V.  Bull.  lOG  111.       N.     P.     401;     Witcher     v.     Holland 


550  OIL    AND   G.\S. 

§501.     Pipes  laid  in  navigable  river. 

X(ir  iiinv  n  u;is  (Mniipaiiy  lay  its  ])i|)0  lino  on  tlio  1)P(1  of  a 
nmipiMc  I'ivcr;  if  it  desires  to  cross  such  a  stream  it  must 
bury  its  ])i)w  line  beiientli  the  l)e(l  thereof.  Thus  wlicre  a  com- 
pany had  full  ])ower  to  lay  and  maintain  pipes  for  transporta- 
tion of  gas,  laid  an  eight-inch  main  on  tlie  bottom  of  a  navigable, 
river  it  was  crossing;  and  a  steamboat  came  along,  ran  int(j  the 
pipe  without  fault,  and  broke  it,  and  gas  thereby  escaped,  en- 
tered the  furnaces  of  the  boat  and  exploded,  the  gas  company 
was  held  liable  for  all  damages  occasioned  by  the  explosion ; 
for  the  pijie  was  wrongfully  placed  on  the  surface  of  the  river 
bed.^'*^  Jf  a  gas  company  has  the  right  to  lay  its  mains  across 
a  river,  it  must  do  so  that  they  will  neither  impede  nor  hinder 
boats  using  such  river;  and  if  it  do  not,  and  the  mains  are 
injured  by  boats  passing  up  and  down  the  river,  the  gas  com- 
pany cannot  recover  damages  for  such  injuries. ^"^  And  if  a 
gas  main  is  so  laid  in  a  navigable  river  that  it  impedes  naviga- 
tion, a  vessel  caught  in  passing  and  detained  thereby  may  re- 
cover as  damages  the  actual  expense  of  getting  free  from  the 
obstruction,,  but  not  for  delay  in  its  business  or  other  conse- 
quential damage.^"'* 


Water  Works  Co.,  66  Hun  619;  20 
N.  Y.  Supp.  560;  aflirmed  142  N.  Y. 
626;   37  N.  Y.  Rep.  565. 

In  Palmer  v.  Larchmont,  etc.,  Co., 
supra,  it  is  said  that  tlie  necessity 
for  a  light  in  a  highway  was  for 
the  municipal  authorities  to  deter- 
mine, and  not  for  tlie  court  in  a 
case  of  ejectment. 

In  Providence  Cas  Co.  v.  Thur- 
ber,  2  R.  I.  15,  it  was  held  that  a 
gas  company  liaving  an  incorporeal 
easement  and  not  a  mere  license  in 
the  streets  was  estopp^'d  from  claim- 
ing that  its  grant  nder  the  charter 
was  void,  becau.se  no  compensation 
was  provided  thereby  for  the  owners 
of  the  land  tlirough  which  its  pii)es 
passed. 

128  Omslear  v.  Pliiladelphia  Co., 
31   Fed.   Rep.   354. 

127  Milwaukee  Gaslight  Co.  v. 
Schooner    Gamecock,    23    Wis.    144. 


See  Municipal  Chamlx^r  of  Hamburg 
V.  Gas  Company,  5  Gas.  J.  710. 

128  Benson  v.  Maiden,  etc.,  Co., 
6  Allen  14!). 

As  to  being  deprived  of  use  of 
public  wharf  by  a  gas  com])any,  see 
Wetmore  v.  Brooklyn  Gaslight  Co., 
42  N.  Y.  384:  rent  therefor.  People 
V.  San  Francisco,  54  Cal.  248;  and 
tolls,  Soule  V.  San  Francisco,  54 
Cal.   241. 

A  statute  may  authorize  a  gas 
company  to  use  a  toll  bridge  in 
crossing  a  river,  upon  paying  com- 
pensation. TafT  Vale  Co.  v.  Cardiff 
L.  &  C.  Co.,  71  .T.  P.  350;  5  L.  G.  R. 
993;  23  T.  L.  R.  528. 

If  a  gas  company  so  befoul  a 
river  as  to  work  a  private  (not  a 
public)  injury,  it  will  be  liable  to 
the  person  injured.  Manhattan  Gas- 
light Co.  V.  Barker,  7  Robt.  (N.  Y.) 
523 


STREETS    AND    HIGHWAYS. 


551 


^502.      Grant  of  right  to  use  suburban  highway. — Compensation  to 
abutting  land  owner. 

The  owner  of  land  alnittin^'  on  a  rural  liijnvay  has  such  an 
interest  in  it  that  the  legislature  cannot  authorize  ^as  coiupanie.s 
to  lay  their  pipe  Hues  in  it  without  providins:  a  method  for 
oompensatinir  him  for  all  damag^es  he  may  suffer  by  reason  of 
the  additional  burden  n])on   the  fee.^'"* 


120  Consumers',  etc.,  Co.  v.  Hunt- 
singer,  14  Ind.  App.  15(5;  42  N.  E. 
Kep.  U40;  Kincaid  v.  Indianapolis, 
etc.,  I  o.,  124  Ind.  577;  24  N.  E. 
Rep.  U)tiG;'8  L.  K.  A.  (iU2 :  Hoard 
V.  Indianapolis,  etc.,  Co.,  134  Ind. 
209;  33  N.  E.  Rep.  972;  Krueger  v. 
Wisconsin  'lei.  Co.,  lUG  Wis.  90; 
81  N.  W.  Rep.  1041;  50  L.  R.  A. 
298;  Postal  Telegraph  and  Cable 
Co.  V.  Eaton,  170  111.  513;  49  N.  B. 
Rep.  365. 

State  V.  Kansas,  etc.,  Co.,  71  Kan. 
508;  80  Pac.  Rep.  9G2;  Richards  v. 
Citizens'  etc.,  Co.,  124  N.  Y.  App. 
Div.  401;  104  N.  Y.  Supp.  Rep. 
927;  La  Harpe  v.  Elm  Tp.  Gas,  etc., 
Co.,  69  Kan.  97;  76  Pac.  Rep.  448; 
Ward  V.  Triple  State,  e  c,  Co., 
115  Ky.  723;  74  S.  W.  Rep.  709; 
25  Ky.  L.  Rep.  116;  Paine  v.  Calor 
O.  &  G.  Co.  (Ky.),  103  S.  W.  Rep. 
309;  31  Ky.  L.  Rep.  754;  Baltimore 
County,  etc.,  Co.,  105  Aid.  424; 
66  Atl.  Rep.  439;  9  L.  R.  A.  (N.  S.) 
684.  Contra,  Hardman  v.  Calnjl,  60 
W.  Va.  664;  55  S.  E.  Rep.  756;  7 
L.  R.  A.   (N.  S.)  506. 

Where  a  statute  provided  that 
the  county  commissioners  in  grant- 
ing francliisos,  should  not  destroy 
the  vested  rig'hts  in  streets  and 
highways,  the  grant  of  a  riglit  to 
lay  jiipes  in  a  street  and  highway 
was  held  not  objectionable  as  afTect- 
ing  private  riglits  previously 
granted  to  another.  Consolidated 
Gas  Co.  V.  Commissioners,  99  ]\Id. 
403;    58   Atl.   Rep.  214. 

A  town  granted  a  water  company 
the  right  to  furnish  water  within 
its  boundaries.  Afterwards  the  town 
became  part  of  a  city,  and  tlie  com- 
pany, in  order  to  furni-^h  water, 
attempted  to  lay  its  jjijx's  along  a 
bare  country  road  within  the  limits 
of  .another  town  wliich  had  ])ecome 
a  part  of  the  city.  It  was  held  that 
the  road  could  not  be  appropriated 


without  oom{)onsation  to  the  owners 
of  the  fee,  since  the  taking  of  tin; 
town's  territory  into  tiie  city  did 
not  change  tlie  nature  of  the  country 
road  to  a  street.  Richards  v.  Citi- 
zens', etc.,  Co.,  124  N.  Y.  Aj)]).  Div. 
401;    104  N.  Y.   Supp.   Rep.  927. 

In  an  action  to  enjoin  the  use  of  a 
highway  for  gas  pi|x;s,  on  the  ground 
that  the  pipes  are  not  maintained 
and  the  gas  conveyed  by  means 
thereof  for  such  purpose,  the  pjain- 
tiir  must  show  the  fact  of  non-user; 
anxl  the  defendant  that  the  pijjcs 
are  so  maintained  and  gas  so  con- 
veyed under  his  denial  of  the  allega- 
tions of  the  bill.  Hardman  v. 
Cabot,  60  W.  Va.  (564;  55  S.  E.  Rep. 
756;   7  L.  R.  A.   (N.  S.)   506. 

That  a  street  was  named,  that 
houses  fronted  on  it  and  were  num- 
bered, and  that  a  gas  company  was 
having  pipes  laid  under  it,  was  a 
sufficient  showing  it  was  a  public 
street.  O'Hara  v.  Laclede  Gasliglit 
Co.,  131  ]\Io.  App.  428;  110  S.  W. 
Rep.  642. 

iliat  pipes  cannot  be  laid  in  a 
country  highway  without  the  con- 
sent of  the  public  authorities,  see 
Hardman  v.  Cabot,  60  W.  Va.  (564; 

55  S.  E.  Rep.  756;  7  L.  R.  A.  (N. 
S.)  506;  Twin  Village  Water  Co.  v. 
Damariscotta  G.  L.  Co.,  98  Me.  325; 

56  Atl.  Rep.  1112;  and  that  it  can, 
see  Consolidated  Gas  Co.  v.  Haiti- 
more  County,  99  IMd.  403:  57  Atl. 
Rep.  29;  State  v.  Kansas  Nat.  (Jas, 
etc.,  Co.,  71  Kan.  508;  80  Pac.  Rep. 
962. 

Where  the  highway  commissioners 
acquiesce  without  oI)jectioii  in  the 
acts  of  a  gas  company  in  laying  its 
])ipes  in  tlie  streets  for  neailv  half 
a  centiiry,  it  will  be  presumed  that 
they  had  given  their  consent  to  tlie 
company's  use  of  the  streets.  Peo- 
ple V.  Lromwell,  89  N.  Y.  App.  Div. 
291;    85  N.  Y.  Supp.  Rep.  878. 


552  OIL    AND    GAS. 

§503.     Condemnation  of  land  owner's  interest  in  highway. 

Proceed iiiirs  iindcr  tlio  power  of  eminent  doniaiii,  to  condemn 
the  abutting  land  owner's  fee  in  the  highway,  does  not  affect 
the  right  of  the  puhlie,  nor  give  the  gas  company  the  riglit  to 
use  the  highway  without  the  consent  of  the  public  authorities. 
In  aihlition  to  a  judgment  of  condemnation,  the  gas  company 
must  procure  the  consent  of  the  public  authui'ities  to  use  the 
highway.^^" 

i<504.    Land  owner  acquiescing  in  occupation  of  rural  highway. — 
Injunction. —  Estoppel. 

While  an  owner  of  land  abutting  upon  a  rural  or  suburban 
highway  is  entitled  to  compensation  for  the  additional  burden 
imposed  by  the  laying  of  pipe  lines  in  such  highway,  because 
of  the  additional  burden  they  impose  ujwn  his  land  beneath 
the  easement;  yet  if  he  stands  l)y  and  makes  no  objection  to 
the  laying  of  the  pipes  until  they  are  put  to  an  actual  use,  he 
will  be  estopped  to  then  p'revcnt  their  use.  This  is  espe- 
cially true  if  the  company  laying  the  pipes  is  engaged  in  a 
public  service.  ''  There  was  an  assertion  of  a  right  to  use  the 
highway,"  it  was  said  in  one  case,  "  and  the  gas  company  had 
expended  large  sums  of  money  on  the  faith  of  the  license 
granted  to  it  by  the  board  of  commissioners.  Tt  had  assumed 
to  use  the  highway  for  a  public  purjwse,  and  many  citizens 
had  acquired  rights  npon  the  faith  of  the  successful  and  ef- 
fective prosecution  and  conduct  of  the  Avork  and  business  un- 
dertaken by  the  company.  The  appellant,  with  knowledge  of 
the  facts,  made  n*^  objection  until  the  completion  of  the  main 
line  and  system,  but  delayed  until  they  had  been  completed 
and  then  asked  an  injunction.  To  grant  the  relief  he  seeks 
Avill,  it  is  clearly  inferable,  seriously  impair  the  rights  of  the 
])ublic  as  well  as  those  of  the  gas  company.     "We  are  satisfied 

130  Board  v.  Indianapolis,  etc.,  Co.,  ponsation,    and    is    also    entitled    to 

134    Ind.   209;    33    N.    E.    Rop.    972.  whatever  damage  results  to  his  ad- 

Where  a  gas  company,  by  consent  jacent  premises,  whether  the  laying 

of    the    public    authorities,    lays    a  of    the    pipe    was    negligently    done 

gas  pipe  in  a  public  rural  highway,  or  not.     Ward  v.  Triple  State,  etc., 

the   abutting   landowner    is   entitled  Co.,    115   Ky.   723;    74   S.    W.   Rep. 

to   recover   the  value    of  the   estate  709;   25  Ky.  L.  Rep.  116. 
taken,  not  a^  damages,  but  as  com- 


STREETS    AND    HIGHWAYS.  5r)2a 

that  upon  the  ease  made  1)y  Ihc  evidence,  the  appelhmt  is  not 
entitled  to  an  injunction.  Tn  adjudging  that  he  has  no  right 
to  an  injunction,  we  do  nut  hold  that  he  may  not,  in  a  pmper 
case,  recover  damages  for  the  invasion  of  his  legal  right.  What 
Ave  here  decide  is,  that  the  case  made  is  not  one  justifying  resort 
to  the  extraurtlinarv  remedy  of  injuiu'tiun.  The  effect  of  our 
decision  is  that  he  has  mistaken  his  remedy.  The  work  in 
which  the  gas  company  is  engaged  is  one  in  which  the  general 
community  have  an  interest,  and  to  arrest  the  work  hy  injnnc^ 
tion  would  do  great  iujui'v  tu  many  citizens.  l\>rs()ns  other 
than  the  company  have  an  interest,  and  they  arc  so  numerous 
that  it  is  the  duty  of  the  courts  to  ])rotect  that  interest  where 
it  can  be  done  without  niat(M-ially  impairing  the  I'iglits  of  any 
private  citizen,  and  that  can  be  done  in  tliis  instance,  for  the  ai> 
pellant,  in  the  appropriate  action  and  ujxm  making  a  proper 
case,  can  be  fully  comjx^nsated  for  all  injury  that  he  may  have 
suffered.  There  is  here  an  element  of  public  policy  wliieli  ex- 
erts a  controlling  interest.  The  good  of  the  community  forbids 
that  one  who  oceu])ies  such  a  position  as  the  appellant  does 
should  be  permitted  to  arrest  work  essential  to  the  successful 
discharge  of  the  company's  duty  to  supply  the  community  with 
fuel  in  the  form  of  natural  gas.  Public  policy,  as  has  l)een 
demonstrated  in  analogous  cases,  re(iuires  that  the  rights  of 
the  community  should  be  protected,  and  the  land  owner  left  to 
his  remedy  at  law.  Xor  does  this  rule  o]x^rate  unjustly,  for  the 
land  owner  is  not  de]U'ived  of  compensation  ;  on  the  contrary, 
the  right  to  compensation  is  left  open  to  him,  and  it  is  his 
■own  fault  if  he  does  not  recover  full  com]x^nsation  for  all  tlie 
loss  he  has  actually  sustained.  Blended  Avitli  the  element  of 
public  policy  is  another  influential  one,  and  that  is  this:  The 
tip]x^llant  objecting  knowingly  permitted  the  work  to  proceed 
until  it  reached  a  stage  at  wbich  it  would  be  ruinous  to  the 
company  Avhich  had  invested  such  large  sums  of  money  to  stop 
it  by  injunction.  These  two  elements,  in  tbeir  combined 
•strength,  certainly  make  a  case  in  which  an  injunction  should, 
upon  ]>lain  ])rineiples  of  eipiity,  1m'  denied."  '"^^      But  the  mere 

i''i  KiiU'iiid    V.    Inilinnnpolis,    otc  285;   40  X.   E.   ttcp.  .14;   f'oiisiiniors', 

To..    124    Tnd.    'u7 ;    24   N.    E.    Rop.  otc.  Co.  v.  nunlsiiifror.  14  Iml.  App. 

lOfifi:    8  L.   R.   A.  002;   ron^><m-i*'.  1.56;   42  N.  E.  Rep.  640. 
«tc.,  Co.  V.  Huntsintrer,  12  I  ml.  App. 


C)52b  OIL    AND    GAS. 

fact  that  the  owner  of  the  ahull  iiig  hind  made  no  objection  to 
hiying  pipe  lines  in  one  highway  will  not  estoj)  him  to  object 
to  tlie  laying  of  a  l)ipe  line  in  another  highway  upon  which 
his  land  abuts.*"'  So  if  the  owner  of  the  fee  did  not  know  of 
the  laying  of  the  pij)e  line  in  the  highway  at  the  time  it  was 
laid,  the  mere  fact  that  he  made  no  objections,  after  he  found 
out  the  fact  about  it,  to  the  line  or  its  maintenance  will  not 
estop  him  from  asserting  a  right  to  have  it  removed/"^ 

§505.     Pipe  lines  in  country  highway  an  additional  burden  on 
the  fee. 

The  easement  the  public  acquires  in  a  right  of  way  taken 
for  a  country  or  suburban  highway  is  one  solely  of  passage  —  a 
right  to  travel  along  it  —  and  no  other.  "  Subject  to  the  right 
of  the  public,"  says  the  Supreme  Court  of  Indiana,  "  the  owner 
of  the  fee  of  a  rural  road  retains  all  rights  and  interest  in  it. 
lie  remains  the  owner,  and,  as  such,  his  rights  are  very  com- 
])rehcnsivc.  .  .  .  The  appropriation  of  the  land  for  a  rural 
highway  did  not  entitle  the  local  officers  to  use  it  for  any  other 
than  highway  purposes,  although  they  did  acquire  a  right  to  use 
it  for  all  purposes  legitimately  connected  with  the  local  system 
of  highways.  A  use  for  any  other  than  a  legitimate  highway 
purpose  is  a  taking  within  the  meaning  of  the  Constitution, 
inasmuch  as  it  imposes  an  additional  burden  upon  the  land,  and 
whenever  land  is  subject  to  an  additional  burdon  the  owner  is 
entitled  to  additional  compensation.  The  authorities,  although 
not  very  numerous,  are  harmonious  upon  the  proposition  that 
laying  gas  pipes  in  a  suburban  mad  is  the  imposition  of  an  ad- 
ditional burden,  and  that  compensation  must  be  iu."de  to  the 
owner."  *^*      An  injuiu-tirtn  will  be  granted  to  protect  the  rights 

132  Consumers',  etc..  Co.  v.  Hunt-  Co..    124    Tnd.   577 ;    24   N.    E.   Rep. 

singer.   14  Ind.  App.   156;   42  N.  E.  1066;    8   L.   R.   A.   602;    Bloomfield, 

Rep.    640;    Consumers',   etc..    Co.    v.  etc..   Co.    v.  Calkins.  62  N.  Y.  386; 

iluntsinrrer.    12    Tnd.    App.    285;    40  1    T.    and    C.    549;    Bloomfield,   etc., 

N.    E.    Rep.    .34;    Calbreath    v.    Ar-  Co.    v.    Richardson,    63    Barb.    437; 

mour.  4   Bell   App.   Cases  374.  Rterlinir's   Appeal.    116    Pa.    St.    35; 

".HHnfTman     v.     State.     21     Ind.  Webb      v.      Oliio      Cas      Fuel      Co.. 

App.  440;   52  N.  E.  Rep.   715.  16      Wkly.      Law      Bull.       121;      9 

134  Kincaid   v.    Indianapolis,    etc.,  Ohio     Dec.     Rep.     Ci('>2;     Biddle     v. 


STRKETS    AM)    11  Kill  WAYS. 


i53 


of  an  abutting  land  owner,  even  llmugli  the  soil  under  the  high- 
way is  of  no  actual  value  to  him/""* 


§506.     Consent  of  county. —  Public  highways,  crossing. 

Whore  the  road  is  Innoud  the  limits  of  a  city  or  town,  then 
the  eonsent  of  the  county  authorities  must  ho  obtained  beftue 
laying  the  gas  pipes  or  mains  therein.  As  a  rule,  the  laying 
of  gas  pipes  in  a  ])ubli(*  highway  without  consent  of  the  proper 
authorities  is  such  an  act  as  will  lay  the  individuals  doing  it 
liable  to  an  indictment  and  ])unishment,  "  It  seems  to  us," 
said  one  court,  "  that  when  the  Salemonie  Gas  Company  en- 
tered upon  the  lands  in  question  without  the  consent  of  the 
owner  of  the  fee,  and  without  permission  of  the  board  of  county 
commissioners,  it  became  a  trespasser,  and  was  upon  such  lands 
unlawfully."  ^^°  Where  a  statute  gave  a  natural  gas  com]\any 
authority  "  To  dig  its  trenches,  to  lay  its  pipe  lines  over,  across 
or  under  any  .  .  .  road,  highway  or  railroad,  so  as  to  not 
interfere  with  the  free  use  of  the  same,  whicli  the  route  thereof 
shall  intersect,  in  such  manner  as  to  afford  security  for  life  or 
property ;  and  whenever  the  board  of  county  commissioners  of 
the  proper  county  shall  so  direct,  said  trenches  and  ]>ipe  lines 
may  be  constructed  and  laid  along  the  right  of  way  of  any  road 
or  highway,  but  in  all  cases  wdiere  said  trenches  or  pipe  lines 
shall  be  laid  across,  upon  or  along  any  general  road,  or  highway 
thus  intersected,  said  company     .      .     .      shall  inuned lately  re- 


Wayne  W.  W.  Co.,  7  T)o\.  Co.  Rpp. 
IGl;  Murray  v.  C.itjson.  21  111.  Ajip. 
488  (a  drain)  :  Indiana,  cto..  R.  Tx. 
Co.  V.  Hartley,  (i7  111.  AlV.)  (a 
drain);  Board,  etc.,  (o.  v.  llarnott, 
107  111.  507  (a  drain);  Consumers' 
etc.,  Co.  V.  Huntsingcr,  14  Ind.  App. 
15G;  42  X.  E.  Rep.  040.  See  Colum- 
bia Conduit  Co.  v.  Commonwealth, 
90  Pa.  St.  307;  Paine  v.  Calor  Oil 
&  Gas  Co.  (Ky.),  lO:}  P.  \V.  Rep. 
309;   31   Ky.  L.  Rep.  754. 

Where  an  owner  of  land  prants 
to  a  pipe  line  company  the  ripht  to 
lay  its  pipes  under  his  land,  ilie 
company  is  not  liahle  for  any  dam- 
aires  to  the  owner  if  it  lays  its  pipes 
within  the  limits  of  the  rifrht  of 
way,  according  to  the  methods  cu3- 


fomarily  ndojited  in  prosecution  of 
such  uiidcrtakin<fs.  and  without  nc^f- 
li^fcncf.  W'innett  v.  ('arne<;ie  Nat- 
ural Gas  Co.,  .37  Pa.  Super.  Ct.  2(14. 

13'  Goodson  V.  Richardson,  L.  R. 
0  Ch.  221;  43  L.  J.  Ch.  7!)();  30 
L.  T.  (N.  S.)  142;  22  \V.  11.  .•{37: 
Clippens  Oil  Co.  v.  Edinljur<,di 
25   Rettie  370. 

i-oIIutTman  v.  State.  21 
App.  449;  52  N.  E.  Rep.  713;  C<m- 
suniers',  etc..  Co.  v.  Iluntsinger.  14 
Ind.  App.  150:  42  \.  E.  Rep.  040; 
TTardman  v.  Cal>ot.  fiO  W.  Va.  (5(54 : 
55  S.  E.  Rep.  75(5;  7  L.  R.  A. 
CS.  S.)  500;  People  V.  Cromwell. 
89  N.  Y.  App.  Div.  291;  85  N.  Y. 
Supp.  Rep.  878. 


etc 


III. 


554  OIL   AND    GAS. 

store  the  same  to  its  former  state,"  it  was  held  that  while  the 
natural  gas  company  could  cross  a  public  highway  without  the 
consent  of  the  board  of  county  commissioners,  it  could  not  lay 
its  jjipe  lines  along  it  without  tirst  obtaining  consent  from  them 
to  do  so."^ 

§507.     Revocation  of  license  to  use  highway. 

Having  once  granted  to  a  gas  company  the  right  to  use  the 
rural  liighway  of  the  county,  the  county  authorities  cannot  re- 
voke the  right  if  tiie  company  has  accepted  and  acted  upon 
it ;  and  in  an  action  to  prevent  the  company  from  laying  its 
pipes  in  the  highway  over  which  the  right  was  granted  to  lay 
pipe  lines,  the  county  must  not  oidy  show  facts  entitling  it  to  a 
rescission,  that  the  company  had  not  acted  in  good  faith  upon 
the  license  granted,  and  that  it  was,  at  the  time  th(>  suit  was 
instituted,  attempting  or  threatening  the  use  of  the  highway 
for  the  purpose  given  it  in  such  license.^^^ 

§508.     Abutting  land  owner  removing  pipe  lines. 

If  ])ipe  lines  have  been  laid  in  a  public  highway  without  the 
consent  of  the  abutting  land  owner,  and  without  compensation 
to  him  because  of  the  additional  burden  on  the  fee,  be  may  re- 
move them;  and  neither  he  nor  those  assisting  him  will  be 
liable,  in  the  absence  or  use  of  unnecessary  force  or  violence."® 

§  509.     Removal  of  pipes  unlawfully  laid  in  rural  highv^ay. 

If  a  gas  company  lay  pi]X3  lines  in  a  rural  highway  without 
the  consent  of  the  abutting  land  owner,  it  may  not  remove  them 
without  his  consent.  As  soon  as  they  are  placed  iii  the  soil  they 
become  a  part  of  the  freehold  ;  and  their  removal  by  the  com- 
pany lays  it  liable  to  an  indictment  for  trespass  upon  the  land 
in  which  they  are  embedded.  "  It  seems  to  us,"  said  the  Ap- 
pellate Court  of  Indiana,  "  that  when  the  Salemonie  Gas  Com- 

I'iT  Consumers'    Gas    Trust   Co.   v.  iss  Board     v.     Indianapolis,     etc., 

Huntsincrer,    14    Ind.    App.    1.56;    42  Co.,    134    Ind.    209;    3.3    N.   E.    Rep. 

N.  E.  Rep.  640;  Board  v.  Tndianap-  072. 

olis.  etr..  Co..   134  Tnd.   209;   33  N.  1 39  Consumers',  etc..  Co.  v.  Hunt- 

E.   Rep.   972;    Consumers',   etc.,   Co.  sinjjer,   14  Ind.  App.   156;  42  N.  E 

V.  Huntsinfrer.  12  Ind.  App.  28.');  40  Rop.  040. 
N.    E.    Rop.    34. 


STUKKTS     AND     IIKillWAYS.  O.ii) 

pany  entered  iip<in  the  lands  in  ([nestion  witliont  the  consent  of 
tlie  owner  of  the  fee,  and  withtmt  j>erniission  dl"  the  board  of 
county  eonnnissioners,  it  became  a  tresijasser,  and  was  u]ion 
such  lands  iinhiwfnlly.  If  it  was  nnhiwfnl  in  the  lirst  phice 
to  go  njKin  the  lands  to  constrnct  the  piiK'  line,  withont  the 
consent  of  the  owner,  it  was  likewise  nnlawfnl  to  go  npin  them 
to  remove  the  same,  and  hence  when  api)ellant  was  upon  the 
lands  of  the  prosecuting  witness,  in  charge  of  a  force  of  men 
engaged  in  removing  snch  pipe  line,  he  was  nnlawinlly  there. 
While  appellant  was  not  himself  engaged  in  the  mamuil  re- 
moving of  the  pijx*,  he  was  directing  and  overseeing  the  work 
of  removal."  "  Xeither  a  private  jierson  nor  a  Cdrpdratiim  has 
any  inherent  right  so  to  use  a  public  thoroughfare,  and  where 
the  projTcr  steps  have  not  Ix^en  taken  to  acquire  such  right,  it 
is  a  tres])ass,  within  the  meaning  of  the  statute,  so  to  do.  So, 
when  the  appellant  Avent  u])on  the  land  of  the  prosecnting  wit- 
ness to  take  up  the  pipe  line,  he  was  there  unlawfnlly  ;  and 
when  he  refused  to  depart,  upon  being  notified  to  do  so,  it  was 
a  violation  of  the  statute,  for  which  he  must  answer."  ^*" 

§510.     Pipes  on  surface  of  highway  or  street. 

Whatever  may  be  the  right  to  lay  gas  pipes  in  a  highway  or 
"treet,  it  is  clear  that  none  can  be  acquired  to  lay  the  pipes  on 
*ts  surface.  A  street  or  highway  is  for  public  travel,  and  not 
for  private  purposes.  Tt  must  \>o  free  from  obstrnctions  to 
travel  from  side  to  side,  from  end  to  end.  If  jiipcs  arc  laid 
on  the  surface  of  a  street  or  highway,  the  company  will  be  liable 
for  all  damages  occasioned  thereby,  even  though  such  damages 
would  not  have  been  occasioned  by  the  pipes  if  they  bad  been 
buried  in  trenches. ^*^  '^  It  is  a  nuisance  and  nnlawfnl  to  place 
and  keep  or  leave  continuously  in  a  public  highway  anything 
which  either  impedes  or  endangers  public  travel.  This  rnle 
applies  to  the  whole  width  of  the  highway,  and  not  merely  to 
a  worn   portion  of  it  commonly  used  for  passage.      Privileges 

i'*f>Hii(Tman     v.     Stato.     21     Iiid.       Ind.  44.3;   39  N.  E.  Rep.  57;  29  L. 
App.  449;   .52  N.  E.  Rep.  71.3.  R.    A.    .342. 

141  Lebanon,  etc.,  Co.  v.  Leap,  139 


556  OIL    AND    GAS. 

wliic'h,  if  usurped  by  ii  i^rcater  nuiiibor  of  persons  or  corpora- 
tions would  change  the  road  from  a  public  casement  to  a  mere 
s})ecial  benelit  or  convenience  to  such  usurj^ers,  are  not  lawful 
for  any  of  them.  The  user  must  be  consistent  with  the  con- 
tinued use  of  the  road  every  part  thereof  as  a  passageway  by 
all  ])ersons  exercising  ordinary  care."  ^*''  In  the  case  from 
which  this  quotation  is  made,  a  half-inch  gas  ]npe,  the  thickness 
of  the  iron  being  one-eighth  of  an  inch,  was  laid  in  the  highway 
four  feet  from  the  fence;  and  it  was  hid  by  weeds,  and  grass 
that  covered  it,  having  laid  there  several  years.  A  stranger 
to  that  neighborhood  was  taking  a  traction  engine  into  a  field 
bordering  on  the  highway,  and  not  knowing  of  the  existence  of 
the  pipe,  ran  over  it,  broke  it,  and  an  explosion  followed,  to 
his  injury.  It  was  held  that  the  company  laying  the  pipe  in 
the  highway  were  liable  to  recompense  him  for  his  injuries. 
So  where  a  boy  eighteen  years  of  age,  passing  along  a  highway, 
stopped  to  look  at  burning  gas  escaping  from  a  pipe  laid  in  such 
highway,  and  he  was  told  by  another  boy  with  him,  that  if  he 
would  raise  up  the  j)ipe  it  would  make  a  nice  fire,  which  he 
did,  and  an  explosion  follow^ed,  to  his  injury,  it  was  held  that 
he  could  recover,  and  that  he  did  not  so  contribute  to  the  ex- 
plosion so  as  to  bar  his  right  to  recover  damages.^'*^ 

§  510a.     Size  of  pipes. — Number  of  pipes. 

Unless  some  statute  or  ordinance  or  the  grant  itself  specifies 
the  size  of  the  pipes  to  be  laid  in  the  street,  the  whole  matter 
is  within  the  control  of  the  gas  company.  It  may  lay  pipes 
unnecessarily  large  for  the  accommodation  of  its  customers.  If 
it  may  transmit  gas  to  another  municipality,  then  it  may  lay 
pipes  in  the  municipality  when  it  has  its  plant  sufficiently 
large  to  carry  a  sufficient  supply  to  such  other  municipality.'** 

142  Indiana,   etc.,    Co.   v.   McMath,  In  Pennsylvania  tlie  courts  under 

26    Ind.   App.    154;    57   N.    E.   Rep.  a   statute    may    compel    a    gas   com- 

593 ;  59  N.  E.  Rep.  287.  pimy  to  put  its  pipes  under  ground. 

i*";  Lebanon,     etc.,     Co.     v.     Leap,  Kiskiminetas  Tp.   v.  Coemaugh  Gas 

supra.      See   Ohio   Gas   Fuel    Co.   v.  Co.,   14  Pa.  Super.  Ct.  G7. 

Andrews,  50  Ohio  St.  095;  35  N.  E.  1*4  Public     Service     Corp.     v.     De 

Rep.  10.39;  29  L.  R.  A.  337;  United  Grote,    70    N.    J.   Eq.    454;    62   Atl. 

States    Natural    Gas    Co.    v.    Hicks,  Rep.  65. 
134    Ky.    12;    119   S.   W.   Rep.    166; 
34   Ky.   L.   Rep.  — . 


STREETS    AND    HIGHWAYS.  557 

Where  a  owner  granted  a  gas  company  the  right  to  hiy  "lines 
of  pipe"  across  his  land,  it  was  held  that  the  laying  of  one 
line  did  not  exhaust  its  right,  and  that  it  could  thereafter  lay 
other  lines."" 

§  510b.     Pipes  interfering  with  other  pipes. 

Of  course,  gas  pipes  must  be  so  laid  as  not  to  interfere  with 
other  pipes  lawfully  laid  and  maintained  in  the  street.  Some- 
times a  statute  specifies  how  far  aw^ay  from  others  the  pipes 
must  be  laid.  And  where  such  a  statute  provided  that  "all 
pipes"  should  be  placed  at  the  greatest  practicable  distance 
from  the  nearest  part  of  any  water  pipes  then  laid,  laid  hori- 
zontally at  least  four  feet  distance  from  the  nearest  part  of 
any  such  pipe,  unless  unavoidably  necessary  to  lay  the  gas 
pipes  across  or  nearer  to  the  water  pipe,  in  which  case  the 
gas  pipe  should  be  laid  under  the  water  pipe  at  the  nearest 
practicable  distance,  not  less  than  twelve  inches,  and  should 
form  a  right  angle,  or  as  near  thereto  as  the  situation  would 
admit,  and  in  no  instance  should  any  pipe  be  laid  or  appa- 
ratus be  used  that  would  interfere  in  any  way  with  the  supply 
pipe  of  any  Avater  company,  it  was  hold  that  the  term  "all 
pipes"  referred  only  to  main  or  distributing  pipes,  and  that 
the  proximity  of  a  main  or  distributing  pipe  to  a  service  pipe 
was  not  limited  or  controlled  by  the  statute,  beyond  the  re- 
striction that  it  should  not  interfere  with  it  in  the  manner 
described  in  the  statute."" 

145  Winnett  v.  Carnegie  Nat.  Gas  new   linos  witliin   the  rij^lit  of  wny, 

Co.,  37  Pa.  Supper.  Ct.  Rep.  204.  although  he  may  7icvcr  in  fact  liave 

If,  after  an  owner  of  land  grants  seen  the  original  grant.     Winnett  v. 

to  a  pipe  line  company  the  right  to  Carnegie   Natural    Gas    Co.,    37    Pa. 

lay   lines   of   pipe   on   his   land,   the  Super.  Ct.  204. 

land    changes    ownership,    and    tlie  !■»«  Atlantic    City    Gas    &    W.    Co. 

new  owner  for  a  valuable  considera-  v.  Consumer:-/  Gas  &   Fuel   Co.    (N. 

tion    confirms   the   grant,    ho   cannot  J.  Eq.   53G;    Gl   Atl.  Rep.  750. 
prevent    the    company    from    laying 


CHAPTER  XXIV. 

MUNICIPALITY  SUPPLYING  GAS. 

§511.  Municipality  may  be  authorized  to  own  gas  plant. 

§512.  yullicicncy  of  statute  to  authorize  municipality  to  furnish  gas  for 
coiunicrcial   purposes. 

§513.  Insullicieney  of  statute  to  authorize  a  municipality  to  furnish  com- 
mercial   gas. 

§514.  Construction  of  municipal  ciiarters. 

§515.  Municipality's  profit. 

§51G.  Competition  with  private  plant. 

§517.  Election  to  authorize  purchase  or  erection  of  plant. 

§518.  Municipality  must  be  sole  proprietor  of  plant. —  Taking  stock. 

§519.  Right  to  purchase  plant  of  gas  company. 

§520.  Trustees  for  gas  works. 

§521.  Sale  of  municipal  plant. 

§522.  Municipality  may  lease  its  own  gas  works. 

§523.  Rules  and  regulations. 

§511.     Municipality  may  be  authorized  to  own  gas  plant. 

It  is  clear  that  a  jiiiiniei])ality  cannot  own  a  g\as  plant  and 
siip]>ly  its  inhabitants  with  gas  for  lighting,  heating  or  power 
pur]X)ses  unless  some  statute  in  direct  terms,  or  by  very  strong 
implication,  au^orizes  it/  It  is  universally  the  case  that  such 
institutions  of  government  are  authorized  to  snjtply  their  in- 
habitants with  M'ater ;  but  the  practice  has  not  been  so  universal 
with  reference'  to  light;  although  the  practice  is  almost  daily 
growing,  to  '/ctcnd  such  power  to  them.  The  ])o\ver  of  the 
legislature  tc  aiithoi-izc  a  miini('i]uility  to  furnish  light  for  com- 
mercial p'.n'poses  to  its  inhahitants  received  a  very  careful  ex- 
aminatio,-,  by  the  justices  of  the  Supreme  Court  of  ]\rassachn- 
Rctt'-.  as  l.:te  as  181)0.      The  constitution  of  that  State  authorizes 

1  Ladd  V.  Jones,  Gl   111.  App.  5S4.  sity    exists    for    condemning    lands 

A   statute  giving  tlic  city  council  for  sucli  use,  do  not  authorize  it  to 

power    to    jjrovide    for    and    reguialc  maintain    w(trks    and    carry    on    the 

the  lighting  of  streets,  and   to   pro-  business  of  supplying  its  inliabitants 

vide  for  such  lights  as  arc  necessary  witli  light  and  iioat.     Hyatt  v.  VV'il- 

for    tiie    convenient    transaction    of  Hams,    148    Cal.    585;    84   Pac.    Rep. 

public  busine>s:  and  another  statute  41;    Houma   Lighting  &  Mfg.  Co.  v> 

authorizing    it    to    determine    what  Houma,  127  La.  720,  53  So.  970. 
are  public  uses  and  when  the  neccs- 

558 


MUNicii'ALiTY  srrri.Yixcj  GAS.  559 

the  general  court  to  make  "all  iiiaiincr  of  wliolesoine  and  rea- 
sonable orders,  laws,  statutes,  and  ordinances,"  and  to  levy 
'*  pro|X)rtional  and  reasonable  assessments,  rates,  and  taxes, 
for  the  public  service,  in  the  necessarv  defeuse  and 
support  of  the  government  of  said  commonwealth,  and  the  ])r<(- 
tection  aud  preservation  of  the  subject  thereof."  ruder  ihis 
power  the  court  was  of  the  opinion,  when  an  ojjiuiou  was  re- 
quested of  it  by  the  legislature,  that  it  could  autlutrize  a  mu- 
nicipality to  not  only  buy  or  purchase  a  gas  or  electric  liiihtiug 
plant  to  light  its  streets  and  public  buildings ;  but  it  could  also 
supply  its  inhabitants  with  gas  and  electricity  for  private  pur- 
^ses.  The  opinion,  however,  is  confined  to  the  power  to  fur- 
nish gas  or  electricity  for  lighting  purposes,  and  nothing  is  said 
concerning  the  furnishing  of  these  commodities  for  heating  or 
power."  In  other  States  similar  opinions  have  been  given. ^ 
To  levy  a  tax  to  build  a  plant  and  supply  gas  for  lighting  the 
streets,  and  also  for  domestic  purposes,  is  to  levy  one  for  public 
purposes;  and  it  cannot  be  defeated  on  the  ground  that  it  is  for 
a  private  purpose,  or  a  business  in  which  only  a  private  corpora- 
tion is  authorized  to  enter  u]x:)n.  It  is  the  duty  of  a  munici- 
pality to  light  its  streets  and  pid)lic  places  in  order  to  ju-otect 
the  lives  and  property  of  its  citizens  from  thieves,  robbers  and 
murderers;*  and  it  is  a  necessity  that  its  public  buildings 
should  be  lighted  in  order  that  its  business  may  be  properly 
transacted.  But  to  erect  a  plant  for  these  purposes  w<nild 
necessarily  result  in  a  loss  to  the  municipality  unless  there  is 
connected  with  it  the  power  to  furnish  gas  to  the  private  con- 
sumer. The  business  of  furnishing  gas  to  a  mnnicijiality  is 
of  such  a  monopolistic  character  that  if  it  should  undertake  to 
furnish  it  for  municipal  purposes  alone  it  would  Ije  vers'  often 
impossible  for  its  inhabitants  to  secure  gas  from  a  private 
source;  for   in  the  average  municipality  one  gas  company  is 

2  Opinion  of  tlie  Justires,  150  v.  Chanil)orsl)iii<T.  100  Pa.  St.  .'ill; 
Mass.  592;  24  N.  E.  Rpp.  1084;  8  28  Atl.  Rep.  842;  Hamilton  (Jas- 
L.  R.  A.  487;  Citizens'  Gasliglit  Co.  li;,'ht  and  Coke  Co.  v.  Hamilton. 
V.  \\akefield.  IGl  Mass.  432;  37  N.  146  U.  S.  258;  13  Sup.  Ct.  Rep. 
E.  Rep.  444;  Graeff  v.  Feli.K,  24  90;  affirminp:  37  Fed.  Rep.  832. 
Pa.   Co.  Ct.   Rep.    657.  ■•  Crawfordsville    v.     Braden.     l:'0 

3  State  V.  Hamilton.   47   Oliio   St.  Ind.  140;   28  N.  E.  Rep.  849;   14   I.. 
52;   23  N.  E.  Rep.  935;    Wlieeler  v.  R.  A.  268;   30  Am.  St.  Rep.  214. 
Philadelphia,  77   Pa.  St.  338;   Linn 


560  OIL   AND    GAS. 

sufficient  to  supply  all  the  gas  needed  within  its  boundaries, 
antl  two  companies  cannot  operate  with  a  sufficient  protit  to 
maintain  their  plants.  If,  therefore,  a  municipality  could  not 
sujiply  its  inhabitants  with  gas  for  domestic  pur]X)ses  they 
would  often,  indeed  in  a  very  large  majority  of  cases,  be  en- 
tirely <l('privo(l  (if  its  use.  The  rule  is  universal  that  taxation 
for  the  purjx)se  of  building  gas  and  electric  plants  for  lighting 
pur]X)ses  by  municij>alities  is  such  a  ])ublic  subject  as  author- 
izes taxation  for  that  purpose.^  Jii  furnishing  gas  to  private 
consumers  a  city  acts  in  its  capacity  as  a  private  corporation 
and  not  by  virtue  of  its  powers  of  local  sovereignty.  In  such 
a  case  the  municipality  is  bound  by  its  contracts  with  its  in- 
habitants, and  the  legislature  cannot  authorize  it  to  violate 
them.'' 

§512.     Sufficiency  of  statute  to  authorize  municipality  to  furnish 
gas  for  commercial  purposes. 

Where  a  statute  in  direct  terms  authorizes  a  municipality  to 
fiirnish  gas  for  commercial  purposes,  there  is  no  room  for  con- 
struction ;  but  where  the  power  is  an  implied  one  difficulties 
arise.  This  difficulty  is  very  well  illustrated  by  an  Indiana 
case.  In  that  State  a  statute  gave  a  city  or  town  "  power  to 
light  the  streets,  alleys  and  other  public  places  of  such  city  or 
town  with  the  electric  light,  or  other  form  of  light,  and  to 
contract  with  any  individual  or  corporation  for  lighting  such 
streets,  alleys  and  other  public  places  with  the  electric  light, 
or  other  form  of  light,  on  such  terms,  and  for  such  times,  not 
exceeding  ten  years,  as  may  be  agreed  upon."  Under  this 
statute  it  was  held  that  a  municipality  had  the  power  to  buy  an 
electric  lighting   plant,   and   as   an   incident  to   its  purchase  to 

B  Fellows  V.  Walker,  39  Fed.  Rep.  v.  Blodgett,   10  Cal.  App.  403;    102 

651;    State    v.    '1  oledo,    48    Oliio    St.  i'ac.   Rep.  (i(i8 ;   Potsdam   Electric  L. 

112;   20  N.  E.   Rep.   1001;    11   L.  K.  &  P.  Co.  v.  Potsdam,  49  N.  Y.  Misc. 

A.   729;    :  itchell    v.   Negaunee,    113  Rep.   18;   97  N.  Y.  Supp.  Rep.   190; 

Mich.  359;    71   N.  W.  Rep.  040;  38  Holton    v.    Camilla,    134    Ga.    560; 

L.   R.    A.    157;    Townsend   Oas,   etc.,  08   S.   E.   Rep.    472    (ice   plant). 

Co.    V.    Port    Townsend,    19    Wash.  s  Western  Saving  Fund  Society  v. 

407;    53    Pac.    Rep.    551;    dackson-  Philadelphia,    31     Pa.    St.     175;     72 

ville,    etc.,    Co.    v.    .JacUsonviile,    36  Am.    Dec.    730;    Railey   v.    Philadel- 

Fla.  229;   18  So.  Rep.  067;  30  L.  R.  phia,  184  Pa.  St.  594;  41   W.  N.  C. 

A.    540:    Schenck    v.    Olvphant,    181  529;   39  Atl.  Rep.  494;   39  L.  R.  A. 

Pa.  St.  191 3  37  Atl.  Rep.  258;  Cary  837. 


MUNICIPALITY    SUPPLYING    GAS.  56 1 

issue  bonds  in  order  to  secure  money  to  pay  for  it.  Xdthinjr 
is  said  in  the  opinion  concerning  tlie  furnishing  of  coninierciai 
light,  but  it  is  apparent  throughout  that  the  nuinieipality  was 
about  to  engage  u\)ou  that  enterprise.'  In  a  subsecpient  caso 
the  power  of  a  niuniciiwility  to  furnish  light  to  a  jjrivate  con- 
sumer for  remuneration  was  directly  jiresented  ;  and  its  ])ower 
upheld  under  the  statute  quoted.  The  court  considered  that 
"  the  power  to  light  the  streets  and  public  places  of  a  city  is  one 
of  its  implied  and  inherent  powers,  as  being  necessary  to  prop- 
erly protect  the  lives  and  properties  of  its  inhabitants,  and  as 
a  check  on  inunorality."  "  So  far  as  lighting  the  streets,  al- 
leys, and  public  places,  of  a  municipal  cor{X)ration  is  con- 
cerned," said  the  court,  ''  we  think  that,  indejiendently  of  any 
statutory  power,  the  nnuiicipal  authorities  have  inherent  power 
to  provide  for  lighting  them.  If  so,  unless  this  discretion  is 
controlled  by  some  express  statutory  restriction,  they  may,  in 
their  discretion,  provide  that  form  of  light  which  is  best  suited 
to  the  wants  and  financial  condition  of  the  corporation."  In 
discussing  the  power  to  furnish  light  for  commercial  purposes, 
the  court  added:  "The  corporation  ]TOSsessing,  as  it  does, 
the  power  to  generate  and  distribute  throughout  its  limits, 
electricity  for  the  lighting  of  the  streets  and  other  public  places, 
we  can  see  no  good  reason  why  it  may  not  also,  at  the  same 
time,  furnivsh  it  to  its  inhabitants  to  light  their  residences  and 
places  of  business.  To  do  so  is,  in  our  o])inion,  a  legitimate 
exercise  of  the  police  power  for  the  preservation  of  property  and 
health."  ^  A  statute  of  Iowa  gave  a  municipality  power  "  to 
establish  and  maintain  gas  works  or  electric  light  plants,  with 
all  the  necessary  poles,  wires,  burners,  and  other  retpiisites  of 
said  gas  w^orks  or  electric  light  plant."  Tender  this  statute  it 
was  held  that  it  had  the  power  to  furnish  ommercial  light. 
"  It  has  been  the  uniform  rule,"  said  the  court,  ''  that  a  city, 
in  erecting  gas  works  or  water  works,  is  not  limited  to  furnish- 
ing gas  or  water  for  use  only  u]V)n  the  streets  and  other  ]>ublic 

7"Ru«livillo   r.as  Co.   v.    Paisliville.  L.  R.  A.  268;  .30  Am.  St.  Kep.  214; 

121   Tnd.  20r.;   23  N.  K.  Rep.  72.  Horkphrnndt     v.     'M.-Klison.     0     Ind. 

sCravvfordsville    v.     Bradon.     1.30  App.  227;    30   N.  K.   Rep.  444. 
Ind.    149;    28    N.    E.    Rep.    840;    14 


562  OIL   AND    GAS. 

places  of  the  citv,  l)ut  luav  fnniisli  tlie  same  for  private  use; 
ami  the  statutes  of  Jowa  now  place  electric  li^ht  pUints  in  the 
same  category."  "  In  Tennessee  a  statute  authorized  u  munici- 
pality to  provide  itself  "  -with  water  by  water  works,  within 
or  beyond  its  boundaries,  and  to  provide  for  the  ])revention  and 
extinguishment  of  fires,  and  orgaiii/.c  and  cstahlish  lire  com- 
panies." Acting  under  the  authoi'ity  thus  conferred,  a  city 
established  water  works,  and  in  addition  to  making  provision 
for  the  extinguishment  of  fires,  it  furnished  water  to  the  citi- 
zens. The  action  of  the  city  was  upheld  by  the  Supreme  Court 
of  that  State.  "  Nothing,"  said  the  court,  "  should  be  of 
greater  concern  to  a  municipal  corporation  than  the  preserva- 
tion of  the  good  health  of  the  inhabitants;  nothing  can  be  more 
conducive  to  that  end  than  a  regular  and  sufficient  supply  of 
wholesome  water,  which  common  observation  teaches  all  men 
can  be  furnished,  in  a  populous  city,  only  through  the  instru- 
nicntalitv  of  a  well  ecpiipped  water  works.  Hence,  for  a  city 
to  meet  such  a  demand  is  to  perform  a  public  act  and  confer  a 
public  blessing.  It  is  not  a  strictly  governmental  or  municipal 
function,  which  every  niunicipality  is  under  legal  obligation 
to  assume  and  perform,  hut  it  is  very  close  akin  to  it,  and  should 
always  be  recognized  as  within  the  scope  of  its  authority,  un- 
less excluded  by  some  positive  law.  .  .  .  It  is  the  doing  of 
an  act  for  the  public  weal  —  a  lending  of  corporate  property 
to  a  public  use.  ...  It  cannot  be  ludd  that  the  city,  in 
doing  so,  is  engaged  in  a  private  enterju'ise,  or  performing  a 
municipal  function  for  a  private  end."  "  Under  an  authority 
to  contract  and  he  contracted  with,  sue  and  lie  sued,  and  do  all 
things  for  the  benefit  of  the  city,"  a  city  may  construct  and 
maintain  a  water  and  light  plant  or  either  one."  So  under  a 
statute  authorizing  a   city  to   issue  bonds,  for   municipnl   pur- 

9  Thomson-Houston  Elpctric  Co.  404;  12  S.  \V.  IJop.  924;  KUinwood 
V.  Newton,  42  Fed.  Rep.  723.  The  v.  Reedsbnrsr.  91  Wis.  131;  64  N. 
Indiana  Supreme  Court  in  the  case  W.  Rep.  88,5;  Ihuiimt'lstown  v. 
just  cited  considered  that  this  stat-  Brunner,  17  Pa.  Co.  Ct.  Rep.  140;  5 
ute   did   not  confer   any   power   not  Pa.  Dist.  Rop.  8. 

included  amonij  the  implied  powers  n  Heilbron    v.    Cuthbert,    96    Ga. 

of  a  municipal   corporation.  312;    23   S.   E.  206. 

10  Smith    V.    Nashville,    88    Tenn. 


MUNICIPALITY   SUPPLYING    GAS.  563 

poses  a  city  niav  issue  tliciii  to  build  a  plant  to  light  its  streets 
and  supply  eonnncreial  light/" 

^513.     Insufficiency   of   statute   to   authorize   a  municipality   to 
furnish  commercial  gas. 

Courts  have  not  always  indulo;od  in  the  liberal  interpreta- 
tion of  statutes  that  has  l)een  exhibited  in  the  previous  section. 
In  South  Carolina  the  Sujjrenie  Court  said  on  a  (piestion  of 
this  kind :  "  The  city  has  the  express  power  to  own  property, 
and  it  also  has  the  implied  right  to  light  the  city. 
Considering  that  some  discretion  as  to  the  mode  and  manner 
should  be  allowed  the  numicipality,  in  carrying  out  the  con- 
ceded powder  to  light  the  streets  of  the  city,  we  hold  that  the 
purchase  of  the  plant  was  not  ultra  vires  and  void,  so  far  as  it 
was  designed  to  produce  electricity  suitable  for  and  used  in 
lighting  the  streets  and  jiublic  Imildings  of  the  city."  The 
court,  however,  denied  the  power  of  the  city  to  furnish  light  to 
private  citizens,  on  the  ground  that  to  do  so  would  be  entering 
into  private  business  outside  of  the  scope  of  the  city  govern- 
ment.^^ The  same  conclusion  was  reached  in  Massachusetts. 
The  statutes  of  the  State  —  many  in  number  —  are  review(»d 
at  length  ;  but  it  is  held  that  none  authorized  a  municipality 
to  embark  in  the  enterprise  of  furnishing  private  citizens  light 
in  connection  with  the  light  it  furnishes  for  lighting  its  streets; 
indeed,  it  is  said  that  a  municipality  is  under  no  obligation 
to  light  its  streets.^*  So  in  Xew  Jersey  a  municipality  is  not 
authorized  to  erect  and  maintain  an  electric  ])lant  by  a  ]iower  to 
pass  ordinances  for  "  lighting  the  streets  " ;  for  another  pro- 
vision requires  the  council  to  establish  lamp,  police  and  water 
districts  in  the  city,  and  directs  that  the  taxes  for  lighting 
streets  shall  be  assessed  wliolly  on  the  property  within  these 
districts.      This  statute  also  authorizes  the  city  to  enter  into  a 

12  Jacksonville  Electric  Light  Co.  i3  Mauldin  v.  Greenville,  3.3  :>.  C. 

V.  Jacksonville,  30  Fla.  229;    18  So.  1;    11    S.    E.   Rep.   434;    S    L.    11.    A. 

Rep.  677;  30  L.  R.  A.  540;   Overall  291. 

V.    Madisonville,    125    Ky.    G84;    102  1 1  Spaulding  v.  Peabody,  153  Ma.sa. 

S.    W.    Rep.    278;    31    Ky.    L.    Rep.  12!);  20  N.  E.  Rep.  421;  10  L.  R.  A. 

278.  397. 


564 


OIL   .VND    G.VS. 


contract  for  street  lights  Avitli  any  party,  for  a  term  not  ex- 
ceeding five  years,  and  to  annually  levy  and  collect  a  tax  to 
pay  the  expense  thereof.^^ 


§514.     Construction  of  municipal  charters. 

In  determining  whether  or  not  a  municipality  may  own  a 
gas  plant  and  supply  its  inhahitants  with  gas  for  lighting,  heat- 
ing or  power  purposes,  it  must  be  borne  in  mind  that  a  munici- 
pality has  only  such  powers  as  the  Stalj  through  its  constitution 
or  legislative  body  has  conferred  upon  it.  "  They  [municipali- 
ties] have  no  inherent  jurisdiction  to  make  laws  or  adopt  regu- 
lations of  government ;  they  are  governments  of  enumerated 
powers,  acting  by  a  delegated  authority ;  so  that  while  the 
State  legislature  may  exercise  such  powers  of  government  com- 
ing within  a  proper  designation  of  legislative  power  as  are  not 
expressly  or  impliedly  prohibited,  the  local  anthorities  can  ex- 
ercise those  only  which  are  expressly  or  impliedly  conferred, 
and  subject  to  such  regulations  or  restrictions  as  are  annexed 
to  the  grant."  ^^  It  is,  therefore,  a  rule  of  interpretation  of 
the  charters  of  a  municipality,  or  of  the  laws  imdcr  which  it  is 


15  Howell  V.  Millville,  60  N.  J.  L. 
95;  36  Atl.  Rep.  691;  Hyatt  v.  Wil- 
liams, 148  Cal.  585;  84  Pac.  Rep. 
41. 

The  objection  that  a  city  has  no 
power  to  purchase  waterworks  can- 
not be  made  by  the  owner  of  the 
works  in  order  to  defeat  his  con- 
tract with  the  city  for  the  sale 
thereof.  Bristol  v.  Bristol,  etc.,  W. 
W.,  19  R.  I.  413;  34  Atl.  Rep.  359; 
32  L.  R.  A.  740. 

In  North  Carolina  it  was  held 
that  furnishing  water  to  the  in- 
habitants of  a  city  was  not  in  itself 
a  necessary  city  expense  in  the  sense 
that  a  city  must  own  and  operate 
a  system  of  waterworks.  Char- 
lotte V.  Shepard,  120  N.  C.  411;  27 
S.  E.  Rep.   109. 

In  New  Jersey  it  is  said  that 
making    and    selling    gas    is    not    a 


prerogative  of  government.  Jersey 
City  Gas  Co.  v.  Dwi^Mit.  2!)  N.  ,). 
Eq.  242. 

isCooley  Const.  Lim.  (0th  ed.) 
227;  citing  Stetson  v.  Kempton,  13 
Mass.  272;  Willard  v.  Killingworth, 
8  Conn.  247 ;  Abendroth  v.  Green- 
wich, 29  Conn.  356;  Baldwin  v. 
>^orth  Branford.  32  Conn.  47;  Web- 
ster V.  Harwinton,  32  Conn.  131; 
Douglass  v.  Placerville,  18  Cal.  644; 
Lackland  v.  Nortli.  Mo.  R.  R.  Co., 
31  Mo.  180;  Mays  v.  Cincinnati,  1 
Ohio  St.  268;  Frost  v.  B(dmont,  G 
Allen  152;  Hess  v.  Pegg,  7  Nev.  23; 
Ould  v.  Richmond,  23  Gratt.  464: 
14  Am.  Rep.  139;  Youngblood  v. 
Soxton,  32  Mich.  406;  20  Am.  Rep. 
654:  Detroit  Citizens'  St.  Ry.  v. 
Detroit  Ry..  171  U.  S.  48;  18  Sup. 
Ct.  Rep.  732;  affirming  110  Mich. 
384;   68  N.  W.  Rep.  304. 


MUNICIPALITY    SUPPLYING   GAS.  5G5 

incorporated,  tluit  luiwcr  not  expressly  i,Mvcn  will  ndt  lie  ])ro- 
sumcd,  nnless  necessarily  or  fairly  iiiijilic*!  in  <ir  incident  to 
other  powers  cx})ress]y  given  —  not  simply  convenient,  l>nt  in- 
dispensable to  them." 

§515.     Municipality's  profit. 

If  the  avowed  purpose  of  the  object  of  a  municipality  in  fur- 
nishing gas  is  merely  a  business  venture,  with  a  view  to  make 
a  profit  by  the  undertaking,  and  not  to  furnish  gas  to  its  inhal)- 
itants  as  cheaply  as  it  can  reasonably  be  done  without  loss  and 
to  obtain  lights  for  its  streets,  then  it  may  well  be  doubted  if 
it  can  engage  in  such  business;  for  to  do  so  would  be  to  author- 
ize a  municipality  to  engage  in  purely  a  commercial  adventure. 
But  just  where  the  line  shall  be  drawn  in  fixing  the  rates  it  may 
charge  is  difficult  to  determine.  Such  a  question  is  an  illus- 
tration of  a  theoretical  rather  than  a  practical  problem.  Pru- 
dence should  dictate  to  a  municipality  to  fix  the  rate  not  only 
sufficiently  high  to  pay  all  running  expenses,  but  high  enough 
to  furnish  a  fund  for  re])airing  the  machinery  and  other  jiarts 
of  the  plant,  and,  indeed,  to  create  a  fund  to  replace  them 
when  they  are  ultimately  worn  out,  Avithout  resorting  to  the 
power  of  taxation  to  obtain  new  machinery.  To  permit  the 
municipality  to  fix  the  rate  so  high  that  it  will  not  only  fur- 
nish these  several  sums,  but  also  make  at  least  a  return  of  a 
sum  sufficient  to  pay  the  usual  rate  of  interest  on  the  invest- 
ment, Avould  be  to  allow  it  to  engage  in  a  commercial  adventure, 
as  clearly  so  as  to  allow  it  to  make  a  greater  amount  tcnneij 
"  profit."  ^^  Of  course,  if  a  plant  is  self-sustaining,  and  the 
municipality  thereby  gets  its  street  and  own  light  fr(>e  of  charge 
(as  is  usually  the  case),  then  an  inequality  necessarily  arises 
among  its  inhabitants;  for  those  who  use  the  gas  necessarily 
pay  a  rate  so  high  that  it  enables  the  municipality  to  supply 

17  Los  Angeles  V.  Los  Angeles  City       Rep.  .304;   Park  ConiVs.  v.  Common 
Water  Co..   177   U.  S.   558;   Detroit       Council.   28  Mich.   228,  2.39. 
Citizens'  St.  Ry.  v.  Detroit  Ry..  171  is  See  Hamilton  v.  Hamilton,  etc.. 

U.  S.  48:  18  Sup.  Ct.  Rep.  7.32;  af-  Oasiiorlit  Co.,  11  Oliin  Dec.  51.3; 
firming    110   Mich.    384;    68    N.    W.        Dixon  v.  Entriken.  fi  Pa.  Dist.  Rep. 

447;   19  Pa.  Co.  Ct.  Rep.  414. 


5GG  OIL    AND    GAS. 

its  streets  and  its  public  l»nildings  with  light  free  of  cost  to 
itself,  while  those  of  its  inhabitants  who  do  not  use  the  gas  con- 
tribute nothing  towards  the  lighting  of  such  streets  and  public 
buildings.  The  inequality  uiay  not  be  very  great,  and  yet  it 
will  exist.  The  author  does  not  recall  any  instance  where  this 
fact  of  inequality  has  been  urged  as  a  reason  why  statutes 
authorizing  a  municipality  to  furnish  gas,  light  or  water  to 
private  consumers  are  unconstitutional,  or  such  an  enterprise 
unauthorized.^" 

§516.     Competition  with  private  plant. 

As  a  general  rule,  a  municipality  cannot  deprive  itself,  in 
making  a  grant  to  a  private  company,  of  the  right  to  furnish 
light  or  water,  nor  bind  itself  not  to  erect  a  plant  of  its  own 
and  not  to  compete  with  such  com.pany  in  the  furnishing  of 
light  and  water,  where  its  charter  authorizes  it  to  put  in  a  light 
or  water  plant.""  The  city  may  occupy  with  its  mains  the  same 
streets  the  private  company  is  occupying."^  If  a  municipality 
has  the  authority  to  take  water  works  under  the  power  of  emi- 
nent domain,  such  power  is  not  taken  away  by  a  contract  with 
a  private  company  for  the  supply  of  water  during  a  term  of 
years  having  in  it  a  ]>rovision  requiring  the  payment  of  hydrant 
rentals  by  such  muni('i])ality."" 

§517.     Election  to  authorize  purchase  or  erection  of  plant. 

Recent  statutes  frequently  limit  the  ])ower  of  a  municipality 
to  purchase  or  erect  a  lighting  plant,  by  first  requiring  the 
question  to  be  submitted   to  a  vote  of  the   iiihalutants  of  the 

19  Water  or  gas  rates  are  not  21  Hughes  v.  Momence,  163  HI. 
taxes  which  maj-  be  collected  by  the  535;  45  N.  E.  Rep.  300;  Water,  L.  & 
tax  collector.  Dixon  v.  Entriken,  G.  Co.  v.  Hutchinson,  144  Fed.  Rep. 
6   Pa.    Dist.    Rep.   447;    19   Pa.   Co.  25G. 

Ct.  Rep.  414.  22  Long  Island  Water  Supply  Co. 

20  Xortli  Springs  Water  Co.  v.  v.  Brooklyn,  IGG  U.  S.  685;  affirm- 
Tacoma,  21  Wash.  517;  58  Pac.  ing  143  X.  Y.  59G;  38  N.  E.  Rep. 
Rep.  773;  47  L.  R.  A.  214.  See  983;  17  Sup.  Ct.  Rep.  718;  29  Chi- 
Walla  Walla  v.  Walla  Walla  Water  cago  L.  N.  313.  See  North  Springs 
Co.,  172  U.  S.  1;    19  Sup.  Ct.  Rep.  Water  Co.  v.  Taeoma,  supra. 

77;   afTirming  GO  Fed.  Rep.  957. 


MUNICIPALITY    SUPPLYING    GAS.  5G7 

municipality.  Notice  of  the  proposition  is  required  to  bo  given. 
Sometimes  these  propositions  are  voted  upon  at  a  general  elec- 
tion, in  connection  with  the  election  of  othcers,  and  at  other 
times  a  special  election  is  held  for  the  sole  purjKJse  of  taking 
the  sense  of  the  electors  ujwn  the  propositions  submitted  to 
theuL  Thus  a  statute  of  Massachusetts  required  two  affirma- 
tive votes,  taken  at  a  meeting  that  is  peculiar  to  the  town  or- 
ganizations of  that  State,  lx?fore  the  town  could  erect  a  plant ; 
and  if  the  vote  should  at  both  meetings  be  in  the  alHrinative, 
the  town  could  then  erect  a  plant.  It  also  jirovided  that  the 
town  might  purchase  any  existing  plant  in  the  town,  after  such 
votes  had  been  taken,  if  the  owner  of  it  consented  to  sell  it  and 
they  could  agi-ee  on  terms;  but  if  the  city  declined  to  purchase, 
then  the  owner  could  apply  to  the  court  for  the  appointment  of 
commissioners  to  fix  the  value  of  his  plant,  and  the  town  was 
then  compelled  to  take  it  at  the  figures  thus  fixed.  Under  this 
statute  it  was  decided  that  a  third  vote  to  buy  an  existing  plant 
was  not  necessary;  that  tiio  fact  of  the  poles  of  the  jilatit  not 
being  legally  in  the  streets  would  not  defeat  the  petition  of  the 
owner,  that  fact  going  only  to  reduce  the  value  of  the  plant ; 
and  that  that  portion  of  the  statute  requiring  the  town  to  pur- 
chase the  plant  was  constitutional,  it  being  optional  with  the 
owner  to  sell."'^  Slight  variations  among  the  separate  instru- 
ments calling  for  an  election,  the  notice  of  election  and  the  like 
do  not  invalidate  the  proceedings.  But  a  proceeding  for  the 
building  of  a  plant  is  invalidated  Iw  the  fact  that  the  resolution 
adopted  stated  that  bonds  Avonld  lie  issned  ''  for  the  erection 
and  purchase,"  the  mayor's  proclamation  being  that  it  was 
"for  the  erection,"  and  the  ordinance  that  it  was  "for  the 
erection  or  construction"  of  a  plant.  Such  a  dou])]e  purpose 
is  such  as  to  invalidate  the  proceedings.-"  A  city  may  issue 
bonds  for  a  water  plant  alone  under  a  charter  provision  by 
separate  provisions  to  be  voted  on,  for  the  issuing  of  bonds  for 

28  Citizens'  Caslight  Co.  v.  Wake-  57  Ohio  St.  374;  49  N.  E.  Rep.  335, 

field,  ICl   Mass.  432;   37  N.  E.  Rep.  reversing  14  Ohio  C.  C.  210;  7  Oliio 

444.      See    Baltimore,    etc.,    Co.    v.  Dec.  527;  38  Wkly.  L.  Bull.  200;  39 

Boople  (111.),  6G  N.  E.  Rep.  240.  Wkly.  L.  Bull.   139. 

-*  Elyria  Gas,  etc.,  Co.  v.  Elyria, 


568  OIL   AND   GAS. 

building  one  kind  of  a  plant  without  building  the  other  also, 
although  they  are  called  "water  and  light  bonds"  in  the 
charter.-^  Of  course  the  power  to  issue  bonds  or  borrow  money 
to  build  or  purchase  a  plant  is  subject  to  constitutional  limi- 
tations concerning  indebtedness.  Where  a  statute  requires  a 
vote  to  be  first  taken  to  determine  whether  a  lighting  system 
shall  be  acquired  by  the  municipality,  the  municipal  authori- 
ties cannot  waive  a  compliance  with  the  provisions  of  the 
statute;  for  the  sanction  of  the  vote  is  a  condition  precedent 
to  the  right  of  the  municipality  to  institute  condemnatory 
proceedings,  when  necessary,  to  acquire  property  for  the 
plant.-'  So  power  wdiereby  a  lighting  undertaking  may  be 
authorized  by  a  provisional  order  of  a  municipality  to  purchase 
such  undertaking  compulsorily  on  issuing  corporation  stock 
to  a  certain  amount  is  in  abeyance  so  long  as  the  municipality 
has  no  power  to  issue  irredeemable  stock  because  of  a  subse- 
quent provisional  order  taking  away  the  power  previously 
held,  but  not  exercised  by  the  municipality,  although  the 
statutes  confirming  the  two  orders  were  approved  on  the  same 
day.-** 

§  518.    Municipality  sole  proprietor  of  plant. — Taking  stock. 

Whether  or  not  a  municipality  must  be  the  sole  owner  of  a 
gas  plant,  or  whether  it  may  embark  in  the  enterprise  in  con- 
nection with  private  funds,  depends  upon  the  state  constitu- 
tion and  statutes  of  the  State.  In  some  States  their  consti- 
tutions forbid  a  municipality  to  become  a  stockholder  in  any 
stock  company,  corporation,  or  association,  or  even  to  raise 
money  for  or  loan  its  credit  to  or  in  aid  of  any  such  company, 
corporation,  or  association.  Such  a  provision  is  sufficient  to 
prohibit  from  becoming  a  part  owmer  of  a  gas  plant,  the  re- 
maning portion  being  held  by  private  individuals.  Such  a 
provision  is  broad  enough  to  forbid  additions  to  the  works  of 

25  Janeway    v.    Duluth,    65    Minn.  been   taken   of   the   city's   electorate 

292;   G8  N.  W.  Eep.  24.  and  the  permission  of  the  State  Gas 

20  Spilman  v.  Parkersburg.  3.5  W.  Commission      obtained.        Pottsdam 

Va.  G05;    14  S.  E.   Rep.  279.  Electric  L.  &  P.  Co.,  49  :Misc.  Rep. 

27 /n   re   LeRoy,    23    N.    Y.    Misc.  18;   97  N.  Y.  Supp.   Rep.   190. 

53;  50  X.  Y.  Supp.  611.  28  Sheffield    v.    Sheflield,    etc.,    Co. 

In  New  York  a  plant  to  light  pri-  [1898],   1  Ch.  203;   77  Law  T.  Rep. 

vate    buildings    cannot    be     erected  016;  67  L.  J.  Ch.   (N.  S.)    113. 
by  a  city  until  a  favorable  vote  has 


MUNICIPALITY    SUPPLYING   GAS. 


568a 


the  municipality  ukuIo  by  private  capital,  with  a  view  of  leas- 
ing such  additions  t<>  it.'"  Ihit.  if  no  provision  of  tlie  constitu- 
tion prohibit  the  investment,  a  statute  may  provide  that  a 
municipality  may  take  stock  in  a  company  organized  to  furnish 
light  to  a  city  and  its  inhabitants.'"  A  statute  forbidding  a 
municipality  to  make  any  subscrijjtion  to  the  capital  stock  of 
an  incorp)rated  com])any  or  loan  its  credit  for  the  benefit  of 
such  company,  is  not  violated  by  an  agreement  in  a  water  con- 
tract to  pay  the  hydrant  rentals  to  the  bondholders  of  the  com- 
panying  supplying  the  water-''^ 

§519.     Ri^ht  to  purchase  plant  of  gas  company. 

Statutes  frequently  authorize  a  municipality  to  bind  itself  to 
purchase  the  plant  of  a  gas  company  at  the  end  of  a  term  of 
years  during  which  it  supplies  it  with  light ;  ''  and  without  such 
an  express  statute  there  is  nothing  objectionable  to  such  a  con- 
tract. It  simply  authorizes  the  purchase  of  a  plant  already  in 
existence,  instead  of  the  municipality  undertaking  to  build  a 
nlant  of  its  own."' 


29  Anipt  V.  Cincinnati,  56  Ohio 
St.  47;  .37  Wkly.  L.  Bull.  161;  46  N. 
E.  Rep.  69;  35  L.  R.  A.  737;  modi- 
fyinjj  12  Ohio  C.  C.  119;  1  Ohio  C. 
D.    35G. 

30  See  Marlborough  Gaslight  Co. 
V.  Neal,  160  ]\Iass.  217;  44  N.  K. 
Rep.  139;  Memphis  v.  Memphis 
Gayoso  Gas  Co.,  9  Heisk.  531. 

31  State  V.  Great  Falls,  19  Mont. 
518;   49  Pac.  Rep.   15. 

A  city  may  be  authorized  to  take 
bonds  in  a  gas  company.  New  Or- 
leans V.  Clark.  95  U.  S.  644.  In 
England,  it  may  issue  stock  to  es- 
tablish a  lighting  plant.  Sheffield 
V.  Sheffield  Electric  Light  Co. 
[1898].  1  Ch.  203;  77  L.  T.  Rep. 
616;  67  L.  J.  Ch.    (N.  S.)    113. 

32Mposho  City  Water  Co.  v.  Ne- 
osho, 136  Mo.  498;  38  S.  W.  Rep. 
89. 

33  See  Wheeling  Gas  Co.  v.  Wheel- 
ing,  8   W.  Va.   320. 


If  the  price  to  be  paid  by  the  oily 
is  to  be  fixed  by  arbitrators,  part 
chosen  by  the  city  and  part  by  the 
gas  company,  and  the  former  choose 
its  arbitrators  and  notify  the  com- 
pany; and  the  gas  company  refuse 
to  select  any,  the  city's  remedy  is  to 
apply  for  a  writ  of  mamlamns  to 
compel  it  to  select  its  arbitrators, 
and  not  a  suit  in  equity  to  enforce 
a  sale  at  the  price  fixed  by  the 
city's  arbitrators.  St.  Louis  v.  St. 
Louis  Gaslight  Co..  70  :\Io.  69. 

Vvhere  a  municipality  had  the 
power  to  jmrchase  certain  gas 
works,  and  certain  moneys  were  to 
be  raised  for  this  and  other  pur- 
poses, an  injunction  to  restrain  the 
municipality  from  opposing  a  bill 
promoted  by  the  gas  company  to  ex- 
tend its  works  was  refused,  on  the 
ground  that  such  extension  might 
prevent  the  municipality  from  pur- 
chasing the  works,  by  exceeding  in 


568b 


OIL   .IND    GAS. 


value  the  sum  allotted  to  the  mu- 
nicipality by  its  act  for  expenditure 
for  this  and  other  purjxises.  Attor- 
ney General  v.  ilayor  of  St.  Helens, 
W.  X.   (1870)   150. 

By  an  agreement  made  between  a 
gas  company  and  a  district  council, 
in  whose  district  the  company  were 
in  fact  supplying  gas,  although  the 
district  was  not  within  their  stat- 
utory limits  of  supply,  it  was  agreed 
that  the  company  should  sell  and 
tlie  council  should  purchase  the 
works,  pipes,  mains,  meters,  and 
other  gas  apparatus,  and  all  other 
real  and  personal  property  (if  any), 
and  all  effects  of  the  company  laid 
down  or  situate  within  the  district, 
freed  and  discharged  (as  between 
the  company  and  the  council)  from 
all  debts,  outgoings  and  liabilities, 
and  all  easements,  rights,  powers 
and  privileges  (if  any)  enjoyed  or 
exercisable  by  the  company  at  a 
price  to  be  fixed  in  default  of  agree- 
ment by  arbitration;  and  it  was 
further  agreed  that  "in  the  case 
of  arbitration  and  in  the  event  of 
the  council  not  continuing  to  take  a 
supply  of  gas  in  bulk  from  the  com- 
pany," the  arbitrator,  in  fixing  the 
purcliase  price  should  take  into  con- 
sideration the  value  of  apparatus 
provided  by  the  company  out.-ide  the 
district  for  the  purpose  of  supplying 
gas  within  the  district  which  by 
reason  of  the  sale  would  be  rendered 
useless  to  the  company.  By  a  second 
agreement  of  even  date,  terminable 
on  twelve  montlis'  notice,  the  council 
agreed  to  take  a  supply  of  gas  in 
bulk  from  the  company.  It  was  held 
that  according  to  the  first  agreement 
the  purchase  money  was  to  be  as- 
sessed on  the  basis  tnat  the  sale  was 
a  sale  of  a  portion  of  a  gas  plant 


undertaking  as  a  going  concern,  and 
not  a  mere  sale  of  apparatus  in 
situ;  and  that,  in  fixing  the  pur- 
chase price,  the  value  of  the  appa- 
ratus provided  outside  the  district 
for  supjilying  gas  within  the  district 
was  to  be  taken  into  consideration 
by  the  arbitrator,  as  the  words  "in 
the  event  of  the  council  not  continu- 
ing to  take  a  supply  of  gas  in  bulk 
from  the  company"  referred  to  a 
contingent  loss  of  the  council  as 
customers  of  the  company,  which  the 
arbitrator  was  bound  to  consider. 
In  re  Ilucknall,  etc..  Gas  Co.,  3  L. 
G.  R.  704;  69  J.  P.  329. 

An  agreement  by  a  company  or- 
ganixed  under  a  statute  providing 
for  the  organization  of  companies 
for  supplying  natural  gas  to  con- 
sumers in  a  franchise  contract  with 
the  city,  giving  the  city  an  option 
to  purchase  all  of  its  property,  is 
beyond  its  powers  and  void,  and 
since  its  performance  by  the  com- 
pany would  at  once  incapacitate  it 
from  performing  the  statutory  duties 
for  which  it  was  chartered,  and, 
being  in  violation  of  the  declared 
public  policy  of  the  sta.te,  it  is  not 
estopped  by  its  acceptance  and  use 
of  the  franchise  from  asserting  the 
invalidity  of  the  agreement;  nor  is 
such  contract,  invalid  w'hen  made, 
rendered  valid  and  enforceable  by 
tlie  fact  that  when  it  is  sought 
to  be  enforced  natural  gas  has  failed 
in  the  locality  where  the  company 
has  its  wells.  Quimby  v.  Consumers' 
Gas  Trust  Co.,   140  F.  302. 

By  Sec'^ion  4  of  the  Burslem  Local 
Board  Act,  1877,  it  was  provided 
that  the  limits  of  the  Act  should 
comprise  and  include  the  whole  of 
the  parish  of  Burslem  and  the  to^vn- 
ship  of   Wotstanton.      The   Burslem 


MUNICIPALITY    SUPPLYING   GAS. 


oGO 


Corporation  aoquirod  tlio  rijrlit  under 
that  Act  to  supply  pas  subject  to  a 
proviso  that  as  future  sanitary  au- 
thority for  the  townsliip  of  Wolstan- 
ton  might  apply  for  Parliamentary 
powers  to  supply  their  district  with 
gas.  By  the  Wolstanton  United  Ur- 
ban Council  Gas  Act,  190G,  it  was 
provided  that  the  Burslem  Corpora- 
tion should  sell  and  the  district 
should  purchase  all  mains,  pipes,  and 
other  works  of  the  corporation,  and 
for  the  completion  of  such  purchase 
all  the  rights  and  powers  of  the 
corporation  as  to  the  supply  of  gas 
should  cease  and  determine;  such 
sale  and  purchase  to  be  "for  such 
price  and  consideration  .  .  .  and 
on  such  terms  and  conditions  as 
may  be  agreed  upon  between  the 
Burslem  Corporation  and  the  council 
.  .  .  or  failing,  such  agreement 
as  shall  be  determined  ...  in 
accordance  with  the  provisions  of  the 
English  Lords  Clauses  Act  with  ref- 
erence to  the  taking  of  lands  other- 
wise than  by  agreement,  and  in  the 
construction  of  the  said  provisions 
the  expression  .  .  .  'lands'  shall 
mean  the  mains,  pipes  and  other 
works  aforesaid  of  the  Burslem 
Corporation,"  It  was  held  that  the 
Burslem  Corporation  were  not  en- 
titled to  compensation  in  respect  of 
severance  of  the  mains,  pipes,  etc., 
or  in  respect  of  loss  of  revenue  by 
reason  of  the  fact  that  their  rights 
and  powers  to  supply  gas  had  ceased 
and  determined.  In  re  Wolstanton 
Urban  Council,  etc.,  72  J.  P.  2S ;  C 
L.  R.  O.  o2?>. 

In  England  where  mains  and 
pipes  have  been  laid  by  a  gas  com- 
pany under  a  road  and  a  tramway 
is  subsequently  laid  on  the  surface 
of  such  road,  the  additional  expense 


of  the  repairs,  alteration,  removal, 
or  renewal  of  those  mains  and  pijjcs 
caused  to  the  gas  company  by  reason 
of  the  existence  of  the  tramway, 
must,  under  Section  22  of  the  Tram- 
ways Act,  1870,  be  borne  by  the 
tramway  company,  even  though  the 
work  done  by  the  gas  company  in 
such  rei)air,  etc.,  does  not  cause  an 
interruption  of  the  tramway  trallic. 
But  the  additional  expense  caused  to 
the  gas  company  by  reason  of  the  ex- 
istence of  the  tramway  in  the  lav- 
ing down  for  tho  first  time  since 
the  construction  of  the  tramway  of 
a  new  service  pipe  and  connecting 
it  with  the  main  laid  prior  to  the 
construction  of  the  tramwaj-,  and 
also  the  additional  expense  caused 
in  the  repairs,  alteration,  or  removal 
of  such  service  pipe  cannot  be  re- 
covered from  the  tramway  company 
except  to  the  extent  of  the  work 
done  on  the  mains — for  example,  the 
drilling  of  a  hole  therein,  in  order 
to  connect  the  new  service  pipe. 
The  expression  "work  whereby  the 
trafiic  on  the  tramway  will  be  inter- 
rupted," continued  in  the  Act,  does 
not  necessarily  involve  a  complete 
cessation  of  the  tramway  tralHc. 
The  slowing  down  or  stoppage  of  L.e 
tram  cars  to  enable  the  workmen 
of  a  gas  company  to  get  out  of  the 
trenches  under  or  near  the  tram 
lines  where  they  are  at  work  in 
repairing  mains  or  pipes  is  "inter- 
ruption" of  the  tramwa}'  trallic 
within  the  meaning  of  the  clause, 
llristol  Gas  Co.  v.  Bristol  Tram- 
ways, etc.,  Co.,  78  L.  J.  K.  B.  772; 
[1909]  2  K.  B.  297;  100  L.  T. 
909;  73  J.  P.  323;  7  L.  G.  R.  G93; 
affirmed  54  Sol.  Jr.  47;  20  T.  L.  R. 
75. 


r)70  i  OIL   AND   GAS. 

§520.     Trustees  for  gas  works. 

Occasionally  trustees  are  appointed  to  manage  gas  works 
where  they  are  conducted  by  a  municipality.  This  was  the  case 
with  the  Philadelphia  gas  plant.  That  plant  was  owned  by 
private  individuals,  and  was  taken  possession  of  by  that  city. 
The  stock  was  replaced  by  certificates  issued  by  the  city  to  the 
stockholders  according  to  their  several  holdings,  and  trustees 
Were  selected  and  given  full  control  of  the  works  and  their  man- 
agement ;  and  they  were  to  create  a  fund  to  pay  off  these  cer- 
tificates and  the  indebtedness.  After  these  trustees  had  taken 
charge,  an  ordinance  was  passed  by  the  common  council  ap- 
pointing a  chief  engineer,  who  was  by  it  put  at  the  head  of  the 
gas  department  of  the  city ;  and  all  moneys  collected  for  gas 
furnished  was  to  be  paid  to  such  officers  as  he  should  select. 
Creditors  objected  to  the  engineer  taking  possession,  and  to  his 
interfering  with  the  trustees'  control  of  the  gas  works ;  and  the 
court  upheld  them  in  their  objection,  and  issued  an  order  re- 
straining them.  They  were  entitled,  so  the  court  held,  to 
an  injunction  on  the  ground  that  there  was  such  a  contract  be- 
tween the  city  and  the  creditors  as  a  court  of  equity  would 
protect;  and  that  when  it  entered  upon  such  an  enterprise  it 
was  acting  in  its  capacity  as  a  private  corporation,  and  not  in 
its  legislative  capacity.^*  These  trustees  are  generally  subject 
to  the  control  of  the  municipality,  and  have  only  such  powers 
as  its  common  council  or  legislative  body  may  bestow  upon 
them.  An  instance  of  their  limited  power  is  found  in  an 
Ohio  case.  In  that  State  a  statute  provided  for  a  board  of 
trustees  to  manage  the  municipality's  gas  plant ;  and  also  em- 
powered them  to  "  prescribe  by  bybiAvs  the  price  of  gas  and 
coke,  under  such  rules  and  regulations  as  by  ordinance  the 
council  may  prescribe."      The  board  in  the  absence  of  such  an 

34  Western    Saving   Fund    Society  C.  520;  39  Atl.  "Rep.  494;  39  L.  R. 

V.  Philadelphia,  31   Pa.  St.   175;   72  A.  837    (affirming  6  Pa.  Disl.   Rep. 

Am.  Dec.  730.     See  Bailey  v.  Phila-  727;    20   Pa.   Co.   Ct.    173,   where   a 

delphia,  184  Pa.  St.  594;  41  W.  N.  lease   of  these   works   was   upheld). 


MUNICIPALITY    SUPl'LYINU    GAS.  T)?! 

ordinance  undertook  to  fix  the  price  of  jj^ns,  (»ver  the  (ihjcctioii 
of  the  gas  comixmy ;  and  their  action  Ava.s  hehl  void.''^  In  this 
State  it  is  also  held  that  so  long  as  an  ordinance  is  in  forcv 
creating  a  board  of  ofHcers  to  manage  the  city's  gas  plant,  the 
council  cannot  take  upon  itself  the  management,  through  its  em- 
ployees, of  its  electric  lighting  plant.^*'  The  sUitute  referred  to 
in  the  foregoing  sentence  authorized  the  common  council  to 
create  and  appoint  a  board  of  trustees,  when  it  had  determined 
to  build  a  lighting  plant,  to  construct  the  works,  and  to  manage 
them  when  they  should  have  been  built.  The  board  could  not 
only  construct  the  works,  but  extend  gas  ])ipos,  manufacture 
and  sell  gas  and  coke,  collect  gas  bills  and  other  moneys  due 
for  gas,  coke  or  other  material  sold  by  it,  having  power  to 
purchase  material,  employ  laborers,  appoint  officers,  purchase 
or  lease  the  necessary  real  estate  and  erect  buildings  upon  it. 
All  money  collected  for  gas  works  purposes  had  to  be  deposited 
weekly,  by  its  collectors,  with  the  treasurer  of  the  miuiicipality, 
and  be  kept  as  a  separate  and  distinct  fund,  subject  to  the 
order  of  the  board.  This  money,  as  well  as  that  levied  by 
the  municipality  for  the  gas  works,  was  to  be  disbursed  by  the 
board  of  trustees.  It  was  held  that  the  lx)ard  of  trustees  did 
not  have  power,  under  this  statute,  to  charge  the  municipality 
with  a  general  liability  on  account  of  machinery  or  appliances 
purchased  by  them  for  the  works  under  their  control ;  and  that 
they  had  no  authority  to  control  the  funds  thus  placed  in  their 
hands  independent  of  the  council,  because  of  another  statute 
which  provided  that  "  no  contract,  agreement  or  other  obliga- 
tions, involving  the  expenditure  of  money  shall  be  entered  into, 

85  Foster  v.  Findlay,  .5  Ohio  Cir.  let  it  to  the  lowest  bidder  as  the 
Ct.  Rep.  455;  3  Ohio  Cir.  Dec.  224.  city  did  when  it  purchased  sup- 
See  Bellaire  Goblet  Co.  v.  Findlay,  plies,  for  the  reason  that  tlie  pas 
5  Ohio  Cir.  Ct.  418;  3  Ohio  Cir.  works  were  not  a  department  of  tlie 
Dec.  205.  city   government   within    the    provi- 

36  Shaw    V.    Jones,    6    Ohio    Dec.  sion   of   the   Act   of   May    13,    1856, 

453;   4  Ohio  N.  P.  372.  requirinqr   the   city  to  advertise  for 

In  a  case  involving  the  Philadel-  bids  and  let  out  the  supply  of  ma- 
phia    gas    trustees'    power,    it    was  terials  to  the  lowest  bidder.     Hack- 
held    that    they    were    not    required  er  v.  Phihidolphia,  fi  I'hila.  04. 
to   advertise   for   bids   for   coal   and 


572  OIL    AND    G.VS. 

nor  shall  any  ordinance,  resolution  or  order  for  the  appropria- 
tion or  expenditure  of  money  be  passed  by  the  city  council  or 
by  any  board  or  officers  of  a  municipal  corporation  "  unless  the 
city  auditor  or  clerk,  ''  shall  first  certify  that  money  required 
for  the  contract  ...  or  to  pay  the  appropriation  or  ex- 
penditure, is  in  the  treasury  to  the  credit  of  the  fund  from 
which  it  is  to  be  drawn,  and  not  appropriated  for  any  other 
purpose.''  ^^  A  statute  of  this  same  State  provides  that  no 
municipal  officer  until  one  year  after  his  office  has  expired, 
shall  be  either  directly  or  indirectly  interested  in  the  work  of 
his  city.  Under  this  statute  one  of  the  gas  trustees  cannot  be 
employed  by  the  others  until  the  end  of  such  year,  to  supervise 
tlic  property  of  the  city  in  the  territory  where  the  gas  is  ol> 
tained  and  where  the  leased  lands  of  the  city  are  located,  or 
manage  its  works.^'' 

§521.     Sale  of  municipal  plant. 

A  municipality  usually  has  the  power  to  sell  its  lighting 
plant ;  but  this  power  is  usually  given  under  the  statutes  au- 
thorizing it  to  dispose  of  its  property  generally.  Thus  a  statute 
empowered  a  municipality  "  to  acquire  by  purchase  or  other- 
wise and  hold  real  estate,  or  any  interest  therein,  and  other 
property  for  the  use  of  the  corporation,  and  to  sell  or  lease  the 
same,"  and  it  was  held  that  under  this  clause  it  might  sell 
its  gas  plant,  the  court  saying  that  the  statute  "  clearly  gives 
the  city  the  power  to  make  such  sale  whenever,  in  the  judgment 
of  the  officers  of  the  city,  it  becomes  for  the  best  interests  of 
such  city."  ^^  In  a  sale  of  its  plant,  as  a  part  of  the  considera- 
tion, the  Taui'icipality  may  l)i]id  itself  to  pay  such  a  greater  sum 
per  liglit  as  will  be  equal  to  the  taxes  to  be  paid  by  the  company, 
even  in  the  event  that  such  municipality  had  no  right  to  ex- 
empt the   purchasing  company   from  taxation.'*"     A  provision 

37  Korr  V.   Bollofontainp.    59  Ohio  lin  Bros.  Co.  v.  Toledo.  20  Ohio  C. 
St.  446;   52  N.  E.  Rep.   1024.  C.  603;   8  Ohio  N.  P.  62. 

38  Findlay  v.   Parker.    17  Ohio  C.  4o  Frankfort  v.  Capitol  City,  etc., 
C.  294;  9  Ohio  Cir.  Deo.  710.  Co..   16  Ky.  L.  Rep.  780;   29  S.  W. 

39  Thompson  v.  Nemeyer.  59  Ohio  Rep.  855. 
St.  486;   52  N.  E.  Rep.   1024;   Ker- 


MUNICll'-VLlTY    Siri'LYlNG    GAS.  573 

in  the  contract  of  sale  to  the  effect  that  ihe  company  sliall  ful- 
fill its  contract  to  furnish  i;as  to  the  extent  ihat  such  contracts 
can  be  fnltilled,  the  ])urehaser  must  make  all  necessary  con- 
nections for  the  furnishing  of  gas  which  were  custcnnarily 
made.*^ 

^522.     Municipality  may  lease  its  own  gas  works. 

A  city  owning  its  gas  works  may  sell,  lease,  or  altogether 
abandon  them;  and  the  lease  is  not  an  interference  \vith  the 
executive  functions  of  its  Iniard  (»f  public  works  which  has 
their  direction,  control  and  administration.  In  the  execution 
of  such  a  lease  there  is  no  delegation  of  any  municipal  power, 
legislative  or  otherwise,  which  involves  a  municipal  duty.  In 
the  ownership  and  control  of  gas  works  a  city  acts  in  a  business 
capacity  .only ;  and  the  inability  of  its  common  council  to  bind 
the  discretion  of  its  successors  for  a  term  of  years,  in  respect 
to  municipal  or  governmental  function,  is  not  involved  in  the 
granting  of  the  lease.  In  such  a  lease  the  municipality  may 
bind  itself  that  it  will  not  in  any  way  interfere  with,  restrict, 
limit  or  imperil  the  exclusive  right  vested  in  the  lessee  by  the 
lease  where  the  mimicipality  had  the  sole  right  and  was  the 
only  company  supplying  gas  in  the  municipality;  and  such  a 
lease  does  not  create  a  monopoly  against  jiublic  policy  where 
the  franchise  of  the  lessee  is  derived  from  the  State,  and  not 
from  the  munici])ality,  and  it  merely  makes  the  privilege  ex- 
clusive so  far  as  the  municipality  is  concerned.'*'^  The  lease 
by  the  council  of  the  city's  gas  w^orks  for  a  definite  jieriod  — 

*i  Pittsbur.ii  Carbon  Co.  v.  Phila-  an  applicant  for  a  lease  than  uiKjn 

delphia.    130   Pa.    St.   438;    18    Atl.  the  amount  of  his  bid;  and  lliat  the 

Rep.    732.  holders    of    the    gas    lease    had    no 

42  Bailey  v.  Philadelphia.  184  Pa.  standing  to  enjoin   the  lease  of  the 

St.  594;   41   W.  N.  C.  529;   39  Atl.  gas  works;    for   the   promise  of  the 

Pep.  494;  39  L.  R.  A.  837:  63  Am.  city  to  apply  a  certain  per  cent,  of 

St.  Rep.  812;   affirming  6  Pa.  Dist.  the  receipts  from  the  works  to  the 

Rep.   727;   20  Pa.   Co.  Ct.    173.     In  singing   fund    created    for   the    pay- 

the  lower  roiirt  it  was  also  held  that  nient  of  the  bonds  was  only  a  prom- 

the  discretion  given  to  a  city  conn-  jsp,  and  of  no  greater  sanctity  than 

cil  to  lease  the  city's  gas  works  in-  tlie    promise    to    pay    the    bonds    at 

vested  them  with  power  to  Iny  more  maturity, 
stress    upon    the    responsibility    of 


574  OIL   AKD    GAS. 

as  twenty  years  —  does  not  necessarily  constitute  a  suspension 
of  the  legislative  power  of  succeeding  councils,  and  is  not  for 
tliat  reason  void.*^  The  city  may  bind  itself  not  to  again  en- 
gage in  the  manufacture  and  sale  of  gas  so  long  as  the  lease 
continues.** 

§523.     Rules  and  regulations. 

When  a  nmnieipality  engages  in  supplying  gas  to  private 
consumers,  it  may  adopt  rules  and  regulations  for  supplying 
such  gas,  the  same  as  a  private  company ;  and  the  legislature 
may  authorize  the  board  of  trustees  or  commissioners  to  do 
so ;  *^  and  no  doubt  the  common  council  may  also  adopt,**  or 
authorize  such  board  to  adopt  all  necessary  and  reasonable  rules 
for  that  purpose.  For  non-payment  of  bills,  or  for  abuse  in  its 
use  or  violation  of  proper  rules  the  supply  may  be  cut  ofF.*^ 
It  may  provide  by  ordinance  that  where  the  gas  is  shut  off  for 
failure  to  pay  gas  bills,  it  shall  not  be  turned  on  again  until 
such  bills  are  paid  with  the  penalty  that  may  be  due  and  all 
ex]Tenses  of  turning  it  off.*^  A  municipality  can  no  more  dis- 
criminate between  consumers  than  a  private  company.*^ 

4'*  Higgins  V.  San  Diego,  118  Cal.  ^e  Altoona  v.  Shellenberger,  6  Pa.' 

524;  45  Pae.  Rep.  824;  50  Pae.  Rep.  Dis.   Rep.   544. 

670;  Newport  v.  Newport  Light  Co.,  47  Brass  v.  Rathbone,  supra.     Al- 

84  Ky.   166.  toona  v.  Shellenberger,  supra. 

44  Bailey   v.    Philadelphia,    supra.  48  Altoona  v.  Shellenberger,  supra. 

45  Brass  v.  Rathbone,  153  N.  Y.  4n  Rierker  v.  Lancaster,  14  Lane. 
435;    47   N.   E.  Rep.   905;    affirming  L.    Rev.   393. 

40  N.  Y.  Supp.  466;  8  App.  Div.  78. 


CHAPTER  XXV. 

THE  GAS  COMPANY  AND  CONSUMER. 

§524.  No  requirement  at  common   law  to  furnish  gas. 

§525.  Company  must  supply  gas. 

§526.  No  discriminations. 

§527.  Failure  of   supply   of   natural   gas. —  Discrimination. 

§528.  Supply  only  to  abutting  property  owners. 

§529.  Extension  of  mains  or  pipes. 

§530.  Inspection  of  premises. 

§531.  ^landamus  to  compel  supply. 

§532.  Mandanuis  to  compel  furnishing  of  gas  to   a  city. 

§533.  Penalties  for   failure  to   supply   gas  — Damages. 

§534.  Damages  for  failure  to  supply  gas. —  Sickness. 

§535.  Limiting  liahilitj'  for  failure  to  supply  gas. 

§536.  Application  for  gas. 

§537.  Rules  and  regulations. 

§538.  Subscribing  to  rules  and  regulations. 

§539.  Price  to  be  charged. 

§540.  Payment  in  advance. 

§541.  Deposits. 

§542.  Discrimination  in  use. —  Rates. 

§543.  Classification  of   customers. —  Rates. 

§544.  Recovering  back  overcharges. 

§545.  Collection  of  rents. —  Action. 

§546.  Collection  of  rents  by  distress. 

§547.  Shutting  oflf  gas  for  failure  to  pay. 

§548.  Injunction  to  prevent  cutting  off  gas  supply. —  Rates. 

§549.  Consumer's  right  to  discontinue  use  of  gas. 

§550.  Ownership  of  supply  pipe. 

§  524.     No  requirement  at  common  law  to  furnish  gas. 

At  common  law  no  obligation,  it  has  been  held,  rests  upon  a 
company  to  supply  either  the  municipality  or  an  individual 
with  gas;  and  this  is  the  result  of  the  early  decisions  in  this 
country  and  England.  The  right  to  have  gas  delivered  by  a 
gas  company  was  placed  purely  upon  contract ;  and  aside  from 
a  contract  it  was  considered  that  no  obligation  rested  upon  the 

575 


576  OIL   AND    GAS. 

company  to  furnish  it.  A  gas  company  was  regarded  as  a 
purely  private  concern,  being  neither  a  public  or  quasi-public 
corporation.  It  was  regarded  the  same  as  if  it  were  an  indi- 
vidual— a  person — who  owned  a  gas  plant  and  manufactured 
gas.'  And  the  fact  that  the  company's  pipes  occupied  the 
street  in  the  front  of  an  abutting  land  owner's  property  did 
not  impose  upon  it  a  duty  to  supply  such  land  owner  with 
gas.  ''No  duty  is  imposed  upon  them,"  said  the  Supreme 
Court  of  Massachusetts,  "nor  are  they  charged  with  any 
public  trust.  They  are  authorized  to  make  and  distribute  gas 
for  their  own  profit  and  gain  only.  They  are  not  bound  to 
sell  and  dispose  of  it  to  any  one,  either  for  public  or  private 
use  or  consumption.  It  is  entirely  at  their  option  whether 
they  will  exercise  their  corporate  rights  and  privileges  at  all; 
and  if  they  undertake  to  manufacture  and  dispose  of  gas,  the 
extent  to  which  they  shall  carry  on  the  business  is  left  to  their 
own  election.  Nor  is  any  power  conferred  on  them  to  take 
private  property,  not  previously  appropriated  to  a  public  use, 
for  the  purpose  of  exercising  and  enjoying  their  franchise. 
The  only  right  or  privilege  given  to  them  is  to  dig  up  public 
streets  and  ways  for  the  purpose  of  laying  down  their  mains 
or  pipes."-  So  in  New  Jersey  ''power  and  authority  to 
manufacture,  make  and  sell  gas  for  the  purpose  of  lighting 
the  streets,  buildings  and  manufactories  and  other  places 
situate  in"  a  certain  town  w^as  held  to  be  merely  permission; 
and  the  company  could  refuse  to  supply  a  resident  of  the 
towm,  although  it  at  the  time  vas  supplying  some  of  the 
inhabitants  of  such  town.^  And  even  though  a  company  has 
begun  to  supply  a  customer  gas,  who  has  his  premises  all 
fitted  up  with  gas  pipes  and  fixtures  to  receive  the  gas,  it 
may  discontinue  the  supply  of  gas  at  any  time  unless  it  is 
under  a  contract  to  supply  it,*  even  though  he,  by  such  dis- 

1  See     Jersey     City     Gas     Co.     v.       27   N.  J.  L.  245;   72  Am.  Dec.  360. 
Dwight,  29  N.  J.  Eq.  242.  See  now  Olnistead  v.   Morris  Aque- 

2  Commonwealth    v.    Lowell    Gas-       duc-t,  47   N.  J.   L.  .311. 

light    Co.,    12    Allen    75.  *  MeCune    v.    Norwieh    City    Gas 

3  Patterson  Gaslight  Co.  v.  Brady,       Co.,  30  Conn.  521;  79  Am.  Dec.  278. 


GAS    COMPANY    AND    CONSUMER.  577 

continuance,  will  suffer  more  than  nominal  damages.."  Nor 
does  the  fact  of  quarterly  payments  or  \\\c  hiring  of  a  meter 
by  the  year,  or  of  the  company  being  liie  onlj'  one  in  the 
neighborhood  furnishing  gas,  afford  any  ground  for  implying 
a  contract  to  furnish  gas ; "  nor  even  where  the  company  holds 
a  deposit  to  secure  payment  for  gas  used/ 

^525.     Company  must  supply  gas. 

But  the  better  lino  of  authority,  and  the  nuire  recent  cases, 
aside  from  any  statute,  ordinance  or  contract  expressly  requir- 
ing it,  hold  that  gas  companies  must  supply  those  whose  prop- 
erty abutts  upon  their  lines  and  that  the  duty  rises  from  the 
character  of  such  institutions,  they  being  quasi-public  corpora- 
tions and  occujiving  the  streets  and  public  highways.*  "'  A 
natural  gas  company,"  said  the  Supreme  Court  of  Indiana, 
"  occupying  the  streets  of  a  town  or  city  with  its  mains,  owes 
it  as  a  duty  to  furnish  those  who  own  or  occupy  the  liuuse 
abutting  on  such  street,  where  such  owners  or  occupiers  make 
the  necessary  arrangements  to  receive  it  and  comply  with  the 
reasonable  regulations  of  such  company,  such  gas  as  they  may 
require,  and  that  where  it  refuses  or  neglects  to  perform  such 
duty,  it  may  be  compelled  to  do  so  by  writ  of  mandamus."  " 
It  is  especially  true  such  companies  are  under  a  duty  to  supply 
persons  whose  property  abutts  on  their  lines,  wlioro  they  have  an 
exclusive  grant  or  mono]X)ly  of  the  su]T]ilying  of  gas   in   that 

5  Pudsey  Coal  Gas  Co.  v.  Brad-  » Portland  Natural  Gas  Co.  v. 
ford,  L.  R.  15  Eq.  167;  21  W.  R.  State.  135  Ind.  54;  34  N.  E.  Rep. 
286;  42  L.  J.  Ch.  293;  22  Gas  J.  818;  21  L.  R.  A.  63f);  Spratt  v. 
54;  Commonwealth  v.  Wilkes-  South  ;Metropolitan  Gas  Co.,  7  Gas 
Barre  Gas  Co.,  2  Kulp  (Pa.)  499.  J.    G(;3 ;    Baltimore   Gaslicjht   Co.   v. 

6  Hoddesdon  Gas  and  Coke  Co.  v.  Colliday,  25  Md.  1 ;  Indiana,  etc., 
Haselwood.  6  C.  B.  (N.  S.)  239;  5  Gas  Co.  v.  State.  158  Ind.  516;  63 
Jur.  (N.  S.)  1013;  28  L.  J.  C.  P.  N.  E.  Rep.  220;  57  L.  R.  A.  761; 
268;   7  W.  R.  415;   8  Gas  J.  261.  Jordeson    v.     Sutton,    etc..    C...    67 

7Houlgate   v.    Surrey   Consumers'  L.  J.  Ch.  666;   [1898]  2  Ch.  614;  79 

Gas   Co.,   8   Gas   J.   261.  L.  T.  478;  47  W.  R.  222;   63  J.   P. 

8  Commercial  Bank  v.  London  Gas  137;   affirmed  OS  L.  J.  457;    [1899] 

Co..   20   Up.   Can.   Q.   B.   233;    Wil-  2  Ch.  217;   80  L.  T.  815;   63  J.   P. 

liams  V.  Mutual  Gas  Co..  52  Mich.  692;    Peonle   v.    Chicago   Gas   Trust 

499;    50   Am.    Rep.    266;    18   N.    W.  Co..  130  111.  268;  22  X.  E.  Rep.  798; 

Rep.    236;    4    Am.    and    Eng.    Corp.  8  L.   R.  A.  497. 
(Jas.  66. 


578 


OIL   AND   GAS. 


niuuicipality ;  '**  or  the  right  of  eminent  domain  to  secure  a 
right  of  way  for  their  pipe  lines."  In  many  instances  the  duty 
to  furnish  the  inhabitants  of  a  municipality  with  gas  is  en- 


10  New  Oi  leans  Gas  Co.  v.  l^ouis- 
iana  J.iglit  Co..  115  U.  S.  &50;  6 
Sup.  Ct.  Rep.  252;  People  v.  Man- 
hattan Gas  Co.,  45  Barb.  130;  1 
Abb.  Pr.  (N.  S.)  404;  30  How  Pr. 
87;  Shepherd  v.  Milwaukee  Gaslight 
Co.,  11  Wis.  234;  15  Wis.  318;  82 
Am.  Dee.  679;  6  Wis.  539;  Owens- 
boro  Gaslight  Co.  v.  Hildebrand,  19 
Ky.  L.  Rep.  983;  42  S.  W.  Rep. 
351;  Brunswick  Gaslight  Co.  v.  U. 
S.,  etc.,  Co.,  85  Me.  532;  27  Atl. 
Rep.  525;  35  Am.  St.  Rep.  385; 
43  Am.  and  Eng.  Corp.  Cas.  450; 
St.  Louis  V.  St.  Louis  Gaslight  Co., 
70  Mo.  69;  Shephard  v.  Milwaukee 
Gaslight  Co.,  6  Wis.  539;  70  Am. 
Dec.  479 ;  Indiana,  etc.,  Co.  v.  State, 
158  Ind.  516;  63  N.  E.  Rep.  220;  57 
L.  R.  A.  761. 

11  Coy  V.  Indianapolis  Gas  Co., 
146  Ind.  655;  46  N.  E.  Rep.  17; 
36  L.  R.  A.  535;  8  Amer.  and  Eng. 
Corp.  Cas.  (X.  S.)  771;  Gibbs  v. 
Consolidated  Gas  Co.,  1.30  U.  •  S. 
396;  9  Sup.  Ct.  Rep.  953;  State  v. 
Consumers'  Gas  Trust  Co.,  157  Ind. 
345;  61  N.  E.  Rep.  674;  55  L.  R. 
A.  245;  Hangen  v.  Albina,  etc.,  Co., 
21  Ore.  411;  28  Pac.  Rep.  244;  14 
L.  R.  A.  424 ;  Crumley  v.  Watauga 
Water  Co.,  99  Tenn.  420;  41  S.  W. 
Rep.  1058;  American,  etc.,  Co.  v. 
State,  46  Neb.  194;  64  N.  W.  Rep. 
711 ;  .30  L.  R.  A.  447;  State  v.  Butte 
City  Water  Co.,  18  Mont.  199;  44 
Pac.  Rep.  966 ;  32  L.  R.  A.  697 ;  56 
Am.  St.  Rep.  574;  4  Am.  and  Eng. 
Corp.  Cas.  (N.  S.)  238;  Hoehle  v. 
Allegheny  Heating  Co.,  5  Pa.  Super. 
Ct.  21;  New  York  Central,  etc.,  R. 
R.  V.  Metropolitan  Gaslight  Co., 
5  Hun  201  ;  Morey  v.  Metropolitan 
Gaslight   Co.,   38   N.   Y.   Super.   Ct. 


185;  Schmeer  v.  Gaslight  Co.,  147 
N.  Y.  529;  42  N.  E.  Rep.  202;  30 
L.  R.  A.  653;  70  N.  Y.  St.  Rep.  92; 
Woodburn  v.  Auburn,  87  Me.  287; 
32  Atl.  Rep.  900;  Maekin  v.  Port- 
land Gas  Co.,  38  Ore.  120;  01  Pac. 
Rep.  134  (rehearing  denied,  02  Pac. 
Rep.  20)  ;  49  L.  R.  A.  590;  Watau- 
ga Water  Co.  v.  Wolfe,  99  Tenn. 
429;  41  S.  W.  Rep.  1060;  Graves  v. 
Key  City  Gas  Co.,  93  la.  470;  61 
N.  W.  Rep.  937;  Griffin  v.  Golds- 
boro  Water  Co.,  122  N.  C.  206;  30 
S.  E.  Rep.  319;  41  L.  R.  A.  240; 
Crescent  Steel  Co.  v.  Equitable  Gas 
Co.,  23  Pittsb.  Leg.  J.  (N.  S.)  316; 
Bath  Gaslight  Co.  v.  Claffey,  74 
Hun  638;  26  N.  Y.  Supp.  287;  No- 
blesville  v.  Noblesville  Gas,  etc.,  Co., 
157  Ind.  162;  60  N.  E.  Rep.  1032; 
People's  Gaslight  and  Coke  Co.  v. 
Hale,  94  111.  App.  406;  Cincinnati, 
etc.,  Co.  V.  Bowling  Green,  57  Ohio 
St.  336;  49  N.  E.  Rep.  121;  People 
V.  N.  York,  etc.,  Co.,  56  N.  Y.  Supp. 
364;  New  Orleans,  etc.,  Co.  v. 
Paulding,  12  Rob.  (La.)  378;  Jen- 
kins V.  Columbia,  etc.,  Co.,  13  Wash. 
502;  43  Pac.  Rep.  328;  Bailey  v. 
Fayette  Gas  Fuel  Co.,  193  Pa.  St. 
175;  44  Atl.  Rep.  251;  44  W.  N.  C. 
505 ;  Gallagher  v.  Equitable  Gaslight 
Co.,  141  Cal.  699;  75  Pac.  Rep.  329; 
Public  Service  Corp.  v.  American 
Lighting  Co.,  67  N.  J.  L.  122;  57 
Atl.  Hep.  482;  Charleston  Nat.  Gas 
Co.  v.  Low,  52  W.  Va.  662;  44  S. 
E.  Rep.  410;  Miller  v.  Wilkesbarre 
Gas  Co.,  206  Pa.  254;  55  Atl.  Rep. 
974;  Indiana  Nat.  Gas  &  Oil  Co.  v. 
State,  102  Ind.  690;  71  N.  E.  Rep. 
133;  Wiemer  v  Louisville  Water 
Co.,    130   Fed    Rep.    251;    Seymour 


GAS    COMPANY    AND    CONSUMER. 


579 


forced  by  statute  or  by  ordinance.'-  It  is  the  duty  of  a  gas 
company  to  furnish  gas  to  a  customer  even  thougli  he  is  fur- 
nished gas  l)y  anotlier  company.  It  is  tlie  customer's  privilege 
to  quit  the  other  company  if  he  sees  fit;  or  to  take  from  botii 
of  them.*''  Even  in  England  where  formerly  it  was  held  that 
no  obligation  rested  upon  a  company  to  furnish  gas;  yet  if  th(i 
company  had  entered  into  a  contract  to  furnish  it  and  failed 
to  do  so,  it  was  liable  in  damages.'^  A  gas  company  cannot 
refuse  to  furnish  a  married  woman  with  gas  for  her  own  build- 
ings nor  for  one  she  has  rented,  although  her  husband  lives  in 
it  witli  her.'^'^ 


Water  Co.  v.  Seymour,  1G.3  Ind.  120; 

70  N.  E.  Rep.  514;  State  v.  Conners- 
ville   Xat.    Gas   Co.,    163    Ind.    5G3; 

71  N.  E.  Rep.  483;  Johnson  v. 
Atlantic  City  Gas  &  W.  Co..  Go 
N.  J.  Eq.  129;  56  Atl.  Rep.  550; 
Kentucky  Heating  Co.  v.  Hood,  133 
Ky.  383";  118  S.  W.  Rep.  337;  34 
Ky.  L.  Rep.  — ;  Vandorbcrg  v. 
Kansas  City  Gas  Co.,  126  Mo.  App. 
600;    105    S.    W.    Rep.    17. 

12  Jones  V.  Rochester  Gas,  etc., 
Co.,  7  N.  Y.  App.  Div.  4G5 ;  39  X.  Y. 
Supp.  1105;  Ferguson  v.  IMetropoli- 
tan,  etc.,  Co.,  37  How.  Pr.  189;  Mo- 
rey  v.  Metropolitan  Gaslight  Co., 
3S'  X.  Y.  Supr.  185;  Pearson  v. 
Phoenix  Gas  Co.,  12  Gas.  J.  69; 
Commercial  Gas  Co.  v.  Scott,  L.  R. 
10  Q.  B.  400;  25  Gas  J.  889;  Smith 
V.  Capitol  Gas  Co.,  132  Cal.  209; 
64  Pac.  Rep.  258;  Baker  v.  San 
Francisco  Gas  &  El.  Co.,  141  Cal. 
710;  75  Pac.  Rep.  342;  Shelley  v. 
Westchester  Ligliting  Co.  ( X.  Y. 
App.  Div.),  112  X.  Y.  Supp. 
1146;  reversing  55  X.  Y.  Misc.  Rep. 
105;  105  X.  Y.  Supp.  133;  Ft.  Sniitli 
L.  &  T.  Co.  V.  Kelley,  94  Ark. 
461;  127  S.  W.  Rep.  975;  State  v. 
Seattle  Lighting  Co.,  GO  Wash.  81; 
110   Pac.    Rep.   799. 

13  Portland  Xatural  Gas  Co.  v. 
State,  135  Ind.  54;  35  X.  B.  Rep. 
818;  21  L.  R.  A.  039. 

!•*  Whitehouse  v.  Liverpool,  etc., 
Co.,  5  C.  B.  798;  5  M.  Gr.  and  S. 
798. 


In  Commonwealth  v.  Wilkcs-Barre 
Gas  Co.,  2  Kulp.  499,  it  is  said 
that  the  dutj'  of  a  gas  company 
to  supply  all  persons  of  a  municipal- 
ity with  gas  cannot  be  inferred  like 
the  duty  of  a  common  carrier,  from 
the  fact  tliat  it  is  engaged  in  busi- 
ness; the  duty  arises  only  from  the 
charter. 

The  assignee  of  a  gas  company's 
right  to  furnish  gas  is  bound  by 
the  original  grant  of  the  privilege 
of  supplying  the  municipality  with 
gas.  Freeport  School  District  v. 
Enterprise  Xatural  Gas  Co.,  18  Pa. 
Super.  Ct.   73. 

A  company  cannot  escape  its  duty 
to  supply  gas  by  assigning  its  fran- 
chise. Batli  Gaslight  Co.  v.  Clafey, 
74   Hun   G38;    26    X.   Y.   Supp.    287. 

In  a  contract  to  take  gas  at  a 
certain  price,  it  is  not  necessary 
that  the  gas  company  agree  to  fur- 
nish gas,  as  the  law  requires  it  to 
furnish  gas.  Gallaglier  v.  E(iuitable 
Gaslight  Co.,  141  Cal.  G99;  75  Pac. 
Rep.    329. 

i-»ii  Vanderberg  v.  Kansas  Ciy  Gas 
Co.,  126  Mo.  600;  105  S.  W.  Rep. 
17. 

Defendants  contracted  to  use  nat- 
ural gas  from  plaintiff's  wells  for  a 
specified  time,  at  specified  prices, 
tlie  contract  providing  tliat,  if  by 
reason  of  fire,  explosion,  or  other 
cause,  defendants'  factory  shouhl  l>e 
closed  down,  the  plaintiffs  might, 
during  the  time,  disjwse  of  gas  else- 
where, and,  it  the  non-use  extended 


580 


OIL  AND  GAS. 


§  526.     No  discriminations. 

Not  only  is  it  the  duty  of  a  gas  company  to  furnish  gas, 
but  it  is  its  duty  to  treat  all  alike.  It  cannot  discriminate  be- 
tween customers  either  in  prices  or  in  imposing  upon  them 
regulations  not  applicable  to  all  of  their  customers  under  the 
same  circumstances.  It  must  furnish  gas  without  preference 
or  partiality,  whether  that  duty  be  imposed  by  statute  or  not.'^ 
This  statement,  however,  must  be  taken  with  the  qualification 
that  the  customer  has  or  is  willing  to  comply  with  all  reasonable 
rules  and  regulations  of  the  company,  such  as  it  has  a  right 
ro  adopt  and  imjx)se  upon  its  customers.^"  A  refusal  of  the 
customer  to  sign  an  agreement  to  abide  by  unreasonable  rules 
will  not  deprive  him  of  the  right  to  a  supply  of  gas.^^  In- 
stances of  discrimination  will  appear  in  succeeding  sections; 
but  a  few  may  be  added  here.  Thus  the  company  cannot  re- 
([uirc  a  dopusit  of  money  by  a  particular  customer  to  secure 
the  payment  of  its  charge,  when   it  does  not  require  such  de- 


over  a  month,  plaintiffs  should  have 
the  right  to  cancel  the  contract;  it 
was  held  tliat  the  words  "other 
cause"  following  "fire  and  explosion" 
should  be  construed  to  mean  other 
cause  similar  to  fire  or  explosion, 
under  the  rule  of  ejusdem  generis. 
and  therefore  did  not  entitle  plain- 
tiff to  payment  to  shut  down  his 
factory  for  any  cause  whatsoever 
without  a  liability  for  breach  of 
such  contract.  Hickman  v.  Cabot, 
183   Fed.   Rep.   747. 

1"'  Bailey  v.  Fayette  Gas  Fuel  Co., 
193  Pa.  St.  175;  44  Atl.  Rep.  251; 
44  W.  N.  C.  505;  Coy  v.  Indian- 
apolis Gas  Co.,  14G  Ind".  655;  40  N. 
E.  Rep.  17;  36  L.  R.  A.  535;  8 
Am.  and  Eng.  Corp.  Gas.  (N.  S.) 
771;  Louisville  Gas  Co.  v.  Dulanej', 
100  Ky.  405 ;  38  S.  W.  Rep.  703 ;  36 
L.  R.  A.  125 ;  6  Am.  and  Eng.  Corp. 
Gas.  (N.  S.)  241;  Jones  v.  Roches- 
ter Gas,  etc.,  Co.,  7  N.  Y.  App.  Div. 
4G5;  39  N.  Y.  Supp.  110i5;  Kevv  Or- 
leans Gaslight,  etc.,  Co.  v.  Pauld- 
ing, 12  Rob.  (La.)  378;  Portland 
Natural  Gas  Co.  v.  State,   135  Ind. 


54;  35  N.  E.  Rep.  818;  21  L.  R.  A. 
639;  Harbison  v.  Knoxville  Water 
Co.  (Tenn.),  53  S.  W.  Rep.  993; 
Cincinnati,  etc.,  Co.  v.  Bowling 
Green,  57  Ohio  St.  336;  49  N.  E. 
Rep.  121;  People's  Gaslight  and 
Coke  Co.  V.  Hale,  94  111.  App.  406; 
Vanderberg  v.  Kansas  City  Gas  Co., 
126  Mo.  App.  600;  105  S.  W.  Rep. 
17;  Phelan  v.  Boone  Gas  Co.,  147 
Iowa  026;  125  N.  W.  Rep.  208; 
State  V.  Board,  105  Minn.  427;  117 
N.  W.  Rep.  827. 

ic  Williams  v.  Mutual  Gas  Co., 
52  Mich.  499;  18  N.  W.  Rep.  236; 
50  Am.  Rep.  266;  4  Am.  and  Eng. 
Corp.  Cas.  66;  Portland  Natural 
Gas  Co.  V.  State,  supra;  Cincinnati, 
etc.,  R.  R.  Co.  V.  Bowling  Green, 
57  Ohio  St.  336;  49  N.  E.  Rep.  121; 
0\vensboro  Gaslight  Co.  v.  Hilde- 
brand,  19  Ky.  L.  Rep.  983;  42  S.  W. 
Rep.  351;  Charleston  Nat.  Gas  Co. 
V.  Low,  52  W.  Va.  662;  44  S.  E. 
Rep.  410. 

17  Shepard  v.  Milwaukee  Gaslight 
Co.,  15  Wis.  318;  82  Am.  Dec.  679. 


GAS   COMPANY    AND    CONSUMER.  580a 

posits  of  all  its  customers/"  ^^^lorc  a  wator  coni]iaii_v  laid  its 
pipes  ill  the  street  to  supply  certain  ])ers(ins  with  water  wiio  j)a;y 
for  the  pipe  under  an  agi'eement  that  if  any  one  else  was 
furnished  water  from  the  company  sliould  reimburse  tliem  for 
the  amount  they  had  piiid,  it  was  held  that  the  company,  not- 
withstanding; this  a<;reement,  must  su]>])ly  all  ihdsc  whose  jvrop- 
erty  abutted  upon  the  line,  even  though  they  had  not  paid  any- 
thing on  the  pipe.^**  Customers  who  are  stockholders  in  the 
company  must  be  treated  as  other  customers,  and  cannot  Ik? 
given  a  preferential  rate,  although  those  favored  constitute  a 
majority  of  the  owners  of  the  company's  stock.'"**  It  is  no 
excuse  that  charged  is  the  amount  the  company  by  statute  may 
charge,  if  it' is  charging  other  customers  less  than  the  amount 
of  the  charge  to  the  one  discriminated  against.-^  .  So  it  is  an 
unjust  discrimination  to  adopt  a  rule  that  it  would  furnish 
no  gas  to  a  tenant,  and  would  only  deal  with  the  owner  of  the 
house  occupied  by  the  tenant  or  with  his  agent.--  But  it  is  not 
an  unjust  discrimination  to  charge  a  less  rate  to  a  manufac- 
turer using  a  certain  amount  in  one  plant  than  is  given  a 
manufacturer  operating  several  disconnected  plants,  although 
using  as  much  as  the  larger  manufacturer;-''  nor  is  it  a  dis- 
crimination that  if  a  gas  bill  be  paid  within  a  certain  time 

isOvvensboro  Gaslight  Co.  v.  Hil-  H.  Gas  Co.,  71  N.  J.  L.  5G5;  Gl  Atl. 

debrand,    19    Ky.    L.    Rep.    983;    42  Rep.   397. 
S.   \V.   Rep.  351.  23  St.  Louis  Brewing  Ass'n  v.   St. 

lallangen    v.    Albina    Light    and  Louis    (Mo.),  37  S.  W.  Rep.  525. 
Water    Co.,    21    Ore.    4-1 1;    28    Pac.  That   a   private   consumer   cannot 

Rep.   244;    14   L. 'R.   A.    424.  complain   of   such   a    discrimination, 

20  Crescent  Steel  Co.  v.  Equitable  unless  specially  aggrieved,  but  only 
Gas  Co.,  23  Pittsb.  Leg.  (N.  S.)  tlie  public,  see  Bocrtii  v.  Detroit 
310.  City   Gas   Co.,    152   Mich.    G54 ;    IIG 

21  Griffin  v.  Goldsboro  Water  Co.,  X.  W.   Rep.  G28. 

122  X.  C.  206;   30  S.   E.  Rep.  310;  A  customer  of  a  natural  gas  com- 

41    L.    R.    A.    240.  pany  cannot  insist  that  he  sliall   be 

22  State  V.  Butte  City  Water  Co.,  furnished  gas  at  a  certain  pressure 
18  Mont.  199;  44  Pac.  Rep.  9GG;  when  the  otiier  customers  of  the 
32  L.  R.  A.  G97;  56  Am. 'St.  Rep.  company  are  being  furnished  at  a 
674;  4  Am.  and  Eng.  Corp.  Cas.  less  pressure.  Flaccus  v.  West 
(N.  S.)    238.  Penn.    Gas    Co.,    213    Pa.    561;     62 

But  as  a   rule   the   tenant  should  Atl.   Rop.    111. 
sign  the  application  or  contract  for  A    municipality    cannot    discrimi- 

gas;    for  only  he  can  give  the  right  nate    between    consumers.       Rierker 

of   access    to   tiie    premises    to    read  v.  Lancaster,   14  Lane.  L.  Rev.  393. 
the    meter.      Hitchcock   v.    Essex    & 


580b 


OIL  AND   GAS. 


after  due  the  gas  company  will  allow  a  certain  per  cent,  of 
discount  upon  it.-^* 


§527.     Failure  of  supply  of  natural  gas. —  Discrimination. 

Another  phase  of  discrimination  is  a  refusal  to  supply  new 
customers  l)€cause  of  lack  of  j;as  to  supply  both  them  and  its 
old  customers.  So  lone;  as  a  gas  company  occupies  the  streets 
of  a  municipality  with  its  pipes  it  must  serve  all  alike  whose 
property  abutts  upon  the  street  occupied  by  them.  A  defense  of 
its  inability  to  supply  all  its  customers  was  brought  forward 
by  a  natural  gas  company  organized  to  furnish  gas  at  actual 
cost;  but  the  court  held  it  was  not  a  sufficient  defense  to  an 
action  to  compel  gas  to  be  furnished  to  a  new  customer.     "  The 


2'ia  Bower  v.  United  Gas  Imp.  Co., 
37  Pa.  Super.  Ct.  113;  State  v. 
Board,  105  Minn.  427;  117  N.  W. 
Rep.    827. 

A  foreign  company  having  only  a 
foreign  franchise,  being  neither  a 
citizen  nor  a  householder  of  the 
State,  whose  sole  business  is  the 
furnishing  of  a  patent  gas  burner, 
has  no  standing  in  its  own  right 
to  demand  and  receive  gas  from 
a  domestic  corporation  for  any  pur- 
pose \vhatever.  Public  Service  Cor- 
poration V.  American  Lighting  Co., 
C7  N.  J.  Eq.  122;  57  Atl.  Rep. 
482;  American  Lighting  Co.  v.  Pub- 
lic  Service  Co.,   132   Fed.   Rep.   794. 

Where  a  natural  gas  company  had 
agreed,  in  consideration  of  a  right 
of  way,  to  furnish  the  grantor  gas 
at  a  certain  rate,  the  contract  being 
indefinite  in  time,  and  after  many 
years  conditions  so  changed  that  it 
was  compelled  to  charge  its  cus- 
tomers increased  rates,  it  was  held 
that  it  could  terminate  the  con- 
tract on  reasonable  notice.  McCul- 
loch,  etc.,  Co.  v.  Philadelphia  Co., 
223  Pa.  336;  72  Atl.  Rep.  633. 


A  company  formed  "for  the  pur- 
pose of  producing,  purchasing,  and 
acquiring  natural  gas,"  and  "of  pip- 
ing and  transporting  natural  gas 
from  the  place  or  places  where  it  is 
produced,  purchased,  or  acquired," 
to  certain  named  cities  and  towns, 
and  "to  other  cities,  villages,  and 
places  in  the  county  aforesaid,"  is 
not  bound  to  furnish  gas  to  con- 
sumers in  all  such  towns,  cities  and 
villages.  East  Ohio  Gas  Co.  v. 
Akron,  81  Ohio  St.  33;  90  N.  E. 
Rep.  40. 

A  court  of  equity  has  power  to 
grant  a  mandatory  injunction  to 
compel  the  supplying  of  gas  upon 
non-discriminating  terms,  where  a 
refusal  to  supply  it  has  been  made, 
except  upon  discriminating  terms. 
Wilmer  v.  Louisville  Water  Co., 
130   Fed.    Rep.   251. 

Monthly  contracts  may  be  at  a 
higher  rate  than  yearly  contracts. 
Allegheny  County  Light  Co.  v. 
Shadyside  El.  L,  Co.,  37  Pa.  Super. 
Ct.  79. 


GAS    COMPANY    AND    CONST  .\1  KR.  581 

legal  effect  of  the  answer,"  sai<l  llio  court,  "  is  that  llio  relatrix 
shall  have  no  gas  because  her  neighlwrs,  in  common  right,  have 
none  to  spare.  It  is  admitteil,  because  not  denied,  that  tlic 
relatrix  is  a  member  of  that  part  of  the  public  Avliicli  appellee 
has  engaged  to  serve.  As  sueh  she  has  borne  her  ])art  of  the 
public  burdens.  She  has  rendered  her  share  of  the  considera- 
tion. Bellefontaine  Street  in  front  of  her  house  has  beeen  dug 
up  and  her  property  made  servient  to  the  use  of  the  appellee 
in  laving  its  ]>ijM's,  and  in  carrviiig  forward  its  business,  and 
the  right  to  use  the  gas,  and  to  share  in  the  publio  benefit,  thus 
secured,  whatever  it  may  amount  to,  is  equal  to  the  right  of 
any  other  inhabitant  of  the  city.  The  right  to  gas  is  held  in 
common  by  all  those  abutting  on  the  streets  in  whicli  apjx^llee 
had  laid  its  ]U]ies,  or  is  held  of  right  by  none.  The  legislature 
alone  can  authorize  the  doing  of  the  things  done  by  the  ap]x>llef', 
and  this  body  is  prohibited  by  the  fundamental  law  from  grant- 
ing a  sovereign  power  to  be  exercised  for  the  benefit  of  a  class, 
or  for  the  benefit  of  any  part  of  the  public  less  than  the  whole 
residing  within  its  range.  Appellee's  contract  is  witli  the  State 
and  its  extraordinary  jwwers  are  granted  in  consideration  of  its 
engagement  to  bring  to  the  community  of  its  ojx?rations  a  jniblic 
benefit ;  not  a  benefit  to  a  few,  or  to  favorites,  but  a  benefit 
equally  belonging  to  every  citizen  similarly  situated  who  may 
wish  to  avail  himself  of  his  privilege,  and  prepare  to  receive 
it.  There  can  be  no  such  thing  as  priority  or  superiority  of 
right  among  those  who  possess  the  right  in  common.  That  the 
beneficial  agency  shall  fall  short  of  expectations  can  nuike  no 
difference  in  the  right  to  ]>artieipate  in  it  on  e(pu\l  terms.  So  if 
the  appellee  has  found  it  ini}K)Ssible  to  procure  enougli  gas 
fully  to  supply  all,  there  is  no  sufHeient  reason  for  jienuitting 
it  to  say  that  it  will  deliver  all  it  has  to  one  class  to  tlie  ex- 
clusion of  another  in  like  situation.  It  is  immaterial  that 
appellee  was  organized  to  make  money  for  no  one,  but  to  supply 
gas  to  the  inhabitants  of  Indianapolis  at  the  lowest  ]iossible  rate. 
It  has  pointed  us  to  no  special  charter  privilege,  and  under  the 
law  of  its  creation,  certain  it  is,  that  its  unselfish  purjxjse  will 
not  relieve  it  of  its  important  duty  to  the  public.      The  principle 


582  OIL    AND    GAS, 

here  annoinirod  is  not  now.  Tt  is  as  old  as  tlio  oonimon  law 
itself.  It  has  arisen  in  a  multitude  of  cases  affecting  railroad, 
navic^ation,  tcleg^rapli,  telephone,  water,  j^as  and  other  like  com- 
panies and  has  heen  many  times  discussed  hv  the  courts  and  no 
statute  has  hccu  (h^Miiod  necessarv  to  aid  llic  courts  in  linl(liii<T 
that  when  a  ]ierson  undertakes  to  supply  a  demand  which  is 
affected  witli  a  public  interest,  it  must  supply  all  alike  who 
are  alike  situated,  and  not  discommode  in  favor  of,  nor  against 
any. 

§528.     Supply  only  to  abutting  property  owners. 

The  general  rule  is  that  a  gas  conijiany  is  required  to  sujiply 
only  property  abutting  upon  the  company's  lines  or  mains. 
There  are  many  dicta  to  this  effect. ^^  But  this  question  is  often 
regulated  by  a  statute  or  ordinance  frequently  requiring  the 
company  to  furnish  gas  to  persons  not  upon  its  lines ;  as  where 
they  live  within  a  "  reasonable  distance  from  the  line  of  main 
pipes,"  in  which  event  what  is  a  "  reasonable  distance  "  is  a 


24  State  V.  Consumers'  Gas  Trust 
Co.,  157  Ind.  345;  61  N.  E.  Rep. 
674;  55  L.  R.  A.  245;  Rierker  v. 
Lancaster,  14  Lane.  L.  Rev.  393; 
Indiana  Natural  Gas  Co.  v.  State, 
162    Ind.    690;    71    N.    E.    Rep.    133. 

A  natural  gas  company,  for  a  good 
consideration,  agreed  to  furnish  gas 
to  a  person  at  a  certain  rate.  Tlie 
contract  was  indefinite  as  to  time. 
After  many  years  conditions  changed, 
so  that,  to  cover  costs,  wliicli  had 
greatly  increased,  the  company  was 
compelled  to  increase  its  rates  to 
other  consumers.  It  was  held  that 
it  could  terminate  the  contract  on  a 
reasonable  notice.  McCullock,  etc., 
Co.  V  Philadelphia  Co.,  223  Pa. 
336;   72  Atl.  Rep.  633. 

Unless  the  contract  specifies  the 
pressure  at  which  gas  is  to  be  fur- 
nished, it  is  not  bound  to  furnish 
gas  at  a  higher  pressure  to  one  cus- 
tomer than  it  is  supplying  then  to 
other  customers.  Flaccus  v.  West 
Penn.  Gas  Co.,  213  Pa.  561;  62 
Atl.  Rep.  111. 


A  contract  to  furnish  gas  so  long 
as  the  line  over  a  grantor  of  a 
right  of  way  is  in  operation,  will 
not  entitle  him  to  enjoin  the  re- 
moval of  the  line.  Connersville  Nat. 
Gas  Co.  V.  Moflett,  164  Ind.  585; 
73    N.    E.    Rep.    894. 

25  GrifTm  v.  Goldsboro  Water  Co., 
122  N.  C.  206;  30  N.  E.  Rep.  319; 
41  L.  R.  A.  240;  Portland  Natural 
Gas  and  Oil  Co.  v.  State,  135  Ind. 
54;  34  N.  E.  Rep.  818;  21  L.  R.  A. 
639;  Shepard  v.  Milwaukee  Gas- 
light Co.,  6  Wis.  539;  70  Am.  Dec. 
479;  Commonwealth  v.  Wilkes- 
Barre  Gas  Co.,  2  Kulp.  499;  Coy  v. 
Indianapolis  Gas  Co.,  146  Ind.  655; 
46  N.  E.  Rep.  17;  36  L.  R.  A.  535; 
8  Am.  and  Eng.  Corp.  Cas.  (N.  S.) 
771.  Even  though  the  line  was 
paid  for  by  other  consumers,  so  long 
as  it  laid  in  the  street.  Hangen  v. 
Albina  Light  and  Water  Co.,  21 
Ore.  411;  28  Pac.  Rep.  244;  14  L. 
R.  A.   424. 


GAS   COMPANY    AND    CONSUMER.  583 

question  for  the  eoiirts.'"''  Where  ;i  st;itut<'  rcciuircd  a  ('(iinitany 
to  furnish  gas  to  the  occu]>ant  df  a  hnildini:;  within  100  feet  of 
{iny  of  its  mains,  it  was  hehl  that  the  100  feet  was  tlie  spaee  be- 
tween its  nearest  main  an<l  the  nearest  jiortion  of  tlie  huihling, 
and  not  to  the  jwrtion  for  whieh  gas  was  desired.'"^  Of  course,  if 
there  is  a  special  contract  existing  hetwecii  the  would-ln^  cdii- 
sumer  and  the  company,  then  it  is  not  a  qtiestion  whether  or  not 
the  consumer  is  an  abutting  property  owner,  or  his  jiroperty  lies 
within  the  prescribed  distance ;  and  ev^en  though  the  company 
is  not  bound  to  supply  the  applicant  gas,  by  reason  of  the  fact 
that  his  ]U'o])orty  is  too  remote,  yet  if  it  accept  his  applicatinn, 
with  a  full  knowledge  of  that  fact,  it  cannot  deny  him  the  right 
to  the  gas  after  such  acceptance.  No  doubt  the  ('nui])aiiy  can 
require  of  such  an  a]>plicant  an  extra  ]u-ice  for  the  gas,  and  f'-r 
putting  in  p\\)o  to  his  ]ircmises ;  for  the  whole  matter  lies  in  a 
special  contract  and  not  in  a  general  duty  to  supply  the  pul)lic. 

§529.     Extension  of  mains  or  pipes. 

A  gas  company  is  not  IkiuihI  to  extend  its  mains  or  pipes  to 
territory  not  occupied  by  it,  unless  a  statute,  or  a  binding 
ordinance,  its  charter  or  a  contract  requires  it  to  do  so,  even 
though  it  have  the  privilege  to  occupy  any  street  or  all  the 
streets  of  the  municipality.  Rut  the  matter  of  extension  of 
mains  almost  universally  is  governed  by  a  statute  or  the  com- 
])any's  contract  (usually  embodied  in  an  ordinance)  Avith  the 
municipality.      Sometimes   the   municip«il   governing  body   b.as 

28  West  Hartford  v.  PTartford  Wa-  pu'-po«e;  and  an  injunction  will  not 

ter   Com'rs,   G8    Conn.    323;    30   Atl.  be  granted  if  it  api)ears  that  it  would 

Rep.    780.  be    detrimental,    rather    than    beiiefi- 

27  Jones    V.    Rochester    Gas,    etc.,  cial,  to  the  public.     American  l.iglit- 

Co.,  7  X.   Y.  App.  Div.  405;   39  N.  ing   Co.   v.   Public   Service   Corpora- 

Y.   Supp.    1105;    aflirnied    158   N.   Y.  tion,  132  Fed.  Rep.  7!)4. 

678;    52  X.  E.  Rep.   1124.  Where,  without  the  knowledge  or 

A  foreign  company  whose  only  consent  of  a  natural  gas  company, 
interest  in  a  city  arises  out  of  a  the  owner  of  a  stove  connected  it 
contract  with  the  city  to  furnish  with  the  company's  pipes,  and  after- 
burners for  street  lamps  owned  by  ward  paid  the  company  for  the  gas 
the  city  and  to  supply  gas  for  such  used,  it  was  held  th:it  from  thence 
burners  for  a  staked  time,  is  not  on  he  was  a  consumer  and  entitled 
entitled  in  its  own  right  to  a  pre-  to  gas.  Citizens'  Gas  &.  Oil  Min. 
liminary  injunction  to  compel  a  gas  Co.  v.  Whipple,  32  Ind.  App.  203; 
company    to    sell    it    gas    for    such  09  N.  E.  Rep.  557. 


584  OIL    AND    GAS. 

the  power  to  order  and  enforce  an  extension  of  the  mains ;  and 
in  other  instances  the  gas  company  is  bound  to  extend  a  main 
only  upon  application  of  a  certain  number  of  persons  agreeing 
to  take  gas.-"" 

§  530.     Inspection  of  premises. 

Elsewhere  has  been  discussed  the  right  of  a  company  to  in- 
spect the  meter  and  so  much  of  the  pipe  as  lies  between  the 
meter  and  the  company's  mains, —  or  as  it  is  frequently  called, 
the  supply  pipe."'*  The  right  of  the  company,  however,  to 
inspect  the  house  pipes,  cluindeliers,  gas  burners,  furiuices, 
stoves  and  heaters  in  which  gas  is  burned,  is  another  question. 
In  the  case  of  furnaces,  stoves  and  heaters  where  the  company 
has  lawfully  reserved  the  right  to  insist  upon  the  use  of  certain 
kinds,  there  is  no  doubt  of  the  right  of  the  company  to  insist 
upon  an  inspection  at  proper  times  under  proper  limitations, 
to  see  if  their  requirements  have  been  complied  with.  And  per- 
haps the  company  has  the  right  to  insist  upon  an  examination 
of  the  pipes,  burners  and  chandeliers  when  application  is  made, 
to  see  if  the  house  or  building  is  equipped  for  the  use  of  gas, 
although  there  is  some  doubt  on  the  question  ;  for  the  company 
is  not  bound  to  furnish  gas  to  an  applicant  not  prepared  to 
properly  receive  it.^**  Thus  in  a  ISTew  York  case  it  was  said 
"As  the  company  have  no  control  over  the  piping,  does  not  put 
it  in,  and  is  not  consulted  al>out  it,  the  princi]>lc  upon  which 
it  might  be  held  liable,  in  cases  of  this  character,  at  the  time 
of  the  first  delivery  of  gas,  if  no  precaution  were  taken  at  all, 

27a  Unless  a  statute  or  ordinance  State    v.    Seattle    Lighting    Co.,    60 

requires   it,   a   gas   company    is   not  Wash.  81;   110  Pac.  Rep.  799.     See 

bound  to  extend  its  mains  if  there  Fair  v.  Home  Gas,  etc.,  Co.,  13  Cal. 

be    no    reasonable    expectation    that  App.   i589;    110   Pac.    Rep.    347,   for 

the  consumption  of  gas  will  warrant  a  complaint. 

the    necessary    expenditure.      Public  28  See  Young   v.   Southwark,   etc., 

Service  Corp.  v.  American  Lighting  Co.,   G9  L.   T.    144;    41   W.'  R.   622; 

Co.,    67   X.     J.    Eq.    122;     57     Atl.  57  J.  P.  806;  5  R.  432,  and  Wilkes- 

Rep.  482;    State  v.   Consumers   Gas  Barre   Gas    Co.   v.   Turner,    7    Kulp 

Trust  Co.,   157   Ind.   345;    61   X.   E.  399. 

Rep.  674;   55  L.  R.  A.  245;  Hangen  29  state     v.     New     Orleans,     etc., 

V.  Albina  L.  &,  W.  Co.,  21  Ore.  411;  Co.   (La.),  32  So.  Rep.  179. 
28  Pac.  Rep.  244;   14  L.  R.  A.  424; 


GAS    COMPANY    AND    CONSJTmER.  585 

is  simply  that  it  would  hiwo  the  riiilit  to  refuse  to  turn  on,  or 
permit  others  to  tuni  on,  the  <2;ns  for  the  supply  of  tlio  appli- 
cants until  properly  assured  of  the  condition  of  the  i)ipin}j;  in 
other  iKM-tions  of  tlie  huildinc:.  Having  Income  assured  of  it, 
and  the  Jias  heinjr  on,  it  would  not  seem  that  the  company  ought 
further  to  he  regarded  as  liahle  for  the  ('ontinuo\is  good  condi- 
tion of  the  pipgug.  Here  we  may  justly  say  that  to  imix)so 
such  a  liahility  upon  the  defendant  would  clearly  Lc  unreason- 
able. It  would  render  necessary  the  examination,  at  irecpient 
intervals,  of  all  the  buildings  in  the  city  in  which  gas  was  used. 
Tliis  would  be  so  onerous  as  to  be  practically  in^wssible  of 
execution ;  because  of  the  expense  to  the  company."  ''"'  No 
doubt  exists,  however,  that  a  company  may  adopt  a  rule  i>rovid- 
ing  for  inspection,  u]>on  proper  notice  given  of  the  time  when  it 
would  be  made;  and  i)erhaps,  the  rule  might  ])rovide  for  in- 
spection at  any  time  during  business  hours  of  the  day.'^  And 
an  agreement  on  the  part  of  the  consumer  to  permit  an  inspec- 
tion is  binding  ui)on  him.^"  Where  a  gas  company,  upon  con- 
tract with  the  owner  of  the  property,  laid  a  supply  pipe  from 
its  main  to  his  house ;  and  gas  escaping  because  of  a  defect  in 
the  pipe,  causing  an  explosion,  the  company  was  held  liable.'^'' 
This  liability  would,  of  course,  carry  a  right  to  «nter  up(Ui  the 
premises  to  inspect  the  supply  pipe.  But  whore  the  owner  of 
the  property  put  in  the  supply  pipe,  which  became  defective 
after  use,  and  an  explosion  occurred ;  it  was  held  that  the  com- 
pany was  not  liable,  because  of  the  fact  that  the  owner  of  the 
property  had  put  in  the  pi])e.  From  this  it  would  seem  that 
the  company  had  no  right  to  iiis])ect  the  sujijdy  jjijx;.''* 

30Schmeer    v.    Gaslight    Co.,    147  Exch.  46;   2G  L.  T.   .318;    20  \V.   R. 

N.  Y.   529;    42   N.  E.   Rep.   202;    70  493. 
N.  Y.  St.  Rep.  92;  30  L.  R.  A.  Gi53.  34  Henderson   v.    Now    Castle    and 

31  Shcpard  v.  Milwaukee  Gaslight  Galeshead  Gas  Co.,  37  Sol.  J.  403. 
Co.,  G   Wis.  539;    70  Am.  Dec.  479.  As  a  gas  company  has  the  right 

32  Wright  V.  Colchester  Gas  Co.,  to  have  access  to  the  meter,  in  order 
30  Gas  J.  336;  Hitchcock  v.  Essex  to  read  it,  it  may  insist  that  the 
&  H.  Gas  Co.,  71  N.  J.  L.  565;  61  tenant,  and  not  the  landlord,  sign 
Atl.  Rep.  397;  alTirming  70  N.  J.  L.  the  application  for  gas;  because 
492;   57  Atl.  Rep    135  only  the   tenant  can   give   the  riglit 

33  Burrows  v  March  Gas  and  to  visit  the  premises.  Vanderlx'rg 
Coke  Co.,  L.  R.  7  Ex.  96;   41  L.  J.  v.   Kansas    City    Gas    Co.,    125    Mo. 

600;    105  S.  W.  Rep.  17. 


586  OIL   AND    GAS. 

^531.     Mandamus  to  compel  supply. 

Any  ]i('rs'in  wIkiso  ])r(t])orty  alnits  upon  a  fras  company's  line, 
(and  a  tenant  is  such  a  ju'Tson),  and  \vli<i  lias  ('(iin]ili('(l  witli  the 
rules  and  roij^nlations  of  the  f'()ni]>any,  and  ])ropared  his  house  or 
buildino;  for  the  reception  of  pis,  and  is  not  in  arrears  for  gas 
supplied  in  the  manner  and  form  lici-otofdrc  discussed,^'*  may 
compel  the  com]>any  hy  a  writ  of  niandanins  to  supply  hini  wilh 
gas,  if  it  refuses  or  neglects  to  do  so  upon  proper  application 
made.'"'  So  mandamus  will  lie  to  compel  a  deputy  inspector  of 
gas  meters  for  the  city  to  inspect  the  consumer's  meter,  and  if 
found  correct,  to  seal  or  stamp  it,  where  a  statute  requires  all 
meters  to  be  used  to  be  examined,  sealed  and  stami)ed  before 
user.^'  To  entitle  the  applicant  to  the  writ,  it  is  not  necessary 
that  he  should  have  an  interest  in  the  company  different  from 
that  held  by  other  citizens;  and  it  is  no  defense  that  he  is 
already  supplied  by  another  company.^*  But  the  consumer 
must  be  ready  to  receive  the  gas  wluni  he  makes  his  application 
for  it  and  when  he  ap]dics  for  a  writ  of  mandamus;  for  a 
company  should  not  be  subject  to  the  costs  and  annoyance  of 
such  a  proceeding  where  a  customer  is  not  ready  to  use  the  gas.^* 

35  state  V.  New  Orleans,  etc.,  Co.  ley  v.  Watauga  Water  Co.,  99  Tenn. 

(La.),  32  So.  Hop.  179.  420;    41    S.    W.    Kep.    1058;    Bloom- 

If  an  applicant  is  in  no  position  field,  etc.,  R.  R.   Co.  v.  Richardson, 

to  require  a  gas  company  to  supply  G3   Barb.   437;    Williams   v.  ^Mutual 

him  with  gas,  the  fact  that  the  com-  Gas   Co.,   52   Mich.   499;    18   N.   W. 

pany   put  its   refusal   on    an   unten-  Rep.  236;   50  Am.  Rep.  266;   4  Am. 

able  ground  is  immaterial.     Vander-  and    Eng.    Corp.    Cas.    G6;    Johnson 

berg   V.    Kansas   City   Gas   Co.,    126  v.  Atlantic  City  Gas  &  W.  Co.,   65 

Mo.  App.  600;   105  S.  W.  Rep.  17.  N.    J.    Eq.    129;    56   Atl.   Rep.    550; 

38  Richmond,  etc..  Gaslight  Co.  v.  Seymour  Water  Co.  v.  Seymour,  163 

Middlctown,  59  X.  Y.  228;    1  T.  and  Ind.    120;    70  N.    E    Rep".   514;    To- 

C.    143;    People    v.    Manhattan    Gas-  peka  v.  Topeka  Water  Co.,  58  Kan. 

light  Co.,  45  Barb.   130;    1   Abl     Pr.  349;     49     Pac.     Rep.     79.       Contra, 

(X.  S.)   404;  30  How  Pr.  87;  State  Commercial    Bank    v.    London    Gas 

V.   Consumers'    Gas    Trust    Co.,    157  Co.,  20  Up.  Can.   Q.   B.  N.   C.  233; 

Ind.   345;    61    X.   E.   Rep.   674;    55  State    v.    Xew    Orleans,    etc.,    Co. 

L.   R.  A.   245;    Shcpard   v.   Milwau-  (La.),  32  So.  Rep.   179. 

kee   Gaslight    Co.,   6    Wis.    539:    70  37 /„.  re  McDonald,  16  X.  Y.  Misc. 

Am.    Dec.    479;     Portland    Xatural  Rep.  304;  39  N.  Y.  Supp.  367. 

Gas  and  Oil   Co.  v.  State,   135   Ind.  as  Portland     Gas     Co.     v.     State, 

54;   35  X.  E.  Rep.  818;  21  L.  R.  A.  supra. 

639;  ILmgen  v.  Albina  Light  and  ^g  Portland  Gas  Co.  v.  State, 
Water  Co.,  21  Ore.  411;  28  Pac.  supra;  Shepard  v.  Milwaukee  Gas- 
Rep.  244;    14   L.  R.   A.   424;    Crum-  light  Co.,  supra. 


GAS    COMPANY    AND    CONSUMER.  587 

If  the  ('(inijniiiv  has  deuiaiKlcd  an  illciial  rate,  it  is  not  necessary 
for  the  ei>nsniner  to  toiulor  the  anmnnt  actnallv  pavahlc,  where 
the  rate  is  payable  in  advance,  before  bringinij;  his  action  ;  but 
in  his  petition  he  may  state  liis  al>ility  to  ])ay  and  a  willin<rness 
to  do  so  njxm  liTantiiiii"  the  writ  or  Ixdni-e  any  jz;as  is-  actually 
furnished.**'  The  duty  to  supply  pis  iiichules  tni-ninir  it  on 
when  applied  to  for  that  pur]xise,  the  ]>ro|Kn'  connections  having 
been  made,  the  meter  need  not  be  furnished  if  the  company  is 
to  furnish  it/'  As  a  rule  the  right  to  the  writ  is  limited  to 
those  whose  property  abuts  upon  the  company 's  mains  or  pipes ; 
and  it  is  not  awarded  to  those  to  whom  the  company  would  not 
1)6  compelled  to  extend  its  mains,  especially  if  the  cost  of  the 
extension  would  be  out  of  proportion  to  the  income  that  would 
be  received.*^  But  this  question  is  often  regulated  by  statute 
or  an  ordinance  requiring  the  company  to  extend  its  mains  to 
regions  not  occupied  by  it  upon  demand  of  a  prospective  cus- 
tomer or  of  a  certain  number  of  customers.  It  is  no  defense 
to  the  writ  that  the  company  has  not  enough  gas, —  as  natural 
gas, —  to  supply  its  then  customers;  and  to  compel  them  to  take 
on  additional  customers  would  injure  their  ])resent  customers.'"' 
If  the  company  would  have  the  right  to  turn  off  the  gas,  if  it 
were  supplying  it,  because  of  a  failure  of  the  applicant  to  pay 
past  bills  that  he  owes,  then  he  cannot  successfully  insist  up<m 
his  rights  to  the  writ;  and  this  is  true  even  though  they  had 
furnished  him  gas  upon  his  application  after  such  bills  Avere 
due.^*^  A  person  who  intends  to  make  only  occasional  use  of  the 
gas  is  not  entitled  to  the  writ  as,  for  instance,  to  use  it  only 
Avhen  the  electric  light  in  his  house  should  fail.*^ 

40  Xorthern  Colorado,  otx:.,   Co.   v.  *!>  State  v.  Consumers'  Gas  Trust 

Richards,    22    Colo.    450;     45    Pac.  Co.,  supra. 

Eep.  423.  48  People    v.    :Manhattan    Gasliglit 

4iSchmeer  v.    Gaslight    Co.,    147  Co.,  45  Barb.  136;  30  How.  Pr.  87; 

N.  Y.  529;   42  X.   E.  Rep.   202;    70  1  Abb.  Pr.   (N.  S.)  404. 

N.  Y.  St.  Rep.  92;  30  L.  R.  A.  653.  47  Smith  v.   Capitol   Gas  Co.,    132 

43  State  V.  Consumers'  Gas  Trust  Cal.  209;  G4  Pac.  Rep.  258;  Flem- 
Co.,  supra;  Hangen  v.  Albina  Light  ing  v.  Montgomery  Light  Co. 
and  Water  Co.,  supra;  Public  Serv-  (Ala.),  13  So.  Rep.  G18;  Adams  Ex- 
ice  Corp.  V.  American  Lighting  Co.,  press  Co.  v.  Cincinnati  Gaslight  and 
67  X.  J.  Eq.  122;   57  Atl.  Rep.  482.  Coke    Co.,    10    Ohio    Dec.    389;    21 

Wkly.  Law  Bull-.  18. 


588  OIL   AND   GAS. 

§532.     Mandamus  to  compel  furnishing  of  gas  to  a  city. 

There  is  no  doubt  that  a  iiiiiiii('i]ialil y  may  compel  a  gas 
conijniny  to  furnish  pis  under  a  c<intraot  it  has  with  it,  the  same 
as  a  private  individual ;  and  is  not  compollod  to  resort  to  an 
action  for  damajxes.''^ 

§533.     Penalties  for  failure  to  supply  gas. —  Damages. 

Often  statutes  inflict  penalties  uywn  a  gas  company  for  a 
neglect  or  refusal  to  furnish  gas.  This  is  especially  true  in 
England.  Thus  a  statute  of  that  country*^  provides  that  if 
it  be  shown  before  any  two  justices  of  the  jieace  **  that  any  day 
the  gas  supplied  by  the  undertakers  is  under  less  pressure,  of 
less  illuminating  power,  or  of  less  purity  than  it  ought  to  be 
according  to  the  provisions  of  "  that  or  of  a  special  act  referred 
to,  "  the  undertakers  shall  in  every  such  case  forfeit  and  pay 
to  the  local  authority  or  other  persons  making  application  for 
testing  the  gas  such  sum  not  exceeding  twenty  jx>unds,  as  the 
justices  shall  determine."  It  was  held  that  this  statute  applied 
to  a  case  where  the  company  improperly  cut  off  the  gas,  for 
the  reason  that  a  refusal  or  neglect  to  supply  gas  w^as  a  neglect 
or  refusal  to  supply  it  under  the  pressure  the  statute  required.^** 
Under  this  statute  the  penalties  form  the  only  remedy,  no  action 
lying  for  damages."^  Under  this  and  similar  statutes  it  is  held 
in  that  country  that  the  consumer  cannot  set  up  as  a  defense 
the  gas  supplied  was  of  an  inferior  quality,  such  a  defense 
being  only  ground  for  claiming  a  fine  from  the  company.^"     In 

48  Toledo  V.  N.  W.  Ohio  Natural  Co.,  L.  R.  2  Exch.  Div.  441:  4G  L. 
Gas  Co.,  5  Ohio  C.  C.  557;  3  Oliio  J.  Exch.  775;  25  W.  R.  794;  36 
Cir.  Dec.  273:  Williams  v.  Mutual  L.  T.  761  (reversing  L.  R.  6  Exch. 
Gas  Co.,  52  Mich.  499;  50  Am.  Rep.  Div.  404;  20  W.  R.  35,  and  disap- 
266;  18  N.  W.  Rep.  286;  4  Am.  and  proving  Couch  v.  Steel,  3  E.  and  B. 
Eng.  Corp.  ,Cas.  66;  People  v.  New  402);  Clcgg  v.  Earby  Gas  Co. 
York,  etc.,  Water  Co.,  56  N.  Y.  [1896],  1  Q.  B.  592;  65  L.  J.  Q.  B. 
Supp.  364.  339.     See  Johnston  v.  Toronto  Con- 

49  34  and  35  Vict.  [1871],  Ch.  sumers'  Gas  Co.  [1898],  App.  Cas. 
41,  Sec.   36.  447;    78   L.  T.   270. 

50  Commercial  Gas  Co.  v.  Scott,  52  Porquay  Gas  Co.  v.  Carter,  32 
L.  R.  10  Q.  B.  400;  44  L.  J.  M.  C.  Gas  J.  490;  Great  Central  Gas  Con- 
171;  32  L.  T.  (N.  S.)  765;  23  W.  R.  sumers'  Co.  v.  Tallis,  3  Gas  J.  5. 
874;   44  L.  J.  Q.  B.  715.  See    Gaslight    and    Coke    Co.    v.    St. 

51  Atkinson  v.  New  Castle  W.  W.  George,  42  L.  J.  Q.  B.  (N.  S.)  50. 


GAS    COMPANY    AND    CONSUMER, 


588a 


New  York  it  was  held  tliat  the  company  was  not  liable  to  j)lace 
a  gas  meter  on  plaintiff's  floor,  where  he  resided  in  an  ajttirt- 
ment  house,  if  gas  was  furnished  the  building,  unless  he  put  in 
a  separate  service  or  supplying  ])i|)o.°^  A  statute  requiring  a 
gas  company  to  supply  the  owner  or  occupant  of  a  building 
rendering  the  company  liable  to  only  one  action  to  recover  a  pen- 
alty, for  a  failure  to  supply  gas,  of  ten  dollars,  and  the  further 
sum  of  five  dollars  for  every  day  of  refusal ;  and  a  subsequent 
action  for  penalties  accruing  during  the  continuance  of  the 
default  in  the  absence  of  a  new  application  cannot  be  main- 
tained.°*  Under  the  Xew  York  statute  before  the  penalty  if 
incurred,  an  application  must  be  presented,  stating,  among  other 
things,  the  number  of  lights  (and  in  case  of  an  rloctric  lighting 
company,  how  much  power)  is  required,  especially  where  the 
company  at  the  time  it  receives  the  application  requested  such 
information.'*^ 


53  Ferguson  v.  iletropolitan  Gas- 
light Co.,  37  How  Pr.   ISn. 

54  Jones  V.  Rochester,  etc.,  Co., 
168  N.  Y.  65;  60  N.  E.  Rep.  1044; 
reversing  64  N.  Y.  Supp.  1138. 

In  Jones  v.  Rochester,  etc.,  Co., 
3«  N.  Y.  Supp.  1105,  1110;  7 
N,  Y.  App.  Div.  465;  affirmed  158 
K  Y.  678;  52  N.  E.  Rep.  1124,  it 
was  held  that  a  succession  of  penal- 
ties under  this  statute  may  be  re- 
covered in  successive  actions.  In 
this  case  there  was  a  dispute  be- 
tween   the    customer    and    company. 

The  statute  referred  to  in  tliese 
cases  did  not  apply  to  natural  gas 
companies  organized  under  the 
"business  corporation  law."  Wil- 
son V.  Tennant,  70  X.  Y.  Supp.  2; 
61  N.  Y.  App.  Div.  100;  affirming 
65  X.  Y.  Supp.  852;  32  Misc.  Rep. 
(N,  Y.)   273. 

B5  Andrews  v.  Xorth  River,  etc., 
Co.,  23  X.  Y.  Misc.  Rep.  512;  51 
N,  Y.  Supp.  872. 

In  this   state    a   statute    provides 


that  if  a  gas  company  on  applica- 
tion of  an  owner  of  a  building  re- 
fuses or  neglects  to  supply  gas, 
though  there  may  be  arrears  due  for 
gas  supplied  to  a  former  tenant, 
it  shall  be  liable  to  a  penalty.  It 
was  held  that  this  statute  docs  not 
cover  merely  the  case  of  a  refusal 
to  begirt  a  supply  of  gas  after  an 
application  made,  but  covers  an 
instance  where  the  supply  has  been 
cut  off  after  it  has  once  commenced. 
Hoch  V.  Brooklyn  Borough  Gas  Co., 
117  X.  Y.  App.  Div.  882;  103  N. 
Y.  Supp.  370.  Unless  a  written  ap- 
plication for  gas  be  made  no  pen- 
alty is  incurred.  Shelley  v.  West- 
chester Lighting  Co.,  119  X.  Y.  -Vpp. 
Div.  61;  103  X.  Y.  Supp.  951;  and 
if  a  written  application  be  made, 
and  a  beginning  to  supply  gas  be 
made  and  then  the  supply  shut  off, 
a  second  written  application  is  nec- 
essary before  the  penalty  can  be 
inflicted,  even  though  the  pas  com- 
pany waive  the  written  application. 


588b 


OIL.   AND    GAS. 


Ibid;  Shelley  v.  Westchester  Light- 
ing Co.,  128  N.  Y.  App.  Div.  890; 
112  X.  Y.  Supp.  11 4G;  reversing  iJo 
N.  Y.  Misc.  Rep.  105;  105  N.  Y. 
Supp.  133.  Leaving  a  blank  un- 
filled where  the  word  "gas"  should 
have  been  inserted  will  not  invali- 
date the  written  application.  Shelley 
V.  Westchester  Ligliting  Co.,  139  X. 
Y.  App.  Div.  G90;  124  X.  Y.  Supp. 
484. 

The  gas  company  has  the  burden 
to  show  the  debt  for  which  gas 
was  shut  ofT  and  the  plaintiff  is  not 
bound  to  plead  a  willingness  to 
keep  the  tender  of  the  amount  due 
good.  Levine  v.  Brooklyn  Gas  Co., 
131  N.  Y.  Supp.  255. 

In  England  where  a  statute  re- 
quired water  rates  to  be  paid  quar- 
terly in  advance,  a  water  company 
is  not  liable  to  a  penalty  for  a  fail- 
ure to  supply  water  if  the  com- 
plainant has  not  paid  the  rate  in 
advance,  although  it  is  not  the  cus- 
tom of  the  company  to  take  prepay- 
ment. Kyffin  V.  East  London  W. 
W.  Co.,  66  Gas  Jr.  243;  Thorn  v. 
East  London  W.  W.  Co.,  66  Gas 
Jr.  189;  Sheffield  W.  W.  Co.  v. 
Brooks,  8  Q.  B.  Div.  632;  51  L.  J. 
M.  C.  97;  30  W.  R.  889;  46  J.  P. 
548.  See  Sheffield  VV.  W.  Co  v. 
Wilkinson,  4  C.  P.  Div.  410. 

The  laws  of  New  York,  1859,  Ch. 
3311,  Sec.  6,  imposing  a  penalty  on 
gaslight  companies,  which,  for  ten 
days  after  an  application  for  gas 
neglects  to  supply  it,  applies  where, 
although  gas  has  been  furnished 
within  the  ten  days,  tiicre  has  been 
a  neglect  to  give  a  continuous  sup- 
ply. Meiers  v.  Metropolitan  Gas- 
light Co.,   11  Daly  119. 

In  one  section  of  the  Civil  Code 
of  California  it  is  provided  that  on 
the  written  application  of  the  owner 


of  a  building,  and  payment  of  all 
money  due  from  him,  a  gas  com- 
pany must  supply  gas  for  such 
building;  and  on  refusal,  must  pay 
a  certain  amount  per  day  as  liq- 
uidated damages.  Another  section 
provides  that  an  obligation  for  the 
payment  of  money  is  extinguished 
by  a  due  offer  of  payment  if  the 
amount  is  immediately  deposited  in 
tlie  name  of  the  creditor  with  some 
bank,  and  notice  thereof  given  the 
creditor.  It  was  held  that  a  tender 
of  the  amount  already  due  for  gas, 
unaccompanied  by  a  deposit  thereof 
to  the  credit  of  the  gas  company, 
Avas  not  sufficient  to  lay  a  basis  for 
an  action  under  the  first  mentioned 
section.  Baker  v.  San  Francisco  G. 
&  El.  Co.,  141  Cal.  710;  75  Pac. 
342;  Fair  v.  Home  Gas,  etc.,  Co. 
15   Cal.   App.  70'5;    115   Pac.   754. 

In  Alabama  a  municipal  corpora- 
tion may  adopt  an  ordinance  impos- 
ing a  fine  or  imprisonment  on  an 
officer  or  employee  of  a  water  com- 
pany for  the  exaction  of  a  rate 
in  excess  of  that  stipulated  in  a  con- 
tract between  the. company  and  the 
city  for  a  supply  of  water  for  the 
city  and  its  citizens,  but  not  for 
the  commission  of  an  act  authorized 
by  sucli  contract.  Crosby  v.  !Mont- 
gomery,  108  Ala.  498;  18  So.  Rep, 
723. 

A  municipality  cannot  adopt  an 
ordinance  requiring  a  railroad  com- 
pany to  maintain  a  particular  kind 
of  liglit  at  its  crossings  in  its  mu- 
nicipal boundaries,  though  it  may 
require  it  to  maintain  a  sufficient 
liglit  to  protect  travelers.  Cleve- 
land, etc.,  Ry.  Co.  v.  Connersville, 
147  Ind.  277;  46  N.  E.  Rep.  579; 
Contra,  Cincinnati,  etc.,  R.  R.  Co. 
V.  Bowling  Green,  57  Ohio  St.  336; 
49  N.  E.  Rep.  121. 


GAS    COMr.VNY    AND    CONSUMER.  589 

§  534.    Damages  for  failure  to  supply  gas. — Sickness. 

Where  a  company  undertakes  to  supply  a  custoiiuT  in  a  niu- 
nicipa]ity  with  gas  under  an  Drdinancc  retiuiiiiii:  ii  to  do  so, 
or  under  its  general  public  duty,  and  it  fails  to  do  so,  especially 
after  it  has  begiui  to  supply  him,  it  will  be  liable  to  him  in 
an  action  of  tort  for  all  damages  traceable  to  the  wrong  done, 
arising  withour  ;ii.  iiiUu'voiiing  agency  and  witlumt  llic  fault  of 
the  injured  parfy.  And  it  is  also  a  tort,  under  such  cin  um- 
stances,  where  a  contract  existing  between  the  company  and  the 
consumer,  such  as  is' usually  entered  into  by  consumers  in  a 
municipality.  "  Tlie  failure  to  jTorform  such  a  contract  is  in 
itself  a  '  tort.'  "  ^'^  In  such  an  instance  it  is  no  defense  for  the 
company  that  it  did  not  have  the  gas  to  furnish  or  enough  to 
furnish  the  full  amount  it  liad  agreed  to  furiiish  if  it  fully 
supplied  other  customers ;  nor  is  it  a  defense  that  the  consumer 
could  have  recovered  back  an  amount  of  the  sum  he  paid  pro- 
portionate wuth  the  amount  of  gas  it  had  failed  to  supply. 
Tn  such  an  action  tlie  consumer  may  show  that  other  consumers 
in  buildings  received  an  insufficient  supply,  where  it  is  shown 
that  such  buildings  were  attached  by  means  that  would  furnish 
as  mudi  or  more  gas  than  the  attachment  at  his  own  stove. 
If  the  company  take  pay  for  the  gas  and  retain  it,  it  is  no 
excuse  that  the  supply  of  gas  failed,  and  it,  for  that  reason 
could  not  keep  its  contract.  Xor  is  it  a  defense  that  the  con- 
sumer removed  his  mixer  and  burned  the  gas  without  using  it, 
as  the  rules  of  the  com]inny  and  his  contract  Avith  it  reipiired, 
it  having  received  pay  for  the  gas  in  advance.^'  Where  there 
is  a  failure  to  supply  merely  illuminating  gas.  the  consumer  has 
a  right  to  recover  l)ack  not  only  what  he  has  ])ai<l  for  the  gas 

Bfl  Coy    V.    InilianapoHs    Gas    Co.,  duty.)      Shepard  v.  Milwaukee  Gas- 

146  Ind.  655;   46  N.  E.  Rep.  17;   36  liirlit  Co.,  15  Wis.  .318;  82  Am.  Dec. 

L.  R.   A.  535;    8  Am.  &   Enpr.   Corp.  679;    Boal   v.  Citizens'  Natural   (Jas 

Cas.   (X.  S.)   771;  Indiana,  etc.,  C.as  Co.,  23  Pa.  Super.  Ct.  330;  Miller  v. 

Co.  V.   Anthony.  26   Ind.  App.   307;  Wilkesbarre   Gas  Co.,  206   Pa.  254; 

58     X.     E.     Rep.     868;     Iloehle     v.  55    Atl.    Rep.    974;    Crcenfiold    Gas 

Allegheny  Heating  Co.,  5  Pa.  Super.  Co.  v.  Trees,  165  Ind.  209;  75  X.  E. 

Ct.     21;'  40    W.     X.     C.     553;     28  Rep.  2;  Carroll  v.  Erie  County,  etc., 

Pittsl).  L.   J.    (X^  S.)    65.      (This  is  Fuel  Co.,  13  Ont.  W.  R.  7n5;"anirm- 

especially    true    if    the    contract    is  inpr  10  Ont.  W.  R.   1017. 

only   a   statement  of  the   reasonable  •'•"  Indiana,    etc.,    Gas    Co.    v.    An- 

conditions    under    which     the    com-  thony,   26   Ind.   App.  307;    68  N.  E. 

pany   was   required    to    perform    its  Rep.    868. 


590  OIL    AND    GAS. 

not  furnished,  but  also  the  danuigcs  he  has  suffered  in  his  busi- 
ness, as  well  as  for  the  inconvenience  and  annoyance  experi- 
enced by  him  in  his  business,  if  it  was  to  be  supplied  for  the 
purpose  of  lighting  up  his  business  establishment,  arising  out 
of  the  refusal  to  furnish  gas.'**'  This,  of  course,  would  include 
loss  of  profits.  And  where  the  oAvner  of  a  business  house  pre- 
pared it  ready  to  receive  the  gas,  it  was  held  that  he  could 
recover  from  the  company  refusing  him  gas  the  depreciation  of 
the  property  for  sale  or  lease,  and  the  expense  of  restoring  the 
property  to  a  ])roper  condition,  divested  of  the  gas  pipes,  in 
addition  to  other  damage  legitimately  flowing  from  such  re- 
fusal.^® An  aeronaut  of  some  celebrity  brought  suit  to  recover 
damages  estimated  at  over  500  dollars,  occasioned  by  a  failure 
of  a  gas  company  to  keep  a  contract  to  supply  his  balloon  with 
gas,  on  an  occasion  of  an  intended  ascent  in  a  city ;  and  it  was 
held  that  the  plaintiff  was  entitled  to  maintain  the  action."" 
But  a  boarding  house  keeper  was  not  allowed  damages  for  loss 
of  the  profits  she  would  have  derived  from  her  boarders  who  left 
because  of  a  failure  of  the  company  to  furnish  gas.^^  Yet 
where  a  natural  gas  (or  other)  gas  company  undertakes  to 
furnish  gas  for  heating  purposes,  and  fails  to  do  so,  it  will  be 
liable,  after  notice  of  the  probable  effects  of  such  failure  and  the 
consumers'  inability  to  procure  other  fuel,  in  damages,  for 
sickness  occasioned  thereby  to  the  consumer  and  his  family,  even 
for  the  death  of  his  child  or  wife,*'"  unless  the  company  show 
that  it  was  beyond  its  power  to  furnisli  the  gas.®^     Where  a 

58  Shepard  v.  Milwaukee  Gaslight  si  Morey  v.  IMetropolitan  Gas  Co., 
Co..  15  Wis.  318;  82  Am.  Dec.  67!);  6  J.  and  S.  (N.  Y.)  185.  The  sound- 
Baltimore  Gaslight  Co.  v.  CoUiday,  ness  of  this  decision  may  well  be 
25  Md.  1 ;  Whitehouse  v.  Liverpool,  doubted. 

etc.,  Co.,  5  C.  B.  798;  5  M.  Gr.  and  C2  Coy    v.    Indianapolis    Gas    Co., 

S.    798;    Kokomo,   etc.,    Co.    v.    A\-  supra;  Indiana,  etc..  Gas  Co.  v.  An- 

bright.  18  Ind.  App.  151;   47  N.  E.  tnony,  aiipra ;   Hoehle   v.   Allegheny 

Rep.    682,    rental    of   houses   recov-  Heating  Co..   5   Pa.   Super.   Ct.  21; 

ered.  40  W.   N.   C.   55.3;   28  Pittsb.  L.  J. 

59  Baltimore  Gasliirht   Co.  v.   Col-  (N.    S.)    65. 

liday.    25    IMd.    1  ;    Bedding   v.    Im-  63  Coy    v.    Indianapolis    Gas    Co., 

perinl  Gaslight  Co.  7  Gas  .J.  418.  supra. 

CO  Hampton  v.  O.\ford  Gas  Co.,  3 
Gas  J.   64. 


GAS    CO.Ml'ANY     AM)    CONSU  MKK. 


591 


company  enters  into  a  contract  to  furnish  a  i;lass  factory  with 
gas  to  run  its  pots  and  failed  to  keep  it,  the  ghiss  business  being 
new  in  that  vicinity,  and  the  expense  necessarily  and  actually 
incurred  in  organizing  the  factory,  its  fair  rental  value  when 
idle,  if  it  had  any,  and  if  it  had  none,  the  interest  on  the  money 
invested  therein,  together  with  the  interest  on  any  idle  working 
capital,  the  value  of  which  had  been  lost  by  a  violation  of  the 
contract,  the  cost  of  bringing  new  and  skilled  workingnien  from 
a  distance,  none  being  in  that  vicinity;  the  cost  of  their  trans- 
portation, and  the  compensation  agreed  or  recpiired  to  be  })aid 
for  the  service  of  the  glass  company's  affairs  may  be  treated  as  a 
part  of  the  necessary  expenses  and  damages  recoverable.*'*  It  is 
no  defense  that  the  insutlicient  supply  was  occasioned  by  the 
freezing  of  the  gas  mains,  if  the  company  was  careless  in  pro- 
tecting them  from  the  frost ;  and  the  presumption  is  that  the 
gas  mains  would  not  have  frozen  np  if  properly  protected."^ 
If  the  company  improperly  cnt  off  the  gas,  to  enforce  the  pay- 
ment of  a  bill  for  which  the  consumer  was  not  liable  to  pay,  it 
will  be  liable  for  the  damages  thereby  occasioned.'''^  But  a 
consumer  cannot  recover  damages  for  a  failure  to  supply  gas 
under  a  contract  giving  him  an  illegal  preference, —  as  with 
the  directors  and  stockholders, —  for  all  consumers  within  a 
municipality  must  be  served  alike,*'^ 


64Paola  Gas  Co.  v.  Paola  Glass 
Co.,  56  Kan.  G14;  44  Pac.  Pvcp.  621. 

65  Stock  V.  Boston,  149  Mass.  410; 
21  N.  E.  Rep.  871.  Not  liable  in 
case  of  frost  of  an  exceptional  char- 
acter. In  re  Riclimond  Gas  Co. 
[1893],   1   Q.   B.   50. 

68  Merrimac  River  Saving  Bank 
V.  Lowell,  152  Mass.  550;  20  N.  E. 
Rep.  97;    10  L.   R.  A.   122. 

67  Shoenberger  v.  Equitable  Gas 
Co.,  22  Pittsb.  L.  J.  (N.  S.)  347; 
Crescent  Steel  Co.  v.  Equitable  Gas 
Co.,  23  Pittsb.  Leg.  J.    (X.  S.)    310. 

Where  no  pecuniary  loss  is  shown. 
the  damages  recoverable  are  nomi- 
nal. Detroit  Gas  Co.  v.  Moreton, 
etc.,  Co.,  Ill  Mich.  401;  09  N.  W. 
Rep.   659. 


Profits  cannot  be  recovered  unless 
there  be  evidence  of  loss  of  profits. 
IMiller  v.  Wilkesbarre  Gas  Co.,  200 
Pa.  254;   55  All.  Rep.  974. 

The  plaintiff  may  recover  the  dif- 
ference between  what  he  w;is  to  pay 
for  gas  and  what  he  had  to  pay  to 
get  other  gas,  when  such  is  the 
case.  Carroll  v.  Erie  County,  etc., 
Fuel  Co.,  13  Ont.  W.  R.  795,  afTirm- 
ing   10   Ont.   W.    Rep.    1017. 

In  an  action  for  damages  occa- 
sioned by  shutting  off  gas,  it  must 
be  alleged  tiiat  tiie  plaintiff  com- 
plied with,  or  offered  to  comply 
witli,  the  reasonable  regulations  of 
the  company  before  or  when  it  shut 
off  the  gas;  and  it  is  not  enough  to 
merely   aver,   by   way  of  conclusion 


o\)-2  OIL    AND    GAS. 

§535.     Limiting-  liability  for  failure  to  supply  gas. 

A  company  has  no  right  or  powor  Id  limit  its  liability  to 
furnish  a  sufficient  supply  of  gas  within  a  mnnicipality.  A 
duty  is  imposed  by  law  to  su])ply  gas  against  wliich  it  cannot 
shield  itself  by  a  contract  with  the  customer.""  If  the  supply 
in  case  of  natural  gas,  should  fail,  that  would  be  a  defense,  in 
case  the  company  had  nuide  all  efforts  to  furnish  the  gas;  for 
natural  gas  is  an  article  that  cannot  be  manufactured,  a  quite 
diiferent  situation  from  an  instance  of  supplying  artiiicial  gas. 
But  it  is  quite  another  proposition  where  the  company  is  luider 
no  duty  to  furnish  gas.  There  the  company  may  limit  its 
liability;  for  the  right  to  gas  in  that  case  rests  wholly  upon 
contract.  Thus,  in  case  of  natural  gas  the  contract  may  loe  to 
furnish  it  for  a  plant  so  long  as  the  company  has  gas,  and 
the  contract  is  not  void  for  indefiniteness,  even  though  the 
consumer  use  gas  for  domestic  purposes.*"*  Where  a  company 
agreed  to  furnish  gas  to  certain  customers  so  long  as  with 
ordinary  diligence  and  outlay  it  could  procure  gas  under  the 
contracts  then  ordinarily  in  use  by  gas  companies,  it  was  held 
that  its  "  diligence  and  outlay  "  was  to  be  measured  as  of  the 
date  of  the  contract,  and  not  under  conditions  entirely  altered.^" 

and   recital,   that,    after    being   ten-  be    recovered.       Kentucky    Heating 

dered     its     charges,     the     company  Co.   v.   Hood,    133   Kj-.   3S3;    118   S. 

wrongfully    and    unlawfully    turned  W.    Rep.   337;    34    Ky.    L.   Rep.   — . 

off  the   gas.     Greenfield   Gas   Co.  v.  cs  Scc.   525. 

Trees,  165  Ind.  209;  75  N.  E.  Rep.  2.  69  Xenia  Real  Estate  Co.  v.  Macy, 

If  the  servants  of  a  gas  company  147   Ind.   5C8;    47   N.   E.   Rep.    147; 

wrongfully   remove  and  destroy  the  Black  Lick  v.  Saltsburg,  139  Pa.  St. 

fixtures   and   connections   of   a  rival  448;   21  Atl.  Rep.  432;   Whitman  v. 

company   whereby   plaintiff   and  her  Fayette  Fuel  Gas  Co.,  139  Pa.  492; 

tenants  are  deprived  of  heat,  there-  20  Atl.  Rep.  10G2;  Connersville  Nat. 

by    causing    her    tenants    to    leave.  Gas   Co.   v.   Moffett,    1G4   Ind.    585; 

the    plaintiff    may    recover    the    cost  73   N.   E.   Rep.    894. 

of   replacing   the    fixtures    and   con-  to  Crescent  Steel  Co.  v.  Equitable 

nections,   but    also   reasonable    com-  Gas   Co.,   23   Pittsb.   L.   J.    (X.   S.) 

pensation  for  loss  of  profits  because  31G;  Bruce  v.  Indianapolis  Gas  Co., 

of  his  tenants   leaving  him,  as  well  40  Ind.  App.  193;  92  N.  E.  Rep.  189. 

as    damages    for    personal    ineonven-  If   a    person    without  a   gas   com- 

ience   and   discomfort.      In    fact,   on  pany's  knowledge  connect  his  pipes 

•notice    to    restore     and    repair    tlie  with  its  pipes  and  use  its  gas;   and 

premises,    e.xemplary    damages    may  on    the    companj-'s    discovering    the 


c.Vo  co.MPAXv  a::j  conslmer. 


§536.     Application  for  gas. 

A  gas  coin]>:iiiy  may  roquiro  the  a]i])li('aTit  for  gas  to  siim  a 
written  ajiplicatioii,  coiit:iiiiiiii:"  a  fjencral  doscription  of  tlio 
premises  to  be  sup]>liocl  and  an  agrcciucnt  to  abide  by  the  rules 
and  regulations  of  the  eonipany."^  But  if  any  of  the  rules  are 
unreasonable,  the  applieiuit  ^vill  not  be  liound  by  tliem,  even 
though  he  agree  to  them  :  for  his  agreement  is  niid(  i-  ihe  iKiture 
of  a  eom]>ulsion,  to  secure  a  service  to  which  he  is  otherwise 
entitled  to  have.  In  a  contest,  the  court  will  determine  whether 
or  not  the  rules  are  reasonable,  of  any  particular  one  of  wliich 
complaint  is  made.  These  rules  may  be  embodied  in  the  appli- 
cation;  or  may  lie  mnde  a  ]>art  of  it  by  a]it  words  of  reference 
thereto.  But  even  this  is  not  necessary;  for  the  applicant  will 
be  bound  by  all  reasonable  rules  of  tlie  company  brought  to  his 
attention  without  an  express  agreement  concerning  them.^-  If 
only  an  oral  application  is  made,  and  the  company  refuse  to 
supply  gas  for  a  particular  reason,  not  refusing  because  a  writ- 
ten application  is  not  nuide,  it  thereby  waives  its  right  to  de- 
nunul    a    written    aj)plieation,    althdUiih    its    rules    re(|uire    it."' 


connection  and  uses  of  tlie  gas  he 
pays  it  for  the  gas  used,  he,  from 
thence  on,  becomes  a  consumer  of 
gas  and  is  entitled  to  use  it,  unless 
ordered  by  the  company  to  cease. 
Citizens'  Gas  &  Oil  Co.  v.  Whipple, 
32  Ind.  App.  203;  <39  N.  E.  Rep. 
557. 

A  contract   with    a   gas   compahy 


Am.  r.cp.  26G;  4  Am.  and  Eng. 
Corp.  Cas.  GG;  Shepard  v.  Milwau- 
kee Gas  Co.,  6  Wis.  530;  70  Am. 
Dec.  479;  State  v.  New  Orleans, 
etc.,  Co.    (T^.),  32  So.  Rep.   179. 

If  the  house  is  in  possession  of 
a  tenant,  tlio  tenant  and  not  tiic 
landlord  must  make  the  ai)plication 
and  sign   the  contract:    for  onlv   he 


by  which  the  owner  of  lots  paid  t!ie  can  lawfully  give  permission  to  the 

whole  amount  in  advance  for  laying  servants     of    the    gas    comjjany     to 

and    connecting   certain    gas    mains,  enter  the  house,  examine  the  meter 

was    held    not    divisible,    so    as    to  and    read   tlie    amount    of   gas    con- 


allow  him  to  recover  for  failure 
to  make  the  connections  on  the  re- 
maining lots  after  the  supply  of 
natural  gas  had  wholly  failed. 
Bruce  v.  Indianapolis  Gas  Co.,  4G 
Ind.  App.  193;  92  N.  E.  Rep.  189. 
"1  Williams  v  Mutual  Gas  Co.,  52 
JMich.  499;    IS  N.  W.  Rep.  236;   50 


sumed.  A'anuerberg  v.  Kansas  City, 
etc.,  Co.,  125  Mo.  App.  GOO;  105 
S.  W.  Rep.  17. 

73  Siiiras  v.  Ewing,  48  Kan.  170; 
29  Pac.  Rep.  320. 

"3  Shepard  v.  Milwaukee  Gaslight 
Co.,  supra. 


5U4  oil.    AM)    CiAS. 

The  eoini);iny  may  reserve  \\\o  rii;lit  to  cut  off  the  gas  to  pre- 
serve itself  from  fraud  or  ahuse ;  hut  it  eaimot  assume  to  itself 
the  whole  power  to  decide  upon  the  (luestion  of  fraud  or  abuse, 
without  notice,  without  trial,  and  u\Mm  its  own  mere  motion/* 
Nor  can  it  insert  in  the  application  an  agreement  or  adopt  a  rule 
tliat  the  aj)]>li('aiit,  after  admission  of  gas  into  liis  pii>es,  must 
not  disconnect  or  open  them  for  repairs  or  extensions,  or  other- 
wise, without  a  permit  fi-om  the  company,  under  a  penalty  of 
three  times  the  amount  of  damages  sustained/^  Where  a  rule 
of  the  company  required  the  ap])li(*ation  to  he  in  writing,  the 
general  agent  and  manager  of  the  business  of  a  merchant  re- 
siding in  another  and  distant  city,  but  having  an  extensive 
mercantile  business  in  the  city  where  the  business  is  conducted, 
may  authorize  one  of  the  clerks  to  make  the  dejnand  for  the 
merchant  for  a  supply  of  gas  in  the  city  where  such  business  is 
being  carried  on.^*^  And  a  company  cannot  reject  an  applica- 
tion of  a  tenant  on  the  ground  that  it  had  adopted  a  rule  to  deal 
only  with  the  owner  or  his  agent  of  the  property  to  which  gas 
is  to  be  supplied/^  Notice  to  supply  gas,  left  with  a  person  ar. 
the  company's  office  at  work  around  the  office  and  bohincl  tne 
desk,  where  such  person  had  attended  to  previous  notices,  and 
who  testified  that  he  was  a  clerk  in  the  em])loy  of  the  company, 
having  charge  of  job  work,  surface  work  and  the  gas  stove 
liusiuess,  was  held  sufficient  to  bind  the  company,  and  render  it 
liable  to  a  penalty  for  failure  to  comply  therewith."®     It  is  a 

74  Shcpard  v.  INIilwaukee  Gaslight  at  the  business  office  of  an  appli- 
Co.,  supra.  cant,  under  a  statute  providing  that 

75  Shepard  v.  Milwaukee  Gas  Co.,  if  a  gas  company  refuse  or  neglect 
6  Wis.  .539;   70  Am.  Do>c.  470.  to    suppl}-    gas    for    ten    days    upon 

76  Shepard  v.  T.Iilwaukee  Gas  Co.,  application  therefor  it  shall  forfeit 
11   Wis.   234.  and   pay  to   the   applicant   the    sum 

77  State  V.  Butte  City  Water  Co.,  of  ten  dollars  and  the  further  sum 
18  Mont.  199;  44  Pac.  Rep.  9G6;  32  of  five  dollars  for  every  day  during 
L.  R.  A.  697;  5G  Am.  St.  Rep.  574;  wliicli  the  refusal  or  neglect  con- 
4  Am.  &  Eng.  Corp.  Cas.  (N.  S.)  tinues.  In  this  case  it  was  also 
238.  held   tliat  the  con.sent  of  the   appli- 

78  Jones  V.  Rochester  Gas,  etc.,  cant  to  the  removal  of  the  meter 
Co.,  7  N.  Y.  App.  Div.  4(15;  39  N.  from  tlie  premises  to  be  supplied 
Y.    Supp.    1105.  during  the  controversy  over  his  lia- 

In  this  case  it  was  also  held  tliat  biiity  for  a  specified  amount  of  gas 

a  gas   company    is   subject  to   sejia-  would  not  prevent  liim  from   recov- 

rate  penalties  for  a  refusal  to  sup-  ering  the  j)enalty. 
ply   gas    at    the    residence    and    also 


G.^    COMPANY    AND    CONSUMER.  595 

sufficient  defense  in  a  suit  for  damages  incurreti  by  reason  of 
a  failure  to  furnish  gas  that  the  plaintiff  refused  to  sign  the 
rules  and  regulations  of  the  defendant,  but  that  fact  must  l)e 
set  up  specially  by  answer.  Yet  the  conduct  of  the  gas  company 
may  have  been  such  as  to  preclude  such  a  defense ;  as  where  it 
has  always  rested  its  refusal  on  other  grounds.  In  such  an  in- 
stance it  waived  all  other  defenses.^"  A  written  application 
or  contract  for  gas  cannot  be  varied  by  parol  evidence.  Thus 
where  a  contract  for  gas  was  expressly  between  a  gas  company 
and  a  husband,  it  was  held  that  the  wife  could  not  vary  its 
terms  by  oral  testimony  that  he  intended  to  make  the  con- 
tract in  her  own  behalf-^^"* 

§  537.     Rules  and  regulations. 

A  gas  company  has  the  right  to  adopt  rules  and  regulations 
under  which  it  will  supply  its  customers ;  but  these  rules  must 
be  reasonable  and  not  impose  an  undue  burden  upon  the  ciis- 
tomer.^°  Whether  or  not  the  rule  or  regulation  is  a  reasonable 
one  is  a  question  for  the  court.  All  contracts  are  made  subject 
to  such  rules.*^  A  few  instances  of  the  reasonableness  or  the 
unreasonableness  of  rules  and  regulations  have  already  been 
given ;  and  other  instances  will  be  given  hereafter.  But  it  may 
be  added  that  a  rule  providing  that  if  a  customer  waste  water, 
when  not  furnished  by  meter,  his  supply  may  be  cut  off,  is  a 
reasonable  one;^-  and  perhaps  the  same  would  be  true  if  the 

79Shepard  v.  Milwaukee  Gas  Co.,  697;    56  Am.   St.   Rep.   574;    4  Am. 

11  Wis.  234.     See  Northern  Colora-  and  Eng.   Corp.   Cas.    (N.   S.)    238; 

do,   etc.,    Co.   V.    Richards,    22    Colo.  Williams    v.    Mutual    Gas    Co.,    52 

450;    45   Pac.    Rep.   423.  Mich.  499;    IS   N.  W.   236;   50  Am. 

79a  Vanderberger   v.    Kansas    City  Rep.    260 ;    4    Am.    and    Eng.    Corp. 

Gas  Co.,  125  Mo.  App.  600;    105  S.  Cas.     00;     Harbison     v.     Knoxville 

W.  Rep.   17.  Water   Co.    (Tenn.),  53  S.   W.  Rep. 

80  Louisville  Gas  Co.   v.  Dulaney,  993 ;   Pocatello  Water  Co.   v.  Stand- 

100  Ky.  405;  38  S.  W.  Rep.  703;  30  ley     (Idaho),    01     Rac.     Rep.    518; 

L.    R.    A.    125;     6    Am.    and    Eng.  Phelan  v.  Boone  Gas  Co.,  147  Iowa 

Corp.  Cas.    (X.  S.)   241;   Shepard  v.  626;     125    N.    W.    Rep.    208;    State 

Milwaukee  Gaslight  Co.,  6  Wis.  539;  v.   Seattle,  60   Wash.    81;    110    Pac. 

70  Am.  Dec.  479;   Portland  Natural  Rep.  799. 

Gas   Co.   V.   State,   135   Ind.   54;    34  si  Shiras  v.  Ewing,  48  Kan.    170; 

N.  E.   Rep.  818;   21   L.   R.  A.   639;  29    Pac.    Rep.    320. 

State  V.  Butte  Water  Co.,  18  Mont.  82  Shiras  v.  Ewing,  48  Kan.   170; 

199;  44  Pac.  Rep.  960;  32  L.  R.  A.  29  Pac.  Rep.  320. 


596  OIL   AND    GAS. 

Avater  was  furnished  by  meter,  if  the  waste  was  so  great  that  the 
company  could  not,  by  reason  of  such  waste,  supply  its  other 
customers  with  a  sufficient  sup]>lv.  A  rule  providing  that  after 
gas  has  l)een  admitted  into  a  pipO,  the  ])ipes  should  he  neither 
opened,  extended,  nor  disconnected,  whether  they  are  opened, 
disconnected  or  extended  for  repairs  or  otherwise,  without  the 
company's  permit,  and  if  the  rule  in  these  particulars  is  vio- 
lated the  consumer  would  he  required  to  pay  triple  damages, 
is  inviilid  ;  for  the  com])aiiy  had  no  jKnver  to  inijxjse  ]:>enalties 
and  make  a  customer  agree  to  the  right  to  impose  them  if  he 
violated  this  particular  regulation.  Another  rule  of  the  same 
company  providing  that  it  should  have  the  right  to  shut  off  the 
gas,  "  in  order  to  protect  itself  froiu  fraud  ''  was  held  void  ;  for 
such  a  question  falls  within  the  pvovince  of  the  courts,  to  which 
the  company  must  resort  if  it  would  protect  itself.  A  still 
further  rule  provided  that  the  company  should  have  the  right 
to  enter  the  house  at  all  times  to  examine  the  whole  apparatus 
and  to  remove  the  meter  and  service  pipes,  and  this  was  held 
invalid,  because  it  was  too  general. ^^  It  is  the  duty  of  the 
company  to  inform  a  customer  of  its  rules  in  order  to  bind  him ; 
but  if  ho  knows  them  it  will  not  be  necessary  to  inform  him. 
It  may  be  shown  that  he  became  aware  of  them  by  seeing  them 
printed  on  bills  presented  to  him.-*  A  rule  of  a  corporation 
supplying  gas  to  the  citizens  of  a  city  which  requires  owners 
of  apartment  houses  in  which  it  is  necessary  to  install  more 
than  one  meter  to  provide  a  separate  meter  room  on  each 
floor,  or  in  the  basement,  where  all  meters  may  be  installed, 
is  reasonable  where  the  evidence  shows  that  the  method  pro- 
vided for  is  more  sanitary  than  to  distribute  meters  through- 
out the  various  apartments;  that  there  will  be  less  danger  of 
explosion  in  case  of  fire ;  that  leaks  in  various  pipes  located 

83  Shepard  v.  Milwaukee  Gaslight  A  company  may  require  the  con- 
Co.,   6  Wis.  539;    70  Am.   Dec.   479.  sumcr  to   prepare   his   jjlumbing  ac- 

84  Brass  v.  Rathbone,  153  N.  Y.  cording  to  certain  rules  it  has 
435 ;  47  N.  E.  Rep.  905 ;  affirming  adopted,  and  to  present  a  report 
8  N.  Y.  App.  Div.  78;  40  X.  Y.  and  certificate  of  a  plumber  certi- 
Supp.  4G6;  State  V.  Seattle  Lighting  fying  that  he  had  complied  with 
Co.,  GO  Wash.  81;  110  Pac.  Rep.  its  rules.  State  v.  New  Orleans, 
799.  etc.,  Co.    (La.),   32   So.  Rep.   179. 


GAS    COMPANY    AND    CONSUMER.  fjO? 

throughout  the  buililing  may  be  more  readily  I'ouikI  ;  that 
repairs  in  pipes  serving  the  separate  apartments  may  be  made 
without  interrupting  the  supply  of  gas  to  any  apartment  other 
than  the  one  where  the  repair  is  needed ;  that  collections  from 
prepayment  meters  may  be  more  readily  made ;  and  that  the 
high  city  pressure  not  extending  beyond  the  meters  when 
installed  may  be  confined  to  the  main  service  pipes."** 

§538.     Subscribing  to  rules  and  regulations. 

If  the  rules  and  rog-ulations  df  a  company  are  rensonnblo, 
the  company  may  require  an  ajiplicant  for  gas  to  subscribe  to 
them,  or  agree  in  writing  to  be  governed  by  them,^'*  and  if  he 
refuses  it  is  not  bound  to  furnish  him  gas.  liut  if  ihev  are 
unreasonable,  he  is  not  b<3und  to  subscribe  to  them,  nor  agree 
to  abide  by  tliem ;  and  regardless  of  them  he  may  maintain 
an  action  to  compel  the  company  to  furnish  hiui  with  gas.'*'^ 
In  an  application  for  a  writ  of  uiandanuis  to  compel  a  company 
to  supply  gas,  it  must  be  averred  that  the  applicant  is  ready 
to  comply  with  all  reasonable  rules  and  regulations  of  the  com- 
pany; but  if  any  of  its  rules  are  illegal,  then  such  illegality 
must  be  especially  set  up  and  described,  and  an  averment  made 
that  he  is  ready  to  abide  by  all  the  other  rules  of  such  com- 
pany.*" A  company  by  insisting  ujion  a  customer  to  sign  an 
application   binding  him  to  abide   by   illegal   rules  waives   its 

84a  state  V.   Seattle  Lighting  Co.,  54;  35  N.  E.  I^p.  818;   21  L.  R.  A. 

60    Wash.    81;    110    Par.    Tvop.    THO.  0.39. 

85  Shepard  v.  ]\Iil\vaukee  Gaslight  The  omission  to  aver  in  an  ac- 
Co.,  11  Wis.  234.  tion    against    a    gas    company    for 

86  Shepard  v.  Milwaukee  Gaslight  turning  off  the  gas  that  plaintiff 
Co.,  G  Wis.  539;  70  Am.  Dec.  470;  had  complied  with,  or  offered  to 
State  V  Hedalia  Gaslight  Co.,  34  comply  with,  the  reasonable  regula- 
Mo.  App.  501;  84  Mo.  202;  An-  tions  of  tiic  dt-fendant  before  or 
drews  v.  North  River  Electric  Light,  when  it  shut  off  the  gas,  is  not 
etc.,  Co.,  23  ^lisc.  (N.  Y.)  512;  supplied  by  an  allegation,  by  way 
51  X.  Y.  Supp.  872;  Shepard  v.  of  conclusion  and  rrcit;il,  tliat.  after 
Milwaukee  Gaslight  Co.,  11  Wis.  being  tendered  its  charges  therefor, 
234.  the    defendant    wrongfully    and    un- 

87  See  State  v.  Consumers'  Gas  lawfully  turned  off  the  gas  from 
Trust  Co.,  157  Ind.  345;  61  N.  E.  plaintiff's  property.  Greenfield  Gas 
Rep.  674;  55  L.  R.  A.  245;  Port-  Co.  v.  Trees,  105  Ind.  209;  75  N. 
land,    etc.,    Co.    v.    State,    135    Ind.  E,   Rep.   2. 


598  OIL    AND    GAS. 

riii'ht  to  insist  tliat  he  failecl  to  sicji  a  proper  application  in  an 
action  against  it  for  damages  because  of  its  failure  to  furnish 
gas.*^ 


§539.     Price  to  be  charged. 

If  a  statute  or  an  ordinance  fixes  the  price  the  company  may 
charge  for  gas,  such  company  cannot  exceed  the  ])rice  named 
therein,  although  it  may  charge  less,  unless  such  statute  or 
ordinance  is  invalid  by  reason  of  it  having  been  enacted  after 
the  grant  of  the  company's  franchise,  without  any  reservation  to 
control  the  price  of  gas  furnished.  A  contract  with  a  munici- 
pality to  furnish  its  citizens  gas  at  not  to  exceed  a  certain 
figure  is  one  that  a  consumer  within  such  municipality  may 
enforce.^^  If  the  rates  are  not  fixed,  then  the  question  is 
one  common  to  any  transaction  of  buying  or  selling ;  ®°  although 
there  are  a  number  of  cases  wdiich  hold  that  the  acceptance  of 
a  charter  or  franchise  by  a  gas  company  contains  an  implied 
agreement  that  the  rates  made  shall  be  reasonable  in  amount; 
usually  however,  no  eifort  is  made  to  state  what  is  or  is  not 
a  reasonable  rate."^  In  such  rates  there  can  be  no  discrimina- 
tion;  ^*  not  even  by  charging  more   for  gas  used  for  lighting 


88  Shepard  v.  jNIihvaukee  Gas  Co., 
11  Wis.  234;  Shepard  v.  Milwaukee 
Gas  Co.,  15  Wis.  318;  82  Am.  Dec. 
679. 

89  Noblesville  v.  Xoblesville  Gas, 
etc.,  Co.,  157  Ind.  162;  60  N.  E. 
Rep.  1032;  Wautauga  Water  Co.  v. 
Wolfe,  99  Tenn.  429;  41  S.  W.  Rep. 
1060. 

A  company's  franchise  with  a  city 
provided  that  the  company  shoula 
not  charge  a  liigher  rate  than  90 
cents  per  1,000  cubic  feet  for  gas, 
and  that  every  consumer  should  be 
entitled  to  a  discount  of  10  cents 
per  1,000  cubic  feet  upon  prompt 
payment.  It  was  held  that  the 
franchise  entitled  the  company  to 
charge  80  cents  for  gas.  Boerth  v. 
Detroit  City  Gas  Co.,  152  Mich. 
654;  116  N.  W.  Rep.  628. 


90  See  -soblesville  v.  Noblesville 
Gas  Co.,  157  Ind.  162;  60  N.  E.  Rep. 
1032;  Philadelphia  Co.  v.  Park,  138 
Pa.  St.  346;   22  Atl.  Rep.  86. 

91  Cimcinnajti,  etc.,  R.  R.  Co.  v. 
Bowling  Green,  57  Ohio  St.  336;  49 
N.  E.  Rep.  121;  People's  Gaslight 
and  Coke  Co.  v.  Hale,  94  111.  App. 
400;  Toledo  v.  X.  W.  Ohio  Natural 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dec 
277;   6  Oliio  X.  P.  531. 

92  Griffin  v.  Goldsboro  Water  Co., 
126  X.  C.  2i06;  30  S.  E.  Rep.  319; 
41  L.  R.  A.  240;  People's  Gaslight 
and  Coke  Co.  v.  Hale,  supra;  Bel- 
laire  Goblet  Co.  v.  Findlaj',  5  Ohio 
Cir.  Ct.  Rep.  418;  Dalzcll  v.  Find- 
lay,  5  Ohio  Cir.  Ct.  435 ;  3  Ohio  Cir. 
Dec.  214;  affirmed  27  Wkly.  L.  Bull. 
128. 


G.VS    COMI'AXY    AXn    CONSl'MKR. 


591) 


than  that  used  for  hcatiiiir  nr  iiKuiufacturiiiir."^  Nor  ran  the 
com])aii_v  make  a  sjxn'inl  rate  to  lliosc  owiiiiii:-  an  interest  in  it."^ 
Bnt  it  has  been  held  lliat  a  i;as  coniitany  niav  chari^c  one  rate 
in  a  neighborhood  where  it  conies  in  coni{)ctition  with  another 
company;  and  a  higher  rate  where  there  is  no  competition,  so 
lonar  as  the  latter  rates  do  not  exceed  the  rate  allowed  Ivv  a 
statute.  It  is  said  a  reasonable  ]n-ice  ]>aid  by  one  is  not  made 
unreasonable  because  another  pays  Icss."^  Where  the  ordinance 
by  which  a  gas  company  gains  admission  to  lay  its  mains  in 
the  street  and  supply  the  citizens  of  the  municipality  provides 
that  gas  shall  b?  furnished  to  consumers  ujion  such  terms  and 
conditions  as  the  common  council  may  thereafter  determine,  a 
duty  is  imposed  upon  the  company  to  agree  with  the  council 
on  reasonable  terms;  and  if  tlie  duty  be  disregarded,  the  court 
may  compel  obedience  to  the  ordinance  by  a  mandatory  in- 
junction.®® Under  a  contract  to  furnish  gas  "  at  two-thirds  of 
the  lowest  average  i)ricc  at  which  gas  shall  or  may  be  furnished  " 
in  five  specified  cities,  it  was  held  that  the  price  must  be 
determined  by  adding  the  five  lowest  cash  prices  in  those  cities, 
divide  the  sum  total  by  five,  and  multiply  the  result  by  two- 
thirds.""  The  rate  to  be  paid  must  be  measured  by  the  rate 
maintained  in  cities  thus  named,  not  at  the  time  of  the  adop- 
tion of  the  ordinance,  but  with  llie  lluctuation  of  rates  in  such 


93  Bailey  v.  Fayette  Fuel  Has  Co., 
193  Pa.  St.  175;  44  All.  Rep.  251; 
44  W.  X.  C.  505;  11  Am.  and  Eng. 
Corp.  Cas.  (X.  S.)  740;  Richmond 
Natural  Gas  Co.  v.  Clawson,  l.'Jo 
Ind.  G59;  58  N.  E.  Rep.  1049:  51 
L.  R.  A.  744;  Bellaire  Goblet  Co.  v. 
Findlay,  supra;  Dalzell  v.  Findlay, 
supra;  Cincinnati,  etc.,  R.  R.  Co.  v. 
Bowling  Green,  57  Ohio  St.  33C;  49 
N.  E.  Rep.  121. 

9*  Crescent  Steel  Co.  v.  Equitable 
Gas  Co.,  23  Pittsb.  Leg.  J.  (N.  S.) 
316. 

»■>  Baltimore  Gas  Co.  v.  Colliday, 
25  Md.  1. 

96  Toledo  V.  X.  W.  Ohio  Xatural 
Gas  Co.,  8  Ohio  S.  and  C.  P.  Dec. 
277;   6  Ohio  X,  P.  531. 


In  this  case  the  petition  for  an 
injunction  was  held  defective,  it 
only  stating  that  the  council  passed 
an  ordinance  fixing  tlie  price  at 
reasionabie  rates  which  the  company 
refused  to  recognize  and  was  pro- 
posing to  furnish  gas  at  a  price  in 
c.\cess  of  that  named  in  the  ordi- 
nance. Xothing  was  alleged  that  the 
c()ni[)any  iiad  not  agrwd  with  the 
council  on  a  scIuhIuIc,  nor  tiiat  the 
council  had  proposed  one  to  tlie  com- 
pany, nor  that  the  company  had  re- 
fused to  negotiate'  with  tiie  council. 

97  Cincinnati  v.  Cincinnati  Gas- 
light and  Coke  Co.,  53  Ohio  St.  278; 
41  X.  E.  Rep.  239. 


600  OIL   AND    GAS. 

cities.  Tims  in  Illiiinis  where  the  gas-  to  l3e  furnished  was 
to  be  "  of  a  quality  at  least  equal  to,  and  rates  favorable  as 
that  furnished  by  "  a  certain  company,  it  v/as  held  that  the  rate 
of  that  company  at  the  time  of  the  furnishing  of  the  gas  should 
be  taken,  and  not  its  rate  at  the  time  of  the  passage  of  the 
ordinance.  Therefore,  the  rates  fluctuated  with  the  rates  of 
such  company,  and  were  really  subject  to  its  control.®*  And  in 
^Massachusetts  where  an  ordinance  provided  that  the  gas  should 
be  furnished  as  chea])ly  as  it  was  furnished  in  Boston,  Xew 
York  and  Baltimore,  it  was  held  that  it  was  not  intended  that 
the  company  should  at  all  times  furnish  it  as  cheaply  as  it  was 
being  furnished  in  those  cities  at  the  time  the  ordinance  was 
passed,  but  that  the  rate  should  vary  with  the  rates  in  those 
cities.'"'  Where  a  gas  company  in  acce]>ting  an  ordinance  fix- 
ing the  rates  to'  be  charged  consumers  expressly  reserved  all 
vested  rights  under  its  franchise,  one  of  the  provisions  thereof 
being  its  i-iglit  to  fix  its  own  prices,  within  reasonable  limits,  for 
gas,  such  reservation  was  held  to  apply  to  all  uses  of  gas  not 
specified  in  the  last  ordinance. ^°°  Where,  under  a  special  con- 
tract, a  manufacturing  company  was  supplied  natural  gas  for 
fuel  only,   but  used   it  for   illuminating  ])ur]M)scs   also,   it  was 

98  Decatur  Gaslight  and  Coke  Co.  than  the  prices  charged  in  to\\Tia  of 
V.  Decatur,  120  III.  G7 ;  11  N.  E.  tlie  State  similarly  situated,  that 
Rep.  406;  affirming  24  111.  App.  544.  there  is  a  substantial  difference  l>e- 
At  the  time  of  the  adoption  of  the  twecn  the  rates  as  fixed  and  those 
ordinance  the  raite  of  the  company  obtaining  in  the  towns  to  which  ref- 
referred  to  was  over  $3.25  per  thou-  erence  is  made;  and  it  is  not  suffi- 
sand  feet;  but  afterwards  it  re-  cient  to  merely  allege  that  the  re- 
<kiced  its  rate  to  $1.50,  and  it  was  speotive  rates  do  not  correspond, 
held  that  the  city  was  not  liable  to  without  showing  wherein  or  to  what 
pay  any  hiirher  price  than  the  re-  extent  there  is  a  difference.  I.ea<l- 
duced  rate.  ville    Water    Co.    v.    Leadville,    22 

99  Worcester  Gaslight  Co.  v.  Wor-  Colo.   2t)7;    45   Pac.    Rep.    302. 
cester,  110  ;Mjass.  353;  Cincinnati  v.  i"o  Xoblesville   v.   Noblesville   Gas 
•Cincinnati   Gaslight    and    Coke    Co.,  Co.,    157   Ind.    1G2;    GO   N.   E.   1032. 
53  Ohio  St.  278;  41  N.  E.  Rep.  239.  The  court  seems  to  have  overlooked 

It  must  be  alleged  in  the  com-  the  fact  that  by  such  a  construe- 
plaint  by  a  water  company  to  have  tion  of  the  two  ordinances  it  adopted 
an  ordinance  fixing  water  rents  to  a  rule  which  discriminated,  or 
be  paid  by  citizens  declared  void  be-  might  lead  to  discrimination,  be- 
cause in  violation  of  an  agreement  tween  consumers,  a  thing  forbidden, 
■with  it  that  the  rates  to  be  fixed  by  by  the  general  principles  of  the  law. 
the  miuiicipality  should  not  be  less 


GAS    COMPANY    AND    CONSUMER. 


601 


held  liable  tor  the  roasonablf  value  ul"  die  pis  used  for  the  latter 
purpose,  witliout  rejijard  to  the  price  paid  for  that  used  for 
fuel.^"^  If  an  ordinance  regulatinj;  the  ]iriee  of  gas  be  amended 
so  as  to  increase  the  price  to  be  chartred  bv  a  ]iarticular  gas 
company  only  for  a  certain  time,  such  amendment  does  not 
repeal  the  amended  ordinance,  and  on  the  expiration  of  such 
time  the  prior  ordinance  is  in  force  and  jjrcvails.'"'"  li  The 
company  sees  fit  to  supply  gas  at  a  lower  rate  than  it  is  entitled 
to  charge  for  it,  or  furnishes  a  gas  of  a  better  cpiality  for  fuel 
pur}X)ses  than  it  is  required  to  do,  or  if  the  same  quality  is 
furnished  for  fuel  ])nrposes  that  it  is  recjuired  to  furnish  for 
illuminating  purposes,  when  it  is  under  no  obligation  to  fur- 
nish it  of  so  high  a  quality  for  fuel  purposes, — that  does  not 
prevent  it  charging  the  full  rate,  or  changing  the  supply  for 
fuel  purposes  from  the  higher  to  the  lower  quality.*"^  It  is 
proper  for  a  gas  company  to  provide  that  if  gas  bills  are  not 
paid  within  a  certain  time  after  due, — as  within  ten  days, — a 
small  percentage  will  be  added. ^*^*  And  so  it  may  insist  upon 
an  agreement  that  if  a  bill  for  gas  is  not  paid  within  ten  days 
the  flow  of  gas  may  be  estopped. '"""^ 


101  Philadelphia  Co.  v.  Park,  138 
Pa.    St.    346;    22    Atl.    Rep.    86. 

102  Thislethwaite  v.  State,  149 
Ind.  319;    49   N.   E.  Rep.    156. 

An  application  for  water,  subject 
to  the  rules  and  ordinances  of  tlie 
municipality,  constitutes  an  express 
consent  by  the  applicant  to  pay  the 
rates  charged.  Silknian  v.  Yonkers 
Water  Comrs.,  152  N.  Y.  327;  4G 
N.  E.  Rep.  612;  37  L.  R.  A.  827; 
Rieker  v.  Lancaster,  7  Pa.  Super. 
Ct.  149;  42  W.  k.  C.  iBO;  Lancas- 
ter Hotel  Co.  V.  Lancaster,  7  Pa. 
Super.  Ct.  159;  42  W.  X.  C.  164. 
But  this  is  not  the  case  if  the  rates 
are  didcriniinating  or  unreasonable. 
GrifTm  v.  Goldsboro  Water  Co.,  122 
N.  C  20G;  30  S.  E.  Rep.  319. 

103  People's  Ga.slight  and  Coke  Co. 
V.  Hale,  94  111.  App.  406. 

104  Tacoma  Hotel  Co.  v.  Tacoma 
Light  and  Water  Co.,  3  Wash.  St. 
316;  28  Pac.  Rep.  516;  Bower  v. 
United  Gas  Imp.  Co.,  37  Pa.  Super. 
Ct.  113. 


The  company  cannot  add  a  charge 
of  one  dollar  for  turning  on  the  gas 
where  it  has  been  turned  oiT  for  fail- 
ure to  pay  a  bill,  if  the  bill  is  paid 
and  a  request  made  that  it  be 
turned  on  again.  American  W.  W. 
Co.  V.  State,  46  Xeb.  104 ;  64  N.  W. 
Rep.   711. 

The  assignee  of  a  gas  company's 
rights  to  furnish  the  inhabiUints  of 
a  municipality  gas,  is  bound  by 
the  agreement  of  the  assignor  to 
furnish  gas  for  the  streets  and  the 
municipal  public  buildings  free  of 
charge.  Freeport  School  District  v. 
Enterprise  Natural  Gas  Co.,  18  Pa. 
Super.  Ct.  73. 

A  compan}'  cannot  increase  the 
charge  for  gas  sujjplied  so  as  to 
cover  the  amount  of  a  meter  rent, 
where  a  statute  forbids  a  meter  rent. 
Buffalo  V.  Buflalo  Gas  Co.  (X.  V.), 
80  X.  Y.  Supp.   1093. 

104a  Bower  v.  L'nited  Gas  Imp.  Co., 
37  Pa.  Super.  Ct.  113;  State  v. 
Board,  105  Minn.  472;  117  X.  W. 
Rep.  827. 


G02 


OIL   AND   GAS. 


§  540.     Payment  in  advance. 

"Where  gas  is  not  furnished  by  meter  measurement,  and  is 
furnished  at  so  much  per  month,  quarter  or  year,  upon  what  is 
known  as  the  "flat"  rate,  the  company  may  require  that  it  be 
paid  for  in  advance ;  and  a  rule  requiring  payment  in  advance 
for  three  montlis  is  a  reasonable  one.^*"  On  an  issue  whether 
water  rent  was  payable  in  advance,  the  transactions  of  the  com- 
pany and  the  consumer  may  be  shown,  to  reveal  their  under- 
standing as  to  the  time  when  the  payments  were  to  be  made.^°* 
In  a  case  where  it  is  necessary  to  make  a  tender, — the  rent 
being  payable  for  the  quarter  in  advance, — such  tender  will 
not  be  rendered  invalid  by  failure  to  tender  a  fee  charged  for 
turning  on  the  gas,  if  the  company  refuse  to  receive  the  sum 
tendered  solely  upon  non-payment  of  an  illegal  charge.  In 
such  a  case  it  waives  a  tender  of  the  fee.^°^ 

§  541.     Deposits. 

It  is  reasonable  regulation  to  require  an  applicant  for  gas 
to  make  a  deposit  of  a  sum  of  money  to  secure  the  payment 


Where  one  natural  gas  company 
agrees,  in  writing,  to  sell  another 
natural  gas  company  gas  at  the  rate 
of  ten  cents  per  1,000  cubic  feet,  and 
the  contract  provides  that  "the 
above  price  is  made  on  the  minimum 
consumption  of  10,000,000  cubic  feet 
per  month,"  tlie  contract,  as  prop- 
erly construed,  entirely  fails  ti)  fix 
a  price  for  the  gas,  if  the  amount 
delivered  is  less  than  10,000,000 
cubic  feet  per  month,  and  tlie  sup- 
plying company  is  not  entitled  to 
recover  $1.^000  for  a  month  in  which 
it  supplied  only  500,000  cubic  feet, 
but  is  entitled  to  the  market  value 
of  the  r[uantity  actually  delivered. 
Monongahela  Nat.  Gas  Co.  v.  Ell- 
wood  Nat.  Gas  &  Oil  Co.,  43  Pa. 
Super.  Ct.  619. 

105  Harbison  v.  Knoxville  Water 
Co.  (Tenn.),  53  S.  W.  Rep.  9!J3; 
Cedar  Rapids  Gaslight  Co.  v.  Cedar 
Rapids,  144  Iowa  426;  120  N.  W. 
Rep.  966. 

The  company  is  not  bound  to  ex- 
haust   the    deposit,    if    the    bills    be 


delinquent,  before  shutting  off  the 
gas.  Hewsey  v.  Owens  Borough  Gas 
&  El.  Co.,  47  N.  Y.  Misc.  Rep.  375; 
93  N.  Y.  Supp.   1114. 

1"**  Hieronymus  v.  Bienville  Water 
Supply  Co.,  131  Ala.  447;  31  So. 
Rep.  31. 

In  England  where  a  statute  re- 
quires water  rents  to  be  paid  in 
advance,  no  penalty  is  incurred  for 
a  failure  to  furnish  wat«r  unless 
a  payment  in  advance  is  made  or 
tendered,  even  if  the  company  is  in 
the  habit  of  supplying  water  with- 
out sucli  advanced  payment.  Kj'ffin 
v.  East  London  W.  W.  Co.,  66  Gas. 
Jr.  243;  Thorn  v.  East  London  W. 
W.  Co.,  66  Gas.  Jr.  189;  Sheflield 
W.  W.  Co.  V.  Brooks,  8  Q.  B.  Div. 
632;  51  L.  J.  M.  C.  97;  30  W.  R. 
889;  46  J.  R.  548.  See  Houlgate 
V.  Surrey  Consumers'  Gas  Co.,  8 
Gas.   J.   2f)l. 

107  Northern  Colorado,  etc.,  Co.  v. 
Richards,  22  Colo.  450;  45  Pac.  Rep. 
423. 


GAS   COMP.Us'Y    AND    CONSUMER.  602a 

of  rates,  l>efi)i-o  ^ns  shall  \>c  ±nYniA\*.-u^"^  Uut.  a  (•i>ini)any  can- 
not rcniiire  a  particular  jkm'sou  to  nul  c  a  ilcix).sit,  \\\wn  no 
regulation  of  a  general  character  has  Ixren  adopted.'"'  The 
sum  of  two  ix)unds  has  been  held  a  rejionable  sum  to  de- 
mand ;  "**  and  so  one  hundred  dollars,  where  sixty  dollars  worth 
a  week  was  consumed. ^^^  Where  the  applicant  for  gas  ]>ai<l 
the  amount  demanded  and  immediately  deman(lf'(l  it  Imck;  it 
was  held  tliat  the  company  was  justified  in  refusini:-  liim  iias."' 
So  where  a  consumer  refuses  to  pay  only  so  much  of  his  hill 
as  exceeded  the  deposit,  l)ecause  the  company  would  not  ])ay  him 
interest  upon  it;  and  ujwn  ])aynient  of  such  excess  the  company 
demanded  from  him  a  new  dej^osit, —  he  in  his  contract  agreeing 
to  make  a  deposit, —  it  was  held  that,  on  his  refusal  to  make  it, 
it  was  justified  in  shutting  oif  his  gas  supply."^  If  the  periodi- 
cal gas  bills  greatly  exceed  the  amount  of  the  deposit,  the  com- 
pany may  demand  that  such  deposit  be  increased  ;  as  where  the 
deposit  was  fifteen  dollars  and  the  monthly  gas  bill  forty-five, 
A  request  for  the  payment  of  the  bill  and  an  increase  of  the  de- 
posit at  the  same  time  does  vitiate  the  demand  for  tlie  in- 
creased^* If  a  company  accept  security  in  place  of  a  dejwsit,  it 
waives  its  right  to  such  deposit,  as  where  the  company  took 
the  plaintiff's  demand  note  for  tlie  amount  of  the  deposit,  and 
immediately  demanded  its  payment,  the  applicant  requesting  a 
short  delay  in  payment,  it  was  held  that  it  was  an  illegal  act 
to  at  once  cut  ofl:  his  supply  of  gas,  for  the  security  still  ex- 

108  Williams   v.   Mutual   Gas   Co.,  ough  Gas  &  El.  Co.,  47  N.  Y.  ]\nsc. 

52  Mich.  499;    18  N.  W.   Rep.  236;  Kep.    375;     93    N.    Y.    Supp.     1114. 

50  Am.   Rep.  266;    4  Am.  and  Kiig.  And    if   an   applicant   be    in    arrears 

Corp.    Cas.    66;     Ford    v.    Brooklyn  it   may  refu.se   to  accept  his  deposit 

Gaslight   Co.,   3   Hun    621;    Shepard  and    furnish    gas   until    he    pays    up 

V.  Gaslight  Co.,  6  Wis.  539;  70  Am.  such   arrears.      State   v.    Board,    105 

Dec.  479;  Wright  v.  Colchester  Gas  Minn.   472;    117   N.   W.   Rep.  827. 

Co.,  30  Gas.  J.   336;    Vanderberg  v.  loo  Owensboro  Giuslight  Co.  v.  Hil- 

Kansas  City  Gas  Co.,  126  ]Mo.  App.  debrand,     19    Ky.    Law    Rep.    983; 

600;    105  S.  W.  Rep.   17;   Pollits  v.  42   S.   W.   Rep.  351. 

Consolidated    Gas    Co.,    118    N.    Y.  no  Samuel  v.  CardifT  Gas  Co.,   18 

App.  Div.  92;  102  N.  Y.  Supp.  1116;  Gas  J.  192. 

Bienenfeld  v.   Consolidated  Gas  Co.,  m  Williams   v.    Mutual    Gas    Co., 

119  N.  Y.  App.  Div.  855;    103  N.  Y.  supra. 

Supp.  1116.  "^  Littlewood    v.    Equitable    Gas 

The  gas  company  is  not  prohibited  Co.,   8    Gas   J.    541. 

from   cutting  olT   the   supply   of  gas  n:*  Wright   v.  Colchester  Gas  Co., 

for    failure    to    pay    rent    until    the  30  Gas  J.  336. 

amount  of  the  dei)osit  lias  been  ex-  "■♦  Ford  v.  Brooklyn  Gaslight  Co., 

hausted.      Hewsey    v.    Queens    Bor-  3  Ilun  621. 


G02b 


OIL   AND    GAS. 


isted."^  It  has  Ix^cn  licld  tliat  the  question  whctlicr  or  not 
the  deposit  was  a  reasonable  one  was  one  for  the  jury.**"  The 
consumer  has  the  burden  to  show  that  the  deposit  is  unreason- 
able."' 

§542.     Discrimination  in  use. —  Rates. 

One  rate  cannot  be  adopted  for  those  who  use  natural  gaa 
for  light  and  another  for  those  who  use  it  for  heat.  The  rate 
for  both  purposes  must  be  the  same.  Thus  where  the  rate  for 
heat  alone  was  fixed  bv  the  company  at  twelve  and  a  half  cents 
per  thousand  feet,  and  for  Ix^th  heat  and  light  at  twenty  centv 
the  rule  of  the  company  was  held  to  be  unreasonable  and  invalid. 
It  was  contended  by  the  company  that  it  was  not  shown  that 
natural  gas  for  illuminating  purposes  was  of  less  value  than 
it  was  for  fuel,  or  that  when  used  both  for  light  and  fuel  it 
was  not  reasonably  worth  twenty  cents ;  and  for  this  reason  it 
claimed  that  it  had  made  no  unjust  discrimination  against  the 
complaining  consumer.  The  record  did  not  disclose  how  many 
feet  the  plaintiff  had  used  for  light  and  how  many  for  fuel,  and 
because  of  this  fact  it  w^as  contended  that  it  could  not  be  claimed 
there  had  been  any  discrimination  as  far  as  he  was  concerned. 


115  Fowler  v.  Cliartered  Gas  Co., 
17  Gas  J.  908. 

A  fow  cases  hold  that  imless  the 
company's  charter  or  a  statute  give 
it  the  right  to  insist  upon  a  deposit, 
the  company  cannot  demand  it. 
Spratt  V.  South  Metropolitan  Gas 
Co.,  7  Gas  J.  663.  The  payment  of 
a  water  license  under  a  threat  to 
turn  off  the  water  in  case  of  con- 
tinued refusal,  is  a  payment  under 
compulsion;  and  if  the  charge  is  ex- 
cessive, the  excess  may  be  recovered 
back  without  tendering  the  amount 
really  due.  Westlake  v.  St.  Louis, 
77  Mo.  47. 

116  Bennett  v.  Eastchester  Gaslight 
Co.,  40  N.  Y.  App.  Div.  169;  57  N. 
Y.  St.  Rep.  847. 

117  Bennett  v.  Eastchester  Gaslight 
Co.,  supra. 

A  company  cannot  refuse  to  sup- 
ply gas  to  a  married  woman  unless 
she  pay  her  husband's  debt  to  it. 
Vanderl>erg  v.  Kansas  City  Gas  Co., 
126  Mo.  App.  600;  105  S.  W.  Rep. 
17. 

A  gas  consumer  refused  to  pay 
gas  charges,  because  of  a  mix-up  in 


accounts,  and  the  gas  meter  was 
taken  out  and  the  supply  cut  ofT. 
Thereafter  the  consumer  was  the 
successful  party  in  a  suit  to  recover 
the  disputed  amounts.  It  was  a  rule 
of  the  company  to  exact  of  unknown 
or  irresponsible  persons  a  deposit 
to  cover  charges  made.  The  gas 
company  refused  to  again  connect 
the  meter,  and  in  mandamus  to 
compel  it  to  do  so  set  up  tlie  rule  of 
deposit,  which  the  consumer  had  re- 
fused to  comply  witli.  It  was  held 
that  where  the  real  reason  of  re- 
fusal was  spite,  induced  by  the  suit, 
and  not  a  bona  fide  reliance  on  the 
rule,  the  company  would  be  com- 
pelled to  furnish  the  gas  without 
an  advance  deposit.  Phelan  v.  Boone 
Gas  Co.,  147  Iowa,  626;  125  N.  W. 
Rep.  208. 

Under  the  rule  of  a  pas  company 
requiring  an  advance  deposit  ifrom 
irresponsible  f)ersons  to  cover 
charges  made,  in  the  absence  of  evi- 
dence to  the  contrary,  it  will  be  pre- 
sumed that  tlie  consumer  was  re- 
sponsible.    Id. 


UAS     CUMl'ANV     AMI    tONSlMKU.  <'>0:5 

The  court  brushed  aside  tliese  contentions  as  without  merit ; 
for  the  reason  that  the  classification  of  customers  was  arbitrary 
and  unjust.  "Under  this  rule,"  said  the  ("duri,  "  u]ii»cllaiit 
[the  gas  company]  did  not  profess  to  have  any  regard  or  con- 
sideration for  tlie  amount  consumed  for  light.  If  any  ])atron, 
using  gas  for  heating  his  dwelling,  also  employed  one  jet  alK)Ut 
his  dwelling  whereby  a  small  amount  of  natural  gas  was  con- 
sumed each  month  for  light,  he  was  amenable  and  subject  to  the 
rule  in  like  manner  as  the  fuel  consumer  would  be  who  used 
many  jets  about  his  premises  for  illuminating  purposes.  The 
amount  consumed  for  light  docs  not  seem  to  be  a  feature  of 
any  importance  within  the  meaning  of  the  rule  in  (piesLion. 
Such  a  regulation,  under  the  facts  in  this  case  when  tested  by 
the  principle  affirmed  and  sustained  by  the  authorities,  must 
certainly  be  held  unreasonable,  arbitrary  and  unjust."  "*  So 
a  gas  company  incorporated  to  furnish  heat  and  light  cannot 
prescribe  one  price  for  gas  used  for  heating  and  another  for 
gas  used  for  lighting,  and  that  the  price  for  gas  fen-  lighting 
should  be  measured  by  what  the  consumer  would  have  to  pay 
for  a  substitute,  if  gas  could  not  be  had.'^^ 

§543.     Classification  of  customers. —  Rates. 

The  Indiana  Supreme  Court  seems  to  consider  that  a  gaf; 
company  has  the  right  to  classify  its  customers,  and  base  its 
charges  upon  the  classification,   as  indicated    in   the  following 

118  ■Richmond  Natural  Gas  Co.  v.  us  Bailey    v.    Favette    Fiid    Oas 

Clawson,    155    Ind.    (159;    58    N.    E.  Co.,    193    Pa.   St.    175:    44  Atl.   Ren. 

Rpp.    1049;    51    L.    R.    A.   744.  251;    44   W.   N.   C.   505. 

The  court  distinguislies  this  cuso  A  statute  forbidding  a  liighcr  r;ilc 

from  Philadelphia  Co.   v.  Park,   1.38  for    water    for    "domestic    purpises" 

Pa.    S.    34G;    22    Atl.    Rep.    86,    by  than    that    specified    for    tiie    use   of 

saying  that  it  was  a  case  where  the  water    for    a    buihiing,    includes    all 

gas  company  had  agreed  to  furnish  uses  which  contribute  to  the  liealtli, 

the  defendant  with  gas  for  fuel  only  com.fort,  and  convi  nience  of  a   fani- 

at    a    low    price,    but    tlic    company  ily  in  the  enjoyment  of  tlieir  dwell- 

having    taken   gas    from    the   mains  ing   as  a   home.      Crosbey   v.   Mont- 

for  lighting  purposes,   it  was   liable  gomery,    108   Ala.  498;    18   So.   Rep. 

to    pay   the    market   value    for    the  723.       See    wliere    a    gas    company 

amount    of    gas    used     in    lighting,  agreed  to  pay  a  city  one-fifth  of  the 

which    was    much    higher    than    tlie  net  profits  from  the  sale  of  gas  for 

agreed  price  of  gas  for  fuel  only.  "domestic  purposes." 


604  OIL    AND    GAS. 

language:  "Counsel  for  the  apiK?llee  concedes,  and  properly 
so,  we  think,  that  companies  engaged  in  furnishing  gas  and 
water,  etc.,  to  the  publio  may  make  classification  in  respect  to 
their  patrons  or  consumers  and  adopt  reasonable  rules  and 
regulation*  for  the  control  of  such  classes,  but  that  the  classifica- 
tion must  be  reasonable  and  impartial,  and  not  arbitrary  or 
unjust,  of  a  discriminating  character;  but  that  due  regard  must 
be  had  to  the  rights  of  the  citizens  of  the  town  or  city  deix?nding 
upon  such  companies  for  their  supply  of  water  or  gas,  as  the 
case  may  bo,  and  that  all  occupying  similar  or  like  |X)sitions 
must  be  treated  imjiartially."  ^''^  \n  the  case  from  which  this, 
quotation  is  made,  the  company  had  one  rate  for  the  manufae- 
turer  using  its  natural  gas,  and  another  for  his  residence  and 
residences  in  general.  But  this  rule  was  not  drawn  in  question, 
and  of  course  not  passed  upon.  Whether  or  not  such  a  rule  is 
valid  is  not  yet  decided  so  far  as  the  author  knows ;  but  it  is 
difficult  to  see  why,  in  accordance  with  the  commercial  practice 
of  tlie  day,  a  large  consumer  should  not  receive  gas  at  a  lower 
rate  than  a  smaller  one,  all  other  things  being  equal. ^^^ 

§544.     Recovering  back  overcharges. 

A  consumer  wdio  pays  an  overcharge  or  illegal  bill  does  not 
necessarily  voluntarily  pay  it.  Tn  a  measure  he  is  under  com- 
pulsion ;  for  if  he  do  not  pay,  his  gas  will  be  cut  off,  and  his 
premises  left  without  means  of  lighting.  The  gas  company 
cannot  claim  successfully  that  the  payment  was  voluntarily 
made,  and  thus  retain  the  money ;  for  it  is  public  duty  it  was 
I'Ound  to  perform  at  a  low^er  price.  The  excess,  therefore,  paid 
over  the  amount  of  the  legal  rat-e  may  be  recovered  back,  under 
iho  theory  tliat  it  was  a  payment  under  compulsion.'""      Tn  tlie 

120  Riehmonfl  Natural  Gas  Co.  v.  122  pinorroe  v.  ^lutual  Gas  Co., 
Clavvson.  1.55  Ind.  659;  58  N.  E.  107  Mich.  15G;  65  N.  W.  Rep.  6; 
Rep.   1049;  51   L.  R.  A.  744.  Ponn.     Iron     Co.     v.    Lancaster,     17 

121  See  St.  Louis  Brewing  Ass'n  Lane.  Law  Rev.  161  (must  pay  un- 
V.  St.  Louis  (Mo.),  .37  S.  W.  Rep.  der  protest);  Indiana,  etc.,  Co.  v. 
525;  Sheward  v.  Citizens'  Water  Anthony.  26  Ind.  App.  307;  58  N. 
Co..  90  Cal.  635;   27  Pae.  Rep.  439.  E.    Rep.    868. 

See  State  v.  Goswell    (Wis.),  93  N. 
W.  Rep.  542. 


GAS    COMTAXY     AND    CONSTMEU.  (iO.I 

case  just  cited  lirst  below  an  ordinance  preseiilied  the  rate,  and 
a  recovery  back  of  the  excess  was  allowed,  although  such  nr- 
dinance  did  not  in  terms  confer  a  right  of  action  to  reetjver  such 
excess.  In  this  case  the  consumer  paid  the  bill  in  ignorance 
of  the  legal  rate.  The  ordinance  jjrovided  that  the  legal  rate 
should  be  the  average  rate  in  tivo  certain  cities,  and  it  was  ludd 
that  the  payment  was  not  voluntary,  though  the  eousunier  was 
negligent  in  not  ascertaining  such  average  rate.^'"^ 

§545.     Collection  of  rents. —  Action. 

A  gas  company  may  provide  that  if  its  bill  for  rent  is  not 
paid  within  so  many  days,  an  additional  amount  will  be  exacted, 
—  as  if  not  within  ten  days,  five  per  cent,  will  be  added ;  but 
a  provision  also  providing  tliat  if  the  bill  is  not  ])aid  within 
two  months,  the  attachment  will  be  cut  olf  and  not  renewed 
imtil  the  rent  due,  including  all  expenses  of  cutting  and  turning 
on,  and  the  rent,  in  case  of  a  water  company,  for  half  a  year  be 
not  paid,  is  void.^"*  The  gas  company  may  maintain  assumpsit 
to  collect  bills  for  gas  furnished  ;^"^  and  if  furnished  to  a  ]>art- 
nersliip,  although  tlie  premises  are  owned  by  only  one  of  the 
partners,  all  are  liable.^"*'  A  surety  for  gas  funiished  is  liable 
Avith  the  consumer,  but  not  for  a  tenant  succeeding  to  the  person 
for  whom  he  became  resjwnsible.^"^  Where  a  receiver  of  the 
]irofits  of  a  partnership  agTeed  in  writing,  with  tlie  consent  of 
tlie  partners,  to  pay  a  back  bill  then  due  within  six  months, 

123  In  England  it  is  held   that  a  City  Gas,,  etc..  Co.  v.  Gaines.  20  Ky. 

private  consumer  cannot  recover  an  L.  Repr.  1464;  4!)  S.  W.  Rep.  402. 
overcharge  made  contrary  to  a  stat-  124  Dayton    v.    Quigley,    29   N.   J. 

\ite    providing    that    under    certain  Eq.  77. 

circumstances  the  price  of  gas  sup-  12.1  London   Gaslight    Co.   v.    Nich- 

plied  a  municipality  by  a  gas  com-  oils.  2   Car.   and  P.  3G.5;   Preston  v. 

pany    should    he    reduced,    and    em-  Ilayton  &  Pvohy  Gas  Co.,  25  Gas  .J. 

powering  the    corporation    to    check  889;    Birmingham,  etc.,  Co.  v.   Rat- 

the  annual   audit  of  the  company's  clifTe  L.  R.  0  Ex.  224;  Hieronymu<^ 

accounts  to   ascertain   if   it  is  com-  v.  Bienville  Water  Supply  Co..   l:U 

plying  with   the   statute.     Johnston  Ala.  447;  .31  So.  Rep.  31. 
V.  Consumer's  Gas   Co.,   78  Law  T.  120  London  Gaslight   Co.   v.   Xich- 

270:    [1808]   A.  C.  447;   67  L.  J.  P.  oils,  .lupra. 
C.  33.  127  Manhattan     Gaslight     Co.     v. 

An   unlawful   charge   for   a   meter  Ely,    3!)   Barb.   174. 
may    be    recovered    back.      Capitol 


GOG  OIL    AND    GAS. 

and  also  undertook  t<i  jmv  future  liills  until  further  notice;  it 
was  held  that  he  was  liahle  for  the  ]kast  hills,  the  consideration 
being  sufficient  to  enable  the  gas  conipany  to  maintain  assump- 
sit 

§546.     Collection  of  rents  by  distress. 

In  some  instances  early  statutes  allowed  gas  companies  to 
collect  rents  bv  distress.  But  distress  does  not  lie  when  that 
rule  prevails,  for  a  gas  stove  let  for  hire  to  the  consumer  by 
the  company.^'"'*  And  where  a  gas  company  was  authorized  by 
statutes  to  levy  all  sums  for  gas  by  distress,  after  one  of  its 
customers  had  filed  a  jx'tition  in  baidcrnjitev,  it  was  held  that 
the  company  could  not  tJien  collect  the  gas  by  distress.^^'^  This 
case  was  distinguished  from  an  earlier  case,  in  which  a  statute 
authorized  a  company  to  collect  rent  and  charge  for  gas  "  by 
the  same  means  as  landlords  arc  by  law  empowered  to  recover 
rent  in  arrcar,"  wdiere  the  court  held  that  the  rent  or  charges 
in  arrear  before  the  petition  in  bankruptcy  was  filed  could  be 
collected  by  distress  of  the  goods  of  the  bankrupt  in  the  trustee's 
hands. *^^°  Subsequently,  however,  under  a  similar  statute,  the 
right  to  relief  by  distress  was  denied. ^"'^ 

12S  Hiberian   Gaslight  Co.  v.   Par-  paiiy  did  not  light  the  lanterns  to 

ry.   L.   R.   4   Ir.   45,3.  the  satisfaction  of  the  defendant  or 

If    a    lessor    agree    to    pay    "all  its    surveyor   and    did    not   perform 

water    rates     imposed     or     assessed  the  other  covenants  of  the  contract, 

upon  the  premises  or  on  the  lessor  — the  pcrforinance  of  all  the  several 

or    lessees    in    respect    thereof,"    he  stipulations  of  the  gas  company  not 

is  not  bound  to  pay  for  water  sup-  being  a   condition   precedent   to  the 

plied   to   the  lessees  for  trade  pur-  right  to  receive  the  money.     London 

poses.     In  re   Floyd    [1897],    1    Ch.  Gaslight  Co.  v.  Vestry  of  Chelsea,  8 

633;    6G    L.    J.    Ch.    350;    7G    L.   T.  C.  B.   (N.  S.)    21.5;  9  Gas  J.  292. 

251;   45  W.  R.  435.  129  Gaslight  and  Coke  Co.  v.  Har- 

W  here  a  gas  company  covenanted  dy,   17  Q.  B.  Div.  619. 

to  supply  gaslight  for  each  lantern  1^0  Ex  parte  Hill,   6  Ch.  Div.  63. 

of  a  parish,   to   the   satisfaction   of  *i30  Ex    parte    Birmingham,    etc., 

the  defendant  or  its  surveyor,  in  a  Co..  L.   B.   11   E(i.   015    (and  see  ex 

certain    manner    and    form    sot    out  parfr   Birmingham,   etc.,   Co.,   L.   R. 

in  the  contract,  it  was  hold  that  the  11    Eq.  204). 

parish    could   not  refuse   to  pay   for  i:n  E.r   parte   Harrison,    13    Q.    B. 

the  gas  on  the  ground  that  the  com-  Div.    753. 


GAS    COMl'ANV     AND    CONSUMEE. 


go: 


§547.     Shutting  off  gas  for  failure  to  pay. 

If  a  coiisuiiKT  fails  or  refuses  to  (■(iiiij)ly  with  the  ruh's  or 
reguhitions  i)f  a  gas  eoiiii)an_v,  siu-h  enuipauv,  after  l)ringing  his 
attention  to  tlie  rule  viohited,  may  shut  off  liis  suj)ply  of  gas 
if  he  continues  to  viohite  it  after  notice  given. '^"  Thus  a  rule 
that  a  consumer's  supply  of  gas  may  be  shut  off  if  he  becomes 
in  arrears  and  fails  to  pay  upon  (Iciuaiid  made,  is  valid,  and  in 
such  an  instance,  after  notice  given,  the  company  nuiy  shut  off 
his  gas  supply.^^^  And  if  a  consumer  has  practically  aban- 
doned the  use  of  gas,  by  adopting  other  methods  of  lighting,  the 
comjiany  may  cut  oil'  his  supply  of  gas.^'^*  But  a  couii)any 
cannot  shut  olf  a  tenant's  or  landowner's  gas  because  a  former 
occupant  or  owner  of  the  building  has  failed  or  refused  to  \)ny 
proper  gas  bills.^^^  This  rule,  however,  may  be  changed  by  a 
statute,  ov  by  a  contract,  or  by  an  oi-dinancc  where  the  munici- 
pality furnishes  gas  to  private  consumers.      Thus  it  was  held 


132  Shiras  v.  Ewing,  48  Kan.  170; 
29  Pac.  Rep.  320;  Comnionwealtli  v. 
Philadelphia,  132  Pa.  St,.  288;  1!) 
All.  Rep.  13G  (as  a  rule  requiring 
Lills  to  be  paid  within  ten  days  af- 
ter presented,  or  the  gas  would  be 
shut  ofT). 

133  The  right  to  shut  ofT  the  gas 
exists  in  such  an  instance  ■without 
such  a  rule.  People  v.  ]\Ianliattan 
Gasliffht  Co.,  45  Barb.  130;  30  How 
Pr.  87;  1  Abb.  Pr.  (N.  S.)  404; 
Snaith  v.  Scranton  Gas  and  Wat«r 
Co.,  5  Lack.  Leg.  X.  235 ;  Baltimore 
Gaslight  Co.  v.  Colliday,  25  ^Id. 
1;  Appeal  of  Brum  (Pa'.),  12  At  I. 
Rep.  855 ;  Morey  v.  Metropolitan 
Gaslight  Co.,  38  X.  Y.  Super.  185; 
Bellaire  Goblet  Co.  v.  Findlay,  3 
Ohio  C.  Dec.  205;  5  Ohio  Cir.  Ct. 
418;  McDaniel  v.  Springfield  W.  \V. 
Co.,  48  Mo.  App.  273;  :\Lackin  v. 
Portland  Gas  Co.,  38  Ore.  120;  Gl 
Pac.  Rep.  134;  G2  Pac.  Rep.  20;  49 
L.  R.  A.  596;  Tacoma  Hotel  Co.  v. 
Tacoma  Light  and  Water  Co.,  3 
Wash.  31G;  28  Pac.  Rep.  516:  14 
L.  K.  A.  609;  Pearson  v.  Plurnix 
Gas  Lo.,  12  Gas.  J.  09;  Jenkins  v. 
Columbia,  etc.,  Co.,  13  Wasli.  502; 
43   Pac.   Rep.  328;    State  v.   Board, 


105  ]\Iinn.  525;  117  X.  W.  Rep. 
827:  Hitchcock  v.  Esse.x  &  H.  Gas 
Co.,  71  X.  J.  L.  5fi5;  Gl  Atl.  Rep, 
397;  Bower  v.  United  Gas  Co.,  37 
Pa.   Super.   Ct.   113. 

A  gas  company  cannot  refuse  to 
furnisli  gas  to  a  married  woman 
on  the  ground  that  her  hustjand 
owes  it  for  gas.  Vanderberg  v.  Kan- 
sas City,  etc.,  Co.,  125  ]\Io.  Ajip. 
600:   105  S.  W.  Reyi.  17. 

131  Adams  Express  Co.  v.  Cincin- 
nati Gasliglit  Co.,  10  Ohio  Dec.  3S9; 
21  Wkly.  Law  Bull.  18.  See  Smith 
V.  Capital  Gas  Co.,  132  Cal.  209; 
04  Pac.  Rep.  258. 

135  Shellield  W.  W.  Co.  v.  Wilkin- 
son, L.  R.  4  C.  P.  Div.  410;  People 
V.  ^Manhattan  Gasliglit  Co.,  supra; 
ilerrimac  River  Savings  Bank  v. 
I>owell,  1.12  Mass.  ooijl  26  X.  E. 
Rep.  97;  Xew  Orleans  Gaslight  Co. 
V.  Paulding,  12  Rob.  (I^.)  37:-!; 
Dayton  v.  (^"uigley,  37  X.  J.  Eq.  77; 
Gaslight  and  Coke  Co.  v.  Mead,  45 
L.  J.  yi.  71;  Brass  v.  Rathbone, 
8  App.  Div.  X.  Y.  78;  40  X.  Y. 
Supp.  460;  afiirmcd  153  X.  Y.  435; 
47  X.  E.  Rep.  905;  Turner  v.  Re- 
vere Water  Co.,  171  Mass.  329;  50 
X.    E.   Rep.    G34;    ^lorcy    v.   Metro- 


008  on,    AND    GAS. 

that  the  citv  of  Phihuh-lphia,  when  it  furnished  gas.  could 
adopt  an  ordinance  and  recpiire  pavnient  oi  all  arrear  gas  bills  of 
former  tenants  of  the  premises  before  supplying  present  ten- 
ants.^''" A  statute  may  make  tlie  charge  for  gas  sup])1ie<l  a 
lien  on  the  land,  in  which  event  the  ])urchaser  of  the  land  will 
bo  bound  to  ])ay  uj)  all  arrearage  bills,  even  though  such  pur- 
chaser obtain  title  through  a  sheriff's  sale."^  Tn  such  an  in- 
stance a  statute  is  necessary  to  make  the  rent  a  lien,^''*  unless 
a  contract  the  e(iuivalent  of  a  mortgage  be  given/^"  But  where 
a  statute  authorized  a  company  '*  to  stop  the  gas  from  entering 
the  premises,  service  pipes  or  lamps  of  any  "  person  refusing 
to  pay  for  gas  supplied,  the  company  was  held  em]X)wered  to 
cut  off  the  gas  su])plied  to  one  set  of  premises  of  a  consumer 
for  default  made  by  him  in  respect  to  another  set  of  premises; 
it  being  deemed  that  the  liability  attached  to  the  consumer  and 
not  to  the  premises.^*"  A  receiver  appointed  by  court  in  l)ehalf 
of  tJie  Inindholders  and  cariwing  on  the  business,  is  not  entitled 
to  gas,  under  a  statute  authorizing  a  company  to  turn  off  tlie 
gas  if  the  owner  of  the  premises  does  not  pay,  without  ]iaying 
the  arrears  of  the  company  for  which  he  was  appointed  re- 
ceiver; but  even  here  there  may  be  exceptions.''*^  But  a  con- 
tract to  supply  gas,  and  permitting  the  company  to  shut  off 
the  supply  if  bills  be  not  paid  as  to  any  premises  of  the  cnn- 

politan  Gas   Co.,   6  Jones   &  S.    (X.  i3e  Commonwealth      v.      Pliiladel- 

Y.)   185;  Hoch  v.  Brooklyn,  etc.,  Gas  phia,  132  Pa.  St.  2SS;   19  Atl.  Rep. 

Co.,    117  X.  Y.  App.   Div.   882;    103  13G;    40    Log.   Int.   210. 

N.  Y.  Supp.  370.  137  Appeal    of    Brumm     (Pa.),    12 

Where    a    statute    allowed    a    gas  Atl.  Rep.  855. 

company    to    shut    off    the    supply  13^  Turner   v.    Revere    Water    Co., 

of  gns  because  bills  were  not   paid,  171  ^tass.  329;   50   X.  E.  Rep.  634. 

but  forbade  a  refusal  to  furnish  gas  i^o  St.    Joseph    Hydraulic    Co.    v. 

merely    because    a    bill    for    gas    re-  Wilson,  133  Iiid.  4U5 ;  33  X.  E.  Rep. 

mained  unpaid  by  a   previous  occu-  113. 

pant    of    the    building    or    premises,  "o  Montreal   Gas   Co.   v.   Cadieux, 

it  was  held  that  an  assignment  for  G8    L.    J.    P.    C.    12G;     [1889]    App. 

the    benefit    of    creditors    worked    a  Cas.  5S9;    81   Law  T.    (N.  S.)    274; 

change   of    ownership,    not    only    in  Montreal    Gas    Co.    v.    Cadieux,    11 

the  legal  title,  but  in  the  interests  Can.  Q.  B.  93. 

represented  by  it,  and  the  company  i^i  Patterson      v.      Gaslight     and 

could   not   refuse   to   furnish   gis  to  Ooke  Co.    [1S9G],  2   Ch.  470;    05   L. 

the   assignees   because    the   bills   for  J.  Ch.    (X.  S. )    709;    74   L.  T.   Rep. 

gas  incurred  by  a  previous  occupant  640;   In  re  Marriage,  etc.   [189G],  2 

remained   unpaid.      Cox   v.    Maiden,  Ch.  663;  Gosling  v.  Gaskell,  [1897] 

etc.,  (o.,   199   Mass.  324;   85  X.   E.  A.  C.  575. 
Rep.   180. 


GAS    COMPANY     AND    CONSIMKK. 


00 'J 


f.in'or,  cnmict  Ix'  i2:ivon  a  rotrojiftivo  effort  liv  allnwini:  tlic  com- 
pany to  slnit  off  jias  from  tlio  premises  because  of  deliiiqueiit 
lias  bills  incurred  for  jras  furuisbod  at  a  bouse  from  Avbicb  tbc 
consumer  bad  moved  Ix'forc  entcriiiir  into  sucb  s])ecial  con- 
tract.^''" Xor  can  tbe  C(tin]>:uiy  shut  ni]'  ihc  iras  from  all  ibe 
consumers  of  several  bouses  wbere  be  bolds  a  separate  contract 
for  tbe  supplying  of  eacli  bousc.^"  But  wbere  a  consumer 
failed  to  pay  a  bill  for  tbc  bouse  in  wliicli  be  resided,  and  be 
tben  moved  into  anotbor  bouse  wbere  tbe  company  supplied 
bim  witJi  gas  for  a  wbile  and  tben  discontinued  it,  it  was  beld 
tbat  be  could  not  compel  it  to  continue  to  furnisb  bim  witb  gas 
until  be  bad  paid  bis  old  bills.^"  A  company,  bowever,  cannot 
enforce  tbc  jmyment  of  disputed  bills  by  sbutting  off  tbc  su])i)ly 
of  gas?  and  if  it  attem]>ted  to  do  so,  it  may  he  enjoined  ;^'*^  espe- 
cially after  it  bas  received  payment  for  a  subsequent  and  undis- 
puted installment""  A  gas  company  is  not  justified  in  sbut- 
ting off  gas  fumisbcd  free  to  a  person  wbo  is  wasteful  in  its 
use;  but  tbe  court  will  regulate  tbe  su]>ply.  As  wbere  a  con- 
sumer funiisbed  free  gas  used  300,000  cubic  feet  in  a  year, 
while  tbe  largest  consumer  similarly  situated  used  not  over 
64,000  during  tbe  same  year,  tbe  court  limited  tlie  sup])ly  to 
150,000  cubic  feet/*^  And  in  an  instance  wbere  a  munici- 
pality was  to  be  furnisbcd  gas  free  for  all  municipal  purposes 
for  the  privilege  of  laying  gas  pipes  in  its  streets,  tJie  court 
refused  to  enjoin  an  excessive  and  wasteful  use,  remitting  tbe 
company  to  its  action  at  law."'**  A  promise  by  a  new  tenant  to 
pay  all  gas  bills  of  tbe  former  tenant  un]X!id  is  without  C(Misi(l 

142  Lloyd  V.  Washington  Gaslight  was  a  dispute  over  the  correctness 
Co.,  1  Mackey  331;  Cox  v.  Maiden,  of  the  meter  measurement).  Con- 
etc.,  Co.,  199  Mass.  324;  85  X.  E.  t7-a,  Pcnn.  Iron  Co.  v.  Lancaster,  17 
Rep.    ISO.  Lane.    Law    Rev.     lUl;     Shelley    v. 

143  Baltimore  Gaslight  Co.  v.  Col-  Westchester  L.  Co.,  119  N.  Y.  App. 
liday,  25   Md.   1.  Div.   61;    103   N.   Y.   Supp.   951. 

i44Mackin    v.    Portland    Natural  1 48  Wood  v.  Auburn,  87  Me.  2S7 ; 

Gas  Co.,  38  Ore.  120;   Gl   Pac.   Rep.  32  Atl.  Rep.  90G. 
134;    49    L.    R.    A.    590    (rehearing  i47  Graves   v.    Key   City   Gas   Co., 

denied,   02   Pac.   Rep.   20).  93   Iowa  470;    61   N.  W.' Rep.   937; 

14'.  Bienville    Water,    etc.,    Co.    v.  Graves    v.    Key    City    Gas    Co.,    83 

Mobile,    112  Ala.   260;    20   So.   Rep.  Iowa   714;    50 'x.   W.    Rep.   283. 
742;  33  L.  R.  A.  oO;  Penny  v.  Ros-  i^sSaltsburg    Gas    to.    v.    Salts- 

endale,    etc.,    Co.,    14    Gas    J.    927;  burg,  138  Pa.  St.  250;   20  Atl.  Rep. 

Sickles  V.   Manhattan   Gaslight   Co.,  844;    10  L.   R.   A.    193. 
66  How.    Pr.   314    (as  where  there 


010  OIL    AND    GAS. 

ornrii'ii,  ovcv.  tli<mtili  tlio  iras  coinpanv  rofusod  to  furnisli  liim 
jjas  witlioiit  ho  airvood  to  its  demand;  and,  thcroforo,  the  com 
])anv  cannot  ent  oflF  his  supply  for  a  neglect  to  keep  his  contract 
in  fulL^*'*  A  contract  to  snpply  natural  ^as  so  lonc^  as  the 
supply  does  not  fail,  will  auliiorize  the  company  to  cut  off  the 
supply  when  that  contingency  happens;  and  it  cannot  be  en- 
joined from  doing  so.^^"  An  agreement  that  if  the  gas  rent  be 
not  paid,  the  coni|3any  may  shut  off  the  supply  and  take  posses- 
sion of  the  machinery  of  the  mill  furnished  and  the  fixtures 
until  payment  is  made  gives  the  company  no  lien  on  the  land, 
but  only  a  chattel  mortgage  on  the  machinery  and  fixtures. ^^^ 
A  statute  giving  a  municipality  a  lien  on  the  premises  does  not 
prevent  it  passing  an  ordinance  providing  that  the  gas  may  be 
cut  off  if  past  bills  are  not  paid.""  And  it  may  be  remarked  in 
this  connection  that  a  municipality  has  the  same  power  to 
enforce  payment  of  arrearages  as  a  private  gas  company  has."^ 
But  the  city  cannot  cut  off  a  consumer's  water  supply  for  a 
failure  to  comply  with  the  ordinance  of  the  board  of  health 
respecting  plumbing,  in  the  absence  of  any  regulation  authoriz- 
ing such  action.^"''*  The  consumer  cannot  ])revent  the  company 
cutting  off  the  gas  on  the  ground  that  he  is  solvent  and  able  to 
pay  the  bills ;  "^  although  insolvency  is  an  additional  justifica' 

1*0  Xcw    Orleans    Gaslight   Co.    v.  A   trustee    in    bankruptcy    is    not 

Paulding,   12   Rob.    (La.)    378.  liable  for  arrears  of  gas  bills,  where 

1^0  Tliompson    Glass    Co.  'v.    Fay-  he  continues  to  occupy  the  premises, 

otte   Fuel    Co.,    137   Pa.   St.   317;    21  In    re    Flack    [1900],"  2    Q.    B.    32; 

Atl.   Rep.   93;    Black   Lick  v.   Salts-  Cox  v.  Maiden,  etc.,  Co.,  199  Mass. 

burg,  139  Pa.  St.  448;   21  Atl.  Rep.  324;   85  X.  E.  Rep.   180. 

432.  isi  St.    Joseph    Hydraulic    Co.    v. 

If    gas   be    illegally    cut    off,    the  Wilson,  133  Ind.  403;  33  N.  E.  Rep. 

c<impany  cannot  make  a  charge  for  113. 

turning   it  on   again.     Nor,   as   has  i^-  Altoona  v.  Shcllenberger,  6  Pa. 

been  held,  if  properly  cut  off.    Amcr-  Dist.  Rep.  544. 

ican   W.   W.   Co.   v.   State,   46   Neb.  i^sjacoma   Hotel   Co.   v.   Tacoma 

194;   04  X.  W.  Rep.  711.  Light  and  Water  Co.,  3   Wash.   St. 

But    where    a    consumer    was    in  310;    28    Pac.    Rep.    516;    Bellaire 

default    for    gas    furnished,    it    was  Goblet  Co.  v.  Findlay,  3  Ohio  C.  D. 

held  that  the  company  could  include  205;    5    Ohio    Cir.    Ct.    418;    Penn. 

in    his    arrearages    tJie    gross    price  Iron   Co.   v.  Lancaster,   17   Lane.   L. 

for  gas  without  allowing  the  deduc-  Rev.    101. 

tion  granted  for  payment,  and  also  i-"*  Johnson   v.    Bclmar,    58   X.   J. 

incidental    charges   for  severing  and  Eq.  354;   44  Atl.   Rep.   166. 

making  connections.    State  v.  Board,  i'-''  Bellaire  Goblet  Co.  v.  Findlay, 

105    Minn.    525;     117    N.    W.    Rep.  3   Ohio  C.  D.  205;    5   Ohio  Cir.  Ct. 

827.  418. 


GAS    CUMi'A.W     AND    CONSl' MKi:. 


Uil 


tion  ill  the  Cdiiipniiy  cuttinii-  dtV  tlic  ii;is  supplv.''"  A  landlnrd 
cniniot  ])rcv(Mit  the  ('(.niiKUiy  slmiliiii:  otl'  llic  p;as  from  liis  tetmnt 
who  is  ill  arrears,  or  who  has  disoU'ved  tlio  nilos  of  the  rom- 
pany  with  resjieet  to  waste:  for  the  iiijurv  is  to  tlie  tenant;  ami 
he  being  in  dcfauU,  he  cduld  imt  treat  ihe  action  of  the  emiijiaiiy 
as  an  eviction  or  as  a  reason  for  vacating  the  premises.*^* 
Where  the  phiintiff  removed  from  the  building  the  day  the 
agent  of  the  gas  company  took  the  statement  of  his  meter,  but 
he  did  not  notify  the  company  of  his  removal,  and  live  days 
thereafter  his  wife  notified  persons  taking  the  meter  statement 
to  cut  olf  the  gas  and  take  out  the  meter,  and  the  wife  testitied 
that  no  gas  was  burned  after  this  notice  was  given,  it  was  held 
that  the  question  whether  the  eonijniny  was  justified  in  refusing 
the  plaintiff  a  supply  of  gas  at  his  newly  ae(]uired  residence 
because  vi  his  indebtedness  for  gas  furnished  between  the  time 
the  employe  took  out  the  meter  and  the  time  the  plaintiff  noti- 
fied the  company  of  his  removal  was  a  question  for  the  jury."" 
An  agreement  between  the  company  and  a  consumer,  sejiarate 
and  distinct  from  the  contract  for  a  water  supply,  providing 
that  the  rent  shall  be  paid  in  advance,  the  company's  recovery 
by  suit  of  an  installment  for  a  particular  period  will  not  prevent 
it  from  subsequently  cutting  off  the  su|>ply  of  water,   during 


157  People  V.  Manhattan  Gaslight 
Co.,  45  Barb.  13(5. 

I'^'S  Brass  v.  Rathbonp,  153  N.  Y. 
435;  47  X.  E.  Rep.  905,  affirming 
40  N".  Y.  Supp.  4GG ;  8  App.  Div.  78. 
In  this  case  it  was  also  held  that 
the  company  had  not  lost  its  right 
to  cut  oir  the  supply  because  otlicr 
consumers  had  violated  the  statute 
in  the  same  particular. 

A  gas  company  may  refuse  to  sup- 
ply gas  for  premises  without  a  eon- 
tract  with  the  tenant  in  possession, 
for  the  reason  that  such  tenant 
alone  has  the  right  to  give  the 
company  access  to  the  premises  to 
install  and  maintain  a  meter  and  to 
"periodically  read  it  to  a.scertain 
the  amount  of  gas  used.  Vander- 
berg  V.  Kansas  Citv,  etc.,  Co.,  125 
]\ro.  App.  GOO;  105  S.  VV.  Rep. 
17. 


Where  the  rules  of  the  company 
required  the  owner  or  his  agent  to 
make  the  application  in  his  own 
handwriting,  and  if  made  by  the 
tenant  it  must  be  made  with  the 
written  consent  of  such  owner  or 
agent,  and  the  owner  made  the 
proper  ap;)lication,  and  after  he  had 
received  water  awhile,  he  transferred 
the  premises  to  his  wife,  of  which 
the  company  had  no  knowledge; 
and  the  bills  thereafter  falling  due, 
no  demand  Ix-inj  made  on  the  wife 
but  on  the  husband,  who  failed  to 
pay,  it  was  held  that  the  wife  could 
not  enjoin  the  company  from  turn- 
ing ofT  the  water.  Smith  v.  Soran- 
ton  Gas  and  Water  Co.,  5  Lack. 
Leg.  X.  235. 

ICO  Bennett  v.  Westchester  Gas- 
light Co.,  40  App.  DIv.  IGJ);  57  X. 
Y.  Supp.  847. 


01; 


OIL    A^iU    GAS. 


sucli  jieriod,  for  non-pnymont  of  tlic  wut,  tlu'  jiidpnont  lioirg 
unsatisfied.^"^  The  ooiifdusion  of  tlio  ans  company  that  a  con- 
sumer is  in  arrears  does  not  estal)lisli  its  ri2:ht  to  cut  off  the  gas 
for  owners;  bnt  the  fact  of  arrears  is  a  question  of  fact,  to  he 

(Ictcrniincd  fi-din  llic  evidence.'''^ 


^548.     Injunction  to  prevent  cutting  off  gas  supply. —  Rates. 

An  injunction  lies  to  prevent  a  gas  company  cutting  off 
tlie  supply  of  gas  on  the  ground  that  a  consumer  will  not  pay 
an  illegal  rate,  or  a  disputed  bill.'"'  Where  a  gas  company 
entered  into  an  agreement  to  supply  natural  gas  so  long  as  the 
eas  was  obtainable,  it  was  held  that  an  injunction  lay  to 
prevent  its  being  cut  off,  where  the  result  wo\ild  be  that  the 
plaintiff  would  not  be  able  to  run  its  electric  light  company 
and  keep  its  contracts  to  supply  light  with  its  customers."* 
And  where,  under  a  similar  contract,  the  gas  had  been  cut  off, 


161  Hieronymus  v.  Bienville  Water 
Supply  Co.,  131  Ala.  447;  31  So. 
Rep.  31.  Sec  Montreal  Gas  Co. 
V.  Cadieux,  etc.,  11  Can.  Q.  B.  93. 

162  ^Ntorey  v.  INIetropolitan  Gas- 
liglit  Co.,  G  Jones  &  S.   (X.  Y.)   185. 

A  water  company  may  shut  off 
the  supply  of  a  city  in  arrears,  even 
thouj^h  it  leave  such  city  without 
fire  protection;  and  an  injunction 
will  not  lie  to  prevent  it.  Penn. 
Iron  Co.  v.  Lancaster,  17  Lane.  I>aw 
Rev.   161. 

Where  the  evidence  showed  that 
the  plaintifF  had  never  been  a  cus- 
tomer of  the  defendant,  had  never 
made  an  application  to  be  supplied 
with  gas,  and  that  the  defendant 
had  never  threatened  to  cut  off  any 
gas,  a  temporary  injunction,  it  was 
held,  should  be  refused.  Paff  v. 
Standard  Gaslight  Co.,  118  N".  Y. 
App.  Div.  904;   103  N.  Y.  Supp.  438. 

163  Cromwell  v.  Stephens,  2  Daly 
15;  Bienville  Water  Supply  Co.  v. 
Mobile,  112  Ala.  2G0;  20  So.  Rep. 
742:  .33  L.  R.  A.  59;  Penn.  Iron 
Co.  V.  Lancaster,  17  Lane.  Law  Rev. 
161;  Levy  v.  Water  Works  Co., 
38  La.  Ann.  941;  Wilkes-Barre  Gas 


Co.  v.  Turner,  7  Kulp.  399;  Sickles 
v.  Manhattan  Gaslight  Co.,  64  How. 
Pr.  33;  GO  How.  Pr.  304,  314; 
Graves  v.  Key  City  Gas  Co.,  83 
Iowa  714;  50  X.  W.  Rep.  283;  Se- 
wickley  v.  Ohio  Valley  Gas  Co.,  154 
Pa.  St.  539;  25  Atl.  Rep.  808; 
Smith  V.  London  Gas  Co.,  7  Grant 
(U.   C.)    112. 

164  Xenia  Real  Estate  Co.  v.  ]\Iacy, 
147  Ind.  5G8;  47  X.  E.  Rep.  147; 
State  v.  Connersville  Xat.  Gas  Co., 
163    Ind.    563;    71    X.   E.    Rep.    483. 

If  a  gas  company  propose  to  shut 
off  the  gas  from  a  gas  main  whereby 
a  number  of  consumers  will  alike  be 
deprived  of  gas,  they  cannot  Join  in 
an  action  to  prevent  it,  for  they 
have  not  a  common  interest;  and 
hence  one  consumer  cannot  sue  for 
the  benefit  of  all  parties  similarly 
situated.  Xairin  v.  Kentucky  Heat- 
ing Co.  (Ky.),  86  S.  W.  Rep.  676; 
27  Ky.   L.  Rep.   551. 

An  injunction  will  not  lie  until 
the  plaintiff  has  first  tendered  the 
amount  of  tlie  proper  charges.  Buf- 
falo v.  Buffalo  Gas  Co.  (X.  Y.),  119 
X.  Y.  Supp.  468. 


GAS    COMTANY    A^'D    CONSL'MKli. 


(iKi 


a  prcliniiiuirv  iiiaiidatorv  iiijiiiict i<ni  to  ro^toro  it  was  on-anted.'" 
Under  such  a  contract,  if  the  supply  fail,  the  n.iiii>any  may 
discontinue  its  efforts  to  furnish  a  s\ipi>ly.'""  A  i)rcliniinary 
injunction  restricting  the  shutting  off  of  gas  contracted  to  l)e 
furnished  will  be  permitted  to  stand  until  final  hearing,  where 
no  nuiterial  injury  can  arise  from  preserving  the  status  quo.^'^'' 
And  although  the  right  to  gas  rests  upon  a  sjX'cial  contract  be- 
tween the  consumer  and  the  company,  yet  an  iTijunetion  will 
be  granted  to  compel  the  com]iany  to  continue  the  su])ply  of 
gas  pursuant  to  such  contract's  terms,'"^  especially  where  the 
consumer  would  suffer  great  damages,  or  not  be  able  to  carr} 
out  his  contracts  with  his  customers/'''* 


§549.     Consumer's  right  to  discontinue  use  of  gas. 

The  general  rule  is  that  a  customer  within  a  municipality 
is  required  to  pay  for  only  as  much  gas  as  he  consumes  or  as 
passes   through  his  meter;   and  that  he  may   discontinue  the 


165  Whitman  v.  Fayette  Fuel  Gag 
Co.,  139  Pa.  St.  492;  20  Atl.  Rep. 
1062. 

180  Blacklick  v.  Saltsburg,  139  Pa. 
St.  448;   21   Atl.  Rep.  432. 

16T  Corbet  v.  Oil  City  Fuel  Sup- 
ply Co.,  5  Pa.  Super.  Ct.  19;  40  W. 
N.  C.  480.  See  Des  Moines  W.  W. 
Co.  V.  Des  Moines,  95  Iowa  348; 
64  N.  W.  Rep.  2G9;  United  States, 
etc.,  Co.  V.  Metropolitan  Club,  6 
App.   D.  C.  530. 

168  Corbet  v.  Oil  City  Fuel  Co., 
supra;  Graves  v.  Key  City  Gaa  Co., 
83  Iowa  714;  50  N.'  W.  Rep.  2S3 ; 
93  Iowa  470;  Gl  X.  W.  Rep.  937. 

169  Xenia  Real  Estate  Co.  v.  Macy, 
147    Ind.   508;    47   X.    E.   Rep.    147. 

If  a  consumer  has  not  paid  or 
tendered  tlie  amount  of  his  bill 
(with  the  penalty  for  delinquency 
■when  such  a  penalty  may  be  in- 
flicted), he  has  no  standing  in  court 
to  secure  an  injunction.  Bower  v. 
United  Gas  Imp.  Co.,  37  Pa.  Super. 
Ct.  113;  State  v.  Board,  105  Minn. 
525;   117  X.  W.  Rep.  827. 

Where  a  large  mansion  was  di- 
vided into  separate  a[)artmcnt3,  and 
the   mansion   was  supplied   through 


a  large  meter,  and  each  ajjartnient 
supplied  with  a  small  subsidiary 
meter,  placed  and  maintained  by 
the  landlord,  an  injunction  was 
granted  to  prevent  him  cutting  off 
one  of  the  apartments.  Hersey  v. 
White,  9  T.  L.  R.  335. 

A  natural  gas  company  threatened 
to  shut  ofT  plaintiff's  supply  of  gas. 
It  was  alleged  tliat  by  ordinance 
defendant  was  autliorized  to  furnish 
gas  for  heating  purposes  only,  and 
that,  after  proper  connection  had 
been  made,  the  defendant  had  been 
enjoined  from  furnisliing  gas  for 
ligliting  purposes  in  a  suit  to  which 
plaintiff  was  not  a  party.  It  was 
cliarged  that  the  defendant  tlireat- 
ened  to  shut  off  plaintiff's  gas  unless 
its  use  for  ligliting  was  discon- 
tinued. It  was  not  averred  tiiat 
there  was  any  special  contract  l>e- 
tween  plaintiff  and  defendant,  nor 
that  plaintiff  had  made  application 
for  a  gas  connection  for  lighting 
purposes.  It  was  held  that  the 
complaint  stated  no  pround  for  re- 
lief bv  injunction.  Xairin  v.  Ken- 
tucky" Ileatinir  Co.  (Ky.),  80  S.  W. 
Rep.  67C;    27   Ky.   L.    Rep.  551. 


Oii  OIL    AND    (JAS. 

:UT'ply  at  any  tiiiio/^".  T^sr.;illy  ordiiKuiccs  or  statutes  extend 
to  such  consnnior  the  rinlit  t(»  (liscoiitiinic  tli(>  pis  at  any  timC; 
even  though  he  has  ]>aicl  i\>v  it  in  advance.  Ihit  such  ordi- 
nances or  statutes,  as  an  ahnost  universal  rule,  do  not  prohibit 
a  eonsniner  entering  into  a  contract  with  a  cmiiiiany  for  a  supply 
of  gas  for  a  specified  period  of  time,  and  to  hind  himself  to  take 
the  gas  for  tliat  period  of  time  and  pay  for  it/'^  This  is 
particnlarly  true  of  municipalities  which  usually  do  and  are 
allowed  to  make  sp<'cial  contracts,  varying  in  ju'lce  fi'om  that  of 
the  private  consumer.  Where  such  contracts  are  entered  into 
they  cannot  be  rescinded,  if  they  are  otherwise  valid.  But,  of 
course,  a  contract  to  pay  more  than  the  ordinance  or  statute  rate 
wonld  not  Ik'  valid,  unless  the  consumer  was  one  the  comjiany 
was  under  no  legal  obligation  to  furnish  gas.  If  a  company 
does  not  keep  its  special  contract  hy  failing  to  fdrnish  a  supply 
of  gas,  the  consumer  may  at  once  serve  notice  upon  it  that  he 
will  no  longer  take  the  gas,  and  he  will  not  thereafter  be  bound 
to  pay  for  gas,  even  though  it  be  tendered  and  the  contract  pro- 
vide that  it  should  continue  until  either  party  should  give  the 
other  thirty  or  other  days'  notice  of  their  desire  for  a  dis- 
continuance.^'- Such  a  contract  cannot  be  construed  as 
running  from  year  to  year,  after  the  first  year,  or  as 
committing  the  company  to  supply  gas  during  the  whole 
of  a  subsequent  year  merely  by  failing  to  act  on  the  con- 
sumer's default  at  the  commencement  of  that  year.^^^  If 
a  customer  under  a  special  contract  refuses  to  take  the 
gas  provided  for  in  the  contract,  the  company  may  re- 
cover damages  for  breach  of  the  contract,  but  it  can  recover 
only  where  the  agreement  is  to  take  gas  for  a  definite  time,  and 
then  only  such  damages  as  it  has  sustained,  and  not  the  full  con- 
tract price.^'*  A  failure  to  use  gas  while  waiting  for  a  tenant, 
will  not  entitle  the  company  to  discontinue  it  and  recover 
liquidated  damages  under  a  clause  in  the  contract  that  if  th» 
consumer  discontinnes  the  gas  because  the  consumer  is  in  arrears 

i-oXebraska     City     v.     Xoliraska  i""!  Plieronymus  v.  Bienville  Water 

City,  etc.,  Co.,  0  Neb.  339:  2  X.  W.       Supply  Co.,  supra. 
Rep.  870.  '"*  Queen  City,  etc.,  Co.  v.  Gibson 

I'l  Imperial  Gas  Co.  V.  Cliaunller,        House    Co.,    4    Oliio    N.    P.    119;    6 
2  Gas  J.  3G2.  Uliio  Dec.  148. 

i"2  Ilieronymus  v.  Bienville  Water 
Supply  Co./  131  Ala.  447;  31  So. 
Rep.  31. 


GAS    (DM  I'A.N  V     AM)    (  D.NSl' M  KK. 


015 


or  fails  tn  (miujiIv  with  llic  rules  of  llic  (•(iiii]>aiiy,  nr  is  lliroUiili 
the  "  fault.  "  of  the  consuincr  ])n'V(Mit('(l  from  siipiylviujj:  tlio  gas 
aecordinsz:  to  tlu^  ]>rovisions  of  the  contract,  a  specitied  amount 
shall  "  forthwith  hccomo  due  and  pavahle  "  to  the  conijiany  as 
stipulated  damauos.^'''  Where  the  agreement  was  that  the  con- 
sumer should  declare  an  average  minimum  daily  ot  the  amount 
of  gas  which  it  wmild  take  anniuilly.  ami  would  ]Kiy  for  it, 
though  it  took  less,  and  that  all  gas  it  used  in  any  month  sliould 
be  paid  for  monthly,  it  was  held  that  tlie  agreement  required 
payment  mdv  at  the  end  of  the  year  for  the  ])ait  of  the  minimum 
amount  not  taken.'''"  An  agreement  provided  that  a  certain 
company  should  sink  a  gas  well  and  supply  certain  persons  with 
gas  and  all  others  who  might  desire  it,  and  that  it  was  to  become 
binding  as  soon  as  twenty  persons  agreed  to  become  consumers 
of  gas ;  it  was  held  that  the  contract  became  binding  as  soon  as 
twenty  prospective  consumers  had  signed  it,  and  that  no  one  of 
the  subscribers  could  withdraw  his  name  from  the  agreement 
without  the  consent  of  all  the  twenty  subscribers  and  of  the  per- 
son who  was  to  furnish  the  gas.^^^  Where  the  owner  of  a  well 
that  was  l>eing  drilled  agreed  with  a  gas  company  to  pay  for  gas 
it  should  furnish  a  well-driller  to  run  his  drilling  apparatus,  and 
such  owner  had  a  contract  with  the  well-driller  to  furnish  him 
all  the  gas  necessary  to  run  such  drilling  apparatus,  and  such 
well-driller  knew  the  gas  was  coming  through  pipes  from  the  gas 
company;  it  was  held  that  he  was  liable  to  pay  for  the  gas  he 
consumed,  although  he  had  never  agreed  to  pay  for  it.'"*  The 
consumer  cannot  cut  oft"  the  sup])ly  of  gas  at  the  stop  cock  located 
in  the  street  or  sidewalk  until  after  reasonable  notice  given  to 
the  company  to  shut  it  off,  followed  by  neglect  to  do  so;  and  if  a 
rival  company  undertake  to  cut  it  off,  even  though  the  consumer 
may  desire  to  make  a  change  to  it,  an  injunction  will  be  grant- 
ed to  prevent  it  interfering  with  the  sto])  cocks  and  service 
pipes,  until  after  reasonable  notice  to  the  old  company  be  given, 
and  a  failure  on  its  part  to  cvit  off  the  connection.''"  xV  con- 
sumer who  desires  to  discontinue  the  use  of  gas  and  eseai>e  lia- 

175  Unitetl  Electric  Light,  etc.,  Co.  i""  Current  v.  Fult.on,  10  hid.  App. 
V.   Brenenuin,   46   N.   Y.   Supp.   016;        017;  38  N.  E.  Rep.  419. 

21   N.   Y.   Misc.   41.  I's  Chanil^erlain    v.    Summit    das 

176  Conemaug'h    Gas    Co.    v.    Jack-        Co..    .3    Penn.     (Pa.)     2(il. 

son  Farm  Gas  Co.,  186  Pa.  St.  443;  i"»  Pennsylvania  Ga.'*  Co.  v.   War- 

40  Atl.   Rep.    ICtOO.  ren,   etc.,   Co.,   3   Pa.   Dist.    Rep.    (!7. 


GIG  OIL    AAL)    GAS. 

bility  for  it,  where  it  is  furnished  by  the  month  or  year,  or  tlie 
like,  should  notify  the  gas  company,  in  order  that  they  may  shut 
off  his  supply,'^"  but,  of  course,  if  he  pays  only  for  the  amount 
registered  by  the  meter,  there  is  little  reason  to  give  such  a 
notice,  unless  he  desires  it  cut  off  from  his  premises.  And  if 
he  is  bound  to  take  the  gas,  whether  he  use  it  or  not,  the  gas 
company  is  not  entitled  to  an  injunction  to  compel  him  to  use  it, 
its  action  at  law  for  damages  giving  sufficient  compensation/*^ 

§550.     Ownership  of  supply  pipe. 

When  a  supply  pipe.  —  a  pipe  running  from  the  company's 
jras  mains  in  the  street  to  the  meter  in  the  house  —  is  put  down 
by  the  gas  company,  as  often  happens,  it  belongs  to  the  owner  of 
the  real  estate,  and  tlie  company  may  not  remove  it  upon  the  con- 
sumer or  owner  of  the  premises  ceasing  to  be  a  customer;  and 
this  was  held  true  even  when  the  company  had  a  steady  rule  in 
force  when  it  put  down  the  pipe  that  "  the  connecting  pipes  and 
works  from  the  street  mains  to  the  consumer's  premises  shall  at 
all  times  be  under  the  control  and  management  of  the  corpora- 
tion, and  shall  be  deemed  to  belong  to  them."  ^®"  This  was  the 
case  of  a  water  company  wdiich  put  down  a  lead  supply  pipe, 
whidi  poisoned  the  water;  and  it  was  held  that  inasmuch  as  the 
supply  pipe  belonged  to  the  customer  the  company  was  not 
liable>' 

180  Pennsylvania  Gas  Co.  v.  War-  issA  rule  of  the  gas  company  re- 
ner,  etx;.,  'Co.,  3  Pa.  Dist.  Rep.  67.  serving  to  it  the  right  to  make  all 

181  Steinau  v.  Cincinnati  Gaslight  taps  of  or  connections  with  its 
and  Coke  Co.,  48  Ohio  St.  324;  27  mains  is  a  reasonable  one.  Poca- 
N.  E.  Rep.  545;  reversing  2  Ohio  tello  Water  Co.  v.  Standley  (Idaho), 
Cir.  Ot.  Rep.  286.  61  Pac.  Rep.  518. 

If  a  consumer   owns   two   sets   or  Only    the    company    owning    the 

lines   of   pipes   and    two   meters,    he  sujjply    pipe    can    use    it.      Pough- 

may    discontinue    one    and    use    the  keepsie  Gas  Co.  v.  Citizens'  Gas  Co., 

other.     He  may  discontinue  the  use  20  Hun  214. 

of    illuminating    gas    entirely,    and  If  the  consumer  owns  the  supply 

use  fuel  gas.     State  v.  New  Orleans,  pipe    he    can    enjoin    the    company 

et*.,  Co.    (La.),   32   So.   Rep.   179.  when     it    attempts    to    remove    it. 

182  Milnes  v.  Hudersfield,  11  App.  State  v.  Connersville  Nat.  Gas  Co., 
Cas.  511;  56  L.  J.  Q.  B.  1;  55  L.  T.  163  Ind.  563;  71  N.  E.  Rep.  483. 
617;  34  W.  R.  761;  50  J.  P.  676;  The  gas  company  may  waive  its 
affirming  L.  R.  12  Q.  B.  Div.  443;  written  permission  to  make  a  con- 
which  affirmed  L.  R.  10  Q.  B.  Div.  nection  with  its  mains.  Citizens* 
124.  Gas,   etc.,    Co.   v.    Whipple,   32   Ind. 

App.  203;  69  N.  E.  Rep.  557. 


CHAPTER  XXVI. 

METERS   AND    MIXERS. 

§551.  Definitions. 

§552.  Who  must  furnish. 

§553.  Control  of  meter. 

§554.  Unreasonable  requirements. 

§555.  Inspection  of  meters  by  company. 

§556.  Official  inspection  and  tests. 

§557.  Officially  tested  meters  conclusive. 

§558.  Measurements    of    quantity    of    gas    used. 

§559.  Delivery  of  gas. 

§560.  Rules  and  regulations  concerning. 

§561.  Extra  charges  for  meters  and  mixers. —  Government  tax. 

§562.  Requiring   use   of  a   certain   quantity   of  gas   per   month   or   pay  a 

meter  rent. 

§563.  Discrimination  in  use  of  meter. 

§564.  Removal  of  meters. 

§551.     Definitions. 

A  meter  (often  spelled  metre)  may  be  defined  as  an  instru- 
ment, apparatus  or  machine  for  measuring  fluids,  gases,  air 
electrical  currents,  etc.,  and  recording  the  results  obtained.  A 
dry  meter  is  a  gas  meter  not  containing  fluid  as  an  essential 
part  of  it.^  A  water  meter  is  one  in  which  water  is  kept  through 
which  the  gas  passes.  A  gas  mixer  is  a  cylindrical  instrument 
by  which  air  is  mixed  with  natural  gas  as  it  enters  the  burner, 
thereby  securing  greater  combustion  and  producing  a  higher 
degree  of  heat  with  the  same  quantity  of  gas. 

§552.     Who  must  furnish. 

It  is  almost  the  universal  practice  of  gas  companies  to  furnish 
gas  meters  whenever  they  are  used;  but  this  is  a  matter  subject 
to  local  usage.      Frequently  statutes  or  ordinances  require  I  hem, 

1  Standard  Dictionary.  "  Motor." 

617 


CIS 


OIL    AND    GAS. 


to  do  SO,  free  of  charge.  Probably  the  rule  with  res])ect  to  gas 
mixers  is  not  so  general  as  that  with  respect  to  gas  meters,  and 
patrons  frequently  furnish  their  own.  Where  an  ordinance  or 
statute  requires  them  to  furnish  meters,  a  company  cannot  make 
an  extra  charge  for  them  ;  and  this  occurs  where  a  company  is 
compelled  to  furnish  gas  at  so  much  a  thousand  feet,  nothing 
being  said  about  who  shall  furnish  the  meter,  it  being  considered 
the  duty  of  the  company  to  furnish  and  attach  it  to  tlie  pipes 
in  a  pro])er  manner,  in  order  to  ascertain  the  amount  of  gas 
furnished,^  But  the  company  is  not  required  to  furnish  more 
than  one  meter  for  a  house — not  one  for  each  floor — luiless  the 
house  is  occupied  by  diiferent  tenants  who  have  independent 
service  pipes.  When  that  is  the  case,  each  apartment  is  re- 
garded as  an  independent  house.^  And  if  the  company  have  the 
right  to  require  a  consumer  to  furnish  a  meter  before  it  will 
supply  him  with  gas,  it  has  no  right  to  insist  that  he  shall  furnish 
a  meter  when  it  does  not  make  that  requirement  of  others ;  for 
all  must  be  treated  alike.  Nor  has  it  the  right  to  require  a 
customer  to  furnish  expensive  meters  when  a  meter  costing  less 
will  correctly  measure  the  gas.* 


2  Louisville  Gas  Co.  v.  Dulaney, 
100  Ky.  405;  38  S.  W.  Rep.  703;  36 
L.  R.  A.  125;  6  Am.  and  Eng.  Corp. 
Cas.  (N.  S.)  241;  Albert  v.  Davis, 
49  Neb.  579;  68  N.  W.  Rep.  945; 
Capital,  etc.,  Co.  v.  Gaines,  20  Ky. 
L.  Rep.  1464;  49  S.  W.  Rep.  462; 
Sheffield  W.  W.  Co.  v.  Carter,  L.  R. 
8  Q.  R.  632.  Contra,  Sheffield  W. 
\\.  Co.  v.  Bingham,  L.  R.  25  Ch. 
Div.  443;  48  L.  T.  604;  52  L.  J. 
Ch.  624.  See  State  v.  Sedalia  Gas 
Co.,  34  Mo.  App.  501 ;  and  Ladd  v. 
Boston,  170  Mass.  332;  49  N.  E. 
Rep.  627;  40  L.  R.  A.  171. 

3  Ferguson  v.  Metropolitan  Gas 
Co.,  37  How.  Pr.  189;  Young  v.  Bas- 
ton.   104  Mass.   95. 

The  meters  in  use  are  k.  part  of 
the  plant,  for  the  purposes  of  tax- 
ation. Com.  V.  Lowell  Gaslight  Co., 
12   Allen   75. 


4  State  V.  Jersey  City,  45  N.  J. 
L.  246;  2  Am.  and  Eng.  Corp.  Cas. 
233.  It  is  not  unreasonable  to  re- 
quire the  company  to  furnish  a 
meter.  Spring  Valley  W.  W.  v. 
San  I'rancisco,  82  Cal.  286;  22  Pac. 
Rep.  910,  1046;  6  L.  R.  A.  756;  16 
Am.  St.  Rep.  116.  Such  a  statute 
is  constitutional.  Buffalo  v.  Buffa- 
lo Gas  Co..  80  N.  Y.  Supp.  1093; 
citing  Louisville  Gas  Co.  v.  Du- 
laney. 100  Ky.  405;  38  S.  W.  Rep. 
703;  36  L.  R.  A.  125,  and  State  v. 
Columbus,  etc..  Co.,  34  Ohio  St. 
579;  32  Am.  Rep.  390,  and  also 
People  v.  Budd.  117  N.  Y.  1;  22 
N.  E.  Rep.  682;  5  L.  R.  A.  559;  15 
Am.  St.  Rep.  460;  Spring  Valley 
W.  W.  Co..  110  U.  S.  353;  4  Sup. 
Ct.  Rep.  48;  Cotling  v.  Kansas  City, 
etc..  Co..  183  U.  S.  85:  22  Sup.  Ct. 
Rep.  30;  Munn  v.  Illinois,  94  U.  S. 


METERS    AND    MIXKUS. 

§553.     Control  of  meter. 


Giy 


The  gns  ccmijninv,  where  it  owns  tlie  iiieter,  lias  the  absohite 
control  of  it  and  the  lead  pijx^s  used  to  make  connections  with 
it,  subject  to  the  use  of  it  by  the  patron.  If  tlio  patron  owns  it, 
the  company  cannot  remove  it  if  he  cease  using  gas,  but  it  can 
if  it  owns  the  meter.  Their  remedy  is  to  cut  the  gas  oif  where 
it  does  not  own  the  meter,  before  it  enters  on  the  jiatron's  prem- 
ises, in  case  of  non-user.  Where  the  company  own  it  and  place 
it  in  position,  attached  to  the  pipes,  this  is  not  a  bailment  of  it. 
In  such  an  instance  the  patron  or  consumer  has  no  right  to  in- 
terfere with  it  witluMit  notice  to  the  company,  unless  in  a  case 
of  emergency  to  prevent  damages.  Nor  has  he  any  right  to 
place  a  governor  upon  it  to  regulate  the  pressure  of  the  gas,  or 


113,  as  directly  in  point  in  princi- 
ple. 

The  Enf,'lish  cases  seem  to  hold 
that  although  a  water  company  is 
not  bound  to  furnish  a  meter,  yet 
the  consumer  is  also  not  bound  to 
furnish  one;  for  he  may  prove  the 
amount  of  water  he  receives  inde- 
pendent of  meter  measurement.  "  I 
do  not  intend  to  decide  that  a 
meter  is  necessary.  ...  I  am 
not  going  to  decide  that  any  par- 
ticular meter  must  be  used.  .  .  . 
All  I  am  going  to  decide  is  that 
Mr.  Brigham  must  at  his  own  ex- 
pense measure  the  water  and  re- 
cord that  measurement,  and  that 
he  must  give,  of  course,  all  facili- 
ties to  the  company  to  ascertain 
that  he  has  measured  the  water, 
and  that  he  has  measured  it  in 
some  way  or  other  which  is  an  ac- 
curate way  of  taking  the  measure- 
ment." Shefiicld  W.  W.  Co.  V. 
Bingham,  2.5  Ch.  Div.  443.  and  446 
(36  Gas  J.  7G9);  Sheffield  W.  \V. 
Co.  V.  Carter.  8  L.  R.  Q.  B.  Div. 
632;  !i\  L.  J.  M.  C.  97;  30  W.  R. 
880:  46  .J.  P.  548.  See  also  T.evy 
V.   Water   Works   Co.,   38   La.   Ann. 


29;    Ernest  v.  New  Orleans  W.   W. 
Co.,  39  La.   Ann.   550. 

A  city  charter  authorized  its 
council  to  legislate  for  the  protco- 
tion  of  the  city  water  works  and 
the  use  of  water  taken  from  them, 
and  also  as  to  the  means  of  ascer- 
taining the  amounts  to  be  paid  as 
water  rates,  and  the  water  system 
was  such  that  the  consumer,  at  his 
own  expense,  made  connections  with 
the  mains.  It  was  held  proper  for 
the  council  to  adopt  an  ordinance 
requiring  the  consumers,  at  their 
own  expense,  to  provide  meters  for 
measuring  the  water  they  took,  and 
that  the  ordinance  might  provide 
that  only  those  using  supply  pipes 
over  a  certain  diameter  should  be 
compelled  to  use  meters.  State  v. 
(ioswell  (Wis.).  93  N.  W.  Rep. 
542;  citing  Sheffield  W.  W.  Co.  v. 
Bingham,  supra;  Red  Star  S.  S.  Co. 
V.  Jersey  City,  45  N.  J.  L.  246; 
Spring  Valley  W.  W.  v.  San  Fran- 
cisco, svpra ;  Sliefliold  W.  W.  Co. 
V.  Carter.  L.  R.  8  Q.  B.  Div.  632; 
.'il  L.  .1.  M.  C.  97;  30  W.  R.  889; 
46  J.   B.  548. 


(j-20  OIL    AND    GAS. 

iijK)n  the  supply  pi|x^  loading;  t<>  the  motor,  if  it  bolong  to  the 
company ;  and  if  he  do,  or  any  one  else,  the  act  is  such  a  trespass 
as  may  be  enjoined  and  the  removal  of  the  governor  be  com- 
pollod.  In  such  an  instance  the  court  will  readily  interfere  by 
an  injunction  ;  for  as  gas  is  a  dangerous  article,  which  if  it  escape 
may  produce  great  injury  or  damages,  the  necessity  for  issuing 
an  injunction  is  much  more  urgent  and  necessary  than  in  an 
ordinary  trespass.  Even  the  defense  of  laches  will  not  prevail 
in  such  an  instance.  And  if  a  third  jierson  has  placed  the  gov- 
ernor on  the  meter,  he  may  be  enjoined  and  compelled  to  remove 
it;  and  in  such  an  instance  it  is  not  necessary  to  make  the  owner 
of  the  premises  a  party.  ]n  such  an  instance  the  owner  cannot 
object  to  its  removal.  But  the  owner  of  the  premises  has  a  right 
to  put  a  governor  on  his  pipes  after  the  gas  has  passed  through 
the  meter;  or  to  attach  it  to  the  end  of  his  pipe  nearest  the  com- 
pany's meter;  and  perhaps  so  much  of  the  supply  pijx?  as  he 
owns  and  which  is  on  his  premises ;  and  even  here  the  company 
have  a  right  to  adopt  reasonable  regulations.^  A  consumer, 
however,  is  not  relieved  from  all  care  of  a  meter  entrusted  to  his 
care;  for  he  is  required  to  take  proper  care  of  it;  and  if  he 
permit  it  to  get  out  of  repair  through  his  neglect  of  duty  he  owes 
toward  it,  he  may  be  bound  by  the  result  of  its  measurements, 
in  case  there  is  a  substantial  dispute  over  the  amount  furnished.* 

5  Blondell  v.  Consolidated  Gas  is  not  kept  in  the  meter,  the  corn- 
Co.,  89  Md.  732;  4.3  Atl.  Rep.  817;  pany  will  bo  liable  for  the  dam- 
46  L.  R.  A.  i87.  The  secretary's  ages  occasioned.  Ellis  v.  London 
consent  to   attach   the  meter   is  not  Gaslight  Co.,  32  Gas  J.  840. 

the  company's.     De  Mattos  v.  Gib-  That  the  owner  of  the  premises, 

son,  4  De  G.  &  J.  276.     See   L.aen  whether  he  or  his  tenant  uses   gas, 

Avon  Coal  Co.  v.  McCulloh,  5!)  Md.  has    no    right    to    interfere    with    a 

403;    43   Am.  Rep.   560.  meter    or    mixer    without    notice    to 

A  rule  that  the  governor  shall  be  the  company,  see  Pennsylvania  Gas 

connected    with    the    j)ipe    one    foot  Co.  v.  Warren  Gas   Co.,  3  Pa.  Dist. 

from  the  meter  is  a  reasonable  one.  Rep.  07. 

Foster    v.    Philadelphia    Gas    Works  W'here   a   city   infringed   a   patent 

Trustees,    12   Phila.    .^ll.  by  using  disks  in  its  water  meters, 

6  Preston  v.  Haylon.  etc..  Gas  it  was  required  to  remove  them, 
Co.,  25  Gas  J.  889;  Victoria  Docks  although  it  took  time  and  trouble 
Gas  Co.  v.  Burton.  16  Gas  .J.  103.  to  locate  and  do  so.     National  Me- 

If  an  explosion  is  occasioned  be-  ter  Co.  v.  Poughkcepsie,  75  Fed. 
cause  a  sufficient  quantity  of  water       Rep.  405. 


METERS    AN1>    MIXEUS.  G21 

§554.     Unreasonable  requirements. 

An  ordinance  required  a  gas  company  to  furnish  natural  gas 
by  meters  or  through  mixers,  at  the  option  of  the  consumer ;  but 
it  was  held  void  for  unreasonableness,  for  the  reason  that  the 
company  may  be  able  to  use  otiior  appliances,  at  less  cost  to  it, 
and  without  injury  to  the  company.^ 

g555.     Inspection  of  meters  by  company. 

The  company  has  the  right  to  enter  on  the  premises  at  reason- 
able times,  upon  notice  first  given  of  its  intention,  to  insj>ect 
the  meter,  and  especially  to  ascertain  the  amount  of  gas  used.* 
In  this  respect,  however,  there  are  mutual  rights  and  obligations 
that  must  be  observed.  The  company  has  no  right  to  visit  the 
premises  at  unseemly  hours  —  perhaps  not  out  of  business  hours 
—  except  in  a  case  of  emergency ;  nor  to  visit  them  more  than 
actually  necessary,  nor  to  remain  on  the  premises  for  a  leuger 
period  than  is  necessary  to  make  the  inspection  or  necessary  re- 
pairs. Nor  can  the  owner  or  consumer  deny  them  the  right  to 
make  all  necessary  inspoetion  ;  for  if  he  do,  the  gas  company 
would  be  justified  in  removing  the  meter  and  refusing  to  supply 
him  with  gas,  or  cutting  off  his  supply ;  or  it  might  bring  an 
action  to  compel  him  to  allow  an  inspection.  But  where  it  ap- 
peared that  the  defendant,  in  an  action  to  com]wd  him  t<>  ])ormit 
the  gas  company  to  inspect  a  gas  meter,  was  the  lessee  of  the 
grounds  and  collar  floor  of  the  building,  the  up]ier  floor  of  which 
was  occupied  l)v  other  tenants;  that  the  gas  meter  for  liiis  uiipcr 
floor  was  in  the  cellar,  having  been  placed  there  by  th(>  owner  of 
the  premises  Ix^fore  the  defendant  took  his  lease,  in  whicli  no 
mention  was  iiuulo  of  the  meter;  and  it  did  not  appear  it  would 
bo  iiii])racti('ahlc  to  plnco  the  meter  on  the  u])]ier  flo(U-,  it  was 
held  tliat  the  comi>any  must  fail  in  its  action." 

"Toledo    V.    N.    W.    Natural    Gas  » Shepard   v.    iMihvankop    Caslifrlit 

Co..  5  Ohio  Cir.  Ct.  5.57;  3  Ohio  Cir.  Co..  (!  Wis.  .^.Sn;  70  .\ni.  Doc.  47!t. 
Dec.  273.     See  Indiana,  etc.  Gas  C<>.  »  Wilkes-Barre  Gas  Co.  v.  Turner, 

V.    State.    158    Ind.    51(i:    63    N.    E.  7    Kulp    399. 
Rep.  220;   57  L.   R.  A.  7G1. 


022  oil.    AND    GAS. 

§556.     Official  inspection  and  tests. 

In  many  instances  statutes  or  ordinances  require  official  in- 
spection and  tests,  or  insixjctions  and  tests  by  state  or  municipal 
authority.  Usually  these  statutes  or  ordinances  provide  for 
sealing  the  meter,  if  found  correct,  and  that  a  certificate  of 
approval  be  furnished.  In  such  an  instance  mandamus  lies  to 
compel  the  state  or  municipal  official  to  make  an  inspection  and 
test  of  a  meter  placed  in  proper  position."  A  statute  providing 
that  the  gas  companies  of  tlie  State  should  pay  the  salary  of  a 
State  gas  inspector  was  held  valid,  it  not  being  a  tax  for  the 
purpose  of  general  revenue  within  the  meaning  of  a  provision 
of  the  constitution  requiring  that  taxes  should  be  assessed  upon 
property  by  a  uniform  rule,  but  a  charge  for  a  special  purpose 
growing  out  of  the  sujx^rvisory  power  of  the  State  over  their  bus- 
iness, and  was  not  a  tax  on  property.^^ 

§557.     Officially  tested  meters  conclusive. 

In  New  Brunswick  a  meter  examined,  tested  and  stamped  by 
a  government  official  is  conclusive  in  its  measurements  when  a 
contest  arises  over  the  amount  of  gas  furnished ;  but  the  gas 
company  has  the  burden  to  show  that  it  was  examined,  tested 
and  stamped  as  correct  and  accurate  in  its  measurements.^^ 
But  in  New  York  the  consumer  may  show  by  reliable  testimony 
that  he  did  not  receive  the  amount  of  gas  registered  by  an  offi- 
cially inspected  meter."  For  instance,  he  may  show  that  the 
gaslight  went  out  by  air  passing  through  the  tubes,  as  affecting 
the  quantity  of  gas  consumed.^*  And  where  the  consumer  had 
entered  into  a  contract  to  take  the  meter  measurement  as  the 
measure  of  the  quantity  of  gas  furnished  ;  it  was  held  that  the 
consumer  would  not  be  bound  by  the  registration  of  the  meter 
if  it  had  not  been  examined  and  certified  to  by  the  official  in- 

10  In  re  McDonald,  16  IMisc.  (N.  Wilcox  (N.  Y.),  112  N.  Y.  Supp. 
Y.)     304;    .39    N.    Y.    Supp.    367.  341. 

11  Cincinnati  Gaslight  and  Coke  i^St.  John  Gas  Co.  v.  Clarke,  17 
Co.   V.   State,    18    Ohio    St.   237.  N.  B.  307. 

Fees  for  inspection.     Baltimore  v.  i^  Sickles   v.   Manhattan   Gaslight 

Consolidated  Gas  Co.,   99  Md.  640;       Co.,   66   How.   Pr.   314;    Tarryto\\'n, 
58  Atl.   Rep.  216.  etc.,   Gaslight   Co.   v.    Bird,   65   Him 

Office    of    inspector    under    N.    Y.       621;    19  N.   Y.   Supp.   988. 
Laws,  1907,  p.  930,  §  82.     People  v.  i*  Tarrytovra,    etc.,    Gaslight    Co. 

V.  Bird,  supra. 


MKTKUS    AM)     MIXEKS.  0l.'3 

specter.^''  Where  there  is  a  dispute  over  tJie  aeciiraev  of  tlie 
meter's  measurcinents,  an  in jiiiKiidii  lies  to  jirevent  tJic  com- 
pany cutting  off  the  gas  until  the  accuracy  of  the  charge  can  be 
determined  by  a  suit  at  huv.'" 

^558.     Measurements  of  quantity  of  gas  used. 

The  correct  measurement  of  gas  is  a  subject  of  im]K)rtance 
both  to  the  gas  company  and  consumer.  Usually,  if  not  univer- 
sally, in  the  case  of  artificial  gas,  the  amount  consumed  is  deter- 
mined by  a  meter.  And  it  may  be  laid  down  as  a  general  rule 
that  the  anK)unt  registered  by  a  meter  is  presumed  to  have  been 
supplied  and  to  be  a  correct  measurement,  unless  there  be  evi- 
dence to  cast  a  doubt  upon  its  correctness.  Thus  where  the 
question  was  whether  the  meters  had  registered  correctly,  in  an 
action  to  recover  back  money  paid  for  gas  in  excess  of  what  was 
due,  and  the  evidence  showed  that  they  registered  correctly  at 
a  level,  but  registered  in  favor  of  the  company  at  a  high-water 
level,  and  in  favor  of  the  consumer  at  a  low-water  level ;  and 
that  since  dry  meters  had  Ikhmi  put  in,  the  bills  diniinished,  it 
was  held  that  taking  into  account  the  fact  that  tlie  consumers 
must  take  proper  care  of  their  meters,  and  the  conflict  of  the 
evidence,  the  decision  must  be  for  the  defendant — the  gas  com- 
pany.^^  So  where  the  action  was  to  recover  for  gas  converted 
by  the  consumer  to  his  own  use,  and  it  ap]x?ared  that  in  some 
w^ay  the  meter  became  tilted,  and  the  gas  passed  through  with- 
out registry,  and  the  action  was  to  recover  the  price  of  the  gas 
it  was  estimated  had  passed  through  the  meter  without  registry, 
and  the  consumer  contended  he  had  used  only  the  amount  regis- 
tered ;  and  for  this  he  had  paid  ;  yet  the  jury  found  for  the 
plaintiffs.^®  While  it  is  true  the  meter  measurement  is  prima 
facie  correct,  yet  the  consumer  may  show  it  is  incorrect;  and 
that  too,  even  though  a  statute  provides  that  such  measurement 

15  Manhattan  Gas  Co.  v.  Flamme,       Co.,  2.')  Cas  J.  880. 

12  N.  Y.   Wcokly  Dijr.   245.  is  Viotoria  Docks  Gas  Co.  v.  Rur- 

16  Sickles  V.  Manhattan  Gusli^rht  ton.  10  Gas  J.  103.  See  al.so  Hack- 
Co.,  GO  How.  Pr.  314.  cr  v.   London  Gaslight  Co.,  32  Ga3 

1' Preston    v.    Ilayton,    etc..    Gas       J.  781. 


624  OIL    AND    GAS. 

shall  bo  takon  as  pritna  fdcle  evidence  of  its  correctness." 
Where  the  action  was  to  recover  for  gas  alleged  to  have  been  fur- 
nished and  not  registered  In^cause  of  it^s  having  Ixien  tampered 
with,  and  it  apj)eared  that  the  defendant  had  increased  the  num- 
ber of  his  burners  at  a  certain  date,  although  the  gas  thereafter 
sensibly  diminished ;  and  six  years  thereafter  the  meter  was 
tested  by  the  gas  ins])octor  and  found  to  be  correct,  but  after- 
wards it  was  discovered  that  the  water  in  the  meter  was  kept  too 
low,  a  simple  fact  easily  discovered ;  and  a  part  of  the  meter 
machinery  was  so  arranged  tJaat  it  did  not  register;  it  was  held 
that  the  plaintiff  could  recover  for  no  gas  used  before  the  date  of 
the  insjwction.'"  In  the  case  of  a  wet  meter,  it  seems  to  be  the 
duty  of  the  gas  company  to  keep  it  properly  supplied  with 
water.  "^ 

§  559.     Delivery  of  and  title  to  gas. 

When  gas  has  passed  through  the  meter  it  is  delivered  to  the 
consumer;  and  the  title  to  it  then  vests  in  him.  So  that  if  after 
that  period  of  time  a  third  person  obtains  the  use  of  it,  the  gas 
company  is  not  liable  for  the  consumer's  loss,  and  he  must  pay 
for  all  registered  by  the  meter. ^^ 

§560.     Rules  and  regulations  concerning. 

A  gas  company  has  full  power  to  adopt  reasonable  regulations 
and  rules  concerning  meters  and  their  use.  And  so  has  a 
municipality  furnishing  gas  to  private  consumers.  An  order 
that  all  regulators  or  governors  shall  he  attached  to  the  gas  pipes 

19  Allianoo,  etc.,  Co.  v.  Taaffe,  27  A   gas   company   cannot    be    com- 
Gas  J.  206.  pelled  to  furnish  a  city  f^as  witliout 

20  Impeiial   Gas   Co.   v.   Porter,   5  measurement.     Public  Service  Corp. 
Gas  >T.   372,  403.  v.  American  Ligliting  Co.,  67  N.  J. 

ziHackor  v.  London  Gaslight  Co.,  Eq.  122;  57  Atl.  Rep.  482. 
32  Gas  J.  781.  22Chouteau  v.   St.   Louis  Gaslight 

Where  a  statute  forbade  any  one  Co.,  47  Mo.  App.  326.     See  Schmeer 

to    lay    any    pipe    to    communicate  v.  Gaslight  Co.,   147  N.  Y.  529;   42 

with    the    company's    pipe    without  N.  E.  Rep.  202;   70  N.  Y.  St.  Rep. 

its    consent,    under    a    penalty,   and  92;    30   L.    R.   A.    653;    Blondell   v. 

a   consumer   beinjj   dissatisfied    with  Consolidated  Gas   Co.,   89   Md.   732; 

the  company's  meter,  put  up  a  sec-  43  Atl.  Rep.  817;   46  L.  R.  A.  187; 

ond  meter  of  his  own,  he  was  fined.  Indiana,    etc.,    Co.    v.    Anthony,    26 

In   re    Gaslight    and    Coke    Co.,    57  Ind.  App.  307;   58   N.  E.   Rep.  868. 
Gas  J.   1196. 


METERS    AND    MIX  1. US. 


Cij; 


or  to  the  meter,  unless  j)l;uTtl  updii  a  Uy-paas  so  as  the  llow  of  i^as 
may  be  dirceted  through  \\\o  \n\ies  without  passing  through  the 
governor  reguhitor,  is  a  just  and  reasonable  regulation.*^ 

§561.     Extra  charges  for  metei"s  and  mixers. —  Government  tax. 

A  company  cannot  make  a  charge  for  meter  rent,  where  its 
rate  is  fixed  by  a  statute  or  an  ordinance.  Thus  where  a  com- 
pany by  its  charter  was  authorized  to  supply  customers  with 
gas,  "  under  reasonabU*  r(\gulatit)ns,"  at  a  ])ri('e  not  to  exceed 
one  dollar  and  thirty-five  cents  a  thousand  cubic  feet,  it  was  held 
it  could  not  charge  a  meter  rent  in  addition  if  less  than  a  certain 
quantity  was  used.  The  company  was  bound  to  furnish  the 
meter  to  measure  the  gas  the  court  said,  and  could  not  charge 
for  such  a  necessity."*  I]ut  where  neither  a  statute  nor  an  ordi- 
nance, nor  the  company's  charter  impose  any  restriction  ujwn 
the  company  concerning  its  charges,  it  may  charge  small  cus- 
tomers more  than  large  ones,  and  such  charges  arc  not  invalid 
because  they  are  called  meter  rents;  when  in  fact  the  charges  are 
charges  up  to  a  certain  amount."'"'  Adding  the  amount  of  the 
government's  tax  to  the  price  is  a  legitimate  charge.*" 


23  Foster  v.  Philadelphia  Glas 
Works,  12  Phila.  511;  Blondell  v. 
Consolidated  Gas  Co.,  supra. 

Where  injuries  to  a  gas  company's 
meters,  caused  by  interfering  with 
its  connections  be  a  company  in- 
stalling appliances  to  regulate  the 
flow  of  gas,  were  oft-recurring,  and 
no  adequate  compensation  in  dam- 
ages could  be  had  therefor,  the  gas 
company  was  held  entitle<l  to  enjoin 
the  interference  with  its  connections, 
but  not  to  restrain  the  exercise  of 
the  inherent  right  of  the  owner  to 
have  tlie  gas  governors  instituted, 
and  such  right  should  be  protected 
by  the  decree  awarding  the  injunc- 
tion, should  authorize  the  company 
placing  the  aj)pliances  to  remove  the 
same,  under  proper  restrictions,  on 
refusal  or  failure  of  the  customers 
to  pay  agreed  rent  for  their  use. 
Laclede  Caslight  Co.  v.  Gas  Con- 
sumers' Ass'n,  lOG  S.  W.  91;  127 
Mo.  App.  442. 

Using  meters  in  some  of  the  sup- 


ply pipes  of  a  building  by  a  water 
company  to  determine  whether  or 
not  more  than  150  gallons  per  day 
are  being  used  in  violation  of  a 
provision  regulating  the  amount  of 
water  that  may  be  used,  does  not 
violate  a  statute  requiring  the  scale 
of  water  rates  to  be  general  and 
uniform.  Frothingham  v.  Bonsen, 
20  Misc.  1.32;  44  X.  Y.  Supp.  870. 
-*  Louisville  Gas  Co.  v.  Dulanev, 
100  Ky.  405;  38  S.  W.  Rep.  703; 
36  L.  R.  A.  125;  6  Am.  and  Eng. 
Corp.  Cas.  (X.  S.)  241;  Capital, 
etc..  Gas  Co.  v.  Gaines,  20  Ky.  L. 
Rep.  14G4;  49  S.  W.  Rep.  402; 
Buffalo  v.  Buffalo  Gas  Co.,  80  X.  Y. 
Supp.  1093;  State  v.  Columbus,  etc., 
Co.,  34  Ohio  St.  579;  32  Am.  St. 
Rep.  390;  :Montgomer5'  Liglit  &  W. 
P.  Co.  V.  Watts,  1G5  Ala.  370;  51 
So.  Rep.  726. 

25  State    V.    Sedalia    Gas    Co.,    34 
Mo.   App.   501. 

26  St.    Ix)ui3    Gaslight   Co.    v.    St. 
Louis,  11  Mo.  App.  55;  84  Mo.  202. 


62G  OIL    AND    GAS. 

§562.     Requiring  use  of  a  certain  quantity  of  gas  per  month  or 
pay  a  meter  rent. 

"Where  a  gas  company  cannot  charge  a  meter  rent,  it  cannot 
evade  the  prohibitory  clause  by  indirection.  Nor  can  it  adopt 
a  rnle  that  if  a  certain  amount  of  gas  is  not  consumed  within  a 
month  or  other  period  of  time,  the  consumer  shall  pay  a  certain 
amount  regardless  of  the  amount  consumed.  To  permit  such  a 
charge  is  in  fact  to  allow  the  company  to  charge  a  meter  rent, 
and  thus  cast  a  burden  on  the  consumer  it  is  bound  to  carry. ^^ 

§563.     Discrimination  in  use  of  meter. 

A  company  cannot  show  discrimination  between  two  patrons 
by  requiring  one  of  them  to  take  gas  by  meter  measurement  and 
permit  the  other  to  take  it  by  a  "  flat  "  rate,  if  the  discrimination 
is,  in  some  measure,  unjust  and  oppressive.  But  there  must  be 
something  more  than  mere  discrimination.  The  discrimina- 
tion prohibited  nuist  not  only  be  an  actual  one,  but  it  must  be 
both  unjust  and  oppressive,  to  some  extent.  Thus  where  an 
ordinance  provided  that  a  gas  company  might  charge  twenty 
cents  ])or  thousand  cubic  feet,  or  a  certain  named  "  flat  "  rate, 
it  was  held  in  a  proceeding  for  a  mandamus  to  compel  it  to  fur- 
nish the  applicant  gas  at  the  "  flat  "  rate,  as  it  was  furnishing  all 
its  other  patrons,  instead  of  the  meter  rate,  that  the  applicant 
was  not  entitled  to  the  writ  unless  he  showed  that  the  meter  rate 
was  a  higher  rate  than  the  "  flat  "  rate.'^ 

Where  the  company's  charter  con-  28  Indiana,  etc.,  Gas  Co.  v.  State, 

tained   np   reference  to  its   right   to  158   Ind.   51i6;    63   N".   E.   Rep.   220; 

charge   a   meter   rent,   a   subsequent  57  L.  R.  A.  761. 

statute  provided  that  "no  gas  com-  lliat    a    discrimination    must    be 

pany  shall  have  the  right  to  charge  Lotli     unjust     and     oppressive,     see 

rent  for  meters,  wlien  500  cubic  foot  Cleveland,  etc.,  R.  R.  Co.  v.  Closser, 

per  month  have  been  consumed;"  it  12G   Ind.   348,   354;    26   N.   E.    159, 

was  held  that  the  statute  was  bind-  161;    9    L.    R.   A.   754;    22  Am.   St. 

ing  on  the  company.     State   v.  Co-  Rep.  593. 

lumbus   Gaslight  and   Coke   Co.,    34  An    ordinance    of   a    municipality 

Ohio   St.   572;    32   Am.   Rep.   390.  or   a    rule   of    the    company   that   a 

27  Buffalo  V.  Buffalo  Gas   Co.,   80  consumer    may   put    in    a   meter    at 

N.  Y.  Supp.  1093.  liis  own  expense  and   pay  by  meter 


METERS    AND    MIXKUS. 


027 


^564.     Removal  of  meters. 

So  long  as  a  patron  complies  with  the  rules  and  reguhitions  (jf 
the  company,  and  i)ays  his  hills,  the  company  cannot  remove  the 
meter  from  his  premises,  unless  it  he  to  replace  it  with  another. 
But  where  a  company  was  not  required  to  put  in  service  pipes, 
yet  entered  into  an  agreement  with  the  owaier  of  the  premises  to 
do  so,  such  owner  (who  was  the  consumer)  agi'ceing  to  pay  the 
cost  thereof;  it  was  held  that  the  company  had  the  right  to  re- 
move its  meter  on  the  owner  refusing  or  failing  to  pay  for  the 
pipes. "^  And  where  a  consumer  resorts  to  other  methods  of 
light,  as  the  introduction  of  electric  lights,  and  thereafter  uses 
gas  only  occasionally,  he  ceases  to  be  a  consumer,  and  the  com- 
pany may  recover  his  meter.^"'  And  where  a  company  charged 
meter  rent,  though  other  consumers  were  not  charged  such  a 
rent,  and  the  customer  refused  to  pay  it,  and  did  not  use  enough 
gas  by  a  sixth  part  to  pay  the  meter  rent,  it  was  held  that  the 
company  had  the  right  to  refuse  him  gas.^^  Permitting  a  com- 
pany to  remove  its  meter  pending  a  dispute  as  to  the  linliility  of 
the  company  to  a  penalty  incurred  by  its  refusal  to  su])ply  the 
consumer,  does  not  prevent  such  consumer  enforcing  the  re- 
placement of  the  meter,  after  the  dispute  is  settled.^-  If  a 
consumer  has  ceased  to  take  gas,  the  company  has  a  right  to 
remove  its  meter;  and  if,  upon  demand  properly  made,  it  be 
refused  admission  to  remove  the  meter,  it  may  force  an  en- 
trance, using  no  unnecessary  force,  for  that  purpose.^^ 

measurement    instead    of    a    "flat"  3o  Adams    Express   Co.   v.    Cincin- 

rate  is  valid;   and  he  cannot  be  de-  nati  Gaslight  and  Coke  Co.,  10  Ohio 

nied  his  right  to  exercise  the  option  Dec.  389;   21   Wkly.  Law  Bull.   18; 

given  him.     State  v.  Joplin  W.  W.,  Fleming  v.   ^lontgomery   Light  Co., 

62  Mo.  App.  312.     An  ordinance  is  100  Ala.   G57;    13   So.   Rep.   G18. 

not  invalid  tliat  gives  a  houseliolder  ^i  Smith  v.   Capital  Gas  Co.,   132 

the   option   to   require   a   meter   and  Cal.  209;   64  Pac.  Rep.  258. 

pay  for  water  used  at  rates  which  32  Jones    v.    Rochester    Gas,    etc., 

are   difTerent   from   the   fixed   house  Co.,    7    App.    Div.    474;    39    N.    Y. 

rates.     Spring  Valley  W.  W.  v.  San  Supp.  1110. 

Francisco,  82  Cal.  28G;  22  Pac.  If  the  company  is  bound  to  re- 
Rep.  910,  104G.  See  State  v.  Gos-  move  the  meter  on  notice,  the  con- 
well    (Wis.),  93  N.  W,  Rep.  542.  sumer  cannot  remove  it;    and  if  he 

29  Detroit     Gas     Co.     v.    ^loreton  do  or  attempt  it,  tlie  company  may 

Treich,  etc.,  Co.,   Ill  Mich.  401;   G9  enjoin    him.      Glasgow    v.    Patrick, 

N.    W.    Rep.    C59.      In   this   case   it  etc.,  Gas  Co.,  22  Gas  J.  54. 

was   held    that    replevin   lay   to   re-  33  Hitclicock    v.    Essex   &    H.    Gas 

cover  tlie  meter.  Co.,   71   N.  J.  L.  5G5;    Gl   Atl.   Rep. 

See  Glasgow  ,v.  Patrick,  etc.,  Co.,  397;   aflirming  57  Atl.  Rep.   135. 
22  Gas  J.  54. 


CHAPTER  XXVII. 

FIXTURES. 

Art.   1.     Domestic  fixtures. 

Art.  2.     Trade  fixtures. 

Art.  3.     Oil  and  gas  lease  fixtures. 

^565.     Division  of  subject. 

The  subject  of  fixtures  relative  to  gas  or  oil  necessarily 
follows  the  lines  laid  down  in  text  books  on  that  subject;  such 
as  whether  the  question  is  one  between  vendor  and  vendee, 
lessor  and  lessee,  landlord  and  tenant,  and  mortgagor  and 
mortgagee.  Another  division  is  whether  the  article  in  dispute 
is  a  domestic  or  trade  fixture ;  or  whether  it  is  one  used  upon 
oil  or  gas  producing  territory  in  the  production  or  supply  of 
oil  or  gas.  The  fixtures  used  in  the  latter  instance  usually  have 
reference  to  the  production  of  petroleum  or  natural  gas.  The 
subject,  therefore,  can  be  divided  into  three  general  subjects. 

ARTICLE  1. 
DOMESTIC  FIXTURES. 

§.56.5.  Division   of  subjeft. 

§566.  Intent. —  Common  law. —  Public  policy. 

§567.  Agreement. —  Innocent  purchaser. —  Injury  to  freehold. 

§568.  Gas  chandeliers. —  Stoves. —  Meters,  etc. 

§569.  Judicial  sale  of  premises. 

§570.  Gas  fixtures  may  pass  to  vendee. 

§566.     Intent. —  Common  law. —  Public  policy. 

The  question  of  the  intent  with  which  an  article  is  affixed 
to  the  premises  or  building  is  one  that  must  always  be  consid- 

628 


FixrruES.  (>-!> 

erc'd  ill  (Icicniiiiiiiiu-  wliclluT  ov  not  it  is  a  lixtiirc. 
Tho  intent  must  di'tcn  hv  uathcrcd  i'l-diii  tJu'  kind  of  artiolo 
in  controversy,  and  how  it  is  attached  to  the  ])rcniiscs.  It 
an  article  is  so  attached  to  the  premises  hy  tlie  owner  of  tliem 
that  it  cannot  be  removed  without  material  injury  to  the  free- 
hold, and  there  is  no  eoiitraet  with  reference  to  it,  then  it  is  a 
part  of  the  freehoUl,  and  will  pass  to  a  purchaser  of  the  premises 
or  be  covered  hv  a  mortii:;i_c:e  given  by  the  owner  of  the  free- 
hold. "  The  united  njiplication  of  three  requisites  is  repu'ded 
as  the  true  eriterimi  of  an  imnioval)le  iixture:  (1)  Keal  or 
constructive  annexation  of  the  article  in  cpiestion  to  the  freehold. 
(2)  Appropriation  or  adojition  to  the  use  or  purjwse  of  that  ])art 
of  the  realty  with  which  it  is  connected.  (•))  The  intention  of 
the  party  making  the  annexation  to  make  the  article  a  perma- 
nent accession  to  the  freehold."  ^ 

Continuing  the  court  says:  '^  According  to  the  elementary 
rule  of  the  comuKm  law  whatever  is  annexed  to  the  freehold  he- 
comes,  in  legal  contemplation,  a  part  of  it,  and  is  thereafter  sub- 
ject to  the  same  incidents  and  conditions  as  the  soil  itself.  But 
the  diversity  of  trade  and  the  development  of  manufactures  re- 
quire that  the  strict  rules  of  the  common  law  be  measurably 
relaxed,  and  it  may  now  be  said  that  the  nature  of  the  article 
and  the  manner  in  which  they  are  affixed,  and  the  intention  of 
the  party  making  the  annexation,  together  with  the  policy  of  the 
law,  are  controlling  factors  in  determining  whether  an  article, 
which  may  or  may  not  be  a  fixture,  becomes  a  part  of  the  realty 
by  being  annexed  to  the  freehold.  The  purpose  or  intention  of 
the  parties,  the  cfi'ort  and  mode  of  annexation,  ami  the  public 
policy  in  relation  thereto,  are  all  to  be  considered."" 

1  Binklcy  v.  Forknor,  117  Ind.  "  Atoro  physical  aiincKalinn  is  no 
176;  19  N.  E.  Rep.  753;  citing  Teatl  longer  the  rule.  .  .  .  Tlio  inten- 
V.  Hewitt.  1  Ohio  St.  511.  530;  tion  to  annex,  whether  right  fiii'y  or 
Potter  V.  Cromwell,  40  X.  Y.  287;  wrongfully,  is  the  legal  criterion." 
McRea  v.  Central  Nat'l  Bank,  fifi  See  also  Ilayford  v.  Wentworth 
N.  Y.  480.  quoted  in  Parker  Land  (ile.).  54  Atl.  Ken.  040.  where  it 
Tmprovemeiit  Co.  v.  Reddick,  18  was  held  that  a  "  wash-down  syphon 
Ind.  App.   filO;    47  N.   E.  Rep.  848.  water  closet,  and  its  appurtenances. 

2  In  Shellnr  v.  Shivers.  171  Pa.  put  into  a  business  office  in  flic 
St.  509,  33  Atl.  Rep.  05,  it  is  said:  usual    manner   by   a    tenant   at    will 


GoO  OIL    AND    GAS. 

^567.     Agreement. —  Innocent  purchaser. —  Injury  to  freehold. 

In  the  case  already  (juotcd  IVdin  it  is  said  concorniiig  agree- 
ments relating  to  fixtures :  "  When  the  parties  immediately 
concerned,  by  an  agreement  between  themselves,  manifest  their 
])nr]X)se  that  the  property  although  it  is  annexed  to  the  soil,  shall 
retain  its  character  as  personalty,  then,  except  as  against  persons 
Avho  occii]w  the  relation  of  innocent  ]nircliascrs  without  notice, 
the  intentions  of  the  parties  will  prevail,  unless  the  property  be 
of  such  a  nature  that  it  necessarily  becomes  incorporated  into, 
and  a  part  of,  the  realty  by  the  act  and  manner  of  annexation.^ 
Thus,  if,  in  the  course  of  construetiug  a  house,  brick  should  be 
placed  in  the  walls,  and  joists  and  beams  in  their  places,  the 
brickmaker  and  sawyer  would  not  l>e  permitted  to  despoil  the 
house  by  asserting  an  agreement  with  the  owner  that  the  brick 
and  beams  Avcre  to  retain  their  character  as  personalty  notwitlir 
standing  their  annexation.  In  such  a  case  the  mental  attitude 
of  the  parties  cannot  modify  the  legal  effect  from  the  annexa- 
tion.* But  when  chattels  are  of  such  a  character  as  to  retain  their 
identity  and  distinctive  characteristics  after  annexation,  and 
do  not  thereby  become  an  essential  part  of  the  building,  so  that 
the  removal  of  the  chattels  will  not  materially  injure  the  build- 
ing, nor  destroy  or  unnecessarily  impair  the  value  of  the  chat- 
tels, a  mutual  agreement  in  respect  to  the  manner  in  which  the 
chattels  shall  be  regarded  after  annexation  will  have  the  effect 
to  preserve  the  personal  character  of  the  property  between  the 
parties  to  the  agreement."     Accordingly,  the  proposition  is  well 

for  his  dwn  use,  and  which  could  be  Ind.    511,    and   Yater  v.    Mullen,   24 

removed  without  material  injury  to  Ind.  277. 

the  realty,   did   not  become  merged  4  Citing    Campbell    v.    Roddy,    44 

in  the  realty  unless  it  was  so  put  in  N.    J.    Eq.    244;    14    Atl.    Rep.   279; 

with    an    intention    to    make    a    per-  1-ienkle   v.    Dillon,    1.')   Ore.   610;    17 

manent   accession   to  the   realty."  Pac.  Rep.  148. 

As  to  what  gas  fixtures  are  cov-  s  Citing   Rogers   v.    Cox,    06    Ind. 

ered   by   a    ])olicy    of    insurance,   see  157;    Price  v.   Malott.   85  Ind.  266; 

New  York  Gaslight  Co.  v.  Mechan-  Hendy    v.    Dinkershoff.    57    Cal.    3; 

ics'  Fire  Ins.  Co.,  2  Hall   108.  Haven  v.  Emery.  3.3  N.  H.  66;  Ma- 

3  Citing    Taylor    v.    Watkins,    62  lott  v.  Price,   109  Ind.  22;   9  N.  E. 

Rep.    718. 


FIXTURES. 


c;u 


sustfTUiett  that  one  who  pui'chascs  niaehiiiery  with  a  view  that  it 
shall  be  aiiiiexetl  to,  or  placed  in,  a  huihliiig  vi  which  he  is  the 
owner,  and  who  executes  a  chattel  mortgage  on  the  proix?rty  so 
purchased,  thereby  evinces  his  intention  that  the  property  shall 
retain  its  character  as  personalty,  regardless  of  tlic  manner  in 
which  it  niav  be  annexed  to  the  freehold."  Except  where  the 
rights  of  innocent  purchasers  are  involved,  it  is  the  jxdicy  of 
the  law  to  ujihohl  such  contracts  in  the  interest  of  trade."  ^  It 
was  also  held  in  this  case  that  if  the  dctaclnnciit  of  llic  lixtures 
covered  by  the  chattel  mortgage  would  occasion  some  diminution 
in  value  of  the  freehold,  as  it  would  have  stood  had  the  attach- 
ment not  been  made,  then  the  depreciation  must  l)e  made  whole 
by  the  chattel  mortgagee  to  a  junior  mortgagee  of  the  frc^ehold, 
and  the  rights  of  the  parties  adjusted  by  the  court  according  to 
the  equity  of  the  case.* 

§568.     Gas  chandeliers. —  Stoves. —  Meters,  etc. 

But   while   the   quotations    made    in    the    preceding   sections 
seem  to  lay  down  rules  easily  understood,  yet  trouble  anses  in 


6  Citing  Eaves  v.  Estes,  10  Kan. 
314;  Ford  v.  Cobb,  20  N.  Y.  344; 
Sisson  V.  Hibbard,  75  N.  Y.  542; 
Tift  V.  Horton,  53  N.  Y.  377;  Camp- 
bell V.  Roddy,  44  N.  J.  Eq.  244;  14 
Atl.  Rep.  279;  Henkle  v.  Dillon,  15 
Ore.   610;    17   Pac.   Rep.    148. 

^  Binkley  v.  Forkner,  117  Ind. 
176;  19  N.  E.  Rep.  753.  The  court 
cites  and  comments  on  Pierce  v. 
George,  108  Mass.  7S.  where  a  sub- 
sequent mortgage  of  the  real  estate 
took  precedence  of  a  previous  chat- 
tel mortgage  of  machinery  attached 
to  the  l)uilding;  and  also  cites  Hunt 
V.  Bay  State  Iron  Co..  97  Mass.  279. 
See  Lnited  States  v.  \e\v  Orleans 
R.  R..  12  Wall.  .302,  and  Fosdick 
v.  Schall.  99  V.  S.  235.  "The  dis- 
tinction," said  the  couit  in  Binkley 
v.  Forkner,  fnipra,  "  between  chat- 
tels whose  completeness  and  iden- 
tity as  separate  and  distinct  ar- 
ticles   may    be    preserved    notwith- 


standing their  annexation,  and  those 
whicu  necessarily  become  absorbed 
or  merged  in  the  realty  by  being 
annexed  must  be  kept  in  view." 

8  Binkley  v.  Forkner,  117  Ind. 
170;    19   N.   E.   Hcj).   7.')3. 

Electric  lighting  fixtures  used  in 
and  alx)ut  a  theatre  that  can  be  de- 
tached without  injury  to  the  build- 
ing, such  as  switchboard  to  connect 
a  dynamo  to  the  permanent  wiring 
of  such  building,  chandeliers,  and 
electric  signs,  are  chattels  and  not 
part  of  the  realty  in  New  York. 
New  York  Life  In^.  Co.  v.  .\llison, 
107  Fed.  Rep.  179;  40  C.  C.  A.  229. 
The  retention  of  the  title  to  a  port- 
able furnace  by  the  vendor  gives 
him  an  implied  right  to  retake  it  if 
not  paid  for.  even  after  it  is  set  up; 
so  that  it  is  not  included  in  a  prior 
mortgage  on  the  realty.  DulTus  ^ 
Howard  Furnace  Co..  8  \.  Y.  App. 
Div.  567;  40  N.  Y.  Supp.  925. 


Go2 


OIL    AND    GAS. 


tJieir  applicatit)!!.  Thus,  it  has  been  lield  that  gas  cliandoliers 
in  a  house,  attached  by  screws  to  })ipes  conveying  the  gas  arc  not 
part  of  the  realty.  "  Gas  fixtures,"  said  tlie  court,  ''  whether  in 
the  form  of  chandeliers  suspended  from  tlie  ceiling  at  the  top  of 
the  room,  or  projecting  as  brackets  from  the  perpendicular  walls, 
thouiih  attaciicd  to  pipes  by  screws  and  iikkIc  tij^lit  by  cement, 
are  in  the  nature  of  furniture,  and  do  not  lose  their  character  as 
chattels  by  reason  of  the  manner  in  wdiich  they  are  afiixed."  " 
Accordingly,  therefore,  to  the  greater  number  of  authorities,  gas 
fixtures,  chandeliers,  gaseliers,  candelabra,  sconces,  and  other 
instruments  used  as  substitutes  for  oil  lamps  and  candles  in 
lighting' a  house,  and  gas  stoves,  will  not  pass  to  the  vendee  of 
the  realty  as  a  part  of  it.  They  are  regarded  as  jx^rsonal  ]>roj> 
erty,   and  do  not  pass  by  the  ordinary  deed   of  conveyance.^'' 


0  Towne  v.  Fiske,  127  Mass.  125 ; 
34  Am.  Rep.  353.  So  it  was  held, 
because  of  the  character  of  the  ar- 
ticle, that  an  action  of  tort  would 
not  lie  for  their  conversion.  Guth- 
rie V.  Jones,   108  Mass.  191. 

10  Rogers  v.  Crow.  40  Mo.  91;  93 
Am.  Dec.  299;  Shaw  v.  Lenke,  1 
Daly  487.  In  this  last  case  it  is 
said  that,  "  the  adjustment  of  the 
bracket  or  chandelier  to  the  gas 
pipe  is  not  such  an  actual  annexa- 
tion to  the  freehold  as  is  contem- 
plated by  law."  Kirchman  v.  Lapp, 
19  N.  Y.  Supp.  831;  Vaughen  v. 
Haldeman,  33  Pa.  St.  522;  75  Am. 
Dec.  622;  Jarechi  v.  Philharmonic 
Society,  79  Pa.  St.  403;  21  Am. 
Rep.  78;  Penn.  ]\Iut.  Life  Ins.  Co. 
V.  Thackara  (Pa.),  10  Wkly.  W.  N. 
C.  104;  11  WkIv.  W.  N.  C.  391;  13 
Reporter  731;  McLean  v.  Palmer,  2 
Kulp  (Pa.)  .349  (oil  lamps);  Wil- 
son V.  Freeman,  7  Wkly.  W.  N.  C. 
(Pa.)  33  (chandeliers  in  a  saloon)  ; 
Voorhis  v.  Freeman,  2  Watts,  and 
S.  116;  37  Am.  Dec.  490;  Heysham 
V.  Dettre.  89  Pa.  St.  500    (heaters). 

In  England  a  statute  authorized 
a   gas   company   to   let   for   hire   to 


the  user  of  gas  "  any  fittings  for 
the  gas."  and  declared  that  such 
"  fittings "  should  not  be  the  sub- 
ject of  di.stress  when  let  to  his  ten- 
ant. This  statute  was  held  to  cover 
a  gas  stove,  used  for  heating  pur- 
poses only,  and  rented  to  a  tenant. 
Gaslight  and  Coke  Co.  v.  Hardy, 
17  Q.  B.  Div.  619;  56  L.  J.  Q.  B. 
168;  55  L.  T.  585;  36  W.  R.  50;  51 
J.  P.  6.  And  the  same  rule  was 
adopted  where  a  stove  was  used  for 
cooking,  "  containing  besides  the 
burners  and  the  chamber  in  which 
the  gas  was  consumed,  other  cham- 
bers together  with  grates,  hot  plates 
and  arrangements  for  the  reception 
of  cooking  utensils."  Gaslight  and 
Coke  Co.  V.  Herbert  Smith,  3  Times 
Law  Rep.  15.  Gaslight  and  Coke 
Co.  V.  Hardy,  56  L.  J.  Q.  B.  168. 

Meters  put  upon  premises  by  a 
gas  company,  and  attached  to  the 
gas  pipes  by  solder,  and  by  means 
of  those  pipes  to  the  companj^a 
main,  belong  to  the  company.  Rc- 
gina  V.  Inhabitants  of  Lee,  L.  R.  1 
Q.  B.  241;  35  L.  J.  M.  C.  105;  12 
Jur.  (N.  S.)  225;  13  L.  T.  (N.  S.) 
704;   14  W.  R.  311.     City  removing 


1-IXTURES. 


C33 


•Gas  chaiuleliers  so  far  partake  of  the  naturi'  of  personal  \\Vi>\y- 
ertv,  that  a  thief  who  severs  ami  iiuiiiediately  earries  them  away 
inav  be  convicted  of  larceiiv." 


§569.     Judicial  sale  of  premises. 

The  rule  as  l)etween  vendor  and  vendee  is  appliealile  to  an 
instance  where  th(>  premises  are  sold  under  judicial  or  other 
like  process;  and  the  ri<iht  of  the  former  owner  and  ])nrehaser 
at  such  sale  are  determined  exactly  the  same  as  if  the  former 
owner  liad  himself  sold  the  premises  to  the  purchaser  under  the 
enforced  sale.'"  And  this  is  true  even  thouiih  the  sale  is  ono 
conducted  under  the  ]>rovisions  ai  a  mortgage.*'* 

§570.     Gas  fixtures  may  pass  to  vendee. 

As  intimated  in  a  previous  section,  the  ordinary  gas  fixtures 
may  pass  to  the  vendee.  In  a  New  York  case  it  is  said  that 
they  may  pass  as  a  part  of  the  realty,  if  the  intent  that  they  shall 
so  pass  is  shown  by  acts  and  declarations  of  the  vendor.**  But 
some  of  the  cases  go  farther  than  this.  Thus  in  England  it  was 
said  :  "  The  gaseliers  (chandeliers)  are  a  ])art  of  the  gas  pipes, 
and,  to  use  a  legal  expression,  they  take  their  nature  and  are 


water  meter  after  building  had  been 
prepared  for  its  use.  Ladd  v.  Bos- 
ton, 170  Mass.  332;  49  N.  E.  Kep. 
627;  40  L.  R.  A.  171.  Gas  puri- 
fiers, gas  holders,  pumps  and  ex- 
hausters are  taxed  or  rated  as  fix- 
tures in  England.  Regina  v.  Lee, 
s^pra. 

11  Smith  V.  Commonwealth,  14 
Bush.    (Ky.)    31;    29  Am.  Rep.  402. 

For  instance,  where  gas  fixtures 
are  held  to  be  realty,  see  Ex  parte 
Acton,  4  L.  T.  (N.  S.)  2G1 ;  Ex 
parte  Wnann.  2  Mont,  and  .Ayr.  01  ; 
4  Dea.  and  Chit.  143;  4  L.  J.  (N. 
8.)  Bank.  24;  and  Central  Trust, 
etc.,  Co.  V.  Cincinnati,  etc.,  Co.,  26 
Wkly.  Eaw  Bull.  149;  11  Ohio  Dec. 
Rep.    34S. 

In  Scotland  gas  fixtures  are  per- 


sonal property.     Ni.sbet  v.  Mitcludl- 
Innes,  7  R.  575. 

1-  Vaughen  v.  Haldenian.  33  Pa. 
St.  522;  75  Am.  Dec.  022;  Towne 
V.  Fiske.  127  Mass.  125;  34  Am. 
Rep.  353;  McXally  v.  Connolly,  70 
Cal.  3;    11    Pac.  Rep.  320. 

13  Montague  v.  Dent,  10  Biih. 
135;   67  Am.  Dec.  572. 

In  Pennsylvania  shares  of  stock 
in  an  oil  company,  an  oil  lease  and 
an  interest  in  the  fixtures  thereon 
cannot  l)e  attaclied.  under  .Act  of 
.Inly  12,  1S42.  for  wages.  Dawson 
V.  Kirby,  G  Pa.  Dist.  Rep.  13;  27 
Pitts.  L.  J.    (N.  S.)    2.34. 

14  Funk  V.  Brigaldi.  4  Daly  350; 
Central  Trust,  etc..  Co.  v.  Cincin- 
nati, etc.,  Co..  20  \\kly.  Law  Bull. 
149;    10   Ohio  Dec.   Rep.   348. 


634  OIL    AND    GAS. 

iiifliuk'cl  in  the  fixtures  which  go  with  the  house  under  the  lease. 
They  are  as  much  a  ])art  of  the  gas  pipes  as  the  mill  stones  are 
part  of  the  mill.  Although  the  gaseliers  may  be  unscrewed  and 
taken  off  without  injuring  the  freehold,  they  are  necessary  to  the 
enjoyment  of  the  gas  pi]ies,  which  are  of  no  practical  use  when 
separated  from  them."  ^^  And  in  America  are  cases  holding 
gas  fixtures  to  be  a  part  of  the  realty.  Thus  in  New  Jersey  it 
was  said :  "  Gas  burners  are  fixtures.  They  are  in  no  sense 
fnriiiture,  but  are  mere  accessories  to  the  mill.  The  apparatus 
for  the  manufacture  of  gas  (called  a  generator)  is  situated  in 
a  pit  made  expressly  for  it  in  a  small  building  built  for  it  a 
short  distance  from  the  main  building.  It  is  connected  with  a 
gas  ])uni])  in  the  building,  and  the  pipes  are  attached  to  the 
beams  and  girders  by  hooks,  and  in  some  places  pass  through 
the  holes  in  the  side  walls,  bored  for  the  purpose.  The  genera- 
tor and  its  appurtenances,  and  the  pipes  are  fixtures,"  ^®  What 
is  said  about  "  gas  burners  "  may  be  regarded  as  a  dictum;  but 
it  is  evident  that  the  court  would  have  held  them  to  be  a  part 
of  the  realty  if  there  had  been  a  controversy  over  them.  In 
Kentucky  it  is  held  that  chandeliers,  affixed  by  means  of  screws 
to  iron  pipes  let  into  the  walls  of  the  house,  in  order  to  conduct 
gas  to  the  burners,  even  though  they  could  be  moved  without 
injury  to  the  walls  or  ceilings,  and  which  formed  an  ornamental 
addition  to  the  house,  belong  to  the  vendee  as  between  him  and 
the  vendor,  being  a  part  of  the  real  estate.^'  And  in  New  York 
it  was  held  that  gas  logs  may  be  fixtures  if  the  intention  of  the 
owner  was  to  make  them  such ;  and  that  the  intention  was  to  be 
determined  from  such  owner's  acts  and  conduct,  and  from  all 
the  circumstances  of  the  transaction.^^      So  in  the  same  State  it 

15  Sewell    V.   Angerstein.    18  L.   T.  it  .Jolinson    v.    Wiseman,    4     Met. 

(N.   S.)    300.     See  also  Hutchinson  (Ky.)    .357;    83  Am.  Dec.  47-5. 

V.  Kay,  23  Beav.  413.  isCosgrove  v.  Troescher,  62  App. 

iGKeeler  v.  Keeler,  31   N.  J.  Eq.  13iv.    (N.  Y.)    123;   70  N.  Y.   Supp. 

ISl,  101.     In  Hays  v.  Doane,  UN.  764.     Same  rule  applied  to  gas  tix- 

J     Eq.    84,    it    is   held    that   a    gas-  tines.  Daniels  v.  Detvviler,  14  Mont, 

ometer   and   apparatus   for  generat-  Co.   L.   Rep.   58;    15   Lane.   L.   Rev. 

ing  gas,  are  movable  property,  and  165. 
not    fixtures,    as    between    landlord 
and    tenant. 


FIXTURES.  G35 

was  held  that  pis  pijx's  passed  to  tho  vendee  of  a  store,  ahh^u^h 
they  were  put  in  hy  the  tenant  of  the  vendor,  who  liad  a  rii:ht  to 
remove  them  as  against  his  hindhird.'"  In  Ohio  it  was  hehl  hy 
the  nisi  priiis  court  that  where  chandeliers  and  gas  hraekets  were 
affixed  to  a  huilding  in  a  manner  to  indicate  an  intention  on 
tlie  owner's  part  to  make  them  a  part  of  such  huilding,  they 
were  fixtures  and  passed  to  the  vendee.""  So  in  Pennsylvania  a 
gas  machine,  a  part  of  a  suburban  dwelling  house,  put  in  at  the 
time  the  house  was  built,  and  connected  with  it  by  underground 
pipes  running  through  tlu^  foundation  walls  and  joining  in.  tho 
house  permanent  machinery ;  and  to  this  machinery  was  connect- 
ed the  ordinary  gas  pipes  of  a  house,  was  held  to  be  subject  to 
a  mechanic's  lien,  and  therefore  part  of  the  realty.*^  But  it 
has  also  been  held  in  that  State  that  gas  fixtures  do  not  pass  to 
the  vendee  of  the  realty,  in  the  absence  of  an  intent  that  they 
shall  be  included  in  the  sale."'  In  California  a  hotel  was  con- 
veyed "  with  the  apjiurtenances  thereunto  belonging."  This 
conveyance  was  made  in  pursuance  of  a  written  agreement  pro- 
viding that  the  vendor  might  remove  his  furniture,  carpets  and 
pictures,  but  none  of  the  "  permanent  fixtures  and  appurte- 
nances." Under  these  facts  the  court  considered  that  there  was 
a  s])ecial  agreement  concerning  the  gas  fixtures  and  fittings,  the 
kitchen  range,  water  filter,  tanks  and  mosquito  screens,  to  the 
effect  that  they  were  to  go  with  the  real  estate."^ 

1 'J  Smyth    V.    Sturges,    108    N.    Y.  22  Daniels    v.    Detwiler,     15    Lane. 

4*).);    15   N.   E.  Rep.    544;    amrniing  L.   Rev.   105;    14  Mont.  Co.  L.  Rep. 

30  Hun  89.  58. 

20  Central  Trust,  etc..  Co.  v.   Cin-  23  F,att  v.  Wliittier.  58  Cal.   120; 
cinnati,    etc.,    Co..    26    Wkly.    Law  41    Am.    Rep.    251. 

Bull.   149;    10  Ohio  Dec.   Rep.    348.  Of  course,  a  special  agreement  su- 

So     in     Pennsylvania.     Daniels     v.  persedes   the  general   rule  anil   con- 

Detwiler.  supra.  trols   the    right   to   remove   gas   fix- 

21  Light    Co.    V.    Gill,    14    Pa.    Co.  tures.     Wall  v.  Hinds.  4  Gray  250; 
Ct.  R.  6.  64    Am.    Dec.    64. 


(336  OIL    AND    GAS. 

ARTICLE  2. 
TRAUK  FIXTURES. 

§571.  Between  Tnort<Tag()r  and  mortgagee. 

§572.  Gas  pipes  in  houses. 

§57.'^  Landlord  and   tenant. 

§574.  When  tenant  must  remove. 

§571.     Between  mortgagor  and  mortgagee. 

The  rnlo  botwoon  niortoagor  and  iiiortgas;ee  is  not  sensibly 
different  from  the  rule  between  vendor  and  vendee.  It  is  there- 
fore hehl  that  gas  fixtures  and  gas  ranges  are  personal  property 
as  against  the  mortgagee  of  the  realty,  and  can  be  removed  by 
the  mortgagor."* 

§572.     Gas  pipes  in  houses. 

Gas  pi}>cs  fixed  within  the  walls  of  lionses,  and  also  those  lead- 
ing from  the  premises  in  the  street  to  the  house,  are  clearly  fix- 
tures, and  pass  with  a  conveyance  of  the  house  or  premises."^ 
Thus  where  a  water  pipe  was  laid  across  adjoining  land  to  sup- 
ply a  house  with  water,  it  was  held  that  it  passed  wnth  a  con- 
veyance of  the  house.'"'^     But  pipes  may  be  placed  in  a  house 

24Co9grove  v.  Troescher,  62  App.  132;    63   N.   W.   Eep.   257;    52   Am. 

Div.    (N.  Y.)    123;    70  IST.  Y.   Supp.  St.    Rep.   582    (also  an   electric   an- 

764;   Rogers  v.  Prattville  Mfg.  Co.,  nunciator,  but  not  a  steam  radiator; 

81  Ala.  483;    1   So.  Rep.  643;    (ma-  criticising  National   Bank  v.  North, 

chinerv)  ;  New  York  Life  Ins.  Co.  v.  160  Pa.  St.  303;  28  Atk  Rep.  394). 

Allison,    107    Fed.    Rep.    179.;    46   C.  :^5  Smyth    v.    Sturges,    108    N.    Y. 

C.  A.  229    (dynamos  and  engine  for  495;    15   N.   E.   Rep.   544;    aflirming 

driving     the     dynamos)  ;      Vail     v.  30    Hun    89;    Ex   parte    Wilson,    2 

Weaver,    132    Pa.   St.    363;    19    Atk  Mont,  and  Ayr.  61 ;  4  Dec.  and  Chit. 

Rep.      138       (electrical      machinery  143;    4  L.   J.    (N.   S.)    Bank  24. 

placed  in  the  building  for  the  pur-  Where    there    was    no    agreement 

pose   of   supplying    light,    after    tlie  between  the  gas  company  and  house 

mortgage  was  executed,  with  no  in-  owners    concerning    the    pipes    used 

tent  to  make  it  a  part  of  the  real-  by  the  company  to  make  meter  con- 

ty)  ;   Keeler  v.  Keeler,  31  N.  J.  Ivq.  nections   with   the   house   pipes,   the 

181,    191;    Duffus   v.    Howard    Fur  pipes  which  were  used  to  make  the 

nace  Co.,   8   N.   Y.    App.   Div.   567 ;  connections   were   held   not   to   have 

40  N.  Y.  Supp.   925    (portable  fur-  become    fixtures.      Laclede    Gaslight 

nace,     where    vendor     retained     the  Co.    v.    Gas    Consumers'   Ass'n,    127 

title);    McKeage    v.    Hanover    Fire  Mo.  App.  442;    106   S.   W.  Rep.  91. 

Ins.  Co.,  81  N.  Y.  38;   37  Am.  Rep.  -« philbrick    v.    Ewing,    97    Mass. 

471;    Capehart  v.   Foster,   61   Minn.  133. 


TRADK     FIXTlHIiS.  ()'■)' 

under  s\icli  circuiiistaiu'cs  ;is  to  show  :iii  iiilciil  tliiil  tlicv  sIkiuM 
reinaiii  jK'r.sonal  iirojicrtv.  Such  was  tlii'  case  where  tlie  owner 
of  a  store  room  contraeteil  witli  an  electrie  lighting  company  to 
put  electric  wires  and  fixtures  in  his  store  room,  and  agreed  to 
use  tlie  light  for  one  year  and  pay  for  it  ''  in  conformity  with 
the  regulations  endorsed  "  on  the  written  and  signed  contract. 
One  of  these  regulations  was  that  the  company  should  have  ac- 
cess to  the  premises  for  the  removal  of  the  lamps  or  wire. 
Channels  were  dug  in  the  plastering  of  the  walls  of  the  rooms, 
the  wires  placed  in  them,  fastening  them  with  staples,  and  then 
covered  over  by  tilling  such  channels  with  mortar,  restoring  the 
walls  as  nearly  as  possible  to  their  former  condition.  It  was 
held  that  the  ownershij)  of  th(>  wires  was  a  question  of  the  in- 
tention of  the  jiarties,  and  was  for  the  jury."^ 

§573.     Landlord  and  tenant. 

The  right  of  a  tenant  to  remove  fixtures  from  the  rented 
premises  practically  stands  on  a  contract  between  him  and  his 
landlord,  usually  an  implied  one,  but  not  infrequently  an  ex- 
press one.  The  law^  does  not  presume  that  fixtures  placed  by 
the  tenant  on  the  rented  premises,  in  order  to  enable  him  to  use 
or  enjoy  them,  and  M'hich  can  be  removed  without  injury  to 
such  premises,  were  intended  either  by  him  or  his  laiidloi-d  to 
become  a  part  of  the  realty,  and  to  remain  a+'tcr  the  tenancy 
had  expired.  Tf  there  is  an  express  contract  concerning  tlndr 
removal,  that  will  control ;  but  in  the  absence  of  such  a  coTitract, 
the  law^  raises  an  ini])lied  contract  that  the  tenant  can  remove 
them  if  he  perform  the  act  of  removal  at  a  proper  time  and  in 
a  proper  manner.  Usually  he  must  remove  them  during  the 
term  of  the  tenancy.  "  A  great  part  of  the  gas  fixtures,  such  as 
the  gasometers  and  the  apparatus  for  generating  gas,  as  between 
landlord  and  tenant,  are  movable  property.      They  would,  it  is 

2T  Hairisburg,  etc.,  Co.  v.  Good-  fixtures  as  betwcfii  landlord  .ukI 
man,  129  Pa.  St.  206;  19  Atl.  Rep.  tenant.  Gas  mains.  Poiiyhkecpsio 
844.  See  Wall  v.  Hinds,  4  Gray  Gas  Co.  v.  Citizens'  (las  Co.,  20 
2.')6,  04  Am.  Dec.  64.  where  pas  Hun  2M;  Laclede  Gaslight  Co.  v. 
pipes    were    held    to    be    removable      Gas  Consumers'  Ass'n,  127  .Mo.  A  pp. 

442;   106  S.  \V.  Rep.  91. 


638  OIL    AND    GAS. 

true,  pass  to  the  lieirs-at-law  with  the  inheritance,  or  between 
grantor  and  grantee,  as  fixtures  to  tlie  real  estate ;  but  as  between 
landlord  and  tenant,  the  latter  has  a  right  to  remove  them  during 
the  term."  "**  Sut-h  fixtures  are  regarded  as  his  personal  prop- 
erty (hiriiiii-  the  tci-iii  nf  the  lease,  esix^ciallv  if  thoy  are  trade 
fixtures."''  Thus  gas  pipes  passing  from  the  cellar  through  the 
floors  and  partitions,  retained  in  their  places  by  metal  bands,  are 
such  fixtures  as  a  tenant  may  remove,  even  though  some  of 
them  pass  throuiih  wooden  ornaments  of  the  ceilings,  which  are 
cut  away  for  their  removal.'"'"  If  an  incoming  tenant  purchase 
from  his  landlord  the  fixtures  upon  the  demised  premises,  they 
of  course  become  personal  property,  and  he  may  remove  them.^^ 

§574.     When  tenant  must  remove. 

One  line  of  authority  expressly  limits  the  right  of  the  tenant 
to  remove  the  fixtures  to  the  term  of  his  lease,  giving  him  the 
right  to  remove  them  at  any  time  during  the  lease,  or  while  he 
continues  tenant ;  but  after  the  expiration  of  such  lease  and  the 
surrender  of  the  premises  to  tlic  landlord,  he  cannot  enter  on 
such  premises  to  remove  the  fixtures.  And  the  reason  of  this 
rule  is  said  to  be  that  when  ho  quits  the  premises,  leaving  his  fix- 
tures behind  him,  it  will  be  ])resumed  that  he  intended  to  aban- 

28  Hays  V.  Doane,  11  N.  J.  Eq.  1021;  Elliott  v.  Bishop,  24  L.  J. 
84;  Elliot  v.  Bishop,  10  Exch.  512;  Exch.,  p.  39;  42  L.  J.  Exch.,  p. 
Childs    V.    Hurd,    32    W.   Va.    (iU;    9        229;   10  Exch.  496. 

S.  E.  Rep.  362;  Seeger  v.  Pettit,  77  3i  Ryall  v.  Rolle,  1  Atk.,  p.  175. 
Pa.  St.  437 ;  Guthrie  v.  Jones,  108  Generally,  that  a  tenant  may  re- 
Mass.  191.  move   gas    fixtures   he    puts    in,    see 

29  Kile  V.  Giebner,  114  Pa.  St.  Elliott  v.  Bishop,  10  Exch.  496;  24 
381;  7  Atl.  Rep.  154;  Ex  parte  L.  J.  Exch.,  p.  39;  42  Id.,  p.  229; 
Morrow,  1  Lowell's  Dec.  386;  2  N.  D'Eyncourt  v.  Gregory,  L.  R.  3  Eq. 
B.   R.    (2d  ed.)    665.  382.' 

30  Wall  V.  Hinds,  4  Gray  256 ;  A  gas  engine  laid  on  a  raised  bed 
64  Am.  Dec.  64.  This  is  particu-  of  concrete  and  screwed  down  to 
larly  true  if  there  be  an  agreement  bolts  sunk  in  the  concrete  and  fast- 
to  that  effect.  ened   into   the  ground,   is   a   fixture, 

A  tenant  may  remove  a  tile  floor  and  is  therefore  not  distrainable  by 

and     an     electric     light     apparatus  the  landlord   for   rent.     Crossley  v. 

placed    in    a    building    for    business  T^e,    77    L.    J.    K.    B.    199;     [1908] 

purposes,    if   he    leave   the   building  1  K.  B.  86;  97  L.  T.  850;  24  T.  L. 

in   as  good   condition   as   it  was   at  R.    35,    following    Hobson    v.    Gar- 

the    beginning   of    the    lease.      Ross  ringe,  66  L.  J.  Ch.  114;  [1897]  1  Ch. 

V.    Campbell,    9    Colo.   App.    38;    47  182,  and  Reynolds  v.  Ashbv,  72  L.  J. 

Pac.   Rep.  465.  K.   B.   51;    [lOO.-J]    1    K.  B.  87;   and 

That    a    tenant   may    remove,    see  not  following  Hellawell  v.  Eastwood, 

Wilde  v.  Waters,   16  C.  B.  637;   24  20  L.  J.  Exch.  154;  6  Exch.  295. 
L.   J.    C.    P.    193;    1    Jur.    (N.    S.) 


TRADE   FIXTURES.  639 

don  them.''-  But  the  rule  that  lie  must  remove  them  durinj^c  tlie 
tenancy  may  be  modified  by  an  express  agreement.  Thus  where 
property  by  an  express  agreement  between  the  tenant  and  hind- 
lord  was  made  personal  property,  it  was  held  that  it  could  not 
be  contended  that  it  was  not  the  tenant's  fixtures,  and  therefore 
movable,  only  durincj  the  tonnney.^^  So  where  it  was  agreed 
when  the  lease  was  surreiulerod,  that  the  landlord  should  sell 
the  fixtures  for  ilic  tcMinut's  benefit,  niiil  ;it  llic  r('(|uost  <if  the 
landlord  the  tennnt  left  tlioni  oi  tlio  prcniisos,  it  was  licM  that 
the  latter  had  not  lost  his  riiiht  to  them,  and  that  the  former  was 
liable  for  their  conversion."''*  So  acceptance  of  ancAV  lease  by 
the  tenant  is  not  a  waiver  of  his  right  to  the  trade  fixtures  he 
has  jihiced  upon  the  jiremises,  although  tliore  be  no  agreement 
with  respect  to  them,  unless  such  new"  lease  in  clear  terms  cover 
the  fixtures  upon  the  premises  leased.^^  But  some  authorities 
extend  the  rule  farther  than  those  just  cited  would  indicate. 
Thus  it  was  decided  in  Xew  York  that  trade  fixturos  did  imt 
cease  to  be  the  tenant's  property  by  reason  of  the  mere  fact  that 
he  did  not  remove  them  during  his  term ;  and  that  he  could  "  re- 
move them  after  his  term  expired  without  subjecting  himself 
to  any  damages  f<5r  such  removal,  even  though  he  be  liable  to  an 
action  for  trespass  for  an  ontrv  on  the  iTrcniiscs  demised."  Tt 
was  also  held  that  the  tenant  could  mortgage  them  by 
a  chattel  mortgage,  and  that  tliev  could  be  levied  u]ion 
with  an*  execution  against  hini.'^°  Tn  Illinois  it  was  held 
that  tlie  tenant  had  a  reasonable  time  within  wliich  to 
remove  trade  fixtures,  and  what  was  a  reasonable  time 
was  a  projTer  question   for  the  jury,  under   the  instructions  of 

32Childs  V.  Hurd,  32  W.  Va.  GO;  23G ;    2.")   N.    E.    Rep.    3G2.    rpvprsinff 

9    S.    E.    Rep.    362;    Friedlander    v.  4  N.  Y.  Supp.  Gn4 ;  East  Siiirar  Loaf 

ivider,  30  Neb.  783;  47  N.  W.  Rep.  Coal  Co.  v.  Will.ur.  .")  Pa.  Di>t.  Rep. 

83;  Wall  v.  Hinds,  4  Gray  25G;  G4  202. 

Am.  Dec.  G4 ;  Hays  v.  Doane,  11   N.  sr.  Second  Xalional   Hai)l<  v.  (X   K. 

J.  Eq.  84.  Merrill  Co.,  09  Wis.  .'lOl  ;   34   N.  W. 

3"»  Lake  Superior  Shin  Caniil.  etc..  Rep.     ;il4;      Writtlit     v.     "Mcnonell, 

Co.    V.    McCann.    80    Mich.    100;    48  88  Tex.  140;  30  S.  W.  Rep.  007. 

N.  W.  Rep.  002.  ^"^  Lawrence    v.    Kemp,     1     Duer. 

34  Thorn  v.  Sutherland,  123  N.  Y.  303. 


C40  OIL    AND    GAS. 

the  court.'"  This  is  undoubtedly  true  where  a  forfeiture  of  the 
lease  takes  phice ;  and  if  the  tenant  is  denied  the  right  after  the 
forfeiture  to  remove  them,  he  may  bring  an  action  therefor, 
especially  if  the  lease  contain  an  agreement  giving  him  the  right 
to  make  sucli  removal.'"* 

ARTICLE  3. 

OIL  AND  GAS  LEASE  FIXTURES. 

§575.  Coal   and  niirioral   leases. 

§576.  Oil  and  s^as  lease  fixtures. 

§577.  Conveyance  or  niorttrajre  of  fixtures. 

§578.  Special  contract  controls. 

§579.  Gas  and  oil  pipe  lines. 

§575.     Coal  and  mineral  leases. 

The  right  of  a  lessee  in  an  oil  or  gas  lease  does  not  differ  from 
the  right  of  a  tenant  in  an  ordinary  agreement  for  the  renting 
of  premises  for  trade  purposes.  There  is  no  difference,  taking 
into  consideration  the  character  of  the  fixtures,  in  this  respect, 
between  a  lease  to  bore  for  oil  or  gas  and  one  to  dig  for  coal 
or  ((tlier  minerals.  In  tlie  case  of  a  mere  parol  license  to  mine 
for  coal,  and  the  license  is  revoked,  the  licensee  may  remove  his 
fixtures  Avithin  a  reasonable  time  ;  and  there  is  no  reason  why  the 
same  is  not  applicable  to  an  oil  or  gas  license  or  lease.^"  Thus 
a  steam  engine,  boilers,  and  pumps,  simk  into  a  ledge  of  rock  in 
order  to  get  a  level,  and  covered  by  a  shed  for  shelter,  used  in 
working  a  mine,  is  a  trade  fixture,  and  may  ho  removed  by  the 
tenant,  unless  the  right  to  remove  it  is  contrdllod  by  an  agree- 
ment, or  by  some  local  usage.''"      The  rule  extends  not  only  to 

■i"  Beif;er  v.  TToerner,  .'!0  111.  Ay)[).  SprinLrficld.    etc.,    Co.    v.    Cole,    130 

.''00;    Ni^ro    V.    Hatch     (Ari/..),    11  :Mo.    1;    .31    S.   W,   Rep.   922. 
Pac.  Rep.   177.  ^o  Merritt    v.    Judd,    14    Cal.    GO; 

•■'s  Sattler  v.  Opperman.  30  Pittsh.  Wake  v.   Hall.   7   Q.  B.  Div.  295;   8 

Le.sr.  .7.    (N.  S.)    205.     See  also  Pot-  App.   Cas.    195;    Hewitt,  etc..  Co.   v. 

ter   V.   Cilhcrt,    177  Pa.   St.   1.-.9;    35  W  atertown,    etc.,   Co.,    65    HI.   App. 

Atl.   P>cn.  507:    ?r,  1,.  P.    A.  5S0.  153.      Lut    see    Croasley    v.    bell,    77 

soDesloge  v.  Pcarce.  38  Mo.  588;  L-   J.   K.   B.   199. 


on.    AM)    GAS    I.EASK     FIXTI'KKS.  G41 

a  steam  engine  and  niachini'rv  ('(innccted  therewith,  hut  to  all 
fixtures  or  applianees  used  for  the  purpose  of  hoisting  coal  from 
the  mine.  These  renuiin  the  property  of  the  lessee.*^  Thus  a 
sale  of  a  seller's  interest  in  a  "  eollierv  "  ineludes  "  all  the 
movable  property  heloiiging  to  and  used  at  the  place  in  mining 
coal  " ;  and  it  is  not  error  to  so  instruct  the  jury,  and  add  "  that 
the  word  '  colliery  '  is  a  collective  com]X)und  inclmling  many 
things,  and  is  not  limited  to  the  lease  and  fixtures  of  a  tunnel, 
drift,  shaft,  slope,  or  vein  from  which  coal  is  mined. "■*■'  W  here 
a  lease  was  made  for  the  purj)ose  of  mining  iron  ore,  and  it  was 
provided  that  the  lessee  would,  at  its  termination,  jK-accably  sur- 
render the  premises,  "  and  other  improvements  and  erections 
that  may  he  thereon  —  engine,  Ixnlers,  nnu'liinery,  tools,  imple- 
ments, find  other  movable  personal  eliattels  excepted;"  it  w^as 
held  that  this  agreement  made  engines  and  boilers  |x:'rsonal 
property  as  between  the-  lessor  and  an  exeeiition  creditor  of  the 
lessee,  and  that  they  could  not  be  treated  as  trade  fixtures. ■*' 
Where  A.  entered  into  an  agreement  with  B.  to  put  in  machinery 
to  bore  a  salt  well  on  the  latter's  land,  in  consideration  of  which 
he  was  to  have  a  share  of  the  property  and  business,  but  never 
snnk  the  well,  and  B.  sold  and  conveyed  the  lands  to  C. ;  it  was 
held  that  the  machinery  did  not  pass  by  the  conveyai^ce ;  for  the 
reason  that  the  machinery  was  put  on  the  premises  for  a  tem- 
porary pnrpose,  to  sink  a  well,  and  as  it  would  be  removed  with- 
out injury  to  the  freehold,  it  did  not  become  realty,  not  being 
so  intended  or  especially  adapted  for  ]:^ermanent  use  as  a  part  of 
the  freehold.'**      So  a  sale  of  a  coal  mine  does  not  includ(\  im- 

41  Doliselinetz   v.  HoUiday.   S2   111.  ■»•!  ].aj<c    Supprior    Co.   v.   McCann, 

371;     Hewitt,    etc.,    Co.    v.    General  80  Mich.  100;  48  N.  \V.  Rep.  002. 
Electric  Co.,  61   111.  App.   168;   An-  .\  niininir  flume  running  mIoiict  the 

denried  v.  Woodward.  4  Dutch.    (N.  bank  of  a  river  to  a  mine  was  held 

J.)    26.');  Davis  v.  Moss.  .38  Pa.  St.  not  exempt  from   taxation   under  a 

306;    HeflTner   v.   Lewis,   73   Pa.    St.  statute    exemptinjif    mininp;    claims. 

302    (a  railroad  to  the  mine)  ;   Wil-  "  It  is  not  aflixed  to  the  claim  so  as 

liams'   Appeal,    1    Mona<,'han    (Pa.).  to  become  a  part  of  it.     It  is  rather 

274;    Montooth   v.   damble,    123    Pa.  to  be  rej^arded  as  machinery,  or  as 

St.  240;  16  .\tl.  Rep.  .')04   (houses)  ;  apparatus  useful   in  minim.'"    Hart 

Ritchie  v.  McAllister.  14  Pa.  Co.  Ct.  v.  Plum.   14   Cal.   148. 
Rep.    267     (railroad).  44  p.cwick    v.    Fletcher.    41     ^Hch. 

42Carev  v.  Bright,  58   Pa.  St.  70.  02."). 


642 


OIL    AND    GAS. 


plements,  tools,  and  movable  articles  of  the  inine;''^  but  it  does 
include  the  iiiachinerv  and  lixtures  of  the  mine,  the  trouble 
generally  being  to  determine  what  is  and  what  is  not  a  fixture."*® 


§576.     Oil  and  gas  lease  fixtures. 

A  lessee  of  land,  to  liorc  Uiv  (ul,  who  does  not  find  any  oil  has 
a  right  to  remove  not  only  the  machinery  used  in  sinking  the 
Avell  but  also  the  casings  in  the  wells,  unless  there  be  a  contract 
to  the  contrary  concerning  their  removal. ^^  And  a  levy  of  an 
execution  u]X)n  "  all  right,  title  and  interest  of  the  defendant 
[lessee]  of,  in  and  to  a  certain  lease-hold  estate  situate,"  etc., 
"  together  with  the  oil  wells,  engines,  boilers,  engine  houses, 
derricks,"  etc.,  etc.,  "'  and  all  the  machinery  and  fixtures  be- 
longing to  said  well  and  lease,"  covers  the  fixtures  of  the  lease- 
hold.'*'* Where  a  lease  of  ground  was  given  for  three  years  and 
as  much  longer  as  oil  or  gas  was  found  in  paying  quantities, 
with  the  right  to  remove  all  fixtures  "  at  any  time,"  it  was  held 
that  the  fixtures  must  be  removed  within  a  reasonable  time  after 
the  expiration  of  the  three  years'  period,  or  within  a  reasonable 
time  after  the  time  it  was  determined  that  neither  oil  nor  gas 
could  be  secured  in  paying  quantities;  and  that  the  ])lirase  "  at 
any  time"  could  not  be  stretched  so  as  to  include  an  unreasonable 
lenii-th  of  time  after  the  lease  had  in  fact  terminated.     "  The 


4'-'  Fisher  v.  Dixon,  12  CI.  and  F. 
312. 

46  Dudley  v.  Warde,  Amb.  11,3. 

In  Colorado  a  statute  provides 
that  the  terms  "land"  and  "real 
estate"  shall  embrace  claims.  Un- 
der this  statute  it  is  held  that  an 
engine  placed  in  an  engine  house 
on  a  frame  bolted  down  to  timbers 
sunk  in  the  ground  and  earth 
tamped  around  them,  and  a  boiler 
set  on  rock  work,  with  the  ordinary 
connections  with  the  engine,  were 
fixtures.  Roseville  Alta  Mining  Co. 
V.  Iowa  Gulch  Mining  Co.,  15  Colo. 
29;  24  Pac.  Rep.  920.  But  a  gas 
engine  laid  on  a  raised  bed  of  con- 
crete and  screwed  down  to  bolts  sunk 
in  the  concrete  and  fastened  into  the 
ground  were  held  to  be  a  fixture, 
and  was  not  therefore  distrainable 
by  the  landlord  for  rent.  Cros«lev 
V.  Lee,  77  L.  .T.  K.  B.  199;  [1908] 
1  K.  B.  86;   97  L.  T.  850;   24  T.  L. 


R.  .35,  following  Hobson  v.  Garringe, 
66  L.  J.  Ch.  114;  [1897]  1  Ch.  182, 
and  Reynolds  v.  Ashbv,  72  L.  J.  K. 
B.  51;  [1903]  1  K.  B.  87,  and  not 
following  Hellawell  v.  Eastwood,  20 
L.  J.  Exch.  154;  6  Exch.  295. 

47  Siller  V.  Globe  Window  Glass 
Co.,  21  Ohio  C.  C.  284;  10  Ohio  Cir. 
Dec.  784.  Leases  forfeited,  yet  the 
fixtures  were  not  thereby  lost  by 
the  lessee.  Perry  v.  Acme  Oil  Co., 
44  Ind.  App.  207;  88  N.  E.  Rep. 
859,  reversing  former  decision.  80 
N.  E.  Rep.  174. 

Under  a  lease  with  an  option  to 
purcliase,  the  machinery  placed  by 
the  lessee  on'the  land  is  personalty; 
and  the  same  is  true  if  the  lease 
is  one  at  will,  in  the  al>sence  of 
notice  to  quit.  PoAvell  v.  Plank, 
141  Mo.  App.  406;  125  S.  W.  Rep. 
836. 

4s  Titusville  Novelty  Iron  Works' 
Appeal,  77  Pa.  St,  103. 


on,    AND    GAS    LKASE     I-'IXTIRKS.  013 

lease  was  for  a  fixed  period,"  said  tlie  coiii-t,  '*  In  Le  cxtoiKled  to 
ail  iiidctliiit*'  lu'i'idd.  and  tlir  f^xtciisinn  to  dciiciid  n|inii  what  the 
future  niiuht  develoj).  The  riiilit  ti»  enter  at  any  time,  and  tlie 
right  to  remove  machinery  at  any  time,  was  iirodicatcd  on  that 
part  of  the  term  that  was  uncertain,  that  is,  after  three  years  the 
lessee  had  the  right  at  any  time  to  enter  and  drill  additional 
wells,  if  oil  or  gas  was  being  produced  in  paying  (juantities; 
and  had  the  right,  although  the  three  years  had  passed,  U)  re- 
move the  machinery  and  fixtures  after  or  when  the  well  would 
cease  to  produce  oil  or  gas  in  ])aying  quantities.  If  this  con- 
struction is  correct,  then  the  rule  of  law  as  to  removal  of  fix- 
tures, as  when  it  depends  upon  a  contingency,  and  that  is,  that 
the  removal  nuist  he  nuide  within  a  reasonable  time;  or  in  other 
words,  the  law  in  such  cases  allows  the  tenant  a  reasonable  time 
for  the  removal  of  the  fixtures.  Here  the  lessees,  if  oil  or  gas 
has  been  found  in  paying  quantities,  would  have  had  a  reasona- 
ble time  within  which  to  draw  their  casing  and  reiiiii\'e  their 
derricks  after  it  had  Ix'come  apparent  that  the  operation  of  the 
wells  was  no  longer  profitable,  let  this  be  soon  or  long  after  the 
expiration  of  three  years ;  at  any  time  when  they  thought  it 
would  111)  longer  pay  to  operate  their  wells  which  had  l>eeii  ]iro- 
ducing  oil  or  gas  in  paying  (pumtities,  they  had  a  right  to  re- 
move the  fixtures  connected  with  such  wells.  Under  the  facts 
as  we  have  them  in  this  case,  however,  ojx^rations  ceased  on  this 
lease  in  April,  1887;  a  dry  hole  was  found,  nothing  ,was  done 
between  the  completion  of  this  well  and  the  time  when  the  lease 
expired  in  Xovcmber,  1888,  and  after  that  four  years  were 
allowed  to  exj)ire  l)efore  an  attempt  to  remove  these  fixtures 
was  made.  In  our  opinion,  this  was  too  late.  If,  muler  the 
words  '  at  any  time  '  the  lessee  could  take  four  years  after  the 
expiration  of  the  lease  to  remove  his  fixtures,  he  could  as  well 
take  twenty  years.  To  say  that  th(>  lessor  could  pre\-ent  this 
by  giving  notice  that  the  fixtures  must  be  removed  within  a  cer- 
tain time,  is  to  read  something  into  the  contract  that  is  not 
there."  *'■*  Contingencies  may  arise  that  will  not  rei|uire  the 
lessee  to  remove  his  fixtures  at  the  exjiii'atinu  of  tli<'  lease,  or 
even  within  what  would  have  otherwise  been  a  reasonable  time. 

40  Shellar  v.  Sliivers,    171   Pa.   St.        Rep.  8.50,  reversing  decision  in  same 
569;  33  Atl.  Rep.  95;  Perry  v.  Acme       case,   80  N.   E.   Rep.    174. 
Oil  Co.,  44  Ind.  App.  207;'  88  X.  E. 


64-i  OIL    AMJ    CiAS 

Tims  where  there  arose  a  dispute  hetweeii  the  lessor  otkI  lessee 
PS  to  when  the  lease  expired  and  the  controversy  was  taken  into 
the  courts,  and  was  decided  asjninst  the  lessee,  it  was  held  that 
the  lessee  coiild  remove  the  fixtnres  at  the  termination  of  the 
suit,  although  the  lease  had  long  before  expired ;  and  if  the  lessor 
had  refused  to  permit  the  lessee  to  so  remove  them,  he  was 
liable  in  damages.^'^  A  covenant  on  the  part  of  the  lessee  to  de- 
velop gas  or  oil  land  leased  is  se])arate  an<l  ajjurt  from  an  agree- 
ment of  the  lessor  that  the  lessee  might  remove  the  fixtures  at 
the  expiration  of  the  lease  or  within  a  reasonable  time  there- 
after ;  and  if  the  lessor  seize  the  fixtures  for  the  reason  that  the 
lessee  has  failed  to  keep  his  covenant,  he  will  be  liable  in 
damagcs.^^ 

§577.     Conveyance  or  mortgage  of  fixtures. 

A  conveyance  of  the  lands  whereon  are  gas  or  oil  wells  owned 
and  worked  by  the  owners  of  the  land  will  carry  with  it  those 
fixtures  attached  to  the  freehold  necessarily  used  in  such  work ; 
and  so  a  conveyance  of  the  leasehold  interest  by  the  lessee  will 
also  carry  such  fixtures,  unless  there  be  an  agreement  to  the 
contrary.^"  But  it  will  not  carry  oil  in  tanks  on  the  leased 
premises.^^  Tanks  for  holding  the  oil,  placed  by  the  owner  of 
the  land  upon  a  foundation  of  earth  and  lumber,  are  presumed 
to  be  such  permanent  accessions  to  the  land  as  will  subject  the 
land  to  a  mechanic's  lien,  and  of  course  pass  with  a  conveyance 

soSattler  v.   Appprman.   .30   Pitts.  Thomas,  25  Ore.  5.39;   3G  Pac.   Ren. 

L.  J.   (N.  S.)   205.     See  also  Wright  G3G. 

V.  McDonnell,  88  Tex.  140;  30  S.  VV.  An    engine    house    of    little    value 

Rep.    907.  built  around  ma<;hinerj'  that  is  not 

51  A  steam  engine  in  a   eoal   mine  a    fixture,    and    which    has    no    use 

for   the   use   of   the   tenant,   ami    re-  di.sconnected     from     the    machinery, 

movable  without  injury  to  the  mine,  and    is  temporary   in   its   character, 

is    not   a   fixture.     Hewitt,    etc.,   Co.  is    a    chattel     and     not     a     fixture. 

V.    Watertown    Steam    Engine    Co..  Powell  v.  Plank,  141  Mo.  App.  406; 

G5  111.  App.  153.  125  S.  W.  Rep.  S3G. 

A  derrick  erected  by  a  tenant  in  52  Roseville    Alta    Mining    Co.    v. 

.a  quarry,  by  placing  a  post  upright  Iowa    Gulch    Mining    Co.,    15    Colo, 

in  a  socket  in  the  ground,  is  a  trade  29;    24   Pac.    Eep.    920;    Ritchie    v. 

fixture,    and    is    not    subject    to    a  McAllister,  14  Pa.  Co.  Ct.  Rep.  2G7. 

mechanic's       lien.      Honeyman       v.  53  McQuire  v.  Wright,   18  W.  Va. 

507. 


oil.    AXl)    CiAS    l.KASi:    IIXILUES.  Ox  J 

tlioroof.'"*  In  P(Minsylv;iin:i  nil  Act  <if  tlic  Ic^ishituro ''''  jimvii^^s 
tliat  it  slmll  '*  ho  Inwful  fur  ovcrv  lessee  for  a  tcnii  of  venrs  of 
any  colliery,  miiiiiii::  land,  manufactory,  or  other  ])renus('s.  to 
mortgage  his  or  her  lease  or  term  in  the  demised  premises,  with 
all  buildings  thereon,  to  the  lessee  belong[ing]  and  thereunto 
appurtenant,  with  tlie  same  effect  as  to  the  lessee's  interest  and 
title,  as  in  the  case  of  mortgaging  a  freehold  interest  and  title 
as  to  lien,  notice,  evidence  and  priority  of  payment  " ;  i)ut 
the  mortgage  and  lease  must  Ix^  ])laecd  of  record  in  the  ju-oi^'r 
county,  and  the  mortgage  can  in  no  wise  interfere  with  the  land- 
lord's right,  priority  or  remedy  for  rent.^"  After  the  passage 
of  the  Act  it  was  held  that  in  a  mortgage  of  the  leasehold,  in- 
cluding "  all  machinery  and  fixtures  thereon  —  one  boiler,  one 
engine,  two  tanks,  etc. —  and  all  and  singular  the  ajipurtenances 
thereunto  belonging,"  was  included  a  leather  belting;  and  that 
it  was  competent  to  show  by  parol  evidence  that  the  belting  was 
actually  on  the  leasehold  premises  when  the  mortgage  was  ex- 
ecuted, and  was  embraced  therein. °'  The  word  '^'  fixture  "  as 
used  in  this  Act  has  been  held  to  include  mine  cars  and  all  such 
machinery  and  appliances  as  are  essential  to  the  operation  of  a 
collier}^,  but  not  prop-timber.''-  The  mortgage  of  an  electric 
lighting  plant,  including  boilers,  engines  and  dynamo,  "  with  all 
the  appurtenances  thereunto  belonging,"  includes  masts  erected 
in  the  street  and  wires  strung  thereon,  along  which  the  electric 
current  was  conducted  to  electric  lamps.^''  Without  the  aid  of 
a  statute,  a  tenant  may  so  mortgage  his  leasehold  as  to  cover  the 

54  Parker  Land,  etc.,   Co.  v.   Piod-  oils,  potroleum,  asphaltum,  and  other 

■dick,    18   Ind.    App.   610;    47   N.    E.  minerals,"    and    then    conveyed    to 

Rep.     848.      Contra,      Seider's     and  another   the    remaining   part   of   the 

International,   etc.,    Co.   v.   Lewi?.    7  ranch,   reservinj^   tlie   minerals;    and 

Pa.   Dist.  Rep.  278;    21   Pa.  Co.  Ct.  the  first  grantee  "granted  and  sold" 

Rep.   80.  to  the  second  grantee  "all  the  build- 

5^5  Act   of    April    27,    1855;    P.    L.  ings,     tanks,     derricks,     pipes,     pipe 

369.  lines,  fixtures,  and  all  other  personal 

56  This  act  was  construed  to  ap-  property  whatsoever"  situated  upon 
ply  to  oil  land  or  gas  leases.  Gill  any  portion  of  the  ranch,  it  was 
V.  Weston,  110  Pa.  St.  312;  12  Atl.  held  not  to  be  a  mere  conveyance 
Rep.   921.  of  these  as  chattels,  but  it  gave  the 

57  Gill  V.  Weston,  supra.  right    to   occujiy    sullicicnt    land    for 

58  Baker  v.  Atherton,  15  Pa.  Co.  the  use  of  the  property  for  the  pur- 
<Ct.   Rep.  471.  pose  and  iu  the  way  it  had  thereto- 

59  Fechet  v.  Drake  (Ariz.),  12  fore  l>een  operated.  Diet/,  v.  Mis- 
Pa*.  Rep.  694.  sion    Transfer    Co.,    95    Cal.    92;    30 

Where  the  owner  of  a   ranch  eon-        Pac.    Rep.    380. 
veyed    a   part   of    it,    e.veeptiug    "all 


646 


OIL    AND    GAS. 


fixtures  upon  it.°"     And  he  may  bring  under  a  mortgage  of  tlie 

existinu'  iiiacliinerv  aiul  jilaut  (if  a  leasehold,  after  ac(iuired  ma- 
ehinerv  or  tixtures  placed  upon  the  premises  during  the  con- 
tinnanoe  of  the  security  ;  "'  but  the  terms  of  the  mortgage  must 
expressly  inclnde  such  after  ac(iuire(l  ]iriipcrty,  for  a  mere 
mortgage  of  existing  ])riii)crty  will  reach  after  accpiired  proiy- 
ertv/'" 


60  Lawrence  v.  Kemps,  1  Dnor. 
363. 

In  ]iaiiibrid<je  on  Mines  and  Min- 
erals (edition  of  1!>00,  5tli),  2li3, 
the  English  law  with  respect  to 
mining  fixtures  is  stated  as  fol- 
lows: "And  regarding  the  remov- 
ability of  fixtures  properly  so  called, 
and  their  sale  or  devolution  aeini- 
rately  from  the  land  or  mine,  the 
following  points  appear  to  be  estab- 
lished, namely — Firstly,  as  between 
an  executor  or  administrator  and 
the  devisee  or  heirs — whether  the 
deceased  was  the  owner  in  fee  of 
the  land  or  of  the  mine,  the  de- 
visee or  heir  will,  as  a  general  rule, 
be  entitled  to  the  machinery  also, 
which  has  been  annexed  to  the  free- 
hold, and  which  lias  become  a  part 
of  tlie  inheritance — as  e.  p.,  in  the 
case  of  a  salt  mine  or  salt  works 
(Lawton  v.  Salmon,  1  H.  B.  259); 
and  the  special  circumstances  must 
be  shown  to  alter  that  rule  (Low- 
ther  V.  Cavendish,  1  Eden  99 ;  Wood 
V.  Gaynon,  1  Amb.  395;  Lushing- 
ton  V.  Sewell,  1  Sim.  435)  ;  also, 
where  the  corpus  of  any  machinery 
or  fixture  belongs  to  the  heir  or 
devisee,  he  is  entitled  to  all  the 
parts  capable  of  being  u>ed  in  a  de- 
tached state,  if  they  really  belong 
to  it.  (Fisher  v.  Dixon,  12  CI.  and 
F.  312).  But,  secondly,  as  between 
the  tenant  for  life  and  the  person 
entitled  in  remainder  or  reversion 
— the  executor  of  the  tenant  for  life 
will,  as  a  general  rule,  be  entitled 
to  the  machinery  and  fixtures. 
Thus,  where  a  fire  engine  for  work- 
ing a  collier  had  been  set  up  by  the 
tenant  for  life;  and  it  was  proved 
to  be  customary  to  remove  such 
works:  but  it  appe'ired  also  that  the 
engine  could  not  be  removed  with- 
out tearing  up  the  soil  and  destroy- 
ing the  brick  work — Lord  Hardwicke 


decided  that  the  engine  was  part  of 
the  personal  estate  of  the  late  ten- 
ant for  life,  and  went  to  his  execu- 
tor (Lawton  v.  Lawton,  3  Atk.  13)  ; 
and  he  ap])lied  the  same  rule  in  a 
subsequent  case  to  a  deceased  ten- 
ant in  tail  (Dudley  v.  Warde,  Amb. 
113:  Lawton  v.  Salmon,  1  H.  Black 
259).  And,  thirdly,  as  between  a 
mining  lessee  and  his  lessor,  a  still 
greater  liberality  in  favor  of  the 
lessee  or  of  his  executor  prevails 
(Grymes  v.  Boweren,  6  Bing.  439) 
subject  only  to  this  condition,  name- 
ly, that  the  lessee  or  his  executor 
must  exercise  his  right  to  remove 
the  fixtures  during  the  continuance 
of  the  term  or  during  what  has 
been  termed  the  excrescence  of  the 
term  (Heap  v.  Barton.  12  C.  B. 
274:  Penton  v.  Robart,  2  East  88) 
— ,sci7.,  because  he  will  otherwise  be 
considered  to  have  relinquished  his 
claim  (]\Iinshull  v.  Lloyd,  2  M.  and 
W.  459 :  Weston  v.  Woodcock,  7 
M.  and  W.  14)."  See  also  Hewitt 
V.  Watertown  Steam  Engine  Co., 
65  111.  App.  153  (steam  engine  in 
coal   mining  for   use  of  tenant). 

Gi  Holvrod  V.  Marshall,  2  Giff. 
382;  2  DeG.  F.  and  J.  590:  3  L.  J. 
Ch.  655;  30  L.  J.  Ch.  385;  3  L.  J. 
Ch.  193. 

62  Reeve  v.  Wliitmore,  33  L.  J, 
Ch.  63. 

In  oil  fields  where  parties  nego- 
tiate respecting  a  lease  which  is  in 
operation,  either  to  sell  or  mortgage 
it,  they  consider  the  eipiipment  used 
in  operating  the  lease  as  part  of  the 
lease;  but  if  purchased  under  a 
judicial  sale  the  title  obtained  is 
limited  ordinarily  to  the  terms  of 
the  decree  f)f  sale.  Niece  v.  Percv, 
29  Ohio  Cir.  Ct.  Rep.  219.  See 
Powell  V.  Plank,  141  Mo.  App.  406; 
125  S.  W.  Rep.  830. 


on.    AND    GAS    LKASK     FIXTIUES.  017 

§578.     Special  contract  controls. 

Special  agreements  relating  to  fixtures  contained  in  leases, 
esjDecially  in  mining  leases  —  often  settle  the  rights  of  the 
parties  with  reference  to  machinery  and  fixtures.  Thus  where 
a  lease  of  land  and  salt  niiiios  gave  the  lessee  the  right  to  erect 
a  warehouse,  huild  quays,  salt  pits  and  other  works,  reserving 
a  certain  rent  for  every  salt  pan  then  or  thereafter  erected  by 
the  lessee;  and  the  lessee  covenanted  to  leave  all  the  buildings, 
quays  and  salt  icorJiS  in  good  repairs  —  it  was  held  that  ho  could 
not  remove  any  salt  pans  he  had  l)uilt.*^^  Where  a  lessee  cove- 
nanted to  leave  all  the  ^'  fixed  materials,"  except  the  salt  pans 
and  other  movable  articles  used  at  the  salt  works;  and  he  as- 
signed the  lease ;  and  in  a  renewal  of  the  lease  the  assignee 
covenanted  to  give  up  possession  of  the  premises,  with  all  im- 
provements, cisterns,  doors  and  other  fixtures  and  appurte- 
nances, stipulating  for  the  right  to  take  away  the  salt  pans  and 
other  articles  used,  it  was  held  that  he  had  only  the  right  to 
take  such  fixtures  as  could  properly  be  called  tenant's  fixtures.®* 
But  where  a  lessee  of  a  coal  mine  and  iron  works  cov^enanted  to 
yield,  at  the  end  of  his  term,  all  '"'  ways  and  roads  "  in  good 
repairs,  and  fit  for  immediate  future  use;  it  was  held  that  the 
agreement  did  not  cover  tram  plates  and  wooden  sleepers  of 
the  railroad  laid  down  by  the  lessee,  which  had  been  seized 
under  an  execution  against  him,  l)ut  that  it  did  cdver  rails  and 
sleepers  in  place  at  the  time  of  the  lease,  it  being  the  intention 
of  the  lessor  and  lessee  to  bind  only  tliose  in  existence  at  tlie 

As  against  a  trustee  in  bankrupt-  the    fixtures    before    be    can    chum 

cy.  the  mortgagee  of   a   mine,  with  them.       Mather    v.    Fraser.    supra; 

engines  and  other  fixtures,  is  in  gen-  Bogbie  v.  Fenwiek,  T..  R.  8  Ch.  App. 

eral.   entitled   to  all   the  machinery  1075,  note;  Ex  parte  Daglish,  In  re 

fixed    to    the    freehold     (Mather    v.  Wilde,  L.  R.   8  Ch.  App.   1072;    /vjj 

Frazer,  2  Kay  and  J.  536;  25  L.  J.  parte  Barclay,  In  re  Joyce,  L.  H.  0 

Ch.   361;    Whitmore  v.   Empson,   23  Ch.   App.   576;    Batchelor   v.   Yates, 

Beav.   313;   26  L.  J.  Ch.  304);   but  38    Ch.    Div.    112. 
not  to  the  movable  fixtures,   which  63  Earl     of    Mansfield    v.     Hlack- 

vest    in    the    trustee.     Whitmore    v.  burne.  3  Scott  (N.  S.)    820;   0  Hiiig. 

Empson,    supra.     Usually,    however,  N.  ('.  427. 

the  mortgage  must  contain  a  clause  «^  Summer  v.   Bromilow,  34  L.  .1. 

authorizing  the  mortgagee  to  sever  Q.   B.   130. 


G4S 


OIL    AND    GAS. 


time  of  the  lease  and  not  those  thereafter  aoquired;  arjd  that  it 
\vas  not  the  intention  to  hind  the  lessee  to  continne  iOv  a  long 
term  of  years  the  repairs  of  railroads  which  might  have  become 
useless.  It  was  considered  that  the  terms  of  the  covenant  were 
satisfied  by  the  railroad  being  left  in  a  proper  state  for  the  re- 
laying of  rails  by  the  lessor.''^ 

§579.     Gas  and  oil  pipe  lines. 

We  have  already  seen  that  a  water  pipe  laid  across  an  ad- 
joining lot  to  supply  a  house  with  wat^^r  passes  with  a  convey- 


(Duke)  V.  Bates,  3 
F.  and  J.  381;  ."51  L.  J.  fli. 
Bird   V.   Crabb.   30   L.    J.   Ex. 


05  Beaufort 
DeG. 

481; 
318. 
So 
tures 


if  a  tenant  purchase  the  fix- 
of  his  landlord,  he  may  re- 
move them.  Ryall  v.  Rolle,  1  Atk., 
p.  175.  See  also  Handforth  v.  Jack- 
son, 150  Mass.  149;  22  N.  E.  Rep. 
634. 

The  owner  of  mineral  land  leased 
it  for  the  purpose  of  mining,  the 
lease  providing  that  all  timbers 
placed  in  the  shafts  should  be  re- 
garded as  fixtures;  and  in  case  of  a 
surrender  of  the  lease  the  lessee 
would  permit  a  re-entry  before  the 
actual  surrender  to  install  pump- 
ing machinery,  and  that  the  lessor 
should  have  the  right  to  buy  all 
mining  machinery  and  buildings 
erected  during  the  term,  and  if  he 
did  not  purchase  them,  the  lessee 
should  have  sixty  uays  after  the 
termination  of  the  lease  within 
which  to  make  a  renewal  of  them. 
Another  clause  provided  for  a  leas- 
ing by  the  lessor  of  the  premises, 
machinery  and  appurtenances.  It 
was  held  that  the  machinery  and 
appliances  on  the  land  were  trade 
fixtures,  placed  there  by  the  lessee, 
did  not  at  once  become  a  pirt  of 
the  freehold,  but  that  the  lessee  had 


such  an  interest  in  them  that  he 
could  place  a  chattel  mortgage 
upon ;  yet  upon  the  lessor  recover- 
ing possession  of  the  land  by  sum- 
mary proceedings  for  non-payment 
of  rent,  before  the  removal  of  such 
trade  fixtures  and  without  an  asser- 
tion of  a  right  by  th-°  lessee  to  re- 
move them  or  his  mo-tgagee,  they 
became  the  lessor's  property  as  a 
part  of  the  freehold,  and  the  mort- 
gagee could  not  thereaft/^r  remove 
them.  Massachusetts  National  Bank 
V.  Shinn,  IS  N.  Y.  App.  Div.  276; 
46  N.  Y.  Supp.  329. 

One  who  erects  a  building  on  an- 
other's land  by  license  may  reprove 
it,  if  its  removal  be  practicable  rnd 
works  no  serious  injury  to  the  lard, 
on  the  termination  of  the  licens**- 
Ingalls  V.  St.  Paul,  M.  and  M.  Rj" 
Co.,  39  Minn.  479;  40  N.  W.  Rep 
524. 

If  one  in  possession  of  land,  un* 
der  contract  of  purchase,  volun- 
tarily erects  a  house  thereon,  with- 
out either  an  express  or  implied 
agreement  with  the  land  owner  that 
it  shall  remain  personal  property, 
it  becomes  part  of  the  realty,  and 
belongs  to  the  owner  of  the  soil. 
Kingsley  v.  McFarland,  82  Me.  231; 
19    Atl.    Rep.    442. 


OIL    AND    GAS    LEASE    FIXTURES.  <>1*J 

ance  of  the  house.""  A  gas  coiiijuiiiy  wliicli  has  condemned  a 
right  of  way  fur  its  line  may  enter  and  remove  its  pipe  line 
when  the  supply  of  gas  has  failed;  hut  il  must  remove  them  at 
a  time  and  in  a  manner  least  harmful  to  the  land  owner,  and 
subject  to  the  payment  of  a  comjx^nsation  for  any  actual  injury 
to  growing  grain  or  grass.  Should  the  field  he  a  meadow,  then 
it  must  pay  for  all  substantial  injuries  to  the  turf  beyond  the 
mere  opening  and  tilling  of  the  trench  in  which  the  pipe  lies."^ 
The  right  to  remove  them  is  made  to  hinge  on  the  failure  of 
gas.*"*  Pipe  lines  of  artificial  and  natural  gas  companies  laid  in 
the  street,  with  the  consent  of  the  numicipality,  renuiin  the  j)er- 
sonal  property  of  the  company."^  But  where  the  pipe  line  was 
buried  two  and  a  half  to  three  feet  on  land  of  persons  from 
whom  the  i)ii)e  line  company  had,  by  deed,  acquired  a  right  of 
way,  and  was  used  to  carry  crude  petroleum,  it  was  held  that  it 
was  "  real  estate  "  within  the  meaning  of  the  Xcw  Jersey  tax 
law.'"  A  gas  company  that  lays  a  ])ipe  line  through  lands  with- 
out permission  of  the  owner  is  not  entitled  to  maintain  a  suit 
against  the  land  owner  to  enjoin  him  from  removing  it ;  for 
by  its  act  of  placing  it  in  the  soil  he  l>ccame  the  owner  of  it,  and 
the  pipe  line  cannot  be  treated  as  a  fixture.^^ 

fi«Philbri(k    v.    E\vin<i,    97    Mass.  C.   466;    Regina    v.    West  Middlesex 

133.  W.  \V.  Co.,   1  E.  and  E.  716;   Slief- 

67  Clements    v.    Philadelphia    Co.,  field  United  Gas  Co.  v.  Sheffield,  4 

184  Pa.  St.  28;   38  Atl.  Rep.  1090;  B.  and  S.   135. 

28  Pitts.  L.  J.    (N.  S.)   344;  41   \V.  co  Memphis  Gaslight  Co.  v.  Stat«, 

N.  C.  321;   39  L.  R.  A.  532.  6  Coldw.    (Tenn.)    310. 

8s  In    England    gas    pipes    in    the  to  state  v.  Berry.  52  N.  J.  L.  308; 

ground    are   taxed    or    rated    to    the  19    Atl.    Rep.    665. 
proprietors  in  the  parish  where  they  In   Texas   poles,   wires  and   lamps 

are  laid,  although  the  ownership  of  of     an     electric     lighting     company 

the  land  itself  may  be  in  other  in-  erected    in    the    street    for    lighting 

dividuals.     It  is  held  that  the  pro-  purposes,   are  real   property.    Keat- 

prietors  of  the  pipes  are  in  the  pos-  ing.  etc.,  Co.  v.  Marshall,  etc..  Co., 

session    of    tlie    space    they    occupy.  74  Tox.  605 ;   12  So.  \V.  Rep.  489. 
Regina    v.    Rockdale    W.    \V.    Co..    1  ti  Windfall,  etc.,   Co.    v.   Tcrwilli- 

M.  and  S.  634;   Regina  v.   Birming-  ger,    152    Ind.    364;    53    N.    E.    Rep. 

ham  Gas  Co.,  1  B.  and  C.  506;   Re-  284. 
gina  V.  Brighton  Gas  Co.,  5  B.  and 


CHAPTER  XXVIII. 

NUISANCES. 

§580.  Scope  of  chapter. 

§581.  Pollution  of  well  or  spring  by  artificial  gas. 

§582.  Pollution  of  running  streams. 

§58.3.  Pollution  of  subterranean  waters. 

§584.  Damages  occasioned  by  .storing  or  bringing  oil  on  land. 

§585.  Gases  destroying  trees  and  vegetation. 

§586.  Noisome   smells. 

§587.  Odors  from  operation  of  oil  wells  and  works. 

§588.  Other  disagreeable  odors  in  neighborhood. 

§589.  Degree  of  annoyance. —  Question  for  jury. 

§590.  Gas  or  oil  well  near  house  or  building. 

§591.  Business  authorized  by  government  no  defence. 

§592.  Duty  of  owner  to  prevent  continuance  of  damages. 

§593.  Evidence. 

§594.  Injunction. 

§595.  Enjoining  erection  of  gas  plant. 

§596.  Former  recovery  a  bar. 

§597.  Indictment  for  nuisance. 

§598.  Waste  of  natural  gas  or  oil. 

§580.     Scope  of  chapter. 

This  chapter  is  limited  to  instances  affecting  gas  and  oil, 
without  any  general  discussion  of  the  principles  applicable  to 
Xuisances,  except  as  th(>v  may  incidentally  be  noticed  in  con- 
sidering particular  instances. 

§581.     Pollution  of  well  or  spring  by  artificial  g-as. 

]\rost  cases  of  nuisances  with  reference  to  the  manufacture 
and  supply  of  gas  have  arisen  out  of  the  ]>ollution  of  wells  or 
springs.  If  a  company  permit  gas  to  escape  fvom  its  resen^oir 
or  pipes,  and  it  percolates  through  the  soil  and  enters  a  well  or 

650 


NUISANCES.  Cr>l 

spring,  injuring  the  ([ualitv  dt'  the  water,  or  jiolhitiiig  tlic  water 
before  it  enters  such  well  or  spring,  the  gas  company  will  bo 
liable  to  the  owner  for  the  damages  thus  done,  and  the  fact  that 
other  causes  contributed  to  the  injury  of  the  water  will  n(tt  l)ar 
an  action  for  damages,  though  it  may  be  shown  to  affect  their 
amount.^  So  if  the  wastings  from  the  refuse  of  its  gas  works 
enter  the  well  of  an  adjoining  property  owner,  rendering  it  unfit 
for  household  purposes  or  stock  it  will  be  liable,  such  ]xillution 
being  considered  a  nuisane(\"  The  company  is  liable  where  the 
rains  wash  the  deleterious  substances  from  the  refuse  of  the 
works  and  the  water  runs  along  and  enters  the  well  or  spring  at 
its  mouth,  corrupting  the  well  or  spring  water,  the  same  as  if  it 
had  soaked  through  the  soil.^  A  city  operating  gas  works  is 
liable  for  the  pollution  of  a  well  the  same  as  a  private  corpora- 
tion or  an  individual  would  be  if  it  had  been  operating  such 
works.*  A  stockholder  in  the  company  injured  by  its  act 
may  maintain  a  suit  to  abate  the  nuisance,  even  to  enjoin 
the  continuation  of  the  pollution.^  A  lessee  may  also  maintain 
an  action  for  the  pollution  of  a  well  upon  the  demised  prem- 
ises; *^  but  his  right  of  action  is  limited  to  recover  for  the 
injury  to  his  possessory  interest,  while  the  landlord  must  bring 
the  action  for  any  injury  to  the  reversion.*'     Directors  of  a  gas 

1  Sherman  v.  Fall  River  Works  228.  In  this  case  the  court  said: 
Co.,  5  Allen  213;  Columbus  Gas-  "A  municipal  corporation  owning 
light  Co.  V.  Freeland,  12  Ohio  St.  and  occupying  property  for  public 
392;  Millington  v.  Griffiths,  30  L.  uses  is  as  much  subject  as  a  private 
T.  65;  23  Gas  J.  215;  Ottawa  Gas-  person  to  the  rule,  sic  uteie  tuo  ut 
light  Co.  V.  Graham,  28  111.  73;  alicnum  non  laedas.  The  city  is  as 
Brown  v.  Illius,  25  Conn.  583;  Kin-  much  bound  as  an  individual  owner 
naird  v.  Standard  Oil  Co.,  89  Ky.  of  a  lot,  to  find  an  outlet  for  the 
468;  12  S.  W.  Rep.  937;  7  L.  R.  A.  water  on  it,  without  encroaching  on 
451.  his  neighbor."' 

2  Pensacola  Gas  Co.  v.  Pebley.  25  s  Hendrie  v.  Lea  Bridge,  etc.,  Co., 
Fla.   381;   5  So.   Rep.  593;   Hendrie  21  Gas  J.  949,  989. 

V.  Lea   Bridge,  etc.,  Co.,  21   Gas  J.  *•'>  Hendrie  v.  Lea  Bridge,  etc.,  Co., 

949.  989.  21   Gas  J.  949,  989. 

3  Brown  v.  Illius,  27  Conn.  84;  «  Sherman  v.  Fall  lUver  Iron 
Pottstown  Gas  Co.  v.  ]Murphy.  39  Works.  2  Allen  524.  •  See  Chapman 
Pa.  St.  257;  Grange  v.  Pately,  etc.,  v.  South,  etc.,  Co.,  61  Gas  J.  359, 
Co..   14  Gas  J.  309.  415,  460. 

4  Shuter  v.  Philadelphia,  3  Phila. 


652  OIL    AND    GAS. 

company  have  been  held  personally  liable  for  damages  caused 
to  a  well  by  noxious  substances  escaping  from  the  works  of  tho 
company  of  which  they  were  such  officers.^  Where  a  statute 
rendered  a  gas  companyliable  to  a  penalty  which  should  "  suffer 
any  wastings,  etc.,  to  be  conveyed  into  any  well,"  this  was  held 
to  render  it  liable  though  the  well  contaminated  had  been  dis- 
used by  the  owner  for  several  years.  It  was  also  held  that  the 
facts  of  non-user  and  the  closing  of  the  well  because  of  its  liaving 
been  polluted,  even  though  coupled  with  the  acceptance  by  tlie 
owner  of  the  use  of  substituted  wells  of  the  company,  was  not 
such  an  abandonment  of  the  former  as  to  alter  its  character  and 
make  it  no  longer  a  well,  nor  could  a  license  to  pollute  it  be 
inferred  from  such  a  state  of  facts.®  The  word  "  suffer  "  as 
above  quoted  was  applied  to  an  instance  of  this  kind,  and  the 
company  held  liable.  In  1854  a  gas  company  erected  a  tank  for 
gas  about  one  hundred  and  thirty  feet  from  the  plaintiff's  well, 
the  site  being  selected  by  the  company's  engineer,  and  the  tank 
erected  on  solid  sandstone  wath  proper  materials.  The  gas  com- 
pany knew  mines  in  the  neighborhood  had  been  worked,  but  did 
not  know  that  they  had  been  worked  under  or  near  any  part  of 
their  land.  In  1838  there  had  been  workings  under  half  of  the 
company's  land,  and  from  1848  to  1855  these  workings  had  been 
brought  to  within  one  hundred  and  eighty  feet  of  the  company's 
tank.  In  consequence  of  these  facts  the  bottom  of  the  gas  tank 
cracked,  and  the  wastings  in  it  flowed  out  and  through  the  soil  to 
the  plaintiff's  well.  It  was  held  that  the  gas  company  had  suf- 
fered the  wastings  to  flow  into  the  plaintiff's  well,  and  were 
liable  within  the  meaning  of  the  statute  quoted.® 

TMillington  v.  Griffiths,  etc.,  Co.,  10  Jur.    (N.   S.)    172;   9  L.  T.    (N. 

30   L.   T.   65;    23   Gas  J.   215.     See  S.)   694;   12  W.  R.  212. 

Rex  V.  Medley,  6  C.  and  P.  292.  Where   the   defense  was  that   the 

sMillington  v.  Griffiths,  30  L.  T.  plaintiff   did  not  use  the  water  be- 

65;    23    Gas    J.    215.  fore    it    was    befouled    for    domestic 

9  Hipkins     v.     Birmingham,     etc.,  purposes,     but     for     washing     and 

Co.,  5  H.  and  N.  74;   6  H.  and  N.  flushing  purposes,  and  for  such  pur- 

2.50;    9   Gas    J.    63,    778;    30    L,   J.  poses  it  was  as  fit  as  if  it  had  not 

Exch.   60;    9   W.   R.    168.     See   also  been    fouled,    the   judge    trying    the 

Parry  v.  Croydon  Gas  Co..  15  C.  B.  casie  said:      "A    man   is  entitled  to 

(N.  S.)   568;   11  C.  B.   (N.  S.)    578;  have   the  water  for  use   in  his  own 


NUISANCES. 


G5J 


§582.     Pollution  of  running  streams. 

Questions  of  the  pollution  of  running  streams  raise  more  dif- 
ficult questions  than  those  relating  to  the  pollution  of  wells  or 
springs.  It  is  often  difficult  to  reconcile  the  right  of  an  upper 
riparian  land  o^^Tier  to  the  use  of  the  water  passing  in  a  stream 
through  his  estate,  in  the  development  of  his  land,  with  the  right 
of  a  lower  owner  to  receive  the  stream  free  from  pollution.  But 
a  distinction  must  be  drawn  between  the  use  and  abuse  of  a 
running  stream  ;  as  for  instance,  where  it  has  become  polluted 
by  a  usage  of  a  part  of  the  water  which  is  returned  to  the  stream 
in  a  polluted  state,  and  where  deleterious  substances  are  thrown 
into  it  without  any  other  use  of  it  being  made.  Thus  where 
manufacturers  of  gas  threw  coal  tar  and  other  noxious  sub- 
stances on  their  gas  works  premises  near  a  stream  and  they 
percolated  through  the  soil,  into  an  adjoining  river  and  rendered 
its  water  impure,  it  was  held  that  the  lower  riparian  land  owner 


house,  even  thouj^^h  for  the  purpose 
of  washing  or  for  the  purpose  of 
flushing  his  drains,  uncontaniinated 
by  a  disgusting  smell  of  gas." 
Batcheller  v.  Tunbridge  Wells  Gas 
Co.,  65  J.  P.  680;  84  L.  T.  765. 

A  license  to  take  water  from  a 
well  gives  the  licensee  a  right  .of 
action  for  the  disturbance  of  his 
easement,  but  not  for  the  well's 
pollution.  Ottawa  Gaslight  Co.  v. 
Thompson,    39    111.    598. 

For  similar  cases,  see  Merrifiold 
V.  Lombard,  13  Allen  16;  Richmond 
Mfg.  Co.  V.  Atlantic  DeLain  Co., 
10  R.  I.  106;  Stockport  W.  W.  Co. 
V.  Potter,  7  H.  and  N.  160;  7  Jur. 
(N.  S.)  880;  31  L.  J.  Exch.  9; 
Pennington  v.  Brinsop  Hall  Co.,  L. 
R.  5  Ch.  Div.  760;  46  L.  J.  Ch. 
773.  The  owner  of  a  well  polluted 
is  not  bound  to  cement  it  in  order 
to  keep  out  the  odors  of  gas  or 
drainage  from  the  gas  works.  Co- 
lumbus, etc.,  Co.  v.  Freeland,  12 
Ohio  St.  392. 


In  Ottawa  Gaslight  and  Coke  Co. 
V.  Graham,  28  111.  73,  it  was  held, 
in  an  action  to  recover  damages  for 
pollution  of  a  well,  that  in  ascer- 
taining the  true  measure  of  dam- 
ages the  jury  must  consider  all  tne 
circumstances  connected  with  the 
injury,  including  the  cost  of  secur- 
ing a  suflicient  quantity  of  water 
equally  pure  wil.h  that  supplied 
from  the  well  before  its  injury, 
the  cost  of  keeping  the  conductors 
and  other  machinery  for  so  doing 
in  repair,  and  the  depreciation  of 
the  value  of  the  property  by  reason 
of  the  erection  of  tne  gas  works, 
but  if  the  property  would  sell  for 
the  same  amount,  independent  of 
a  rise  in  similar  property,  then 
there  would  be  no  loss,  but  if  it 
would  not.  then  the  difTerence  would 
be  the  damages  sustained.  See  also 
Ottawa  Gasliglit  and  Coke  Co.  v. 
Graham,  35  111.  346. 


054  OIL    AND    GAS. 

^vas  entitled  to  have  the  water  in  a  pure  condition ;  and  that  the 
gas  company  was  liable. ^"^  Pollutions  arising  from  the  working 
of  coal  mines  furnish  very  good  instances  of  the  first  class  of 
instances  we  have  referred  to  above.  Thus  where  a  mine  owner 
used  the  water  of  a  stream  running  through  or  by  his  premises 
to  wash  iron  ore  taken  from  his  mine,  without  which  right  to  so 
use  the  water  the  mine  would  be  valueless,  the  stream  being  the 
only  available  water,  and  after  using  the  water  taken  from  the 
stream  returned  it,  there  being  no  other  outlet  for  it,  he  resort- 
ing to  the  customary  and  best  means  of  purifying  it  before 
permitting  it  to  flow  back  into  the  stream,  it  w^as  held  that  the 
interest  of  the  public  and  of  an  important  industry  w'as  such 
that  the  general  rule  with  reference  to  the  pollution  of  streams 
must  be  modified  so  as  not  to  destroy  that  interest  and  such 
industry.  "  But  there  is  a  limit,"  said  the  court,  "  to  this  duty 
to  yield,  to  this  claim  and  right  to  expect  and  demand.  The 
water  course  must  not  be  diverted  from  its  channel,  or  so  dimin- 
ished in  volume,  or  so  corrupted  and  polluted,  as  practically 
to  destroy,  or  greatly  to  impair  its  value  to  the  lower  riparian 
owner."  "  In  a  Pennsylvania  case  it  appeared  that  a  coal  mine 
owner,  in  the  operation  of  his  mine,  pumped  the  water  from  a 
stream  and  returned  it  in  such  a  state  as  to  render  the  entire 
stream  useless  for  domestic  purposes;  and  it  was  held  that  the 
lower  owner  was  without  a  remedy,  his  rights  ex  necessitate  giv- 

10  Carhart  V.  Auburn  Gaslight  Co.,  Pa.  St.  180;  Gallagher  v.  Kem- 
22  Barb.  297 ;  Rex.  v.  Medley,  6  C.  merer,  144  Pa.  St.  509 ;  22  Atl.  Rep. 
and  P.  292  (indictment)  ;  Robinson  970;  Elder  v.  Lykens  Valley  Coal 
V.  Coal  Co.,  50  Cal.  460;  People  Co.,  157  Pa.  St.  490;  27  Atl.  Rep. 
V.  Gold- Run,  etc.,  Co.,  66  Cal.  138;  545;  Hindson  v.  Markle,  171  Pa.  St. 
4  Pac.  Rep.   1152;    Payne  &  Butler  138;   33  Atl.  Rep.  74. 

V.  Providence  Gas  Co.,  31  R.  I.  295;  A  city,   under  a  statutory  power 

77  Atl.  Rep.  145.  to    sue    to    restrain    a    nuisance    to 

11  Tennessee,  etc.,  Co.  v.  Hamil-  water  courses  connected  with  its 
ton,  100  Ala.  252;  14  So.  Rep.  107;  water  works,  cannot,  as  a  public 
Bear  River,  etc.,  Co.  v.  N.  Y.  Min-  agent,  sue  to  restrain  a  public  nui- 
ing  Co.,  8  Cal.  327;  Satterfield  v.  sance,  such  statute  merely  author- 
Rowan,  83  Ga.  187;  9  S.  E.  Rep.  izing  it  to  sue  as  an  individual 
677;  Edwards  v.  Allouez  Mining  might  for  the  protection  of  its  pri- 
Co.,  38  iMich.  46;  Nelson  v.  (yXeal,  vate  property.  Newark,  etc.,  Board 
1  Mont.  284;  Columbus,  etc.,  Co.  v.  v.  Passaic,  45  N.  J.  Eq.  393;  18 
Tucker,   48    Ohio   St.   41;    26   N.   E.  Atl.  Rep.  106. 

Rep.    030;    Brown    v.    Torreuce,    88 


NUISANCES.  C55 

ing  way  to  the  interests  of  the  coiiuminity,  in  order  to  iH-rniit 
the  development  of  the  natural  resources  of  the  country.  In 
passing  on  the  case  the  court  said:  "  It  will  be  observed  that 
the  defendants  have  done  nothing  to  change  the  character  of 
the  water,  or  to  diminish  its  jnirity,  save  what  results  from  the 
natural  use  and  enjoyment  of  their  own  property.  Tlicy  have 
brought  nothing  on  to  the  land  artificially.  The  water  as  it  is 
poured  into  Meadow  Brook  is  the  water  which  the  mine  nat- 
urally discharges ;  its  impurity  arises  from  natural,  not  artificial 
causes.  The  mine  cannot,  of  course,  be  operated  elsewhere 
than  where  the  coal  is  naturally  found,  and  the  discharge  is  a 
necessary  incident  to  the  mining  of  it.  It  must  be  conceded, 
we  think,  that  every  man  is  entitled  to  the  ordinary  and  natural 
use  and  enjoyment  of  his  property.  The  defendants,  being  the 
owners  of  the  land,  have  a  right  to  mine  the  coal.  It  may  be 
stated,  as  a  general  proposition,  that  every  man  has  the  right  to 
the  natural  use  and  enjoyment  of  his  own  property j^^Bdrif  whilst 
lawfully  in  such  use  and  enjoyment,  without  negligence  or 
malice  on  his  part,  an  unavoidable  loss  occurs  to  his  neighbor, 
it  is  damnum  absque  injuria,  for  the  rightful  use  of  one's  own 
land  mav  cause  damajje  to  another  without  anv  leg-al  wronff. 
Mining  in  the  ordinary  and  usual  form  is  the  natural  user  of 
coal  lands;  they  are,  for  the  most  part,  unfit  for  any  other  use. 
'  It  is  established,'  says  Cotton,  L.  J.,  in  West  Cumberland  Iron 
Co.  v.  Kenyon,^'"  '  that  taking  out  mineral  is  a  natural  use  of 
mining  property,  and  that  no  adjoining  proprietor  can  complain 
of  the  result  of  careful,  proper  mining  operations.'  In  the  same 
case,  Brett,  L.  J.,  says:  'The  cases  have  decided  that  where 
the  maxim  sic  utere  tuo  id  alienuni  non  laedas  is  applied  to 
landed  property,  it  is  subject  to  a  certain  modification ;  it  being 
necessary  for  the  plaintiflF  to  show,  not  only  that  he  has  sustained 
damage,  but  that  the  defendant  has  caused  it  by  going  Ix'vond 
what  is  necessary  in  order  to  enable  liitn  to  have  the  natural  use 
of  his  own  land.'  The  riirht  to  mine  conl  is  not  a  nuisanee  in 
itself.  It  is,  as  we  have  said,  a  right  incident  to  the  ownership 
of  coal  property,  and  when  exercised  in  the  ordinary  manner, 

12  L.  R.  11  Ch.  Div.  782;  48  L.  J.  Ch.  793;  40  L.  T.  703. 


656  oil.    AND    GAS. 

and  with  due  care,  the  owner  cannot  be  held  liable  for  perinit- 
ting  the  natural  flow  of  mine  water  over  his  own  land,  into  the 
water  course,  by  means  of  which  the  natural  drainage  of  the 
country  is  affected.  There  are,  it  is  well  known,  percolations  of 
mine  water  into  all  mines ;  whetlier  the  mine  be  operated  by  tun- 
nel, sloj)e  or  shaft,  water  will  accumulate,  and,  unless  it  can  be 
discharged,  mining  must  cease.  The  discharge  of  this  acidu- 
lated water  is  practically  a  condition  wpou  which  the  ordinary 
use  and  enjoyment  of  coal  lands  depends ;  the  discharge  of  the 
water  is  therefore  part  and  parcel  of  the  process  of  mining,  and 
as  it  can  only  be  effected  through  natural  channels,  the  denial  of 
this  right  must  inevitably  produce  results  of  a  most  serious  char- 
acter to  this,  the  leading  industrial  interest  of  the  State.  The 
defendants  were  engaged  in  a  perfectly  lawful  business,  in 
which  they  had  made  large  expenditures,  and  in  which  tJie  inter- 
ests of  the  entire  community  were  concerned ;  they  were  at  lib- 
erty to  carry  on  that  business  in  the  ordinary  way,  and  were  not, 
while  so  doing,  accountable  for  consequences  which  they  could 
not  control ;  as  the  mining  operations  went  on,  the  water  by  the 
force  of  gravity  ran  out  of  the  drifts  and  found  its  way  over 
the  defendant's  own  land  to  the  Meadow  Brook.  It  is  clear  that 
for  the  consequences  of  this  flow,  which  by  the  mere  force  of 
gravity,  naturally,  and  without  any  fault  of  the  defendants,  car- 
ried the  water  into  the  brook  and  then  to  the  plaintiff's  pond, 
there  could  be  no  responsibility  as  damages  on  the  part  of  the 
defendants.  But  it  does  not  appear  from  any  evidence  in  this 
cause,  that  the  mine  was  conducj:ed  by  the  defendants,  in  any 
but  the  ordinary  and  usual  mode  of  mining  in  this  country." 
The  deeper  strata  can  only  be  reached  by  shaft,  and  no  shaft 
can  be  worked  until  the  water  is  drawn.  A  drift  is  in  some 
sense  an  artificial  opening  in  the  land  and  accumulates  and  dis- 
charges water  in  a  greater  volume  and  extent  than  would  other- 
wise result  from  purely  natural  causes,  yet  mining  by  drift  has, 
as  we  have  seen,  been  held  to  be  a  natural  user  of  the  land.  So, 
too,  we  think,  according  to  the  present  practice  of  mining,  the 
working  of  the  lower  strata  by  shaft,  in  the  usual  and  ordinary 
way,  must  be  considered  the  natural  user  of  the  land  for  the 
taking  out  of  the  coal,  which  can  be  reached  by  shaft  only ; 


NUISANCES.  Gr>7 

and,  as  the  water  cannot  be  discharged  by  gravity  alone,  it  must 
necessarily,  as  part  of  the  process  of  mining,  be  lifted  to  the 
surface  by  artificial  means,  and  thence  be  discharged  through  the 
ordinary  natural  channels  for  the  drainage  of  the  country.  We 
do  not  say  that  a  case  may  not  arise  in  which  a  stream,  from 
such  pollnlion,  may  not  become  a  nuisance,  and  that  tlic  ])ublic 
interests  as  involved  in  the  general  health  and  well  being  of 
the  community  may  not  require  the  abatement  of  that  nuisanc(\ 
This  is  not  such  a  case;  it  is  shown  that  the  communiiy  in  ami 
around  the  city  of  Scranton,  inchnling  the  complainant,  is 
supplied  with  abundant  pure  water  from  other  sources ;  there 
is  no  complaint  as  to  any  injurious  effects  from  the  water  to  the 
general  health ;  the  community  does  not  complain  on  any 
grounds.  The  plaintiff's  grievance  is  for  a  mere  personal  in- 
convenience, and  we  are  of  opinion  that  mere  private  personal 
inconvenience,  arising  in  this  way  and  under  such  circum- 
stances, must  yield  to  the  necessities  of  a  great  public  industry, 
which,  although  in  the  hands  of  a  private  corporation,  sub- 
serves a  great  public  interest.  To  encourage  the  development 
of  the  great  natural  resources  of  a  country,  trifling  inconven- 
iences to  particular  ])ersons  must  sometimes  give  way  to  the 
necessities  of  a  great  community."  ^^  A  case  of  polluting  a 
stream  of  water  in  the  operation  of  an  oil  well  arose  in  this 
same  State.  The  owner  of  the  well  in  boring  it  pumped  a 
large  quantity  of  salt  water  from  it,  into  a  storage  tank,  and 
this  he  drew  off  and  allowed  to  flow  by  a  natural  depression 
over  plaintiff's  adjoining  land.  The  plaintiff  afterwards  di- 
verted it  into  a  neighbor's  brook,  by  plowing  a  ditch  on  his  own 
land  along  the  line  of  depression,  thus  rendering  the  water  in 
the  brook  unfit  for  use.  The  owner  of  the  well  claimed  he  was 
exempt  from  liability  under  the  case  just  quoted  from,  but  the 
court  did  not  so  consider  the  matter,  and  in  passing  on  the  case 
said:  "  Tf  the  expense  of  preventing  the  damage  ...  is 
such  as  practically  to  counterbalance  the  expected  profit  or  bene- 
fit, then  it  is  clearly  unreasonable,  and  beyond  what  he  couM 

13  Pennsylviuiia    Coal    Co.   v.   San-  The  owner  of  oattlo  tiriiikiiif,' from 

derson,  113  Pa.  St.  120;   6  All.  Rep.  a    stream    (lowing   tiirongli    iiis   land 

453;    overruling    same    case    as    le-  may  recover  their  value  if  tliey  die 

porte<l  in  8(5  Pa.  St.  401,  and  in  04  from    drinking    the   water    wliere    it 

Pa.    St.    302.      Payne    &    Hutler    v.  lias  been  iw)lluted  by  the  defendant; 

Providence  Co.,  31  R.  I.  295;  77  Atl.  and    he    need    not    sliow    they    were 

Rep.   145.  in  a  healthy  condition  prior  to  tiie 


G58  OIL    AND    GAS. 

justly  be  called  ni)on  to  assume.  If,  ou  the  other  hand,  how- 
ever, large  in  actual  amount,  it  is  small  in  proportion  to  the 
gain  to  himself,  it  is  reasonable  in  regard  to  his  neighbor's 
rights,  and  he  should  pay  it  to  prevent  damage,  or  should  make 
compensation  for  the  injury  done.  Between  these  two  extremes 
lies  a  debatable  region  where  the  cases  must  stand  upon  their 
own  facts,  under  the  general  rule  that  can  be  laid  down  in  ad- 
vance, that  the  expense  required  would  so  detract  from  the 
purpose  and  benefit  of  the  contemplated  act  as  to  be  a  sub- 
stantial deprivation  of  the  right  to  the  use  of  one's  own  prop- 
erty. If  damages  could  have  been  prevented  short  of  this,  it  is 
injuria  which  will  sustain  an  action."  "  But  where  the  rights 
of  the  })ublic  are  concerned,  a  different  rule  prevails  than  in 
instances  of  a  private  character.  Thus  where  oil  land  owners 
in  operating  the  land  for  oil,  after  the  separation  of  the  oil 
from  the  salt  water,  permitted  the  latter  to  run  out  upon  the 
surface,  and  then  to  run  into  a  stream  from  which  a  city  drew 
its  water  supply,  which  was  thereby  rendered  unfit  for  domestic 
use,  the  rules  laid  down  above  were  held  t-^  not  apply,  the  rights 
of  the  public  standing  on  higher  ground  than  the  personal  in-, 
convenience  and  injury  of  a  private  citizen.  The  fact  that  the 
city  was  furnished  water  by  a  private  corporation  was  held  not 
to  lessen  the  right  of  the  public  to  insist  that  the  water  should 
not  be  polluted  ;  but  the  court,  in  reversing  the  case,  ordered 
an  in(|uiry  into  the  extent  and  value  of  the  oil  operations, 
whether  the  wells  could  be  worked  without  the  pollution  of  the 
stream,  whether  the  water  works  company  could  obtain  a  sup- 
ply elsewhere,  and  the  probable  expense.^° 

time  tliev  drank  the  polluted  water.  Co.    v.    IMc^Iillion,     101     Ala.     130; 

Benjamin  v.  Gulf  C.  &  F.   Kv.  (>).,  49  So.  Eep.  880. 

49   Tex.    Civ.  App.   473;    108  \S.    \V.  i-t  Pfeiller  v.   Brown,    1G5   Pa.    St. 

Rep.    408;    Mexia    L.    &    P.    Co.    v.  267:   30  Atl.   Rep.  844;   Hindson  v. 

Johnson  (Tex.  Civ.  App.),  120  S.  W.  Markle,    171    Pa.    St.    138;    33   Atl. 

Rep.   534.  Rep.   74. 

The  owner  of  land  poisoned  by  the  is  Commonwealth    v.    Russell,    172 

overflow  of  a   polluted   stream   may  Pa.  St.  50(). 

recover  damages  from  the  person  Indictment  lies  for  a  pollution 
polluting  it;  and  in  an  action  for  of  a  river  with  the  refuse  of  gas 
that  j)urpose  he  may  show  tliat  the  works.  Rex  v.  Medley,  6  C.  and 
land  became  cloddy  after  it  was  P.  292.  See  Manhattan  Gaslight 
poisoned,  the  size  and  existence  of  Co.  v.  Barker,  7  Robt.  (X.  Y. )  523; 
the  clods  being  a  circumstance  to  be  Indian  Refining  Co.  v.  Common- 
considered  in  determining  whether  wealth,  134  Ky.  822;  117  S.  W. 
the  agricultural  value  of  the  land  Rep.  274;  34  Ky.  L.  Rep.  — . 
was  affected.     Tennessee   Coal,   etc., 


NUISANCES.  G59 

§  583.     Pollution  of  subterranean  waters. 

A  somewhat  different  niK'  ai)i)lies  to  lial)ility  for  the  pollu- 
tion of  subterranean  currents  or  streams  of  water.  An  Knj^li.sh 
ease  furnishes  an  illustration  of  the  modern  rnle  with  reference 
to  the  jx)llution  of  underground  currents.  The  water  fur  two 
wells,  owned  by  two  persons,  was  drawn  from  the  same  strata. 
The  water  in  the  lower  well  rose  by  natural  pressure  to  within 
twenty-seven  feet  of  the  surface,  and  was  then  pumped  out. 
This  well  was  befouled  by  sewerage  jwurcd  into  the  ujiper  well 
by  its  owner.  It  was  held  that  the  owner  of  the  lower  well 
was  entitled  to  an  injunction  to  restrain  the  owner  of  the  upper 
well  from  pouring  sewage  into  it,  or  permitting  it  to  run  in  — 
to  prevent  him  so  using  his  well  as  to  pollute  the  lower  well  — 
and  to  recover  damages  for  the  injury  he  had  already  suffered. 
In  passing  on  the  case  the  court  used  the  following  language, 
from  which  it  appears  that  the  true  cause  of  action. was  that  the 
owner  of  the  polluted  well  allowed  his  impure  sewage  to  escape 
from  his  premises  to  the  lower  premises ;  and  the  fact  that  it 
reached  the  lower  premises  by  an  underground  current  instead 
of  a  surface  stream  was  quite  immaterial .  "  But  it  is  equally 
clear  that  everyone  has  a  right  to  appropriate  percolating 
water,  at  all  events  whilst  it  is  under  his  land.  I^o  one  has  any 
property  in  it  —  no  one  has  any  right  to  have  it  come  on  to 
his  land,  but  everyone  has  an  unlimited  right  to  appropriate  it 
whilst  it  is  under  his  land,  and  may  take  it  all,  so  as  to  prevent 
it  going  on  to  the  land  of  others.  His  neighbor  also  below 
him  has  an  equal  right,  before  the  person  above  has  taken  and 
appropriated  it,  to  take  it  all.  He  has  a  right  to  take  it  to  the 
extent  that  he  may  cause  the  water  of  tlie  land  above  to  come 
upon  his  land  and  to  take  it  so,  as  to  absolutely  dry  the  land 
above.  Therefore  no  one  has  any  property  in  percolating 
water,  but  everyone  has  a  right  to  appropriate  the  whole  of  it. 
Then  arises  the  question  as  to  whether,  in  respect  of  such  water, 
any  of  those  persons  has  any  right  Avhatever  as  against  the 
others.  I  take  it  that  this  ]x>rcolating  water  is  a  common  reser- 
voir or  source  in  which  no  one  has  any  property,  but  I'rom  which 
anyone  has  a  right  to  appropriate  any  qnantit /.  Then  tlie 
question  is  whether  anyone  who  has  that  unlimiied  right  at  ap- 
propriation, but  has  no  greater  rights  than  tsny  of  the  others 


660  OIL  AND   GAS. 

Mho  have  it,  has  a  right  to  contaminate  the  common  reservoir, 
or  whether  he  is  bound  not  to  do  anything  which  shall  prevent, 
not  tinly  his  immediate  noighhors,  but  anyone  of  those  who  have 
that  uuiiniitcd  right,  from  obtaining  its  true  vahic  It  is  said 
that  the  defendant  in  jxiUuting  this  common  source,  did  not  \yo\- 
lute  that  in  which  the  plaintiif  had  any  property.  That  is 
true.  If  all  the  plaintiff  can  show  is  that  the  common  source 
Avas  contamiTiatcd,  he  cannot  boture  he  has  appropriated  any 
part  of  it,  maintain  any  action  in  respect  of  the  contamination. 
I  do  not  think  that  a  man  can,  by  experimenting  oif  or  on  his 
own  land,  and  finding  that  the  water  was  contaminated  before 
it  came  on  to  his  land,  maintain  an  action,  for  the  water  did  not 
belnng  to  him,  and  he  had  not  appropriated  it.  But  it  does  not 
follow  that  he  cannot  maintain  an  action  when  he  has  appropri- 
ated it,  and  finds  that  the  water  which  he  had  a  right  to  ap^ 
propriate,  has  been  contaminated  by  that  which  another  person 
has  done  to  the  common  source ;  that  is,  although  no  one  has 
any  property  in  that  source,  yet  inasmuch  as  everyone  has  a 
right  to  appropriate  it,  he  has  a  right  to  appropriate  it  in  the 
natural  state,  and  no  one  has  a  right  to  contaminate  the  common 
source  so  as  to  prevent  his  neighbor  having  his  right  of  ap- 
propriation. The  next  point  was  that,  assuming  that  to  be  true, 
yet,  if  the  person  who  has  that  right  of  appropriation  can  only 
exercise  it,  or  has  done  so  by  artificial  means,  the  water  he 
took  would  not  have  been  contaminated,  then  the  percolated 
water  which  he  got,  must  be  said  to  have  been  polluted  by  his 
act,  and,  therefore,  he  could  not  maintain  an  action.  I  cannot 
think  that  that  is  a  true  proposition.  The  question  of  natural, 
as  distinguished  from  unnatural  user,  never  applies  to  a  plain- 
tiff. A  man  has  a  right  to  exercise  that  natural  user  with  all 
the  skill  of  which  he  is  capable.  That  question  is  applicable  to 
a  defendant.  Therefore,  it  seems  to  me,  that  as  long  as  a  plain- 
tiff does  not  use  any  means  which,  as  regards  his  neighbor,  are 
unlawful,  but  f)nly  uses  lawful  means,  however  artificial  or 
extensive  those  means  may  be,  he  has  a  right  to  use  them,  and 
the  right  to  appropriate  the  common  source  is  not  diminished 
by  reason  of  using  those  means.  Therefore,  however  he  may 
appropriate  the  water  from  the  common  source,  he  has  a  right 
ito  have  that  source  uncontaminated  by  any  act  of  any  other  per- 
son.     The  question  of  natural  or  unnatural  user  only  goes  to 


this,  tliat,  although  a  defendant  ckics  contaniinato  water  or  any- 
thing else  which  goes  on  to  his  neighbor's  huul,  yet,  if  that  act 
is  only  the  natural  user  of  the  land,  then,  although  by  that  act 
he  does  injure  his  neighbor,  he  is  not  liable,  because  otherwise 
he  cannot  use  his  land  at  all.  I  must  say,  further,  with  regard 
to  this  common  source  in  respect  of  which  a  right  of  appropria- 
tion belongs  to  every  one,  the  question  does  not  depend  upon 
persons  being  contiguous  neighbors,  but  if  it  can  be  shown  that 
in  fact  the  defendant  has  contaminated  the  common  source,  it 
signifies  not  how  far  the  jilaiiitiff  is  from  him,  if  it  is  proved 
that  he  has  been  injured  by  what  the  defendant  has  done."  ^^ 
There  are  cases,  however,  which  hold  that  a  land  owner  is  not 
liable  to  another  laud  owner  injured  by  noxious  substances 
placed  on  his  land  wdiich  penetrate  to  subterranean  streams  and 
are  carried  on  to  the  land  of  such  other  land  owner  by  such 
streams,  to  his  damage ;  and  the  fact  that  he  continues  to  place 
such  noxious  substances  on  his  land  after  he  is  informed  of  the 
damage  tJiey  are  inflicting  upon  his  neiglilK)r,  will  not  render 
him  liable  for  tlie  damage  inflicted  after  receiving  such  notiee.^^ 
But  the  true  rule  would  seem  to  be  that  the  pollution  of  subter- 
ranean streams  will  not  render  anyone  causing  it  liable  until 
he  is  informed  of  the  damage  such  pollution  is  causing,  and 
from  thence  on  he  will  he  liable.^"* 

§584.     Damages  occasioned  by  storing  or  bringing  oil  on  land. 

Every  one  who  brings  oil  or  stores  it  on  land  must  confine  it 
securely  in  pipes,  tanks  or  reservoirs,  or  at  least  not  ]x^rmit  ii 
to  escape  on  to  the  land  of  another,  whether  by  flowing  over 
i.iC  surface  or  percolating  through  the  soil,  and  if  he  do  not,, 
tveii  though  guilty  of  no  negligence,  he  will  be  liable  fur  wliat- 

i«  Ballard    v.    Tomlinson,    20    Ch.  Dillon    v.    Acme    Oil    Co..    40    Ilim 

Div.    115;    .54   L.  J.  Cli.  4,54;    .52   L.  5G5. 

T.    942;    33    W.    R.    533;    40    .J.    P.  is  Pennsylvania  Coal    Co.   v.    San- 

G92;     24     Am.    L.     Rcfi.     634.     See  clerson,  11.3  Pa.  St.  12(5;  (I  All.  l{ep. 

Womerslev  v.  Church,   17  L.  T.    (N.  453.     See  Kennard   v.  Standard  Oil 

S.)    190;  'King  V.   Oxford  Co-opera-  Co..    SO    Ky.    468;     12    S.    \V.    Rep. 

live    Society.   51    L.   T.   94;    Ball    v.  037:    7   L.   R.  A.  451,  where  knowl- 

Nye,  90  Mass.  582;   Cnrhart  v.  An-  edge   tliat    its   oil    was   damapinp   a 

burn   Gasliglit  Co.,   22   Barb.  297.  spring  of  water  was  held  not  neces- 

17  Brown   v.   lllius,  27   Conn.  84;  sary,  in  order  to  render  tiie  oil  com- 
pany liable. 


062  oil.    AAD    GAS. 

ever  damages  is  suffered  by  the  oil  escaping.^"  This  is  true 
of  a  refining  company,  although  the  business  of  refining  oil  is 
perfectly  legitimate ;  yet  it  must  not  permit  the  oil  to  escape 
from  its  premises.^"  If  the  owner  of  the  oil  contaminate  on 
his  own  ground  the  sources  of  a  spring  or  well  on  the  ground  of 
another,  by  spilling  or  pouring  oil  upon  his  own  ground,  he  will 
be  liable  to  the  owner  of  such  spring  or  well,  to  the  extent  of 
the  damage  done.'^ 

§585.     Gases  destroying  trees  and  vegetation. 

The  fumes  and  gases  flowing  from  the  manufacture  of  gas  are 
often  so  strong  and  noxious  as  to  destroy  or  injure  vegetation 
and  crops.  When  such  is  the  case  the  person  injured  is  not  only 
entitled  to  recover  damages  which  he  has  thus  suffered,  but  also 
may  maintain  an  action  to  enjoin  the  further  manufacture  of 
gas  in  a  manner  injurious  to  his  trees,  vegetation  or  crops ;  and 
usually  mere  delay  in  bringing  the  suit  cannot  be  taken  as  an  ac- 
quiescence in  the  conduct  of  the  gas  manufacturer.-^  But  where 
vapors  from  large  copper  works  Avere  injurious  to  trees,  the 
court  instructed  the  jury  that,  although  every  man  must  so  use 
his  property  as  to  not  injure  the  property  of  another,  yet  the  law 
did  not  regard  trifling  inconveniences ;  that  everything  must  be 
looked  at  from  a  reasonable  point  of  view,  and  therefore  in  a 
case  of  injury  occasioned  by  noxious  vapors  from  a  manufac- 
tory, to  be  actionable,   the  injury  must  be  such  as  to  visibly 

i9Hauck  V.   Tidewater  Pipe  Line  etc.,  Co.,   60  Minn.  296;    62   K   W. 

Co.,    153   Pa.   Rt.   366;    26  Atl.   Ren.  Rep.    .3.36;    Bradv    v.    Detroit,    etc., 

644;    20  L.  R    A.  642;   McGre£ror  v.  Co.,   102  Mich.  277;   62  N.  W.  Rep. 

Camden,   47   W.  Va.   193;    34   S.   E.  687;    26   L.   R.  A.    17.5. 
Rep.   936;   Houston   &  T.   C.   R.   Co.  The  owner  of  a  frame  automobile 

V.  Crook,  56  Tex.  Civ.  App.  2?;   120  garajre,     adjacent    to     other     frame 

S.  W.  Rep.  594.  buildinfrs,  licenser!  to  store  one  bar- 

20  Gavijran   v.    Atlantic   Rep.    Co.,  rel  in  the  building,  will  be  enjoined 

186  Pa.  St.  604;   40  Atl.  Rep.  834;  from   introducing   gasoline   into   the 

Contra,  Dillon  v.  Acme  Oil  Co.,  49  tanks  of  the  automobiles  inside  the 

Hun  565.  building,   and   from  storing  automo- 

Nor  must  a  railroad  company  per-  biles  with  gasoline  in  the  tanks  in- 

mit  it  to  escape  from   its  premises,  side  the  building.     O'Hara  v.  Nelson, 

although  it  be  impossible  to  transfer  71  N.  J.  Eq.  161;  63  Atl.  Rep.  836. 
it   into    the    tanks   without    leakage.  '-'2  Brondlx^nt  v.  Imperial  Gaslight 

Houston  &.  T.  C.  R.  Co.  v.  Crook,  56  Co.,  7   H.   L.  Cas.   600;    3  .Jur.    (N". 

Tex.  Civ.  App.  28;    120  S.  W.  Rep.  S.)    221;    5   Gas   J.    342;    9   Gas  J. 

594.  751;    affirming   7    DeG.    M.    and    G. 

2iKennard    v.    Standard    Oil    Co.,  436:   26  L.  J.  Ch.  276;   5  Jur.    (N. 

89  Ky.  468;    12  S.  W.  Rep.  937;   7  S.)    1319;   Sholts  Iron  Co.  v.  Inglis, 

L.  R.  A.  451;  Berger  v.  Minneapolis,  L.  R.   7  App.  Cas.  518. 


NUISANCES.  6G3 

diminish  the  vahic  of  the  projKTty ;  that  the  hicalitV  and  all  dthcr 
circumstances  must  he  taken  into  consideration,  and  in  vicini- 
ties where  great  nninufaetnring;  works  had  h<H'n  and  were  hidng 
carried  on,  parties  nmst  stand  on  extreme  rights.  On  apj)eal 
this  direction  was  held  to  he  a  correct  statement  of  the  law.*"' 
Where  the  damages  are  slight,  or  out  of  all  proportion  to  the 
damages  that  wonld  ho  inflicted  hy  enjoining  the  manufacture 
of  the  product  sought  to  he  enjoined,  the  court  will  refuse  the 
injunction  and  leave  the  complainant  to  his  action  for  dam- 
ages.^* Damages  have  heen  allowed  for  grain  injured  hy  gases 
escaping  from  a  hrick  kiln,"^  so  from  coke  ovens.*" 

§586.     Noisome  smells. 

Unwholesome  and  noisome  smells  proceeding  from  the  manu- 
facture of  gas  will  render  the  manufactor  liable  in  damages, 
if  sufficient  to  produce  deleterious  results  upon  the  persons  liv- 
ing in  the  region  affected  by  thcni.  "  Gas  works,"  said  the 
court,  "  are  to  be  placed  in  the  class  of  erections  which  are  not 
within  the  ordinary  and  usual  purposes  to  which  real  estate  is 
applied,  and  whenever  they  create  a  special  injury  they  are  to 
be  regarded  as  a  private  nuisance,  for  which  an  action  will  lie 
in  respect  to  the  special  injury,  c.  g.,  a  swine  sty,"^  a  lime  kiln,"** 
a  dye  liouse,"'^  a  tallow  chandler,  a  furnace,^**  a  coke  oven,*^° 
a  brew  house, ^^  a  fertilizing  plant, *^^  or  a  tannery."^-  It  is  suf- 

23  St.  Helen's  Smelting  Co.  v.  Tip-  10.52:  IS  L.  R.  A.  75G.  See  Camp- 
ping,  11  H.  L.  Cas.  G42;  35  L.  J.  bell  v.  Seaman,  63  N.  Y.  5GS ;  20 
Q.  B.  G6;    11  Jur.    (N.  S.)    785;    12       Am.  Rep.  5G7. 

L.  T.    (X.  S.)    77G;    13  W.  K.   10S3.  ^s  Robb  v.    Carnegie,    145   Pa.   St. 

See    Sturges    v.    Bridgman,    11    Ch.  324;   22  Atl.  Rep.  649;    14  L.  R.  A. 

Div.  852;  48  L.  J.  €h.  785;  41  L.  T.  329. 

219;    28    W.    R.    200.      See    a    like  2"  9  Rep.  59. 

ruling.     People  v.  Transit  Develop-  2s  2  Black  141. 

ment  Co.,  131  N.  Y.  App.  Div.  174;  29  Hutt  136. 

115  N.  Y.  Supp.  297.  so  Cro  Car  570. 

24  Cooke  V.  Forbes,  L.  R.  5  Eq.  *3o  McClung  v.  Xorth  Bend,  etc., 
166;  37  L.  J.  Ch.  178;  17  L.  T.  Co.,  31  \Vk\\.  L.  Bull.  9;  9  Ohio 
(X.  S.)  371;  Attornej'  General  v.  Cir.  Ct.  Rep.  259;  G  Ohio  Cir.  Dec. 
lilanchester    Corporation    [1893],    2  243;    1  Ohio  Dec.  247. 

Ch.  87;   G2  L.  J.  Ch.  459;   G8  L.  T.  3i  R.  Pal.  139;  Hutt  13G. 

608;  41  W.  R.  459;  57  J.  P.  343;  3  *3i  Fertilizing  Co.   v.   Hyde  Park, 

R.   427.  97  U.  S.  659. 

ss  Fogarty  v.  Junction  City,  etc.,  32  Carhart     v.     Auburn     Gaslight 

Co.,    50    Kan.    478;    31    Pac.    Rep. 


GG4:  OIL    AND    GAS, 

ficicnt  that  the  manufacture  of  gas  creates  smells,  smokes,  and 
noxious  odors,  so  annoying  to  an  individual  residing  near  the 
company's  works  as  to  render  his  premises  uncomfortable  for 
luibitation.  In  such  an  instance  there  is  a  private  nuisance,  for 
■which  the  company  is  liable.^^  It  is  immaterial  that  the  gas 
company  used  due  care  to  prevent  the  escape  of  gas ;  for  it  is 
the  invasion  of  the  premises  of  another  that  gives  the  right  of 
action.^*  The  rule  extends  even  to  the  manufacturers  of  fer- 
tilizers and  phosphates  from  which  gases  escape  and  affect  the 
paint  of  houses  nearby,  and  eat  the  nails  of  shingles  so  as  to 
render  them,  loose,  and  make  living  in  the  house  uncomfortable 
and  unhealthy,  or  has  driven  away  customers  from  the  plain- 
tiff's store.^''  Mere  annoyance  may  not,  however,  be  sufficient, 
especially  if  the  action  is  to  enjoin  the  use  of  the  plant.  Some 
gas  will  necessarily  escape ;  and  any  smell  of  gas  is  annoying, 
though  not  necessarily  unhealthy  to  that  degree  that  it  will 
affect  the  health  of  the  person  it  reaches.^*'  Indeed,  the  rule  has 
been  laid  down  that  to  entitle  the  owner  of  a  dwelling  to  dam- 
ages from  the  storing  of  oil  adjacent  to  his  house,  he  must  suffer 
substantial  and  actual  injuries  in  the  necessary  and  reasonable 
use  of  his  house,  his  physical  comfort  or  his  health,  and  that 
mere  discomfort  and  inconvenience  are  not  sufficient  to  entitle 


Co.,  22  Barb.  297,  citing  Thomas  v.  Jarvis   Gas  Co.,    122   N.   Y.   18;    25 

Brackney,  17  Barb.  654.     See  Butch-  N.   E.   Rep.   246;    9   L.    R.   A.   711; 

ers'  Union  Co.  v.  Crescent,  etc.,  Co.,  Rosenheimer    v.    Standard    Gaslight 

111    U.    S.    746.  Co.,  36  N.  Y.  App.  Div.  1;  55  N.  Y. 

33  Ottawa  Gaslight  Co.  V.  Thomp-  Supp.    102;    People    v.    New    York, 

son,  39  111.  598;  Potistown  Gas  Co.  etc.,   Co..   64   Barb.   55;    Carmichael 

V.  Murphy,   39   Pa.   St.  257;   Cleve-  v.    Texarkana,    94    Fed.    Rep.    561; 

land    V.    Citizens'    Gaslight    Co.,    20  Grange  v.  Pately,  etc.,   Co.,   14  Gas 

N.  J.  Eq.  201;  McGregor  V.  Camden,  J.    309;     Ottawa    Gaslight    Co.    v. 


47  VV.  Va.  193;  34  S.  E.  Rep.  936 
Robb  V.  Carnegie,  145  Pa.  St.  324 
22  Atl.  Rep.  649;    14  L.  R.  A.  329 


Graham,  28  111.  73;  Friburk  v. 
Standard  Oil  Co.,  66  Minn.  277;  68 
N.    W.   Rep.    1090. 


Dorr   V.   Dansville  Gaslight   Co.,   18  ss  Susquehanna    Fertilizer    Co.    v. 

Hun  274.  Spangler,  86  Md.  562;  39  Atl.  Rep. 

34  Hauck   V.   Tidewater,   etc.,    Co.,  270. 

153  Pa.  St.  366;  26  Atl.  Rep.  644;  3b  Pottstown  Gas  Co.  v.  Murphy, 

20    L.    R.    A.    642;    Bohan   v.    Port  39  Pa.   St.  257. 


NUISANCES.  GG5 

him  to  relief.'"  If  the  iiiaiuifacturo  of  the  gas  he  a  eoutimiing 
injury,  a  court  of  equity  ^vill  restrain  its  manufacture  in  a 
manner  injurious  to  the  phnntilf  or  his  })rojK^rty.^**  Injunc- 
tion, however,  will  not  be  granted  to  restrain  the  drilling  of  a 
gas  well  near  a  dwelling  house,  on  account  of  the  prospective 
noise,  stench,  pollution  of  the  air,  and  the  daiiiicr  from  tire, 
explosion,  and  lightning  that  would  result  from  the  o])eration  of 
the  well  at  that  ]>hu'e,  or  on  account  of  the  ovcrtiow  of  water  or 
oil  from  it,  at  least  where  it  is  not  certain  that  any  water,  oil, 
or  gas  will  be  found  there ;  and  it  is  not  shown  that  the  gas  well 
could  not  be  so  managed  as  not  to  be  more  than  slight  or  barely 
possible  danger  or  annoyance.^'* 

§587.     Odors  from  operation  of  oil  wells  and  works. 

The  owner  of  property  injured  by  the  operation  of  oil  wells 
or  works  is  not  confined  to  instances  where  the  oil  actually  en- 
ters upon  his  premises ;  but  he  may  recover  because  of  noxious 
odors  occasioned  by  their  operation,  rendering  his  premises  un- 
healthy or  objectionable  to  live  upon.  Slight  evidence  is  suffi- 
cient to  make  out  a  case  for  the  jury.  Thus  where  it  was 
shown  that  an  oil  company  spilled  oil  on  its  own  land  adjoining 
a  lot  on  which  a  residence  was  located,  and  the  wind  blowing 
from  the  direction  of  the  oil  premises  rendered  the  residence 

37Gavigan     v.     Atlantic    Refining  37  L.  R.  A.  381;    62  Am.   St.   Rep, 

Co.,  3  Lack.  L.  News  371.     See  this  532;  ^NIcGill  v.  Pintsch  Compres^^ing 

case    on    appeal.      See     Friburk     v.  Co.,  140  Iowa  42!);   118  N.  W.  Rep. 

Standard  Oil  Co.,  C6  Minn.  277;  G8  786     (smoke);    Judson    v.    Los   An- 

K  W.  Rep.  1000.  geles,   etc.,   Co.,    157    Cal.    1G8;    106 

38  Broadbcnt  v.  Imperial  Gaslight  Pac.  Rep.  581  (smoke  and  noise 
Co.,  7  H.  L.  Cas.  600;  3  Jur.  (N.  from  a  gas  factory);  McCalla  v. 
S.)  221;  9  Gas  J.  751;  affirming  7  I^uisvillc  &  N.  R.  Co.,  163  Ala. 
De   Gex,   M.   and   G.   436;    26  L.   J.  107;  60  So.  Rep.  971. 

Ch.  276;  5  Jur.  (N.  S.)  1319;  Tlie  gas  company  cannot  escape 
Wragg  V.  Commercial  Gas  Co.,  33  liability  by  showing  that  the  plain- 
Gas  J.  110,  313;  Attorney  General  tiff  produced  other  noxious  odors  in 
V.  Gaslight  Co.,  L.  R.  7  Ch.  Div.  his  business  whicii  contributed  to 
•217;  47  L.  J.  Ch.  534;  37  L.  T.  render  his  premises  unwholesome, 
74^;  26  W.  R.  125.  See  Butt  v.  unless  it  is  also  shown  that  the 
Imperial  Gaslight  and  Coke  Co.,  L.  injury  complained  of  was  the  rc- 
R.  2  Ch.  Ii58;  14  L.  T.  R.  349;  15  suit  of  the  combinations  of  both  of 
Gas  J.  139;  ^McClung  v.  North  the  noxious  odor.s,  and  that  those 
Bend,  etc.,  Co.,  9  Ohio  Cir.  Ct.  Rep.  created  by  the  pis  company  were  not 
259.  independently    offensive.      Brown    v. 

39  Windfall  Mfg.  Co.  v.  Patterson,  lllius,   27   Conn.  84, 
148    Ind.    414;    47    N.    E.    Rep.    2; 


GGG  OIL    AND    GAS. 

unhealthy  to  the  occupants,  his  family  suffering  in  consequence 
thereof,  it  was  held  that  there  was  a  case  made  for  the  jury.*" 
Anything  that  deprives  the  oceu])ant  of  the  full  use  and  enjoy- 
ment of  his  pro])erty,  as  making  him  or  his  family  sick,  is  ac- 
tionable, even  though  the  business  be  a  lawful  one.*^  The 
damages  may  be  occasioned  merely  by  the  offensive  odors,  the  oil 
never  reaching  the  premises  of  the  plaintiff,  and  the  recovery 
may  be  not  only  for  discomforts  suffered,*"  but  even  damages 
to  his  business,  by  driving  away  customers.*^  Naphtha  tanks 
may  give  such  offensive  odors  as  to  render  damages  to  a  nearby 
residence,  and  give  the  owner  a  cause  of  action  for  them.**  In 
order  to  entitle  an  owner  of  a  dwelling  to  damages  occasioned 
by ^  the  storage  of  oil  adjacent  it,  he  must  show  that  he  has 
suffered  actual  and  substantial  injuries  in  the  reasonable  and 
necessary  use  of  his  home  to  his  physical  comfort  or  his  health, 
and  it  is  not  enough  to  show  mere  inconvenience  and  discom- 
fort.*=^ 

§588.     Other  disagreeable  odors  in  neighborhood. 

On  the  principle  that  one  man  cannot  justify  his  conduct  by 
the  wrongful  conduct  of  another,  it  is  no  defense,  in  an  action 
to  enjoin  the  operation  of  gas  works  in  a  certain  manner,  that 
the  neighborhood  already  contained  establishments  devoted  to 
noxious  and  disagreeable  trades,  unless  by  long  continuance 
such  neighborhood  has  been  so  entirely  given  up  to  such  estab- 

*o  Fribiirk    v.    Standard    Oil    Co.,  44  Bohan  v.  Port  Jervis  Gas  Co., 

6G  ]\l|nn.  277;  G8  N.  W.  Rep.  1090;  122   N.  Y.   18;    25  N.   E.   Rep.  246; 

Hauck  V.  Tidewater  Pipe  Line  Co.,  9  L.   R.   A.   711. 

153  Pa.  St.  36G;   26  Atl.  Rep.  644.  45  Qavijian    v.    Atlantic    Refining 

4iGavigan    v.    Atlantic    Ref.    Co.,  Co.,  3  Lack.  L.  News  371;   2  Lack. 

186  Pa.  St.  604;   40  Atl.  Rep.   834.  L.   News  239.     See   this  case   in   40 

42Berger  v.  Minneapolis,  etc.,  Co.,  Atl.  Rep.  834;  186  Pa.  St.  604. 

60  Minn.  296;   62  N.  W.  Rep.  336.  Merely  allowing  oil  to  stand  in  a 

43  Brady  v.  Detroit,  etc.,  Co.,  102  pipe  line   lawfully   laid  beneath   the 

Mich.  277 ;   60  N.  W.  Rep.  687 ;   26  surface  of  the  street  is  not  a  nuis- 

L.   R.   A.   175.     There  must  be   evi-  anoe,  even   so  volatile  oil   as   naph- 

dence  to  show 'the  loss  to  the  busi-  tha.     Lee    v.    Vacuum    Oil    Co.,    54 

ness.     Keiser  v.  Mahanoy   Gas  Co.,  Hun  156;  7  N.  Y.  Supp.  426. 
143  Pa.   St.   276;   22  Atl.  Rep.  759. 


NUISANCES. 


6G7 


lishments  that  au  addition  to  them  would  not  add  to  the  dis- 
comfort.*" 

§589.     Degree  of  annoyance. —  Question  for  jury. 

It  is  not  every  annoyance  that  will  give  a  right  of  action  to 
the  person  annoyed.  A  nuisance  is  a  "  thing  which  will  offend 
an  ordinary  man,  and  not  a  delicate-nosed  ])erson.'"  *'*  There 
are  many  persons  who  would  be  annoyed  hy  gas  works  Ix'ing 
built  in  the  near  neighborhood  to  their  dwelling,  while  others 
would  regard  it  as  a  matter  of  indifference.  In  instances  of 
charges  of  nuisance  the  (juestion  is  whether  the  acts  done  would 
annoy  the  average  man  —  they  might  annoy  some  and  not  annoy 
others  like  situated;  and  it  is  a  question  for  the  jury*"  what 
amount  of  annoyance  will  constitute  a  nuisance  that  will  give  a 
cause  of  action  to  the  person  annoyed.  A  property  owner  is 
entitled  to  enjoy  his  property  as  it  was  before  the  gas  w^orks 
were  erected ;  but  it  is  error  to  say  that  he,  in  the  enjoyment  of 
his  property  is  entitled  to  the  same  enjoyment  as  that  ordinarily 
enjoyed  by  other  persons  in  his  neighborhood  similarly  situated, 
for  the  actual  question  for  the  jury  is  not  a  comparison  of  his 
condition  with  that  of  his  neighbors,  but  M'hether  the  conduct  of 
the  gas  company  caused  him  an  actual  damage. °°  A  gas  com- 
pany is  responsible  in  damages  for  the  ordinary  smells  that 
usually  proceed  from  such  works  if  they  constitute  a  nuisance ; 
and  the  fact  that  it  is  not  negligent  does  not  protect  it  from 
liability,  if,  even  in  its  usual  course  of  business,  it  injure 
others. ^^ 

<8  Cleveland   v.   Citizens'-  Gaslight  Angeles,    etc.,    Co.,     157    Cal.     168; 

Co.,   20  N.   J.   Eq.   201.  106  Tac.  Rep.  581. 

48  Tilly  V.  Slough  Gas  and  Coke  ni  Pottstown  Gas  Co.  v.  Murphy, 
Co.,  17  Gas  J.  231.  See  Pottstown  39  Pa.  St.  257;  Foor  v.  E.lwards, 
V.   Murphy,   39    Pa.   St.   257.  45   Ind.   App.    259;    90   N.    E.    Rep. 

49  Rex  V.  Medley,  6  C.  and  P.  292.  785;    Sherman    Gas    &    El.    Co.    v. 

50  Columbus,  etc.,  Co.  v.  Freeland,  Belden  (Tex.),  123  S.  W.  Rep.  119; 
12  Ohio  St.  392;  McGill  v.  Pintsch  reversing  115  S.  W.  Rep.  897:  Wes- 
Compressing  Co.,  140  Iowa,  429;  tern  Texas  Compress  Co.  v.  Williams 
11«  N.  W.  Rep.  78G;  Judson  v.  Los  103   Tex.   Civ.   App.   50;    124   S.  W. 

Rep.    493. 


668  OIL    AND    GAS. 

§590.     Gas  or  oil  well  near  house  or  building. 

The  oporation  of  a  gas  or  oil  wvW  in  close  proximity  to  a 
(Iwclliiig  house  or  store  may  amount  to  a  nuisance,  the  same  as 
the  operation  of  a  noisome  trade.  Each  particular  case  must 
stand  upon  its  own  facts.  Thus,  in  one  of  the  Circuit  Courts 
of  Ohio  it  was  hold  that  the  drilling  and  operation  of  an  oil 
well  on  a  city  lot,  close  to  a  dwelling  house  situated  on  the  ad- 
joining lot,  was  dangerous  and  annoying,  practically  destroying 
the  house  for  tlie  purpose  of  living  in  it  so  long  as  the  well  was 
operated  ;  and  if  it  were  shown  that  an  action  for  damages  would 
1)0  inad(M|uat(^,  a  perpetual  injunction  would  Ix'  granted,  pro- 
hibiting its  o])eration.^"  In  Pennsylvania  it  was  held  that  an 
oil  well  located  seventy  feet  and  an  oil  tank  eighty  feet  from  a 
dwelling  house  was  not  a  nuisance  per  se ;  but  if  the  escape  of 
gases  from  it  was  so  great  as  to  require  the  fires  at  times  in  the 
house  to  be  extinguished  in  order  to  prevent  an  explosion,  then 
the  well  became  a  nuisance  in  fact,  and  its  operation  might  be 
enjoined. ^^  So  in  Indiana  it  was  held  that  the  drilling  of  a  gas 
well  within  one  hundred  and  fifty-two  feet  of  a  dwelling  house 
would  not  be  enjoined  on  account  of  the  noise,  pollution  of  the 
air,  danger  from  fire  or  explosion  that  would  result  from  the  op- 
eration of  the  well,  or  on  account  of  water  or  oil  from  the  well, 
if  it  be  not  shown  with  certainty  that  water,  oil,  or  gas  would 
be  found,  and  also  if  it  be  not  shown  that  the  gas  well  could  not 
be  operated  in  such  a  manner  as  to  avoid  the  injuries  appre- 
hended. "In  the  case  at  bar,"  said  the  court,  "  the  appellant, 
in  locating  its  brick  and  tile  works,  for  which  natural  gas  was 
to  be  used  as  fuel,  selected  a  place  retired  from  all  residences, 
and  there  erected  its  plant  and  machinery  at  great  expense. 
The  business  so  commenced  was  continued  three  years  before 
the  appellees  came  and  erected  their  dwelling  upon  land  across 
the  highway  from  appellant's  land  and  within  200  feet  of  its 
brick  and  tile  works.  Certainly,  therefore,  unless  the  works 
should  constitute  a  nuisance  per  se,  or  unless  they  were  so  con- 
ducted as  to  become  a  nuisance  in  fact,  the  appellees  are  not 

52  Cline  V.  Kirkbindoo.  12  Ohio  C.  r.,-?  McGregor    v.    Camden.    47     W. 

C.  Dee.  .517;  22  Ohio  Cir.  Rep.  527.       Va.  193;  34  S.  E.  Rep.  936. 


NUISANCES.  COD 

in  a  position  to  demand  that  0(iuity  restrain  the  aiipcUant  in  the 
use  of  its  j)roperty.  A  nuisance  per  so,  as  the  term  iuijilies,  is 
that  which  is  a  nuisance  in  itself,  and  which,  therefore,  cannot 
be  so  conducted  or  niaintaintnl  as  to  be  hiwfully  carried  on  or 
permitted  to  exist.  Such  a  nuisance  is  a  disonh^rly  liousc,  or 
an  obstruction  to  a  higliway,  or  to  a  luivigable  stream.  liut  a 
business  lawful  in  itself  cannot  be  a  nuisance  iier  ac,  although, 
because  of  surrounding  places  or  circumstances,  or  because  of 
the  manner  in  which  it  is  constructed,  it  may  become  a  nuisance. 
Certain  kinds  of  business  or  structures,  as  powder  liouses,  or 
nitroglycerine  works,  are  so  dangerous  to  human  life  that  they 
may  be  maintained  only  in  the  most  remote  and  secluded  lo- 
calities. Others,  as  slaughter  houses  and  certain  foul-smelling 
factories,  are  so  offensive  to  the  senses  that  they  must  be  re- 
moved from  the  limits  of  cities  and  towns,  and  even  from  the 
near  neighborhood  of  family  residences.  Yet  there  nuist  l>e 
some  proj^er  place  where  every  lawful  business  may  be  carried 
on,  without  danger  of  interference  on  the  part  of  those  who,  in 
some  slight  degree,  may  be  annoyed  or  endangered  by  the  near- 
ness of  the  objectionable  occupation.  Of  course,  all  persons 
have  the  right  to  insist  that  a  business  in  any  degree  offensive 
or  dangerous  to  them  shall  be  carried  en  with  such  improved 
means  and  appliances  as  experience  and  science  may  suggest  or 
supply,  and  with  such  reasonable  care  as  may  prevent  unneces- 
sary inconvenience  to  them.  By  such  care  and  im]U'oved  meth- 
ods and  appliances,  many  occupations  formerly  regarded  as 
nuisances  may  now  be  carried  on,  even  in  populous  neighlwr- 
hoods,  without  annoyance  to  anyone.  So,  an  establishment  in 
some  degree  offensive,  as  a  livery  stable,  may  l)e  kept  so  cleanly, 
so  free  from  anything  to  offend  the  sense  of  sight  or  of  smell, 
that  the  proprietor  may  invite  his  most  fastidious  visitors  to 
any  part  of  it;  although  the  same  establishment  might  also  Ix' 
so  kept  as  to  be  an  abomination  even  to  tlie  passerby  upon  the 
highway.  It  cannot  be  said  that  a  plant  for  the  manufacture 
of  brick  and  drain  tile,  or  even  a  gas  Avell  sunk  to  sui>]dy  fuel 
for  such  a  plant,  is  a  nuisance  per  se.  The  business  is  lawful, 
and,  if  located  in  a  proper  place,  and  conducted  and  maintained 


670  OIL    AND    GAS. 

in  a  proper  manner,  neither  the  plant  nor  the  well  can  be  treated 
as  a  nuisance.  Appellees  voluntarily  selected  the  neighborhood 
of  appellant's  plant  for  their  residcnct^  three  years  after  the  ap- 
pellant began  business  there;  and  while  this  circumstance  is 
not  controlling,  yet  it  is  one  that  must  be  taken  into  considera- 
tion. Xor  will  it  be  sufficient  answer  that  appellant's  gas  well 
was  on  the  east  side  of  the  brick  yard  at  the  time  the  appellees 
selected  their  home  on  a  lot  within  200  feet  of  the  factory.  Ex- 
perience has  shown  that  gas  wells  are  of  short  life,  and  that, 
after  the  failure  of  one  well,  another,  in  order  to  be  successful, 
must  be  located  at  a  considerable  distance  from  the  first.  It  is 
averred  that  there  was  room  for  but  two  wells  on  this  twenty- 
two-acre  tract,  and  that  the  location  of  the  proposed  well  is  the 
farthest  possible  from  the  first  well  and  the  best  that  could  be 
selected.  It  is,  besides,  admitted  by  the  demurrer  to  the  an- 
swer that  the  appellee,  Willard  E.  Patterson,  agreed  that  the 
second  well  should  be  located  within  150  feet  of  his  house;  and, 
while  it  is  possible  that  such  agreement  might  not  bind  his  co- 
appellee,  yet  the  circumstance  shows  that  the  appellant,  in  locat- 
ing its  wells  at  the  distance  of  152  feet  from  the  appellees' 
dwelling,  was  proceeding  carefully  and  with  due  regard  to  ap- 
pellees' rights.  Unless,  therefore,  it  should  be  made  to  appear 
that  the  gas  well  could  not  be  so  managed  and  maintained  as 
not  to  be  of  more  than  slight  or  barely  possible  danger  or  an- 
noyance to  appellees,  it  does  not  seem  that  they  could  have  any 
sufficient  cause  to  ask  that  the  sinking  of  the  well  be  restrained. 
The  record  does  not  show,  nor  have  we  any  means  of  knowing, 
that  a  well  at  a  distance  of  152  feet,  or  over  nine  rods,  from 
a  dwelling  house,  cannot  be  so  maintained  and  cared  for  as  not 
to  cause  the  injury  and  annoyance  claimed  to  be  threatened  to 
appellees  in  this  case.  It  is  remembered  that  before  a  court  of 
equity  will  restrain  a  lawful  work,  from  which  merely  threat- 
ened evils  are  apprehended,  the  court  must  be  satisfied  that  the 
evils  anticipated  are  imminent  and  certain  to  occur.  An  in- 
junction will  not  issue  to  prevent  supposed  or  barely  possible 
injuries.  In  the  case  before  us,  it  is  not  shown  that  even  if  the 
gas  well  were  in  operation  it  could  not  be  so  managed  and  cared 


NUISANCES.  <''T1 

for  as  to  avoid  all  the  injuries  aiiprehendcd.  But,  more  than 
this,  there  might  never  be  any  gas  found  in  the  \v('ll.  This, 
the  appellees  practically  concede,  when  they  recite  that,  al- 
though gas  might  not  be  found,  yet  that  oil,  or  even  water, 
coming  from  the  well  would  be  dangerous  to  their  residence. 
This  is  altogether  too  speculative.  If  the  appellant  ccjmpany 
is  willing  to  invest  its  money  in  a  well  from  which  may  bo 
brought  to  the  surface  of  the  earth  an  uncontrollable  clement 
productive  of  the  evils  feared  by  appellees,  it  must  be  allnwcd 
to  do  so  at  the  hazard  to  itself  of  all  the  consequences  for  which 
it  would  thus  become  liable.  But  if  the  well  may  be  sunk,  and 
the  gas,  oil  or  water  therefrom,  if  any,  can  be  so  controlled  and 
managed  as  to  cause  no  appreciable  injuries  to  appellees  or  to 
any  one  else  then  such  reasonable  and  lawful  use  of  property 
ought  not  to  be  prevented  by  the  courts.  To  do  so  would  be 
sheer  usurpation  of  arbitrary  power."  ^* 

§591.     Business  authorized  by  government  no  defense. 

A  gas  company  cannot  successfully  defend  against  the  charge 
of  a  nuisance  on  the  ground  that  its  business  has  been  author- 
ized by  the  government  or  by  the  legislature,  even  though  it  be 
chartered  by  a  special  act  of  the  legislature  and  empowered  to 
conduct  its  business  where  its  works  are  located.  Such  a  char- 
ter authorizes  it  to  conduct  its  business  in  a  lawful  and  ncit  an 
unlawful  manner.  Works  authorized  by  the  legislature  and 
carried  on  without  negligence  may  in  fact  involve  a  nuisance 
for  which  the  company  will  be  liable.  Thus  where  in  a  special 
act  of  parliament  incorporating  a  gas  company  it  was  enacted 
that  the  gas  should  be  of  a  certain  purity,  it  was  held  tint  the 
company  was  not  justified  in  causing  a  nuisance,  even  if  the  gas 
could  not  be  made  of   a   sufficient   purity  without   so   doing.''* 

54  Windfall  ]\rfg.  Co.  V.  Patterson,  Pope    v.    Bridgpwator    Gas    Co.,    43 

148   Ind.   414;   47  N.  B.  Hep.   2;    37  S.  E.  87;  52  W.  Va.  2152. 

L.  R.  A.  381;   (12  Am.  St.  Kep.  532.  "Attorney     General     v.    Gaslight 

The  drilling  of  a  well  on  adjoining  and  Coke  Co.,  L.  R.  7  Cli.  Div.  217; 

iland  in  close  proximity  to  plaintifT's  47  L.  J.  Cli.  534;   37  L.  '!'.  74(;;   20 

producing   well    cannot   he   enjoined,  W.  R.   125;    Brand  v.  Hammersmith 

on    the    danger    of    ignition    of    gas  Rail    Co.,    L.    R.    4    II.    L.    171;    38 

by    the    fires    used    in    drilling    the  L.   J.  Q.   B.   2(55;    21    L.  T.    (N.   S.) 

other  well,  where  such  danger  would  238;    18  W.  R.  12    (vibration  caused 

arise  only  if  it  became  necessary  to  without   negligence,    by    the   passing 

open    the    producing   well    to    repair  of  trains  after  tlie  railway  is  iirought 

the  pump  in  case  of  accident,  which  into   use)  ;    l>)ndon,   etc.,    R.   R.   Co. 

is  only  a  possible  contingent  danger.  v.'     Truman,      II     App.     Gas.     45; 


G72  OIL    AND    GAS, 

But  if  the  particular  location  of  the  gas  company's  works  has 
been  expressly  authorized  by  its  charter  or  a  statute,  then  the 
person  damaged  must  show  that  the  company  has  been  guilty 
of  negligence  in  the  conduct  of  its  works.'"  The  fact  that  a  gas 
company  has  a  contract  to  light  the  streets  of  a  city  and  that  if  it 
be  enjoined  it  will  not  be  able  to  carry  out  its  contract  with  the 
city,  and  virtually  with  the  public,  is  no  defense/^ 

§592.     Duty  of  owner  to  prevent  continuance  of  damages. 

The  owner  of  property  whose  rights  to  it  have  been  wrongfully 
invaded  by  a  gas  company  is  not  required  to  take  active  steps 
to  abate  the  nuisance  created  or  to  lessen  the  damages.  It  can 
neither  justify  its  conduct  nor  lessen  its  liability  by  setting  up 
the  property  owner's  failure  to  assume  an  active  role  in  order 
to  reduce  its  liability.  Thus,  it  was  held  that  a  -  -ell  owner  was 
not  bound  to  cement  his  well  in  order  to  prevent  foul  water  en- 
tering it  from  the  gas  works. ^*  But  if  he  does  take  active  steps 
to  abate  the  nuisance  or  prevent  the  incurring  of  damages,  in 
an  action  for  such  damages  as  he  has  suffered,  he  may  recover 
whatever  outlay  he  was  put  to,  whether  successful  or  not,  in  so 
far  as  the  efforts  made  might  reasonalily  be  expected  to  remedy 
the  evil.^'^  But  he  cannot  recover  for  damages  to  his  horses 
occasioned  by  their  drinking  water  polluted  by  a  gas  company, 

.'55  L.  J.  Ch.   3.54;   54  L.  T.  250;   M  in-Z;    People  v.    N.   Y.  Gaslight  Co., 

\V.   R.    G57;    50   J.    P.   :?88    (a   yard  04   Barb.  55;   G   Lans.  467;    Watson 

for  cattle  trafTic  which  was  a  nuis-  v.   Gas   Co.,    5   U.   P.   Q.   B.    (Can.) 

ance    to    neighbors)  ;     Metropolitan  262;   Bohan  v.  Port  Jarvis  Gaslight 

Asylum   District  Managers   v.   Hill,  Co.,  45  Hun  257 ;  Batchelder  v.  Tun- 

6   App.   Cas.    193;    50   L.   J.   Q.    B.  oridge.   etc.,   Co.,   84   L.  T.   765;    65 

353;   44   L.  T.  653;   29   W.   R    617;  J.    P.   680. 

45  J.  P.  664  (a  water  right)  ;  Parry  no  Rohan   v.   Port  Jarvis  Gaslight 

V.   Croydon   Gas   Co.,   15   C.   R.    (N.  Co.,  45  Hun  257. 

S.)    568;    11  C.  B.  7N.  8.)    578;    10  r.- Torre    Haute    Gas    Co.    v.    Teel, 

.Tur.    (N.  S.)    172;    9  L.  T.    (X.  S.)  20    Ind.    l;51. 

v>'»4;      12     W.     R.     212      (penally);  r.s  Opveland    v.   Citizens'  Gaslight 

Pottstown   Gas    Co.   v.   :Murpl)y.    39  Co..  20  N.  J.  Eq.  201. 

Pa.   St.  257;    Bohan  v.  Port  .Jarvis  f,n  Sherman    v.     Fall     River    Iron 

Gas    Co.,    122    N.   Y.    IS:    25    N.    E.  Works,    2    Allen    524;    79   Am.    Dec. 

Ren.  246;  9  L.  R.  A.  711;  Rose^hei-  793;    Benjamin  v.   Gulf  C.   &   S.   F. 

n^er  v.  Standard  Gaslight  Co..  36  N.  Rj'.  Co.,  49  Tex.  Civ.  App.  473;   108 

Y.  App.  Div.  1;  55  N.  Y.  Supp.  S.  W.  Rep.  408.  See  Ottawa  Gas- 
light and  Coke  Co.  v.  Graham,  28 
HI.  73. 


NUISANCES.  673 

if  he  iiormit  them  to  drink  tlie  water  after  he  knows  of  its 
pollution.""  But  it  has  heen  held  that  the  owner  of  hogs  need 
not  remove  them  from  his  field  through  which  a  stream  is 
running  that  has  been  polluted,  though  he  knows  they  are 
dying  from  drinking  the  polluted  water.'"'^  This  is  especially 
true  if  he  had  no  other  water  for  them  to  drink.*""'  Hut  in 
the  case  of  a  polluted  spring,  if  the  owner  could  by  ordinary 
care  and  reasonable  cost  have  cleaned  it  out  and  thus  restore 
it  to  its  original  condition,  he  can  recover  only  for  the  pollu- 
tion up  to  the  time  he  could  have  cleaned  it.""*^ 

§  593.     Evidence. 

Evidence  on  the  part  of  the  gas  company  is  not  admissible 
to  show  that  it  has  so  improved  its  works  that  they  no  longer 
are  a  nuisance,  where  the  improvement  is  made  after  the  suit, 
unless  it  is  sought  to  recover  damages  claimed  to  have  been 
incurred  after  such  improvement  was  made,  and  then,  of 
course,  only  in  rebuttal  of  the  claim  that  damages  were  in- 
curred during  that  period.  In  other  words,  if  the  defendant 
admit  that  the  damages  were  incurred,  then  the  evidence  is 
not  admissible,  for,  as  we  have  seen,  the  operation  of  gas 
works  in  a  city  is  a  nuisance  if  they  cause  a  special  injury."* 
And  the  claim  that  they  were  not  a  nuisance  at  the  time  the 
injury  was  rendered,  because  of  improvements  introduced,  is 
not  admissible  in  evidence  as  a  defense.''-  If  the  action  is  to 
recover  damages  because  of  the  contamination  of  a  well,  tes- 
timony concerning  the  condition  of  water  in  wells  on  other 
premises  in  the  neighborhood  is  admissible,  in  order  to  show 
the  extent  and  character  of  the  injury  sustained  by  the  plain- 
tiff, and  also  as  tending  to  show  that  the  operation  of  a  gas 

80  Sherman     v.    Fall    River    Iron  The   amount   of  damafres   recovor- 

Works,    2    Allen   524;    79   Am.    Dec.  able  for  injury  to  cattle  is  tlie  di'Ter- 

799.  ence   Ix^tween    their    value   after   the 

60a  Alexia  L.  &.  P.  Co.  v.  Jolinson  poisoning  and  the  value  immediately 

(Tex.   Civ.   App.),    120   S.   W.    Rep.  before   the   poisoning.     Benjamin    v. 

534.  Gulf  C.  &.  S.  F.  Ry.  Co.,  aupm. 

60b Benjamin   v.   Gulf   C.   &   S.   F.  oi  Cahart  v.  Auburn  Gaslight  Co., 

Ry.  Co.,  49  Tex.  Civ.  App.  473;   lOS  22  Barb.  297. 

S.  W.  Rep.  408.  62  Watson    v.    Gas    Co.,    5    U.    P. 

60C  Cincinnati,  N.   0.  &  T.  P.  Ry.  Q.  B.   (Can.)   2G2. 
Co.   v.   Gillespie,    130   Ky.   213;    113 
S.  W.  Rep.  89 ;  34  Ky.  L.  Rep.  — . 


674  OIL    AND    GAS. 

plant  could  produce  the  injury  of  which  complaint  is  made."' 
On  the  part  of  tlie  defense  it  may  be  sliown  that  other  sub- 
stances contaminated  the  Avell  other  tlian  those  coming  from 
the  gas  works,  in  order  to  reduce  the  damages ;  for  the  plain- 
tiff cannot  recover  for  injuries  inflicted  by  otliers,  although 
they  were  incurred  at  the  same  time  the  injuries  were  inflicted 
by  the  defendant."* 

§  594.     Injunction. 

An  action  for  an  injunction  lies  to  prevent  the  continuance  of 
a  nuisance  caused  bv  the  oj^cration  of  gas  works,"^  usually 
against  the  manner  in  which  they  are  being  conducted  and  not 
generally  against  their  operation. ®°  And  if  necessary  to  afford 
full  relief  the  court  may  issue  a  mandatory  injunction.^^  But 
it  must  be  borne  in  niiiul  that  an  injunction  will  not  be  granted 
where  the  alleged  injury  is  trifling  and  transient.*^®  Thus, 
where  it  appeared,  owing  to  the  company's  precautions,  that 
only  on  three  occasions  had  an  appreciable  escape  of  gas  taken 
place,  and  then  only  from  accidental  defects  which  were  im- 
mediately remedied,  an  injunction  was  refused,  without  preju- 
dice to  bring  an  action  at  law  to  recover  the  damages  sustained.*^" 
Any  one  seeking  to  restrain  an  alleged  future  nuisance  must 
make  a  strong  ease  of  probability,  that  the  apprehended  mis- 

83  Belvidere  Gaslight  and  Fuel  Co.  66  Cleveland  v.   Citizens'   Gaslight 

V.    Jackson,    81    111.   App.    424:    Ot-  Co.,    20   N.    J.    Eq.    201;    Wragg  v. 

tawa  Gaslight  and  Coke  Co.  v.  Gra-  Commercial  Gas  Co.,  33  Gas  J.  119, 

ham,  .35  111.  34G.  313;    Attorney  General   v.   Gaslight 

B4  Sherman    v.    Fall    River    Iron  and   Coke   Co.,   7   Ch.   Div.   217;    30 

Works  Co.,  5  Allen  213.  Gas   .J.   791,   827;    Butt  v.   Imperial 

65  Imperial  Gaslight  Co.  v.  Broad-  Gaslight   Co.,  L.   R.  2  Ch.    158;    14- 

bent,   7    H.    L.    Cas.    600;    29   L.   J.  L.  T.   Rep.   349;    15  Gas  J.   139. 

Ch.  377;  5  Jur.   (N.  S.)   1319;  7  De  ot  Hendrie  v.  Lea  Bridge,  etc.,  Co., 

Gex  MacN.   and  G.   436;    5   Gas   J.  21   Gas  J.  949,  989. 

342;  9  Gas  J.  751;  Manhattan  Gas-  68  Attorney  General  v.  Cambridge, 

light  Co.  V.  Barker,  7  Robt.  (N.  Y.)  etc.,  Co.,   L.  R.  4  Ch.  71;    38  L.  J. 

523;  Tenant  V.  Goldwin,  1  Salk.  21,  Ch.   94;    19   L.   T.    (X.   S.)    508;    17 

360;    2   lA.   Raym.    1089;    Xew   Or-  W.  R.  145. 

leans   v.    Gaslight   Co.,    5    La.    Ann.  co  Cooke   v.   Forbes,    L.    R.   5   Eq. 

4>3i9.  166;  37  L.  J.  Ch.  178;   17  L.  T.  (N. 

S.)    371. 


NUISANCES.  G75 

chief  will  in  fact  aviso."'*'  Of  courso,  an  actual  hofoiilini;  of  a 
stream  may  be  enjoined  in  a  proper  case,"  esix'cially  where  the 
damages  wouki  be  inadequate."  If  the  contaminated  water 
will  be  deprived  of  its  noxious  qualities  before  it  reaches  the 
land  of  the  plaintiff  an  injunction  will  l)o  doni(>(l.'''' 

§  595.     Enjoining:  erection  of  gas  plant. 

An  action  will  not  lie  to  enjoin  the  erection  of  gas  works 
near  a  dwelling,  on  the  theory  that  the  reservoirs  to  contain 
the  gas  are  liable  to  explode  and  injure  such  house  and  those 
residing  in  it.  It  is  the  manner  in  which  the  gas  works  will  be 
conducted  that  must  be  shown  in  order  to  obtain  an  injunc- 
tion ;  for  it  is  a  matter  of  notoriety  that  gas  works  can  be  so 
conducted  as  to  not  seriously  annoy  those  in  the  neighbor- 
hood, although  persons  sensitive  to  the  odors  necessarily 
escaping  may  object.'*  A  gas  factory  may  be  a  nuisance 
to  those  residing  in  a  dwelling  near  by,  though  the  noise  and 
smoke  therefrom  is  intermittent,  owdng  to  periodical  cessation 
of  work,   and  variation    in   the   direction   of  the   wind.     Its 


"0  Attorney  General  v.  Manches- 
ter Corporation  [1893],  2  Ch.  S7; 
62  L.  J.  Ch.  459;  68  L.  T.  608;  41 
W.  R.  459;  57  J.  P.  343;  3  R.  427. 
See  Windfall  Mfg.  Co.  v.  Patterson, 
148  Ind.  414;  47  X.  E.  Rep.  2;  37 
L.  R.  A.  381;  62  Am.  St.  Rep. 
532. 

Where  a  prescriptive  right  to  be- 
foul a  stream  has  been  acquired, 
the  fouling  must  not  be  enlarged  to 
the  prejudice  of  others.  Crosslcy  v. 
Lightowler,  L.  R.  2  Ch.  478;  36  L. 
J.  Ch.  584  16  L.  T.  (N.  S.)  638; 
15  W.  R.  801;  Baxendale  v.  Mc- 
Murray,  L.  R.  2  Ch.  790;  16  W. 
R.  32. 

An  injunction  will  be  issued  to 
restrain  the  introduction  of  gasoline 
into  tanks  of  automobiles  inside  of 
a  frame  building  adjacent  to  other 
frame  buildings  on  three  sides,  and 
from  storing  automobiles  with  traso- 


line  in  their  tanks  inside  of  the 
building.  O'Hara  v.  Nelson,  71  X.  J. 
Eq.  629;    63  Atl.  Rep.  842. 

71  Clowes  V.  StatTordshire  W.  W. 
Co.,  L.  R.  8  Ch.  125;  42  L.  J.  Ch. 
107;   27  L.  T.  521;  21  W.  R.  32. 

"-  Pennington  v.  Brinsop  Coal  Co., 
5  Ch.  769;  46  L.  J.  Ch.  773;  37  L. 
T.  149;  25  W.  R.  874. 

73  Elmhirst  v.  Spencer,  2  MacX.  & 
G.  45;  Wood  v.  Waud,  3  Exch.  748; 
18  L.  J.  Exch.  305;  13  L.  T.  212; 
13   Jur.   742. 

An  action  lies  to  prevent  hot 
water  being  poured  into  a  stream; 
yet  if  it  reaches  a  natural  tem- 
perature before  entering  on  the 
plaintiff's  land,  there  is  no  damage. 
Mason  v.  Hill,  3  B.  and  Ad.  304;  5 
B.  and  Ad.  1 ;  2  X.  and  M.  747;  2 
L.  J.  K.  B.  lis. 

74  Cleveland  v.  CitizciLs'  Gaslight 
Co.,  20  X.  J.  Eq.  201. 


676  OIL    AND    GAS. 

noise  and  smoke  may  ))e  a  nuisance  to  a  dwellinpf,  though, 
no  damage  to  such  dwelling  or  herbage  on  the  land  results 
nor  damage  to  the  rental  or  saleable  value  of  the  property. 
And  the  fact  that  steam  railroads  operated  near  the  dwell- 
ing may  have  been  a  source  of  discomfort  to  its  owner 
is  no  defense  in  an  action  for  a  nuisance  caused  by  the  noise 
and  smoke  from  a  gas  plant;  nor  is  it  any  defense  that  tiie 
most  approved  appliances  and  methods  for  the  manufacture 
of  gas  have  been  adopted;  the  adoption  of  such  appliances 
does  not  justify  the  continuance  of  the  manufacturer  where  it 
remains  a  nuisance. '*°  A  plant  for  the  manufacture  of  com- 
pressed gas  is  not  a  nuisance  per  se;  and  whether  the  smoke 
or  noise  from  it  constitute  a  nuisance  depends  on  the  evidence 
in  each  particular  case.  Noises  resulting  from  its  operation, 
to  constitute  a  nuisance,  must  be  unreasonable  and  of  such  a 
character  as  to  be  of  actual  physical  discomfort  to  persons  of 
ordinary  sensibilities.  If  the  nuisance  consists  in  the  emission 
of  smoke,  then  the  smoke  to  constitute  a  nuisance  must  be 
emitted  in  unreasonable  manner  in  view  of  the  locality  and 
surroundings.'^^''     Nor  will  the  drilling  of  a  gas  or  oil  well  be 

74a  .Tudson    V.    Los    Angeles,    etc.,  of    gas,    though    it    might    regulate 

Gas  Co.,  157  Cal.  168;  106  Pac.  Rep.  its  manufacture;  and  where  an  ordi- 

581;    Sherman  G.  &  El.  Co.  v.  Bel-  nance    made    it    a    misdemeanor    to 

den,    103   Tex.   59;    123   S.   W.   Rep.  erect   or   maintain   gas   works   in   a 

H9,  reversing  (Tex.  Civ.  App.),  115  sparsely   settled   district,   containing 

S.    W.    Rep.    897;     Western    Te.xas  only   fifteen   dwellings   in    all,   none 

Compress  Co.  v.  Williams  (Tex.  Civ.  of  which  were  nearer  than  300  yards 

App.),    124  S.   W.   Rep.  493;    Selig-  to   the   gas   plant    in   such    district, 

man  v.  Victor  Talking  Machine  Co.,  it  was   held   unieasonable  and   void. 

71  N.  J.  Eq.  697;  G3  Atl.  Rep.  1093.  In  re  Smith,   143  Cal.  368;   77  Pac. 

74b  McGill  V.  Pintsch  Compressing  Rep.   180. 
So.,  140  Iowa  429;    118  N.  W.  Rep.  A  city  ordinance  forbade  the  keep- 

786.  ing    within    the    city    in    any    place 

In  action   for  a  private  nuisance,  more  than   200   gallons  of  kerosene 

resulting   from    the   operation    of    a  in   barrels,    tanks  or  cans,   or   more 

gas   plant,   evidence   of   the   general  than   100  gallons  in  all  of  gasoline, 

decrease    of    the    value    of    property  unless  kept  in  a  fireproof  magazine, 

in  the  city   where   it  is   situated   is  isolated   and   located   at   some   place 

not  admissible.     Sherman   G.  &   El.  approved    by    the    council.      It    was 

Co.  V.  Belden,   103  Tex.   59;    123   S.  held  that  the  establishment  of  non- 

W.    Rep.    119;    reversing    (Tex.   Civ.  isolated   tanks  within   the  city  hav- 

App.),   115   S.   W.   Rep.   897.  ing  a  capacity  of  11.000  gallons  each 

Where   a  constitutioml   provision  constituted  "n  abatable  nuisance  as 

gave    a    gas    company    the    privilege  to   adjoininrf   nrnnerty   owners:    but 

of   usinjT  citv   streets   for   its    pipes,  aside  from  the  ordinance  the  erection 

it  was  held   that    a   county   had    no  of  tanks  having  thnt  capacitv  near 

power   to   prohibit   the  manufacture  a  railroad  track  and  adjacent  to  the 


NUISANCES. 


67Ga 


enjoined,  especially  when  it  is  doubtful  if  either  gas  or  oil 

will  1)0   found. "•"' 


§  596.     Former  recovery  a  bar. 

If  the  plaintiff  has  already  recovered  a  judgment  for  dan  ages 
because  of  the  deterioration  of  his  real  estate  by  the  main- 
tenance of  the  gas  Avorks  in  its  vicinity  and  for  the  pollution  of 
the  water  thereon  and  rendering  it  unfit  for  use,  such  judg- 
ment is  a  bar  to  any  further  prosecution  for  the  same  cause, 
the  continuance  of  the  works  being  the  sole  basis  of  the  second 
claim  for  damages.'"  But  where  an  action  was  brought  for 
damages  incurred  by  injury  to  crops  occasioned  by  the  erection 
and  maintenance  of  gas  works,  and  the  noxious  vapors  and 
smells  created  thereby ;  and  the  action  was  referred  to  an  arbi- 
trator to  determine  the  injury,  and  ''what  should  be  done" 
between  the  parties ;  and  nearly  two  years  elapsed  before  he 


location  of  other  similar  tanks 
owned  by  others  engaged  in  the  same 
business,  was  not  a  nuisance.  Texas 
Co.  V.  Fisk  (Tex.  Civ.  App.),  129 
S.  W.  Rep.   188. 

A  city  ordinance  provided  that : 
"\^^leneve^  in  this  ordinance  a  pro- 
vision is  made  that  frontage  con- 
sents shall  be  obtained  for  the  erec- 
tion ...  of  any  building  or 
structure  in  any  block,  the  word 
'block'  so  used  shall  not  be  held 
to  mean  a  square,  but  shall  be  held 
to  embrace  only  that  part  of  a  street 
bounding  a  square  which  lies  be- 
tween the  two  nearest  intersecting 
streets,  one  on  either  side  of  the 
point  at  which  such  building  or 
structure  is  to  be  erected  .  . 
unless  it  shall  be  otherwise  specific- 
ally provided."  The  ordinance  fur- 
ther provided  that  it  shall  not  be 
lawful  to  construct  on  any  street 
in  any  block  in  which  two-thirds 
of  the  buildings  on  both  sides  of  the 
street  are  used  chiefly  for  residence 
purposes  any  building  for  a  gas 
reservoir  without  the  written  con- 
sent of  a  majority  of  the  property 
owners  according  to  frontage  on  both 
sides  of  the  street,  and  that,  in  de- 
termining whether  two-thirds  of  the 


buildings  on  both  sides  of  the  street 
are  used  chielly  for  residence  pur- 
poses, any  building  fronting  ujxjn 
another  street  and  located  upon  a 
corner  lot  shall  not  be  considered. 
It  was  lield  that  the  proposed  con- 
struction of  a  gas  reservoir  which 
would  be  at  its  nearest  point  within 
four  feet  of  Sixty-Fourth  street  and 
more  than  twenty-six  feet  from  the 
nearest  intersecting  street  is  located 
on  Sixty-Fourth  street  and  frontage 
consents  were  essential  only  with  re- 
spect to  Sixty-Fourth  street.  Peo- 
ple's Gaslight  &  Coke  Co.  v.  City 
of  Chicago,  145  111.  App.  307. 

-■'  Windfall  Mfg.  Co.  v.  Patterson, 
148  Ind.  414;  47  N.  E.  Pep.  2; 
.37  L.  R.  A.  381;  G2  Am.  St.  Rep. 
.532. 

If  a  gas  company  becomes  a  nuis- 
ance the  nuisance  mav  be  abated. 
Walla  Walla  v.  Walla  Walla  Water 
Co.,  172  U.  S.  1;  19  Sup.  Ct.  Rep. 
77;  Fertilizing  Co.  v.  Hyde  Park, 
97  U.  S.  G59;  Butchers'  Union  Co. 
V.  Crescent,  etc.,  Co.,  Ill  U.  S.  746; 
4  Sup.  Ct.  Rep.  652;  Coates  v. 
Mayor,  7  Cow.  585. 

"«Decatur  ("Jaslight  and  Coke  Co. 
V.  Howell,  92  III.  19. 


G76b 


OIL    AND    GAS. 


iiuulo  his  award  with  respect  to  the  damages  sustained  up  to 
the  date  of  the  award;  and  im  evidence  was  given  with  respect 
to  prosj)ective  damages;  an  entry  was  made  in  regard  to  the 
award  the  same  as  if  it  had  been  a  verdict ;  and  subsequently 
the  gas  company  increased  their  works  and  altered  their  method 
of  manufacture;  it  was  held,  on  a  bill  filed  by  the  plaintiff  two 
months  after  the  award,  that  he  was  entitled  to  a  perpetual 
injunction  to  restrain  the  further  manufacture  of  gas  in  a 
manner  injurious  to  his  croj>s,  and  that  there  had  been  no 
acquiescence  on  his  part  to  deprive  him  of  his  right  to  an  in- 
junction. The  award  was  treated  as  equivalent  to  the  verdict 
of  a  jury.'^^ 

§597.     Indictment  for  nuisance. 

An  indictment  for  the  creation  of  a  nuisance  in  the  conduct 
of  its  works  lies  against  a  gas  company,  even  though  it  has  been 
authorized  by  a  special  act  of  the  legislature  to  conduct  its 
works  in  the  town  or  city  where  located ;  and  the  fact  that  it  has 
been  so  authorized  is  no  defense.^"  But  if  the  company,  under 
such  authority,  has  erected  its  buildings  in  the  best  manner  pos- 
sible, and  used  the  Ix^st  known  methods  of  making,  storing  and 
distributing  gas,  it  will  not  be  liable,  altbough  it  may  be  liable 
to  a  private  person  injured  by  the  operation  of  the  works  in 
the  manner  described.^® 

§598.     Waste  of  natural  gas  or  oil. 

In  Indiana  a  statute  provides  that  it  shall  be  unlawful  for 
any  one  having  possession  or  control  of  a  gas  or  oil  well  "  to 
allow^  or  permit  the  flow  of  gas  or  oil  from  "  it  "  to  escape  into 
the  open  air,  without  being  confined  within  such  well  or  proper 
pipes,  or  other  safe  receptacle  for  a  longer  period  than  two 
days  next  after  gas  or  oil  shall  have  been  struck  in  such  w^ell ; 

77  Imperial  Oa.slight  Co.  v.  Broad-  L.  T.  (N.  S.)  604:  12  W.  R.  212; 
bent.  7  H.  L.  Cas.  600;  29  L.  J.  Ch.  11  C.  B.  (N.  S.)  578;  Rex  v.  Mod- 
377;    5    Jiir.     fX.    S.)     1319;    7    De       ley.  6  C.  and   P.   292. 

G.  McN.  and  O.  436;   0  Gas  J.  7;')!.  to  p,.oplo   v.    N.    Y.    Gaslight   Co., 

78  Parry   v.   Croydon   Gas   Co..    15       64  Barb.  55;  6  Lans.  467. 
C.   B.  568;    10  Jur.    (X.  S.)    172;   9 


NUISANCES.  'u  i 

aud  thereafter  all  such  2,'as  or  oil  shall  ix'  satVlv  ainl  securely 
confined  in  such  well,  pipes  or  other  safe  aud  proper  recep- 
tacles." **"  It  was  not  only  hekl  llint  ihis  statute  was  consti- 
tutional, but  also  that  the  State  could  maintain  an  action  to 
restrain  the  waste  of  gas  in  violation  of  its  provisions,  where  it 
was  alleged  that  the  ]X}nalties  for  the  wasting  of  gas  were  wholly 
inadequate,  and  that  the  injuries  occasioned  by  the  wrongful 
and  unlawful  conduct  of  the  defendant,  if  permitted  to  continue, 
would  be  irreparable.  It  was  considered  that  permitting  gas 
to  escaj'ie  in  violation  of  the  statute  was  a  nuisance.  In  pass- 
ing upon  the  case  the  court  said  : 

"  Appellee's  counsel  have  conceded  that  the  pressure  in  gas 
wells  since  the  discovery  of  gas  in  this  State  has  fallen  from 
350  pounds  to  150  pounds.  This  very  strongly  indicates  the 
possibility,  if  not  the  probability,  of  exhaustion.  In  the  light 
of  these  facts,  one  who  recklessly,  defiantly,  ]:)ersistently,  and 
continuously  wastes  natural  gas,  and  boldly  declares  his  purpose 
to  continue  to  do  so,  as  the  complaint  charges  appellee  with 
doing,  all  of  which  it  admits  to  be  true  by  its  demurrer,  ought 
Jiot  to  complain  of  being  branded  as  the  enemy  of  mankind. 
But  appellee  tries  to  excuse  its  conduct  on  the  score  that  it 
cannot  mine  and  utilize  oil  under  and  in  its  land  without  wast- 
ing the  gas.  But  there  is  nothing  in  the  record  to  bear  out  that 
claim.  However,  if  there  was,  it  would  not  furnish  a  valid 
excuse.  It  is  not  the  use  of  unlimited  quantities  of  gas  that  is 
prohibited,  but  it  is  the  waste  of  it  that  is  forbidden.  The 
abject  and  policy  of  that  inhibition  is  to  prevent,  if  possible, 
the  exhaustion  of  the  storehouse  of  nature,  wherein  is  deposited 
an  element  that  ministers  more  to  the  comfort,  lia]i]iiiiess,  and 
ivell  being  of  society  than  any  other  of  the  bounties  of  the  earth. 
Even  if  the  appellee  cannot  draw  oil  from  its  wells  without 
wasting  gas,  it  is  not  denied  that  it  may  draw  gas  therefrom, 
and  utilize  it  without  wasting  the  oil.  But,  even  if  it  cannot 
draw  oil  from  such  wells  without  wasting  gas,  and  is  forbidden 

^Burns'  Stat.  1908,  Sec.  9062; 
Thornton's  Rev.  Stat.  1897,  Sec 
7887. 


GTS  OIL    AND    GAS. 

L)v  injunction  so  to  do,  it  is  only  applying  the  doctrine  that  tho 
owner  must  so  use  his  own  ])roperty  as  not  to  injure  others. 
It  may  use  its  wells  to  produce  gas  for  a  legitimate  use,  and  must 
so  use  them  as  not  to  injure  others  or  the  community  at  large. 
The  continued  waste  and  exhaustion  of  the  natural  gas  of  In- 
diana through  appellee's  wells  would  not  only  deny  to  the  in 
habitants  the  many  valuable  uses  of  the  gas,  but  the  State, 
whose  many  quasi-public  corporations  have  many  millions  ol 
dollars  invested  in  supplying  gas  to  the  State,  and  its  inhal> 
itants,  will  suffer  the  destruction  of  such  corporations,  the  los£ 
of  such  investments  and  a  source  of  large  revenues.  To  use 
appellee's  wells  as  they  have  been  doing,  they  injure  thousandj' 
and  ]xn-haps  millions  of  the  people  of  Indiana,  and  the  injury^ 
the  exliaustion  of  natural  gas,  is  not  only  an  irreparable  one^ 
but  it  will  be  a  great  public  calamity.  The  oil  appellee  pro- 
duces is  of  very  small  consequence  as  compared  with  that  ca- 
lamity which  it  mercilessly  and  cruelly  holds  over  the  heads  oi 
the  people  of  Indiana,  and,  in  effect,  says:  '  It  is  my  property 
to  do  as  I  please  with,  even  to  the  destruction  of  one  of  tho 
greatest  interests  the  State  has,  and  you  people  of  Indiana  liel]! 
yourselves  if  you  can.  What  are  you  going  to  do  about  it  ? ' 
We  had  petroleum  oil  for  more  than  a  third  of  a  century  before 
its  discovery  in  this  State,  imported  from  other  States,  and 
we  could  continue  to  do  so  if  the  production  of  oil  should 
cease  in  this  State.  But  we  cannot  have  the  blessings  of  nat- 
ural gas  unless  the  measures  for  the  preservation  thereof  in  this 
State  are  enforced  against  the  lawless.  We  therefore  conclude 
that  the  facts  stated  in  the  complaint  make  a  case  of  a  public 
nuisance  which  the  appellant  has  a  right  to  have  abated  by  in- 
junction, and  that  the  complaint  states  facts  sufficient  to  consti- 
tute a  cause  of  action."  ^^ 

81  State  V.  Ohio  Oil  Co.,  150  Ind.  Oommonwealth    v.    Trent,    117    Ky. 

21;  49  N.  E.  Rep.  80£ ;  47  L.  R.  A.  34;    77    S.    W.    Rep.    300;    25    Ky. 

€27.     As  to  the  penalty  of  this  stat-  L.     Rep.     1180;     and    Pennsylvania 

ute,    see    McDonald    v.    Carlin,    163  statute,  sec  Steelsmith  v.  Aiken,  14 

Ind.  342;  71  N.  E.  Rep.  9G1;  Bailoy  Pa.  Super.  Ct.  Rep.  22G,  and  Dawson 

V.  State,  1G3  Ind.  1G5;  71  N.  E.  Rep.  v.    Shaw,    28    Pa.    Super.    Ct.    Rep. 

655.  "  As   to   Kentucky   statute,   see  563. 


CHAPTER  XXIX. 

LEAKS  AND  EXPLOSIONS. 

§509.  Duty  of  gas  companies  in  general. 

§600.  Care  required  of  gas  companies. 

§601.  Gas  company   must  keep  its  gas   constantly   under  control. 

§602.  Degree  of  care  required  of  gas  company. 

§603.  Night  watchman. 

§604.  Gas  company's  act  or  neglect  must  have  caused  the  damage. 

§605.  Two  or  more  defendants  liable. 

§606.  Statute  permitting  recovery  although  there  is  no  negligence. 

§607.  E.xplosion  occasioned  by  a  violation  of  a  statute. 

§608.  Laying  gas  main  in  navigable  river. 

§609.  Overwhelming  disaster. 

§610.  Burden  of  proof. 

§611.  Presumption  of  negligence  does  not  arise  from  proof  of  explosion. 

§612.  Presumption  of  negligence  arising  from  proof  of  explosion. 

§613.  Stop-cock  on  street  line. 

§614.  Intervening  agency. 

§615.  Inspection  of  pipes  or  mains. 

§616.  Duty  to  make  repairs  immediately. —  Available  force. 

§617.  Notice  of  leaks. 

§618.  Notice. —  Failure  to  discover  place  of  leak. 

§619.  Notice  of  leak,  when  not  necessary  to  fix  liability. 

§620.  Evidence  of  notice  to  gas  company  of  danger  to  mains. 

§621.  Evidence  of  other  leaks. 

§622.  Evidence  of  leaks. 

§623.  Breaks  occasioned  by  ordinary  use  of  streets. 

§624.  Action  of  frost. 

§625.  Pipes  breaking  from  lack  of  support. —  Excavations  near  pipe  line. 

§626.  Property  owner's  duty  to  notify  gas  company  of  leaks. 

§627.  Company  misleading  plaintilT  as  to  extent  of  danger. 

§628.  Municipality  operating  plant. 

§629.  Gas  following  supply  pipe  from  main. —  Percolating  through  soil. — 

Sewer. 

§630.  Withdrawing  gas  from  mains  without  notice. 

§631.  Undue  pressure  in  mains. 

§632.  Evidence  of  undue  pressure  at  other  places. 

§633.  Explosion  caused  by  act  of  servant  of  gas  company. 

670 


680  OIL    AND    GAS. 

§634.  Company  undertaking  to  repair  consumer's  pipes  or  fixtures. 

§():k5.  Injury  to  shade  trees. —  Shrubbery. 

§G.3G.  llluniinatiiitr  gas  driving  sewer  gas  into  hou*a. 

§637.  Explosion  caused  by  act  of  third  person. 

§638.  Gasfitter  igniting  escaping  gas. 

§639.  Negligence  of  fellow  servant. 

§640.  Person  on  premises  by  license. 

§641.  Guest  or  inmate  of  family  may   recover   from  gas  company  wlK?re 

owner  is  negligent. 

§642.  Lessee's  right  of  action  against  the  gas  company. 

§643.  Third  person  causing  gas  to  escape,  liability. 

§644.  Gas  turned  on  by  owner  or  stranger. 

§645.  Landlord's  right  of  action  against  tenant. 

§640.  Tenant's   right  of  action  against   landlord. 

§047.  Owner  of  premises  liable  to  injured  person. 

§048.  Plaintiff  must  show  due  care  on  his  part. —  Contributory  negligence. 

§049.  Owner  removing  from  his  premises    to  avoid  injury. 

§650.  Duty  of  property  owner  to  cut  off  supply  of  gas. 

§651.  Searching  for  leaks  with  a  light. 

§652.  Contributory  negligence  a  question  for  the  jury. 

§653.  Negligence  of  parent,  wife  or  servant. 

§654.  Contributory  negligence  of  tenant  may  bar  landlord, —  reversionary 

interest. 

§655.  Negligence  of  contractors. —  Lessee. 

§656.  Right  of  action  over. 

§057.  Liability  of  gasfitter. 

§658.  Evidence  to  show  due  care  on  gas  company's  part. 

§659.  Expert  evidence  to  show  effect  of  electrolysis. 

§000.  Evidence  in  cases  of  inhalation  of  gas. 

§001.  Expert  evidence  on  inhalation  of  gas. 

§662.  Proof   of   effect   upon    growing  vegetation  or  grass. 

§003.  What  acts  of  negligence  a  question  for  the  jury. 

§GC3i.  Shij)ping  explosives. 

§0G3i>.  Stove    polish    exploding. 

§G03<'.  Pleading   charge   of    explosion  caused  by  negligence. 

^599.     Duty  of  gas  companies  in  general. 

In  speaking  of  the  duty  of  a  gas  company  supplying  a  city 
and  its  inhabitants  with  gas,  the  Supreme  Court  of  Massachu- 
setts has  used  the  following  language :  "  The  defendants  [a 
gas  company],  under  their  charter,  were  in  the  enjoyment  of  a 
great  and  peculiar  privilege,  that  of  supplying  the  means  of 
light  to  all  parts  of  the  city.  This  devolved  upon,  them  a  cor- 
responding degree  of  responsibility  in  the  conduct  of  their  busi- 
ness and  in  the  preservation  of  every  part  of  their  apparatus 
from  defects  by  which  the  public  might  be  subjected  to  great 
inconvenience,  and  individuals  be  exposed  to  imminent  peril 


LEAKS    AND    EXl'I.OSIONS.  G81 

and  danger  in  rcsjx?ct  to  property  and  their  lives.  Tliey  are 
therefore  under  the  highest  degree  of  obligation  to  be  at  all 
times  in  a  state  of  the  most  ample  preparation  to  meet,  with 
all  reasonable  promptitude  and  despatch,  -whatever  exigency 
might  occur.  It  is  manifestly  im})ossible  that  they  should  have 
at  their  service,  at  every  moment  and  at  every  point  of  exp<jsure, 
an  adequate  force  to  overcome  a  sudden  fracture  of  llicir  i>ipes, 
or  any  other  casual  and  unexjx^ctcd  obstacle  in  the  conduct  of 
their  affairs  in  the  shortest  possible  time.  All  that  tlioy  are 
required  to  do  is  to  afford  ample  opportunities  to  all  ]~)arties  in- 
terested to  make  communications  to  them,  to  institute  and  main- 
tain an  efficient  system  of  oversight  and  suix^rintendence,  and 
to  be  prepared  with  a  sufficient  force  ready  to  be  put  in  action, 
and  fully  competent  to  supply  and  furnish  a  prompt  remedy  for 
all  such  accidents,  defects,  and  interruptions  in  their  affairs,  as 
from  experience  and  character  of  their  works  there  was  reason- 
able ground  to  anticipate  might  occur."  ^ 

§600.     Care  required  of  gas  companies. 

In  Massachusetts  the  following  rule  was  laid  down  by  the 
Supreme  Court,  relative  to  the  care  required  of  a  gas  company 
furnishing  a  city  and  its  inhabitants  with  gas :  "  It  is  the  duty 
of  gas  companies,  which  are  invested,  for  their  own  profit  and 
advantage,  with  the  great  and  important  privilege  of  supplying 
the  community  with  light  for  private  habitations,  and  for  other 
places  devoted  to  public  or  private  use,  to  exercise  due  care 
and  diligence  in  keeping  the  gas  constantly  under  their  control 
and  preventing  it  from  escn]>iiig  into  a  dwelling  house  or  jdace 
of  business,  where  the  inmates  or  occupants  are  in  such  cases 
involuntarily  subjected  to  its  effects,  whether  they  are  positively 

1  Holly    V.    Boston    Gaslight    Co.,  Gaslight  Co.  v.  :NrcClintork,  97  Ark. 

8    Gray     123;     69     Am.    Dec.    233;  570;    134  S.  W.   1189,   ll!t9. 

Citizens'  Gas,  etc.,   Co.  v.   Whipple,  Where  water   i.s  u.sed   in  a  meter, 

32    Ind.   App.   203 ;    69    N.    E.    Ri-p.  the    gas    company    must    keep    the 

557;  Hartman  v.  Citizens'  Nat.  Gag  meter  so  supplied  witli  water  tliat  it 

Co.,     210     Pa.     19;     59     Atl.     315;  will    not    leak.      Hacker    v.    London 

People's    Gaslight    &    Coke    Co.    v.  (iaslight  Co..  32  Gas  J.  7S1. 

Porter,   102  111.  App.  461;   Sipple  v.  Defendant  was  engaged   in   manu- 

Laclede  Gaslight  Co.,  125  Mo.  App.  facturing  calcium  carbide,  a  product 

81;    102    S.    W.    Rep.    608;    Pulaski  wliich  generated  a  highly  explosive 


G82 


OIL    AND    GAS. 


injurious  or  nicrciy  disgusting  and  offensive.  If  its  effect  is 
noxious  as  well  as  disagreeable,  the  diligence  required  to  take 
care  of  and  control  it  should  be  still  more  active  and  unremit- 
ting." "■ 

§601.     Gas  company  must  keep  its  gas  constantly  under  control. 

A  gas  company  operating  in  the  streets  of  a  city  or  to^^^^  is 
bound  to  constantly  keep  its  gas  under  control,  and  prevent  it 
escaping  into  dwelling  houses  and  places  of  business;  and  if  the 
gas  does  escape  and  cause  damages,  the  company  is  usually 
liable.'  And  the  fact  that  the  company,  in  the  erection  and 
operation  of  its  plant,  took  all  reasonable  and  proper  precau- 
tion, and  used  the  best  and  most  approved  machinery  and  appli- 
ances, added  all  that  a  prudent  person  could  do  to  prevent  the 
escape  of  gas  from  its  plant,  of  itself  docs  not  relieve  the  com- 


gas  when  brought  into  contact  with 
water,  and  its  foreman  directed  a 
plumber  in  its  employment  to  repair 
certain  water  pipes  near  an  elevator 
pit,  at  the  bottom  of  which  was 
stored  a  quantity'  of  carbide.  When 
the  plumber  took  apart  the  pipe  to 
make  the  repairs,  the  water  therein 
ran  out  and  into  the  elevator  pit, 
and  came  in  contact  with  the  car- 
bide at  the  bottom,  causing  an 
explosion,  by  which  plain<sfl''s  intes- 
tate was  killed.  The  water  in  the 
pipe  could  easily  have  been  dis- 
covered and  drained,  but  no  effort 
v/as  madt  to  do  so,  and  the  piumber 
was  not  cautioned  against  permit- 
ting the  water  to  run  out  on  the 
floor.  It  was  held,  that  defendant 
was  chargeable  with  knowledge  of 
the  facts  which  caused  the  explo- 
sion, and  the  accident  was  one  which 
it  shouM  IfJve  anticipated  and  used 
every  precaution  to  prevent.  Char- 
ron  V.  Union  Car.bide  XI^o.,  151  Mich. 
687;   115  X.  W.  718. 

A  gas  company  cannot  contract 
against  its  liability  for  damages 
occasioned  by  an  explosion  brought 
about  by  its  negfigencc.  Bastian  v. 
Keystone   Gas   Co.,    27    X.    Y.    App. 


Div.  584;  50  X.  Y.  Supp.  537;  4 
Am.  Xeg.  Rep.  529;  Deckert  v.  Mu- 
nicipal, etc.,  Co.,  9  X.  Y.  App.  Div. 
573;  41  X.  Y.  Supp.  692. 

2  Emerson  v.  Lowell  Gaslight  Co., 

3  Allen  410;   Parry  v.  Smith,  L.  R. 

4  C.  P.  325 ;  33  Gas  J.  899. 

Every  precaution  suggested  by  ex- 
perience and  the  known  dangers 
must  be  taken.  Koelsch  v.  Phila- 
delphia Co.,  152  Pa.  St.  355;  25 
Atl.  Rep.  522;  18  L.  R.  A.  759;  34 
Am.  St.  Rep.  653;  Consolidated  Gas 
■Co.  V.  Connor,  114  Md.  140;  78 
Atl.  725;  Jennings  v.  Davis,  187 
Fed.  703. 

The  fact  that  other  causes  con- 
tributed to  the  injury  does  not  bar 
the  action,  though  it  may  be  shown 
to  afToct  the  damages.  Sherman  v. 
Fall  River,  etc.,  Co.,  5  Allen  213. 

3  Armbruster  v.  Auburn  Gaslight 
Co.,  18  X.  Y.  App.  Div.  447;  46  X. 
Y.  Supp.  158;  Bastian  v.  Keystone 
Gas»Co.,  27  X.  Y.  App.,  Div^  584; 
50  X.  Y.  Supp.  537;  Chisholm  v. 
Atlanta  Gaslight  Co.,  57  Ga.  28; 
Triple  etc.,  Co.  v.  Wellman  (Ky.), 
70  S.  W.  Rep.  49;  So.  Oil,  Langa- 
bough  v.  Anderson,  22  Ohio  Cir.  Ct. 
Rep.  178;    12  Ohio  C.  D.  341. 


LEAKS    AND    EXPLOSIONS.  G83 

pany  from  responsibility,  if  an  injury  actually  results  because 
of  the  escapinpi;  gas.*  Gas  is  regarded,  and  is,  a  dangerous 
substance;  and  be  wbo  brings  it  onto  his  or  another's  premises 
must  safely  keep  it  a.  his  peril.  In  this  respect  it  is  not  unlike 
the  collection  of  a  large  body  of  water  upon  one's  premises; 
the  person  so  doing  does  so  at  his  ]x'ril  and  must  keop  it  safely 
confined.  In  an  Ohio  case  where  a  stand-pipe  filled  with  water 
fell,  causing  much  damage,  the  court  said :  "  This  brings 
ns  to  the  consideration  of  the  question  of  the  liability  of  one 
who,  for  his  own  ]>urposcs,  collects  u]K)n  his  premises  a  substance 
likely  to  injure  others  in  case  it  escapes. 

"  The  principle  upon  which  liability  rests  in  such  ease  is 
quite  unlike  that  which  determines  the  liability  of  one  who 
leaves  unguarded,  excavations  upon  his  own  lands,  or  one  who 
negligently  constructs  a  building  so  that  it  falls  upon  his  own 
premises.  In  these  latter  cases  no  one  can  be  injured  unless 
he  comes  upon  the  premises.  If  he  remains  away,  he  is  safe. 
In  the  former,  the  danger  arises  from  the  natural  tendency  of 
the  things  to  escape  from  the  premises  where  stored,  together 
with  the  likelihood  of  its  doing  injury  if  it  docs  escape  there- 
from. In  England  it  seems  to  be  settled  by  Fletcher  vs.  Ry- 
lands,**  inanimate  substances  or  animate  things  from  the  escape 
of  which  injury  is  likely  to  follow,  to  prevent  such  escape. 
While  this  duty  may  not  extend  to  trespassers,  or  those  who,  for 
their  own  purposes,  without  express  or  implied  invitation  from 
the  proprietor,  chose  to  come  upon  the  premises,  yet  that  case 
(Fletcher  vs.  Eylands,  swpra), should  be  regarded  as  extending 
this  duty  to  all  persons  who  may  be  rightfully  on  adjoining 
premises.  Blackburn,  J.,  in  the  course  of  an  able  opinion,  and 
speaking  for  the  whole  court,  used  the  following  language: 
*  We  think  the  true  rule  of  law  is  that  the  person,  who,  for  his 
own  purposes,  brings  on  his  land,  and  collects  and  keeps  there 
anytliiiig  likely  to  do  niiscliicf  if  it  escapes,  must  keep  it  in 
at  his  jx'ril,  and  if  be  does  not  do  so,  is  prima  facie  answerable 

4  Belvidpre  Gaslight  Co.  v.  Jack-  held  that  the  dofcndant  gas  corn- 
son,  81  111.  App.  424.  pany   was    not   liable.      Jennings   v. 

But  where  a  rubber  gasket  from  Uavis   1S7    Fed.  703. 

a  joint  in  the  pipe  blew  out,  it  was  *••  U  R.  1  Exeh. 


084  OIL    AND    GAS. 

for  all  the  daninco  that  is  tlic  iiatin-al  f'()iise(|iioiico  of  its  cscapo. 
He  can  excuse  himself  hy  showing  that  the  escape  was  owing  to 
plaintiff's  default;  or,  perhaps,  that  the  escape  was  the  conse- 
quence of  a  vis  major,  or  the  act  of  God.  .  .  .  The  general 
rule  as  above  stated  seems  on  ])rinciple  just.  The  person  whose 
grass  or  corn  is  eaten  down  by  the  escaping  cattle  of  his  neigh- 
bor, or  whose  mine  is  flooded  by  the  water  from  his  neighbor's 
reservoir,  or  whose  cellar  is  invaded  by  the  filth  of  his  neighbor's 
privy,  or  whose  habitation  is  made  unhealthy  by  the  fumes  and 
noisome  vapors  of  his  neighbor's  alkali  works,  is  damnified  with- 
out any  fault  of  his  own,  and  it  seems  but  reasonable  and  just 
that  the  neighbor  wdio  has  brought  something  on  his  owm  prop- 
erty which  was  not  naturally  there,  harmless  to  others  so  long 
as  it  is  confined  to  his  own  property,  but  which  he  knows  to  be 
mischievous  if  it  gets  on  his  neighbor's,  should  be  obliged  to 
make  good  the  damage  which  ensues  if  he  does  not  succeed  in 
confining  it  to  his  own  property.  But  for  his  act  in  bringing 
it  there,  no  mischief  may  accrue,  and  it  seems  but  just  that  he 
should,  at  his  peril,  keep  it  there,  so  that  no  mischief  may  ac- 
crue, or  answer  for  the  natural  and  anticipated  consequences. 
And  upon  authority,  this,  we  think,  is  established  to  be  the  law, 
wdiether  the  things  so  brought,  be  beasts,  or  water,  or  filth,  or 
stenches.' 

"  This  doctrine,"  resumes  the  Ohio  court,  "  would  seem  to  be 
in  exact  accord  justice  and  sound  reason ;  but  in  the  case  before 
us  we  are  not  required  to  apply  it  to  its  full  extent,  because  the 
defendant  in  error,  in  her  amended  petition,  expressly  avers 
negligence  in  the  construction  of  the  stand-pipe,  as  well  as  knowl- 
edge that  it  had  afterward  cracked  and  become  weakened,  a 
negligent  failure  to  make  repairs,  and  that  the  accident  which 
caused  her  injuries  was  the  direct  result  of  such  negligence." 

"  Therefore,  whether  or  not  she  could  recover  in  the  absence 
of  negligence  on  the  part  of  the  water  company  in  storing  the 
water,  does  not  concern  us  at  this  time,  for,  however  that  may 
be,  certainly  one  who,  like  defendant  in  error,  is  rightfully  on 
premises  adjoining  those  upon  which  such  substances  are  stored, 
and  is  injured  by  their  escape,  should,  upon  the  plainest  prin- 
ciples of  natural  justice,  recover  from  the  proprietor  storing  the 


LKAKS    AND    KXIM.OSIONS. 


GS5 


same,  damages  for  such  injury,  avIkm-c  tli(>  eseajx^  was  caused  by 
negligence." 

"  While  every  person  has  exclusive  dominion  over  liis  own 
property,  and  may  subject  it  to  such  uses  as  may  subserve  his 
wishes  and  private  interests,  he  is  bound  to  have  respect  and 
regard  for  his  neighbor's  rights." 

"  The  maxim  '  sic  utcre  tuo  id  alienum  non  loedas  '  limits  his 
powers.  He  must  make  a  reasonable  nse  of  his  property,  and 
a  reasonable  use  can  never  be  construed  to  include  those  uses 
which  produce  destructive  vapors  and  noxious  smells,  and  that 
result  in  material  injury  to  the  property  and  to  the  comfort  of 
the  existence  of  those  who  dwell  in  the  neighborhood."  "  The 
reports  are  filled  with  cases  where  this  doctrine  has  been  applied, 
and  it  may  be  conrtdently  asserted  that  no  authority  can  be  pro- 
duced holding  that  negligence  is  essential  to  estal)lish  a  cause 
of  action  for  injuries  of  such  a  character."  ^ 


5  Defiance  Water  Co.  v.  Olingor, 
54  Ohio  St.  532 ;  44  X.  E.  Rep.  23S ; 
32  L.  Pv.  A.  736;  35  Ohio  L.  J. 
323,  350. 

The  court  cites  St.  Mary's  Wool- 
en Mfg.  Co.  V.  Bradford  Glycerine 
Co.,  14  Ohio  Cir.  Ct.  Rep.  522; 
Bohan  v.  Gaslight  Co.,  122  X.  Y. 
18;  9  L.  R.  A.  711;  34  Am.  and 
Eng.  Corp.  Gas.  57 ;  and  Brady  v. 
Detroit  Street,  etc.,  Co.,  102  Mich. 
277;  CO  X.  W.  Rep.  G87;  20  L.  R. 
A.  175. 

This  is  the  doctrine  of  the  case 
of  Rylands  v.  Fletcher,  L.  R.  3, 
H.  L.  330,  which  has  been  held  in 
Pennsylvania  not  to  be  applicable  to 
a  gas  company.  Strawbridge  v. 
Philadelphia,  13  Phila.  173;  13 
Repr.  216;  36  Leg.  Int.  27 G. 

In  Kentucky  it  was  held  that  a 
natural  gas  company  is  not  an  in- 
surer of  the  safety  of  its  product, 
so  as  to  be  responsible  for  a  failure 
to  keep  it  confined.  It  is  only  lia- 
ble for  a  failure  to  exercise  ordinary 
care.  Triple  State,  etc.,  Co.  v.  Well- 
man  114  Ky.  70;   70  S.  W.  Rep.  49. 


Gas  was  installed  in  decedent's 
house  prior  to  1903,  and  was  con- 
nected with  a  goose  necic  to  a  meter. 
A  tenant  occupied  the  premises  from 
1903  to  1907,  during  which  no  gas 
was  used  in  the  house.  In  1905, 
the  grade  of  the  street  and  the  de- 
fendant's mains  were  lowered,  and 
a  new  service  pipe  was  put  in  with- 
out request  or  notice  to  decedent, 
and  the  old  service  pipe  was  discon- 
nected and  left  in  the  ground.  Tlie 
new  service  pipe  was  connected 
with  the  same  riser  that  had  pre- 
viously been  connected  with  the  old 
service  pipe,  and  was  left  practically 
in  the  same  position,  with  nothing 
to  indicate  that  it  was  not  still 
connected  with  the  old  pipe.  The 
old  service  pipe  stuck  out  of  the 
ground  two  or  three  inches,  over  the 
curb  line,  and  the  s'ciewalk,  on  l>eing 
cut  down  to  grade,  left  it  exposed 
across  the  walk,  forming  an  obstruc- 
tion. Decedent  returned  from  an- 
other state  and  occupied  the  house 
in  1907,  without  any  knowledge 
that  a  new  service  pipe  had  been  put 


6SG 


OIL    AND    GAS, 


§602.     Degree  of  care  required  of  gas  company. 

The  decisions  are  not  luiifunn  with  respect  to  the  degree  of 
care  required  of  a  gas  company  to  prevent  leaks  and  ex]>losions. 
In  many  cases  it  is  said  that  the  company  must  use  due  care  to 
prevent  an  injury  to  person  or  property,  no  other  qualifications 
of  the  degree  of  care  heing  used."  And  after  notice  of  a  leak 
it  is  said  it  must  use  "  reasonable  diligence  "  to  discover  and 
stop  it,  which  is  an  elastic  phrase;  and  it  may  be  remarked  no 
one  would  expect  it  to  use  "  unreasonable  degree  of  diligence."  ^ 
In  a  Pennsylvania  case  the  degree  of  care  retpiired  was  stated 
as  follows:  "The  definitions  of  negligence  which  have  been 
attempted  imply  that  a  higher  degree  of  care  and  vigilance  is 
required  in  dealing  with  a  dangerous  agency  than  in  the  ordi- 
nary affairs  of  life  or  business,  which  involve  little  or  no  risk  of 
injury  to  persons  or  property.  While  no  absolute  standard  of 
duty  in  dealing  with  such  agencies  can  be  prescribed,  it  is  safe 
to  say,  in  general  terms,  that  every  reasonable  precaution  sug- 
gested by  the  experience  and  the  known  dangers  of  the  subject 


in,  or  that  the  riser  was  not  still 
connected  with  the  old  pipe.  He 
endeavored  to  take  up  the  old  pipe 
to  remove  the  obstruction  across  the 
walk,  and  in  doing  so  unscrewed  the 
riser,  when  he  was  overcome  with 
gas  and  died  before  he  could  escape 
from  under  the  house  porch. 

It  was  held  tliat  the  gas  com- 
pany's negligence  in  cutting  off  the 
old  service  pipe  from  the  main  and 
leaving  it  exposed  and  apparently 
still  connected  with  the  riser,  and 
installing  a  service  with  a  new  pipe 
and  connecting  it  with  the  old  riser, 
without  the  knowledge  or  consent  of 
the  deceased,  or  anything  to  put  him 
on  inquiry,  was  the  proximate  canso 
of  the  decedent's  death.  Pulaski 
Gaslight  Co.  v.  McClintock,  97  Ark. 
576;    134  S.  W.   1189  and   1199. 

oPine  Bluff,  etc.,  Co.  v.  McCain, 
62   Ark.    118;    34   S.   W.   Rep.   549; 


Louisville  Gas  Co.  v.  Gutenkuntz, 
82  Ky.  432;  Triple  State,  etc.,  Co. 
V.  Wellman  (Ky.),  70  S.  W.  Rep. 
49;  24  Ky.  Law  Rep.  851;  Gould  v. 
Winona  Gas  Co.,  100  Minn,  258; 
111  N.  W.  Rep.  254;  10  L.  R.  A. 
(N.  S.)  889;  Citizens'  Gas,  etc.,  Co. 
V.  Whipple,  32  Ind.  App.  203;  G9  N. 
E.  Rep.  557;  Hartman  v.  Citizens* 
Nat.  Gas.  Co.,  210  Pa.  19;  59  Atl. 
Rep.  315;  People's  Gaslight  &  Coke 
Co.  V.  Porter,  120  111.  App.  461; 
Shirey  v.  Consumer's  Cas  Co.,  215 
Pa.  399;    G4  Atl.  Rep.  541. 

7  Consolidated  Gas  Co.  v.  Crocker, 
82  Md.  113;  34  Atl.  Rep.  423;  31 
L.  R.  A.  785;  Hunt  v.  Lowell  Gas- 
light Co.,  1  Allen  343;  Blenkiron  v. 
Great  Central  Gas,  etc.,  Co.  2  F. 
and  F.  437;  2  Gas  J.  292,  776;  3 
L.  T.  (N.S.)  317;  Consolidated  Gas 
Co.  V.  Connor,  114  Md.  140;  78 
Atl.  725. 


LEAKS    AM)     KXIM.O.SIONS.  GST 

ought  to  bo  taken.  This  wduhl  nMiuiro,  in  tlic  caso  of  a  gas 
company,  not  only  that  its  pipes  ami  fittings  should  be  of  such 
material  and  workmanship,  and  laid  in  the  ground  with  such 
skill  and  care,  as  to  provide  against  the  escape  of  gas  therefrom 
when  new,  but  that  such  system  of  inspection  should  be  niain- 
lained  as  would  insure  reasonable  promptness  in  the  detection 
of  all  leaks  that  might  occur  from  the  deterioration  of  the  ma- 
terial of  the  piix^s,  or  from  any  other  cause  within  the  circum- 
spection of  men  of  ordinary  skill  in  the  business.  It  requires 
nothing  unreasonable;  it  does  not  re(]uire  that  the  comj)any  shall 
keep  up  a  constant  inspection  all  along  its  lines  without  refer- 
ence to  the  existence  or  non-existence  of  probable  cause  for  the 
occurrence  of  leaks  or  escape  of  gas."  ^  But  in  an  Indiana  case, 
in  speaking  of  the  duty  of  a  natural  gas  company,  the  court 
said:  "  Appellant  was  engaged  in  dealing  in  and  furnishing  to 
its  patrons  a  dangerous,  deadly  explosive,  and  inllainmable  ele- 
ment. The  character  of  the  product  it  furnished  required  of 
it  the  highest  degree  of  care  and  caution,  and  im]X)sed  upon  it 
a  continuing  duty  of  oversight  and  inspection."  °  These  sev- 
eral expressions  may  be  all  reconciled,  probably,  by  the  well 
known  rule  in  negligence  cases  that  due  care  in  a  particular 
instance  depends  upon  the  existing  danger  —  the  care  required 

8  Koelsch  V.  Philadelphia  Co.,  152  203;    69   N.    E.    Rep.   557;    People's 

Pa.  St.   355;    25   Atl.   Rep.   522;    18  Gaslight  &   Coke  Co.,   102    111.   App. 

L.    R.    A.    759;     34    Am.    St.    Rep.  461;   Marshall  Window  Glass  Co.  v. 

653.     "Something  like  this  was  said  Cameron,   etc.,    Oil   Co.,   63    W.   Va. 

in  Kiebele  v.   Philadelphia,   105  Pa,  202;  59  S.  E.  Rep.  959;  Hashman  v. 

St.  41,  and  in  Holly  v.  Boston  Gas-  Wyandotte   Gas   Co.,   &3   Kan.   328; 

light  Co.,  8  Gray  123;   69  Am.  Dec.  Ill  Pac.  468;  Merrill  v.  I^s  Angeles 

233;   and  Smith  v.  Boston  Gaslight  Gas   &   El.    Co.,    158    Cal.   499;    111 

Co.,   129   Mass.   318;    and  this   prin-  Pac.  534. 

ciple  is  recognized  in  many  kindred  9  Indiana,   etc..    Gas   Co.   v.   Long, 

cases."      Shircy   v.    Consumer's    Gas  27    Ind.    App.    219;    59    N.    E.    Rop. 

Co.,  215  Pa.  399;   64  Atl.  Rep.  541;  410;    Alton  Ry.,  etc.,  Co.  v.   Foulds, 

Ilartman  v.  Citizens'  Nat.  Gas  Co.,  81    111.   App.   322;    affirmed    190   111. 

210  Pa.  19;  59  Atl.  Rep.  315;  Gould  367;  60  N.  E.  Rep.  537  (electricity)  ; 

V.  W^inona  Gas  Co.,  100  Minn.  258;  Bastian  v.  Keystone  Gas.  Co.,  27  X. 

HI   N.   W.   Rep.   254;    10   L.    R.   A.  Y.   App.   Div.   584;    50  X.   Y.   Supp. 

(N.   S.)    889;     (Care  commensurate  537;  Sipple  v.  Laclede  Gaslight  Co., 

with    the    danger);     Citizens'    (Jas,  125    Mo.   App.   81;    102   S.   W.   Rep. 

etc.,    Co.    V.    Whipple,   32    Ind.    App.  608. 


688  on.  AM)  (JAs. 

increasing  with  increase  of  the  danger.  Or,  as  it  has  been 
stated,  in  a  particular  application,  a  gas  company  is  bound  to 
exercise  a  reasonable  degree  of  care  commensurate  with  the  dan- 
gerous and  ex])losive  nature  of  its  commodity.^"  This  is  the 
rule  laid  down  in  many  cases."  It  must  be  borne  in  mind  that 
a  gas  company  is  a  quasi-public  corporation,  in  cities  and  towns 
dealing  with  the  public,  and  having  the  right  to  lay  its  pipes  in 
the  public  streets.  Hence  there  devolves  upm  it  a  duty  to  use 
a  greater  degree  of  care  than  if  it  was  merely  a  private  corpora- 
tion, especially  if  the  latter  is  remote  from  contact  with  the 
public.  It  is  handling  a  dangerous  substance  —  probably  more 
dangerous  than  gnnijwwder  —  often  in  the  midst  of  heavily  pop- 
ulated districts;  and  such  a  situation  calls  for  a  high  degree  of 
care.  "  Care  and  diligence,"  said  the  Supreme  Court  of  Massa- 
chusetts, "  should  always  vary  according  to  the  exigencies  which 
require  vigilance  and  attention,  conforming  in  amount  and 
degree  to  the  particular  circumstance  under  which  they  are  to 
be  exercised.  But  it  must  be  equal  to  the  occasion  on  which  it 
is  to  be  used,  and  is  always  to  be  judged  of  according  to  the 
subject  matter,  the  force  and  danger  of  the  material  under  the 
defendant's  charge  and  the  circumstances  of  the  case."  ^^ 

10  This  was  said  with  reference  W.  Va,  634 ;  32  S.  E.  Rep.  327  ;  44 
to    the    duty    of   a   gas   company    in       L.  R.  A.  92. 

keeping    its    meters    in    a    condition  ^-  Holly   v.    Boston    Gaslight    Co., 

free  from  menace  of  danger  to   the  8    Gray    123;     69    Am.    Dec.    233; 

persons  or  property  of  others.     An-  Holding  v.  Liverpool   Gas  Co.,  3  C. 

derson  v.  Standard  Gaslight  Co.,  17  B.    1 ;    10  Jur.   883;    15   L.  J.  C.  P. 

N.    Y.    Misc.    625;    40    X.    Y.    Supp.  301;    5  X.  Y.  Leg.  Obs.   77;   Anthon 

671.  X.   P.   356,   note;    Koelsch  v.   Phila- 

1 1  Butclier  v.  Providence  Gas.  Co.,  delphia  'Co.,  supra;  ^Mississinewa 
12  R.  L  149;  34  Am.  Rep.  620;  Mining  Co.  v.  Patton,  129  Ind.  472 ; 
Rockford  Gaslight,  etc.,  Co.  v.  28  N.  E.  Rep.  1113;  28  Am.  St. 
Ernst,   68   111.   App.   300    {must  ex-  Rep.  203. 

ercise    care    in    the    use    of    gas    in  It  is  not  error   to   charge  a  jury 

proportion    to   the    danger)  ;    Belvi-  that   a   gas   company   "is   bound   to 

dere  Gaslight  and  Fuel  Co.  v.  Jack-  exercise   such   care,    skill,   and    dili- 

son,  81   111.   App.  424;   'Chisholm  v.  gence    in    all    its    operations    as    is 

Atlanta    Gaslight    Co.,    57    Gu.    28;  called  for  by  the  delicacy,  didiculty, 

Armbruster    v.    Auburn,    18    X.    Y.  and  dangerousness  of  the  nature  of 

App.  Div.  447;  46  X.  Y.  Supp.  158;  its  business,    in   order   that  any   in- 

Barrickman   v.   Marion   Oil   Co.,   45  jury    may   not    be   done   to    others; 


LEAKS    AND    EXPLOSIONS.  089 

§603.     Night  watchman. 

It  is  the  duty  of  a  gus  company  to  keep  watch  not  only  in  the 
day  time  over  its  plant  and  the  supply  of  gas,  but  also  at  ni<;ht ; 
especially  where  the  pressure  of  the  tias  in  the  ni:iiiis  fluctuates, 
as  in  the  case  of  natural  ^as.  "  A  person  or  corpcn'ation  who 
furnishes  natural  .c:as  to  customers  and  ne^i-liixently  causes,  suf- 
fers or  permits  the  ]iressure  to  iuerense  beyond  llie  us>i;il  and 
accustomed  pressure  to  the  extent  that  it  overheats  stoves,  et£., 
of  its  customers,  and  without  the  latter's  fault,  so  that  damage 
results  to  the  customers,  such  act  is  a  positive  wrong,  and  is 
therefore  actionable.  In.  a  case  of  this  character  it  is  not  sutH- 
cient  to  relieve  the  gas  company  from  liability  for  it  to  show 
that  its  regulators,  etc.,  ^vere  in  good  repair  and  working  order ; 
but  it  must  go  further  and  show  that  it  had  maintained  an  effi- 
cient system  of  inspection ;  that  it  provided  a  watchman  or  com- 
petent servant  to  control  the  pressure,  etc."  Especially  is  it 
necessary  for  this  to  be  done  during  the  night,  for  it  has  become 
a  matter  of  common  knowledge  that  during  the  night,  while 
many  fires  are  either  turned  out  or  down,  that  receive  their  sup- 
ply of  fuel  from  the  same  main,  the  ])ressure  is  increased."  ^* 

that  is  to  say,  if  the  danger,  delicacy  was  instantaneous  and  without  suf- 

or  difTiculty  is  extraordinarily  great,  fering,    tliere    could    be    no    furtlier 

extraordinary  skill   and  diligence  is  claim   that    the   decedent  was   negli- 

required,"  in  an  action  for  the  burn-  gent   in   remaining  under   the  house 

ing   of  a   building   by   gas   escaping  and  attempting  to  connect  tlie  gas. 

from  pipes.     Citizens'  Gas,  etc.,  Co.  Pulaski    Gaslight    Co.    v.   McCIin- 

V.   Whipple,   32    Ind.   App.   203;    G9  tock,  07  Ark.  57G;    134  S.  W.   1189 

N.  E.  Rep.  557.  and  1109. 

■^Miere  decedent  was  killed  by  an  i-"!  Citing   Koelsch  v.   Pliiladelphia 

inhalation  of  gas  wlnle  endeavoring  Co.,    152   Pa.   St.  355;    25    Atl.   Pep. 

to  take  up  certain  old  pipes,  which  522;    34  Am.  St.   G53;    18  L.  R.  A. 

he    erroneousl3'    believed    had    been  759. 

disconnected  from  the  main,  bj'  rea-  n  Indiana,    etc.,    Co.    v.    Long,    27 

son  of  the  defendant's  alleged  negli-  Ind.   App.  219;   59  N.  E.  Rep.  410; 

gence    in    putting    in    new     service  Indiana,  etc.,  Gas  Co.  v.  New  Hamp- 

pipes,    without    taking    out   the   old  shire,   etc.,   Co.,   23   Ind.   App.   208; 

ones,  the  defendant  was  held  not  to  53    N.    E.    Rep.    485;    Citizens'   Gas, 

be  entitled   to   a  verdict,   if  the  dc-  etc.,    Co.   v.   Whipple,   32    Ind.   App. 

cedent  disconnected  a  riser  and   in-  203;  G9  X.  E.  Rep.  557. 

haled     tlie    gas,    unless    he    did     .so  Tlie  watchman's  negligent  failure 

voluntarily.     Having  gone  under  tlie  to  report  leaks  he  has  discovered  is 

porcli    of    tlio    house    to    disconnect  the  neglect  of  the  company.     Dielile 

the    riser,     and,    the     court    having  v.    United    Gas    Imp.    Co.,    225    P;u 

found  as  a  matter  of  law  that  death  494;  74  Atl.  Rep.  349. 


G'JO  OIL    AND    GAS. 

§604.     Gas    company's    act    or    neglect    must    have    caused    the 
damage. 

It  is  an  oleineiitarv  proposition  that  the  act  of  the  gas  com- 
pany, or  its  neglect  to  perform  a  duty,  must  canse  the  damages, 
to  make  it  liable.  The  damages  must  he  directly  traceable  to 
the  act  of  the  gas  company ;  or  they  must  be  directly  traceable 
to  its  failure  to  ]iorf()nn  a  duty,  the  word  "  duty  "  in  this  con- 
nection imy)lyii)g  that  the  company  is  under  an  obligation  to 
perform  the  thing,  which,  omitting  to  perform  caused  the  in- 
jury. Tn  an  Indiana  case  is  furnished  an  illustration  of  this 
statement.  A  complaint  in  an  action  against  a  natural  gas 
company  to  recover  damages  to  the  plaintiff,  caused  by  an  over- 
heated stove,  contained  the  allegations  that  the  plaintiff  had  con- 
trol of  all  gas  ap]ilianeos  within  hor  home,  except  the  mixer,  that 
the  defendant,  over  her  protest,  substituted  a  number  seven  for 
a  number  five  mixer,  but^  there  was  no  allegation  that  the  de- 
fendant w\ns  bound  to  furnish  such  a  mixer  as  the  consumer 
desired,  or  that  the  fire  might  not  have  occurred  with  either 
iTiixer ;  that  a  valve  was  placed  in  the  pipe  to  regulate  the 
flow  of  gas,  but  that  the  amount  of  the  flow  depended  entirely 
upon  the  pressure,  which  was  regulated  by  the  company ;  that 
the  "  valve  was  used  to  turn  off  and  put  on  the  gas,"  and  that 
*'  she  had  carefully  adjusted  the  valve  to  suit  the  pressure  be- 
fore her  absence."  It  was  held  that  the  complaint  failed  to  show 
any  negligence  on  the  part  of  the  defendant,  and  also  failed  to 
show  that  the  plaintiff  was  free  from  fault.  In  passing  on  the 
case  the  court  said :  "  In  the  case  at  bar  the  complaint  fails 
to  make  a  case  within  the  above  rule.  Construing  the  pleading 
most  strongly  against  the  pleader  we  can  but  conclude  that  it 
fails  to  show  any  negligence  on  the  appellee's  part,  and  also 
fails  to  show  appellant  free  from  fault.  It  appears  that  ap- 
pellant had  control  of  all  gas  appliances  within  her  home  except 
the  mixer.  Complaint  is  made  that  appellee  changed,  over 
appellant's  protest,  a  number  five  for  a  number  seven  mixer, 
but  there  is  nothing  to  show  that  appellee  was  legally  bound  to 
furnish  such  mixer  as  the  consumer  wished.  So  far  as  we  are 
informed  by  the  complaint,  the  fire  might  have  occurred  with 


LEAKS    AND   EXPLOSIONS.  690a 

eithor  mixer.  It  is  not  shown  Avliero  the  ri^ht  to  detoniiiiie 
the  size  of  the  mixer  lay.  AiipcUee  may  liave  had  the  ri^ht 
under  franchise  to  require  a  certain  mixer  for  such  a  house  as 
apix^Uant's ;  it  may  have  had  a  perfect  riijht  to  clinnco  tlie 
mixer  as  it  did.  It  is  not  chiimed  the  mixer  put  in  was  de- 
fective, or  that  any  of  the  appliances  were  defective.  It  is 
not  shown  that  the  change  was  a  negligent  act,  or  that  appellee 
did  anything  wrongful  in  nuiking  the  change,  or  that  after  the 
change  was  made  it  negligently  increased  the  pressure  through 
such  changed  mixer.  It  is  averred  that  the  gas  passes  out  of 
the  pipe  through  mixer  into  an  instrument  called  a  burner,  and 
in  the  pipe  before  the  ]W)iiit  where  the  gas  passes  through  the 
mixer,  '  is  placed  a  valve  which  is  opened  and  closed  to  regulate 
the  flow  of  the  gas,  but  the  amount  of  the  flow  of  gas  depends 
upon  the  pressure  entirely,'  and  that  the  pressure  is  regiilated 
by  the  company.  It  is  also  averred  that  the  '  valve  is  used  to 
turn  oif  and  put  on  the  gas.'  Construing  these  averments  to- 
gether they  mean  that  the  flow  of  gns,  whether  the  pressure  was 
great  or  small,  was  controlled  by  this  valve.  And  it  seems  ap- 
pellant knew  this  and  acted  upon  it,  and  that  she  also  know  the 
pressure  was  not  uniform,  for  she  avers  that  '  she  had  carefully 
adjusted  the  valve  to  suit  the  pressure  before  her  absence.'  If 
she  made  a  mistake  and  failed  to  turn  the  valve  low  enough, 
she  cannot  complain.  It  is  clear  from  the  pleading  that  she 
knew  the  manner  of  regulating  the  flow  of  gas,  and  made  an  at 
tempt  to  regulate  it."  ^^  Where  a  complaint  alleged  that  the 
defendant  was  guilty  of  negligence  in  failing  to  turn  otl"  the 
supply  of  gas  from  a  house  after  being  directed  to  do  so,  in  order 
that  a  defective  pi])e  within  the  cellar  might  be  located  and 
fixed;  and  that  the  plaintiff,  who  was  a  ]ilumber,  while  senrcli- 
ing  for  the  defect  was  injured  by  an  explosion,  it  was  held  that 
it  did  not  show  that  the  injury  was  the  ])ro.\imate  cause  of  the 
defendant's  negligence,  as  tlu^  ])resum])tion  is  that  there  was 
an  intervening  resjwnsiblo  agency  for  which  tlie  defendant  was 

15  Ibafh  V.  Hiintinfrton.  otf..  Co., 
23  ind.  App.  281 ;  55  N.  E.  Rep. 
249. 


690b  OIL    AND    GAS. 

not  responsible.^'^  So  -whore  it  appeared  lliat  tlie  gas  came  into 
the  eoHar  through  a  l>reak  at  the  junetion  of  the  service  pipe  and 
the  ''  riser  "  leading-  np  into  the  house,  and  that  the  gas  com- 
pany's workmen  were  engaged  in  repairing  the  mains  o])])Osite 
the  house,  but  there  was  no  evidence  to  show  that  dicir  work  in 
any  way  affected  the  service  pipe,  or  it  did  not  connect  them 
in  any  way  with  the  condition  of  the  pipe;  it  was  held  that  no 
negligence  was  shown  on  the  part  of  the  company  or  its  servants, 
and  a  compulsory  non-suit  was  entered.^'  Where  the  gas  had 
been  cut  off  and  the  meter  in  an  engine  room  removed  and  the 
service  pipe  left  open  ;  and  it  was  charged  that  gas  escaped, 
reached  a  lamp  and  exploded,  causing  a  fire ;  and  the  only  facts 
on  which  the  plaintiff's  theory  was  based  were  that  the  windows 
where  tlie  lamp  stood  were  found  in  the  alley  alongside  of  the 
shop,  although  there  was  nothing  to  show  that  they  had  been 
blown  out ;  that  the  lamp  was  lying  on  the  floor  unbroken,  and 
after  the  fire  a  strong  odor  of  gas  was  noticed  near  the  service 
pipe ;  and  no  one  saw  the  commencement  of  the  fire,  nor  saw 
or  heard  an  explosion,  although  persons  were  within  ninety  feet 
when  the  fire  broke  out ;  and  the  windows  were  the  only  evidence 
to  show  there  had  been  an  explosion ;  that  the  open  furnace 
under  the  boilers  between  the  gas  pipe  and  the  lamp  had  an  open 
fire  in  it;  and  the  plaintiff  claimed  that  as  gas  rises,  and  the 
lam]>  was  higher  than  the  furnace,  and  the  fire  in  the  latter  was 
low,  the  gas  might  reach  the  lamp  first ;  it  was  held  that  the 
evidence  of  an  explosion  was  not  sufficient  to  submit  the  case 
to  the  jury,  even  though  the  contention  of  the  plaintiff  that 
gas  would  rise  was  true,  for  it  would  show  that  that  part  of  the 

lelklcGahan  v.  Indianapolis,  etc.,  Leg.  Int.  276;  13  Rep.  216;  Straw- 
Gas  Co.,  140  Ind.  335;  37  N.  E.  bridge  v.  City  of  Philadelphia,  2 
Rep.  601;  29  L.  R.  A.  355.  With-  Penn.  419;  State  v.  Consolidated 
out  proof  of  negligence,  the  defend-  Gas  Co.,  85  Md.  637;  37  Atl.  Rep. 
ant   cannot  be  held    responsible   for  263. 

damages  caused  bj'  an  explosion  of  i^  Krzywoszynski   v.    Consolidated 

escaping   gas.      Straw-bridge   v.   City  Gas  Co.,  4  N.  Y.  App.  Div.  161;  38 

of  Philadelphia,    13   Phila.    173;    36  N.  Y.  Supp.  929. 


LEAKS    AND   EXPLOSIONS. 


G91 


room  above  the  lamp  was  filled  with  p:as,  and  its  explosion  would 
have  produced  more  destruction  tlian  was  caused  by  the  alleged 
explosion.*^ 


18  Benson  v.  Allegheny  Heating 
Co.,  1S8  Pa.  St.  614;  41  All.  Rep. 
729. 

A  gas  company  is  not  liable  for 
injuries  caused  by  an  ^explosion 
where  it  is  directly  caused  by  tlie 
gas  being  introduced  into  the  dwell- 
ing by  another  gas  company's  em- 
ployee, who,  mistaking  the  line  for 
that  of  his  own  company,  opened  a 
by-pass,  which  was  properly  pro- 
tected, without  the  defendant's 
knowledge,  and  which  connected  its 
low  and  high  pressure  line,  produc- 
ing an  explosion,  which  would  not 
have  otherwise  occurred.  McKenna 
V.  Bridge  Water  Co.,  193  Pa.  St. 
633;  45  Atl.  Rep.  52;  47  L.  R.  A. 
790.  See  also  Triple  State,  etc.,  Co. 
.V.  Wellman  (Ky.),  70  S.  W.  Rep. 
49;  24  Ky.  L.  Rep.  851. 

Evidence  of  what  the  pressure  of 
another  company's  gauge  is,  is  not 
admissible.  Barrickman  v.  Marion 
Oil  Co.,  45  W.  Va.  634;  32  S.  E. 
Rep.  327 ;  44  L.  R.  A.  92. 

Where  defendant's  watchman  was 
notified  that  gas  was  escaping  in  the 
street  whore  it  had  opened  a  trench, 
and  he  made  no  report,  and  nine 
hours  afterward  an  explosion  of 
gas  occurred  injuring  a  workman 
employed  in  the  improvement,  the 
defendant  was  held  liable.  Diehle  v. 
United  Gas  Imp.  Co.,  225  Pa.  494; 
74  Atl.  Rep.  349. 

The  act  of  a  servant  of  a  gas 
company  in  leaving  a  small  gas 
main  open  after  receiving  proper 
orders  to  close  it,  whereby  gas  es- 
capes into  a  dwelling  house  and  is 
inhaled,  to  the  inmates'  injury,  was 


held  to  bliow  gross  negligence  on  tho 
part  of  the  company  witliin  the 
meaning  of  a  statute  making  it 
liable  for  its  servant's  gross  negli- 
gence. Ilanima  v.  Haverhill  Gas- 
light Co.,  203  :Mass.  572;  89  N.  E. 
Rep.  1043.  If  a  servant  uncaps  a 
pipe  and  leaves  it,  so  that  gas  es- 
capes into  the  house,  and  an  explo- 
sion follows,  the  gas  company  is 
liable.  Kenney  v.  South  Shore 
G.  &  F.  Co.  (N.  Y.  App.  Div. 
859)  ;  119  N.  Y.  Supp.  303;  Heinz  v. 
Consumers'  Light,  etc.,  Co.,  81  Kan. 
261;  105  Pac.  Rep.  527;  United 
Oil  Co.  V.  Miller,  19  Colo.  App.  4)6; 
73  Pac.  Rep.  627. 

Evidence  showing  that  defen*int 
had  a  gas  well  50  feet  from  plain- 
tiff's premises,  that  gas  accumulated 
in  plaintiff's  cellar,  causing  an  ex- 
plosion, and  that  gas  was  found  in 
water  wells  within  a  radius  of  200 
feet  of  the  gas  well,  wus  held  in- 
sufficient to  warrant  a  *conclusion 
that  the  gas  came  from  the  defend- 
ant's well,  or  that  lie  was  negligent. 
:MaxweIl  v.  Coffej-ville,  etc.,  Co.,  68 
Kan.  821;  75  Pac.  Rep.  1047. 

Torrans  v.  Texarkana  Gas  & 
El.  Co.,  88  Ark.  510;  115  S.  W.  Rep. 
389;  Lodge  v.  United  Gas  Imp.  Co., 
209  Pa.  553;  58  Atl.  Rep.  925; 
Richmond  v.  Gay,  103  Va.  320;  49 
S.  E.  Rep.  482;  Huntington  L.  &  F. 
Co.  v.  Beaver,  37  Ind.  App.  4;  73 
N.  E.  Rep.  1002;  Moore  v.  West 
Va.  H.  &  L.  Co.,  05  W.  Va.  552; 
64  S.  E.  Rep.  721  (burden  on  plain- 
tiff to  show  defendant's  negligent 
act  caused  injury) . 


692 


on.    AND    GAS. 


§605.     Two  or  more  defendants  liable. 

The  circumstances  may  be  such  that  two  or  more  defendants 
may  be  liable  for  the  damages  occasioned  by  a  leak  or  explosion. 
Such  would  be  an  instance  where  an  individual  negligently  set 
fire  to  escaping  gas,  the  company  having  had  ample  notice  that  it 
was  escaping  and  having  had  sufficient  time  to  stop  the  leak. 
Where  two  companies  are  jointly  sued,  but  the  several  grounds 
of  their  liability  are  wholly  separate  and  distinct,  the  admis- 
sions of  one  company  touching  the  cause  of  the  accident  are  not 
admissible  in  behalf  of  its  co-defendant;  and  counsel  for  one 


That  the  owners  of  an  oil  and  gas 
well  caused  the  same  to  be  shot 
with  nitroglycerin  late  in  the  eve- 
ning, instead  of  waiting  until  the 
following  day,  or  failed  to  have  the 
well  capped  and  connected  with  a 
tank  before  shooting,  or  to  leave 
some  one  in  charge  during  the  nig'ht, 
merely  furnished  the  condition  or 
gave  rise  to  the  occasion  making  in- 
jury possible,  and  their  act  c  nnot 
be  held  to  have  been  the  proximate 
cause  of  an  explosion  of  escaping 
oil  and  gas,  resulting  in  a  loss  of 
drilling  tools  and  machinery,  where 
the  explosion  occurred  about  9 
o'clock  in  the  evening,  when  no  one 
was  present,  and  there  is  nothing  to 
show  how  the  escaping  oil  and  gas 
came  into  contact  with  fire,  or  what 
the  immediate  cause  of  the  explo- 
sion was.  (Kan.),  Comes  v.  Dab- 
ney,  102  Pac.  488. 

The  fact  that  on  two  different  oc- 
casions just  before  the  explosion 
gas  came  through  the  ground, 
caught  tire  and  burned  above  the 
gas  company's  pipes  close  to  where 
the  explosion  occurred,  together 
with  the  fact  that  the  pipes  had 
been  in  the  ground  for  a  considerable 


time,  and  had  rusted  and  scaled, 
justifies  a  finding  that  the  gas 
w^hich  exploded  came  from  the  gas 
company's  pipes.  Ilashman  v.  Wy- 
andotte Gas  Co.,  83  Kan.  328;  111 
Pac.  468. 

"What  was  the  proximate  cause 
of  the  explosion"  covers  other  inter- 
rogatives  whether  the  defendant's 
employees  notified  the  proprietor  to 
put  out  all  lights  and  fires,  whether 
they  were  put  out,  whether  an  open 
fire  was  burning  at  the  time  of  the 
explosion,  if  so,  whether  it  prox- 
imately caused  the  explosion,  and  if 
the  explosion  was  not  so  caused, 
wliat  was  the  proximate  cause. 
This  may  be  refused.  Merrill  v. 
Los  Angeles  Gas  &  El.  Co.  (Cal.), 
Ill  Pac.  534. 

In  an  action  against  a  gas  light 
company  for  injuries  caused  by  a 
fire,  started  by  escaping  gas,  the 
gist  of  the  action  is  the  damage 
caused  by  the  fire,  and  it  is  wholly 
immaterial  whether  the  origin  of 
the  fire  was  accompanied  bj'  a 
violent  explosion  or  not. 

Ilaas  v.  St.  Paul  Gaslight  Co. 
113   Minn.  379;    129   N.   W.   759. 


LEAKS    AND    EXPLOSIONS.  <'''J'J 

company  cannot  eoniniont  in  argument  or  admissions  iikuIc  by 
the  employees  of  the  otlier  defendant  tonehiniz;  its  res}K>nsil)ility 
for  the  accident,  nnless  it  has  been  shown  that  snch  einj)loy('(>s 
were  authorized  to  make  such  admissions.  In  snch  an  instance, 
the  one  defendant  is  not  entitled  to  the  benefit  of  an  instruction, 
given  with  plaintiff's  consent,  which  is  unduly  favorable  to  its 
co-defendant,  tJio  rnlinc:s  as  to  the  one  defendant  being  correct  in 
themselves;  and  that  admission  of  a  servant  of  one  of  the  de- 
fendants, made  after  verdict  rendered  at  the  close  of  the  plain- 
tiff's evidence  in  favor  of  his  employer,  touching  the  cause  of 
the  accident,  is  not  admissible  in  favor  of  the  co-defendant  com- 
pany, since  the  defendant  making  the  admissions  is  no  longer 
a  party  to  the  controversy.^®  In  the  case  just  cited  it  was  held 
that  one  gas  company  was  liable,  even  though  only  a  part  of 
the  gas  that  exploded  was  its  own.  So  if  one  carelessly  and 
negligently  applies  a  light  to  escaping  gas  he  will  be  liable 
equally  with  the  gas  company  that  negligently  permitted  it  to 
escape.'**  Where  gas  wells  were  drilled  by  a  subcontractor,  the 
pipes  being  furnished  by  the  contractor  and  put  together  by  the 
subcontractor ;  and  after  the  subcontractor  had  ceased  to  use 
the  pipes  and  gas  for  drilling  purposes,  the  agents  of  the  con- 
tractor took  up  the  north  and  south  line,  which  connected  with 
the  east  and  west  line,  leaving  one  joint  connected  with  the  T, 
after  which  the  accident  happened,  the  pipe  line  then  being 
solely  the  property  of  the  contractor;  the  latter  was  hold  liable 
because  he  had  assumed  the  subcontractor's  former  charge 
to  care  for  the  line,  which,  after  the  accident,  was  used  as  a 
part  of  the  permanent  line.  And  where,  before  the  accident, 
gas  was  delivered  to  the  company  by  the  contractor,  partly 
through  the  pipe  line  in  question,  the  company,  as  well  as  the 

loKoplan  v.  Boston  Gaslight  Co.,  20  Pine  Bluff,  etc.,  Co.  v.  M<^in, 

177   Mass.    15;    58   X.   E.   Rep.    183;  G2    Ark.    118;    34   S.    W.   Rop.    549; 

Scherniprhorn  v.  Metropolitan   Gas-  see  Flint  v.  Gloucester  Gaslight  Co., 

light   Co.,  5  Daly   144;    Burrows   v.  3  Allen  343;  Merrill  v.  Los  Angeles 

March  Gas  and  Coke  Co.,  L.  R.  5  Gas  &  El.  Co.  (Cal.),  Ill  Pac.  534. 
Excn.  67;  22  L.  T.   (N.  S.)  24. 


694  OIL   AND   GAS. 

contractor,  was  held  liable,  notwithstanding  the  fact  that  he 
had  not,  at  the  time  of  the  accident,  fully  completed  his  con- 
tract, nor  formally  turned  over  the  plant  to  the  company  which 
was  in  actual  use,  i\n-  the  escape  of  gas  whit-li  tlowed  through 
the  pipe  in  question."^  Where  a  contractor  laying  gas  mains 
in  a  street  joined  them  imperfectly,  and  the  gas  company  turned 
on  the  gas  before  the  works  had  been  turned  over  to  it,  to  test 
the  pipes,  and  the  gas  escaped  at  the  imperfect  joints,  injuring 
a  workman ;  it  was  held  that  both  the  gas  company  and  the  con- 
tractor were  jointly  liable  —  the  contractor,  because  he  had 
done  imperfect  work ;  and  the  gas  company,  because  it  was  its 
duty  to  see  that  the  pipes  were  in  a  pro|Ter  condition  before 
turning  gas  into  them."'  A  somewhat  similar  decision  was 
made  in  case  of  escaping  oil  catching  fire.  In  this  instance  an 
oil  pipe  was  connected  with  an  oil  car.  The  oil  escaping  from 
the  pi]>e  caught  fire,  and  in  order  to  save  the  car  by  pushing  it 
along  from  the  track  it  became  necessary  to  disconnect  it  from 
the  pipe.  A  servant  went  upon  the  car  by  direction  of  another 
servant  to  turn  the  valve  in  it  in  order  to  cut  off  the  flow  of  the 
oil  into  the  pipe,  and  upon  being  advised  and  assured  that  the 
oil  had  been  cut  off,  the  injured  servant  disconnected  the  pipe 
from  the  car,  whereupon  the  oil,  by  reason  of  the  fact  that  it 
had  not  been  cut  off,  poured  over  him,  igniting  and  burning 
him  severely.  There  were  no  stop-cocks  in  the  pipe,  so  the  oil 
could  be  cut  off  in  ease  of  danger,  having  been  removed  with- 
out notice  to  the  servant  sustaining  the  injuries.  The  court  con- 
sidered that  it  took  the  combined  negligence  of  the  master  and 
the  servant  who  was  directed  to  cut  off  the  flow  of  the  oil  to 
produce  the  injury,  and  that  the  master  was  liable."^ 

21  Lebanon     Light,     etc.,     Co.     v.  22  Chicago  Economic   Fuel   Co.    v. 

Leap,   139  Tnd.  443;    39  N.  E.  Rep.  Myers.   168  111.   139;   48  N.  E.  Rep. 

57;  ^9  L.  R.  A.  342.  60;    affirming   64    111.    App.    270;    1 

A  mining  companj'  cannot  escape  Chic.  L.  J.  Wkly.  276. 

by  simply  placing  the  management  2.t  Pullman     Palace     Car     Co.     v. 

of  its  mining  in  charge  of  a  person  Laack.   143  111.  242;   32  N.  E.  Rep. 

under  a   written  contract,   in  which  2S5;    18  L.  R.   A.  21o.   affirming  41 

such    person    is    called    a    "  lessee."  111.  App.  34. 

Consolidated   Coal   Co.   v.    Soninger,  The      action      may      be     brought 

79   111.   App.   456;    affirmed    179   111.  acrninst     the     person     operating     a 

370;  53  N.  E.  Rep.  733.  plant,  although  another  person  built 


I.F.AKS    AND    EXPLOSIONS.  695 

§606.     statute  permitting  recovery  although  there  is  no  negli- 
gence. 

A  statute  may  be  so  drawn  as  to  render  a  gas  company  liable 
for  damages  occasioned  by  an  explosion,  although  there  is  no 
negligence  on  the  part  of  the  defendant.  Thus  in  Ohio  a  statute 
with  reference  to  a  natural  gas  comitaiiy  jirdvidcd  that  it  "  shall 
be  liable  for  any  damages  that  may  result  from  the  transfwrta- 
tion  of  "  natural  gas.  It  was  held  that  a  natural  gas  company 
transporting  natural  gas  was  liable  for  an  explosion,  under  this 
statute,  although  not  guilty  of  any  negligence  causing  the  ex- 
plosion, the  court  saying:  "Upon  principles  of  universal  a|> 
plication,  the  company  would  be  held  liable  for  any  damages 
that  might  result  from  its  negligence  in  transporting  natural 
gas  through  the  streets  of  a  city.  Therefore,  to  construe  the 
statute  as  the  ])laintiff  in  error  contends  would  dcMiy  it  any 
operation  or  effect  whatever.  We  think  that  when  the  subtle 
and  dangerous  properties  of  this  fluid  are  considered,  together 
with  the  long  existing,  and  perhaps  still  unsettled,  controversy 
that  has  claimed  the  attention  of  courts  and  textwritcrs,  both 
in  England  and  in  this  country,  respecting  the  extent  of  the  lia- 
bility of  those  who  deal  in  dangerous  substances,  for  damages 
caused  by  them,  and  the  absence  of  the  word  '  negligent,'  in  the 
Act  declaring  the  liability  of  tlic  plaintiif  in  ormr  has  great 
significance,  and  can  only  be  reconciled  with  a  legislative  pur- 
pose to  impose  upon  the  company  the  duty  of  absolutely  con- 
trolling this  substance  when  it  should  introduce  it  into  places 
where,  if  it  escaped  control,  it  would  menace  tlio  lives  and  ]u-op- 
erty  of  others,  who  had  no  control  over  it,  and  were  without 
fault  themselves  contributing  to  injury."  ^* 


it,  where  the   action  is  based  on   a  2<Ohio  Oas  Fnol  Co.  v.  Andrews, 

defective  oonstr'iction  of  sut-h  plant.  50    Ohio    Rt.    605;    :]'y    X.    E.    Rep. 

Hyde  Park.  etc..  Co.  v.  Porter,   Ki?  1059;   20  T,.  R.   A.  337.     See  Helvi- 

111.  276;  47  N.  E.  Rep.  206;  affirm-  dere    Caslipht    Co.    v.    Jackson,    81 

ing  64  111.  App.  152.  III.  App,  424. 


696  OIL    AND    GAS. 

§607.     Explosion  occasioned  by  a  violation  of  a  statute. 

A  gas  company  may  be  liable  for  an  injury  occasioned  by  a 
violation  of  a  statute  prescribing  regulations  to  be  observed  by 
it.  Such  was  held  to  be  the  case  where  a  company  failed  to  test 
its  ]nj)es  to  a  pressure  of  four  hundred  pounds  to  the  square 
inch,  as  a  statute  recjuired,  and  which  forbade  it  to  use  a  pres- 
sure of  over  three  hundred  pounds  in  conveying  gas.  The  gas 
escaped  because  the  pipes  did  not  come  up  to  the  test  pre- 
scribed."^ x\ud  where  the  injury  was  occasioned  by  gas  escap- 
ing from  a  ]>ipe  laid  liy  the  com])any  on  the  surface  of  the 
highway,  the  company  was  held  liable,  although  the  particular 
injury  could  not  have  been  foreseen."*'  And  where  a  gas  com- • 
pany  unlawfully  laid  its  pipe  line  in  a  highway,  from  which  gas 
escaped  and  entered  a  defective  water  pi}X'  of  the  plaintiff  and 
polluted  tlie  water  in  his  well,  the  company  was  held  liable, 
and  it  could  not  escape  liability  by  showing  the  defect  in  the 
water  jiipe.  "  Where  a  company,"  said  the  court,  "  chooses  for 
its  profit  to  bring  a  gas  ])ipe  upon  the  land,  they  must  keep  it 
there  at  its  own  peril."  It  is  no  answer  to  say,  "  Your  pipe  is 
bad,  and  the  gas  for  that  reason  got  into  it."  ^^ 

§608.     Lajdng  gas  main  in  navigable  river. 

It  is  an  illegal  act  to  lay  a  gas  main  on  the  bottom  of  a 
navigable  river,  without  sinking  it  beneath  the  soil  of  the  bot- 
tom ;  and  the  company  will  be  liable  for  all  the  consequences  of 
its  act  in  so  illegally  laying  its  pipe.  Thus,  where  a  gas  com- 
pany had  so  laid  its  pipe  on  the  bottom  of  a  river,  and  a  boat 
ran  against  it,  breaking  it,  whereby  gas  escaped  and,  igniting 

2r.  Alexandria  Minint;.  etc..  Co.  v.  Gas  Co.,  84  L.  T.  70.");  65  J.  P.  680. 
Irish,  16  Ind.  App.  .534;  44  N.  E.  A  tenant  carryinjr  on  a  livery- 
Rep.   680.  stable  without  taking  out  a   license 

2«  Indiana    Natural,    etc.,    Co.    v.  required  by  an  ordinance  or  a   stat- 

McMath,   26   Ind.    App.    154;    57    N.  ute.    cannot    recover    damages    occa- 

E.    Rep.    593;     5fl    N.    E.    Rep.    287.  sioned    by    the   escape    of   gas,    even 

Lebanon,     etc.,     Co.     v.     Leap,     130  though   he  might  sustain   an   action 

Ind.  443;   39  N.  E.  Rep.   57;  29  L.  for  a  nuisance  to  real  estate.     Sher- 

R.  A.  342.  man  v.  Fall  River  Iron  Works  Co., 

27  Batcheller   v.   Tunbridge   Wells  5  Allen  213. 


LEAKS    AM)    KXIM.OSIO.N.S.  C97 

from  the  funmeo  of  tlio  boat,  sot  tho  boat  on  firo,  it  ^vns  liold 
that  the  gas  company  was  liable  for  its  destniction.-"'  Hut 
where  the  trailing  anchor  of  a  vessel  caught  and  injured  a  gas 
pipe  laid  n])on  the  bed  of  a  navigable  river,  it  was  held  that  if 
tlie  captain  of  the  vessel,  uixm  striking  the  iiijH-  conld.  wiih 
proper  care  and  reasonable  ])reeaution,  have  then  ])revente(l  tho 
injury,  the  owners  of  the  vessel  would  be  liable  for  all  injury 
which  oonld  thus  have  been  prevented.'" 

§609.     Overwhelming  disaster. 

Where  an  overwhelming  disaster  falls  upon  a  gas  company's 
works,  its  efforts  to  prevent  injuries  to  the  public  must  be  meas- 
ured by  the  extent  of  the  disaster.  An  illustration  is  afforded 
by  the  great  fire  in  the  city  of  Boston,  Xovember  r>,  1872.  A 
gas  company's  mains  were  broken,  by  the  falling  buildings, 
causing  many  leaks ;  the  gas  escaped  throughout  tlie  burnt 
district,  causing  frequent  explosions ;  and  it  escaped  into 
cesspools  and  sewers  in  dangerous  quantities,  i^otwithstand- 
ing  these  facts,  the  gas  company  on  the  subsequent  day  and  night 
continued  to  manufacture  gas  in  large  quantities ;  and  on  the 
morning  of  that  day  the  company  was  notified  by  a  porter  of 
a  building  that  gas  was  escaping,  and  especially  from  the  next 
adjoining  building.  The  company  had  many  valve  boxes  in 
the  vicinity  which  were  not  closed,  but  there  w'as  no  evidence 
that  the  fire,  which  burnt  the  building,  for  which  the  suit  was 
brought  and  of  which  its  porter  had  given  notice  of  the  leak, 
was  caused  by  the  leak  of  which  the  coiupany  was  notified  in 
the  morning,  or  that  by  shutting  the  valves  in  the  vicinity  the 
escape  of  gas  would  have  been  stopped,  or  that  it  was  pmcticilly 
possible  to  get  at  the  valves  for  that  purpose.  It  was  held  that 
there  was  no  evidence  of  negligence,  and  on  the  evidence  the 
jury  was  not  warranted  in  finding  for  the  plaintiff.  Tho  ciuirt 
did  not  consider  it  was  the  duty  of  the  gas  company  to  shut  off 
the   ga.s   from   the   entire   city,   for  that   would   probably  have 

28()mslaor  v.  Pliilaflolphia  Co.,  .31  This    is    manifpstly    onrroct,    for    no 

Fed.  Rep.  .354;    18  Pittsb.  L.  J.   (N.  man  ran  excuse   lus  own  nepli-jeno" 

S.)    4.  l>y    the    nejjligent   or    illepjal    act   of 

2"  Milwaukee      Gaslijjht      Co.      v.  another. 
Schooner    Gamecock,    2.3    Wis.    144. 


GUS  OIL    AND    GAS. 

brought  a  train  of  disasters  tn  ilic  iiilial>itaiits  and  caused  great 
inconvenience,  by  depriving  the  city  of  light  and  furnishing  an 
opportunity  for  thieves  and  thugs.  While  the  danger  was  great, 
requiring  of  the  company  great  vigilance  and  great  efforts  to 
prevent  injuries  to  ])ersons  and  jiroperty,  yet  tiie  burden  de- 
volved uiion  the  plaintiff  to  show  that  it  had  not  done  all  it 
could  do  and  that  it  could  have  prevented  the  explosion  and 
consequent  fire.  In  this  instance,  it  was  not  sufficient  to  show 
an  escape  of  gas,  an  cx])losion  and  a  resultant  damage,  for  neg- 
ligence could  not  be  inferred  from  proof  of  these  facts  alone. 
Something  more  was  re(piired."^° 

§610.     Burden  of  proof. 

The  plaintiff  uecessarily  must  sustain  the  allegations  of  his 
complaint  or  declaration ;  and  this,  of  course,  casts  upon  him 
the  burden  to  prove  that  the  defendant  was  guilty  of  the  acts  of 
negligence  charged  therein.  In  this  respect,  cases  of  injuries  or 
damages  inflicted  by  gas  leaks  or  explosions  do  not  differ  from 
other  cases  of  negligence.  Facts  must  be  alleged  and  shown 
affirmatively  by  the  plaintiff  that  the  defendant  gas  company  by 
its  own  act  or  by  its  omission  has  violated  some  duty  incumbent 
upon  it  wliicli  has  caused  the  injury  of  which  complaint  is 
made."^  If  the  charge  be  that  the  defendant  gas  company  failed 
to  discharge  its  duty  in  keeping  its  mains  in  a  sound  and  safe 
condition  for  transmitting  gas,  the  burden  rests  upon  it  to  show 

30  Hutchinson  v.  Boston  Gaslicht  bridge  v.  Philadelphia,  13  Phila. 
Co.,  122  Mass.  219.  See  Koolsch  v.  173;  3G  Leg.  Int.  276;  2  Penny. 
Philadol-phia    Co.,    152   Pa.   St.   S.lo;        419;    13  Rep.  210. 

2.5  Atl.   Ivep.   ,522;   34  Am.  St.   Rep.  In  an    action    against    a  natural 

653;    18  L.  R.  A.  759;   Consolidated  gas  company  for  the  alleged  destruc- 

Gas  Co.  V.  Crocker,  82  Md.   113;   .3.3  tion    of    defendant's    house    by    fire, 

Atl.  Rep.  423;  State  v.  Consolidated  the    burden    is  on   plaintilf  to   show 

Gas  Co.,  85  Md.  637;    37  Atl.  Rep.  the  fact  on  which  the  liability  rests, 

263.  and    the    burden    to    disjjrove    such 

31  Holly  V.  Boston  Gaslight  Co.,  fact  does  not  shift  to  tlie  shouldera 
8  Gray  123;  69  Am.  Dec.  233;  of  the  defendant  until  plaintifl's  evi- 
Smith  V.  Boston  Gaslight  Co.,  129  dence  shows  a  state  of  facts  suffi- 
Llass.  318;  Washington  Gasliglit  Co.  cient  to  establish  a  rational  belief 
V.  Eckloff,  22  Wash.  L.  Rep.  656;  of  the  existence  of  such  fact.  Moore 
McGahan  v.  Indianapolis,  etc.,  Gas  v.  West  Virginia  Heat  &  Light  Co., 
Co.,  140  Ind.  335;  37  N.  E.  Rep.  65  W.  Va.  552;  64  S.  E.  721;  Topol- 
601;  29  L.  R.  A.  355;  49  Am.  St.  ski  v.  Chicago,  etc..  Gas  Co.,  150 
Rep.     199;     Hutchinson     v.    Boston  111.  App.   126. 

Gaslight  Co.,  122  Mass.  219;  Straw- 


LEAKS    AND    EXl'LOSIONS.  699 

that  fact  in  order  to  rocovcr.'''  W'Ikm'c  the  owihm-  nf  a  lionsc 
dug  a  tuniud  iVdiii  his  ccllnr,  uikKt  the  street  paveineiit,  to  a 
sewer,  and  an  employee  of  the  city  searching  for  a  leak  in  fnmt 
of  the  house,  not  knowing  that  there  was  a  tunnel  there,  lighted 
a  paper,  and  moved  it  along  the  surface  of  the  sidewalk,  that 
being  the  usual  nicthiul  of  discovering  leaks,  and  ignited  a  jet 
of  escaping  gas,  which  he  extinguished  by  covering  it  with  dii't ; 
and  five  minutes  after  an  exjdosion  occurred  in  the  cellar,  it 
was  held  that  the  city  was  not  lial)le.^^  And  where  the  evidence 
showed  that  an  employee  of  a  gas  company  went  into  the  celhir 
with  a  candle  to  tix  the  pipes ;  that  soon  after  gas  began  to  escape 
in  large  quantities,  and  some  workmen  went  into  the  cellar  to 
rescue  the  employee,  who  had  become  unconscious;  that  as  they 
were  about  to  pick  him  up  ''  a  big  flash  of  fire  came  around  us, 
and  scattered  all  over  the  floor,"  as  one  of  the  witnesses  testified  ; 
and  there  was  no  evidence  that  the  employee  had  lighted  the 
candle,  or  had  any  other  light  witli  liim  ;  nor  any  evidence  as  to 
the  cause  of  the  explosion,  it  was  held  that  no  negligence  on 
the  part  of  the  gas  company  was  shown. ^* 

§611.     Presumption  of  negligence  does  not  arise  from  proof  of  ex- 
plosion. 

What  will  be  sufficient  proof  to  make  a  prima  facie  case  of 
negligence  must  depend  on  the  particulars  of  each  individual 
case.  Courts  judicially  know  that  both  illuminating  and  nat- 
ural gas  is  highly  explosive  and  combustible,  and  tliat  it  will 
explode  when- ignitecl  by  fire. ■'■■"'      The  courts  will  also  tak(^  jndi- 

32  Holly  V.  Boston  Gasliirht  Co..  -"ir.  Aloxander  :\Iiniiip.  etc..  Co.  v. 
supra;  Siebrecht  v.  East  River  Gas  Irish,  16  Tnd.  App.  ."):U  :  44  N.  K. 
Co.,  21  N.  Y.  App.  Div.  110;  47  N.  Hep.  6S0;  Brown  v.  Spillman.  ].'>;'> 
Y.  Supp.  262;  Heh  v.  Consolidated  U.  S.  660;  15  Sup.  Ct.  Rep.  24.') ; 
Gas  Co..  201  Pa.  St.  443;  50  Atl.  Fuehs  v.  St.  Louis.  1.3.3  Mo.  168;  31 
Rep.  994;  88  Am.  St.  Rep.  819.  S.  W.  Rep.  115;  .34  S.  W.  Rep.  ,508; 

33  Littman  v.  New  York  City.  30  34  L.  R.  A.  118  (gases  from  petro- 
N.  Y.  Anp.  Div.  189 ;  55  N.  Y.  Supp.  loum  ) . 

383;   amrmed  159  N.  Y.  559;   54  N.  But     it     will     not     take     judi(  ial 

E.  Rep.   1093.  notice   that  dry,  fine  coal  dust   is  a 

3*  Sehaum    v.    Eqnitnl)le    Gasli;.'lit  dangerous     and     explosive    element. 

Co.,   15   N.  Y.   App.  Div.   74;   44   \.  Cherokee,    ete..    Co.    v.    Wilson,    47 

Y.  Supp.  284.  Kan.  460;  28  V-.m:  Rep.  178. 


700  OIL    AND    GAS. 

(•i;il  notice  tliat  gas  will  not  explode  unless  caused  by  some 
outside  agency,  as  the  introduction  of  fire  or  an  electric  spark ; 
and  also  that  it  can  be  confined  in  pipes  and  safely  conducted 
through  the  streets  to  the  consumer.  In  addition  to  this  is  the 
rule  that  gas  conii)ani(^s  distributing  gas  must  exercise  vigilance 
to  prevent  injury  to  persons  while  remaining  on  the  premises 
where  manufactured,  or  while  being  carried  through  its  own 
pipes  to  its  consumers,"'"  and  the  vigilance  required  is  of  a  nmch 
higher  degree  whore  the  ]n|Tes  are  laid  in  the  streets  of  a  densely 
populated  city  than  where  laid  in  the  country.^^  But  notwith- 
standing these  facts,  proof  of  the  explosion  and  the  resulting 
injury  will  not  establish  the  liability  of  the  gas  company.  It 
must  not  be  forgotten  that  the  cause  of  action  is  founded  upon 
the  negligence  of  the  defendant,  and  that  negligence  must  be 
shown  before  there  can  be  a  recoverv.  Thus,  where  it  was 
shown  that  an  explosion  occurred  in  an  oil  refinery,  followed 
by  a  fire;  that  the  burning  oil  ran  down  a  ]n\)e  used  by  the  oil 
company  to  pump  oil  into  the  refinery  from  vessels  lying  at  the 
wharf,  and  entered  a  lighter  filled  with  oil,  which  exploded, 
communicating  the  fire  to  the  plaintiff's  vessel  about  twenty 
feet  distant,  the  fire  being  occasioned  by  the  explosion  of  a 
boiler,  called  an  "  agitator,"  used  in  the  refinery ;  but  there  was 
no  evidence  to  show  that  it  Avas  not  a  proper  boiler,  such  as 
was  generally  in  use,  or  that  the  explosion  was  occasioned  by  an 
improper  use  of  it,  or  that  it  was  defective.  On  this  evidence 
the  court  held  that  the  defendant  oil  company  was  not  liable,  as 
it  was  only  liable  for  its  negligence,  the  mere  fact  of  an  explo- 
sion not  raising  a  presumption  of  negligence.  The  court  was 
•^areful  to  call  attention  to  the  fact  that  there  was  no  contractual 
relation  between  the  plaintiff  and  defendant  —  as  there  is,  for 
instance,  between  a  passenger  and  ^lie  railway  company  carry- 
ing him  —  and  quoted  an  established  Avork  on  negligence,  where 
it  is  said:  "  It  is  belitn-ed  that  it  is  never  true,  except  in  con- 
tractual relations,  that  the  proof  of  the  mere  fact  that  the  acci- 

sr.  Tiehr  v.   Consolidated  G  is  Co.,  37  Mississienawa     Mininij    Co.    v. 

5}  X.  Y.  App.  Div.  446;  05  N.  Y.  Patton,  129  Ind.  472;  28  N.  E.  Rep. 
Supp.    10.  1113;  28   Am.  St.  Rep.  203. 


LEAKS    AND    EXPLOSIONS.  701 

(lent  liappcned  to  tlie  plaintiflf,  Avitlumt  iiKirc,  will  ninoiint  to 
pr'una  facie  proof  of  negligence  on  the  i)art  of  the  defendant.''  "* 
"  We  are  of  the  opinion  that  the  evidence  jji-esented  by  the 
plaintilfs  failed  to  establish  a  canse  of  action  against  the  de- 
fendant, and  consequently  that  the  trial  court  erred  in  denying 
the  motion  to  dismiss  the  complaint  made  after  plaintiffs  had 
rested  their  case.  The  fact  that  the  injury  sustained  by  the 
plaintiffs  may  have  been  a  direct  result  of  the  lire  which  origi- 
nated upon  the  jireniiscs  of  the  defendant  does  not  of  itself 
render  it  liable  to  respond  in  damages  therefor.  The  defendant 
was  not  maintaining  a  nuisance.  Its  business  was  lawful,  and, 
in  its  conduct,  the  law  does  not  impose  the  obligation  of  saving 
harmless  others  from  the  consequences  resulting  from  the  occur- 
rence of  inevitable  accident,  but  rather  burdens  it  simply  with 
the  duty  of  using  reasonable  care  and  caution  to  save  others 
from  injury.  If  it  omitted  that  duty,  and  failed  to  observe  that 
ordinary  care  which  was  incumbent  upon  it,  then,  because  of 
such  neglect,  it  became  legally  chargeable  with  the  damages 
directly  resulting  therefrom,  but  not  otherwise.  As  the  exist- 
ence of  negligence  is  an  affirmative  fact  to  be  established  by 
him  who  alleges  it  as  a  foundation  of  his  right  of  recovery,  it 
was  incumbent  upon  the  plaintiffs  to  point  our,  by  evidence,  the 
defendant's  fault,  for  the  presumption  is,  until  the  contrary  a]> 
pears,  that  every  man  has  performed  his  duty.  This  rule  has 
been  frequently  a])plied  in  cases  where  a  fire  has  spread  over 
and  upon  the  lands  of  an  adjoining  owner  to  his  damage.  It 
has  likewise  been  enforced  against  persons  seeking  to  recover 
for  damages  sustained  liy  tiros  ovigiunting  from  I'lcomotivcs  in 
operation  upon  railroads.  But  the  plaintiffs  insist  that,  while 
negligence  cannot  be  inferred  from  the  fact  that  the  fire  origi- 
nated upon  the  premises  of  the  defendant,  it  may  l>e  jiresumed 
from  the  proof  of  an  explosion.  It  is  difficult  to  discover  a 
reason  for  holding  that  proof  of  the  occurrence  of  a  destructive 
fire  in  defendant's  premises  does  not  raise  a  presumption  of 
negligence,  while  proof  of  the  mere  fact  of  an  explosion  does. 
It  has  been  said  that  there  is  a  general  disposition  among  men 

38  2  Thomp.  Neg.  Sec.  1227. 


702  OIL    AND    GAS. 

to  preserve  their  property,  and  escaix?  liability,  and  that  ordi- 
narily these  motives  will  secure  that  degree  of  care  and  caution 
which  the  safety  of  the  pnhlic  demands,  and  hence  the  pre- 
sumption of  duty  performed,  which  in  cases  of  fire  will  jtrotect 
him  until  the  facts  be  proven  from  which  negligence  can  be  in- 
ferred. For  precisely  tlie  same  reason  he  is  entitled  to  the 
benefit  of  such  presumi)ti<in  in  the  case  of  an  explosion,  where 
no  contractual  relation  exists;  and  the  jilaintiffs  must  go  one 
step  further,  and  prove  the  facts  from  which  it  can  l>e  legiti- 
mately inferred  that  either  in  construction,  repair,  or  operation, 
he  omitted  that  reasonable  care  and  caution  which  he  should 
have  observed."  ^^ 


39  Cosulich  V.  Standard  Oil  Co., 
122  X.  Y.  118;  25  X.  E.  Rep.  259, 
reversing  55  X.  Y.  Super.  Ct.  Rep. 
384.  To  support  its  conclusion  the 
court  cited  Walker  v.  Chicago,  etc., 
R.  R.  Co.,  71-  la.  658;  33  X.  W. 
Rep.  224  (an  explosion  of  dyna- 
mite) ;  Huff  V.  Austin,  46  Ohio  St. 
386;  21  X.  E.  Rep.  864  (an  explo- 
sion of  a  steam  boiler)  ;  Young  v. 
Bransford,  12  Lea.  232  (an  explo- 
sion of  a  steam  boiler)  ;  and  re- 
fused to  follow  Rose  V.  Stephens, 
etc.,  Transportation  Co.,  11  Fed. 
Rep.  438;  20  Blatchf.  411.  Fol- 
lowed in  Reiss  v.  Steam  Co.,  128  X. 
Y.  103;  28  X.  E.  Rep.  24;  Loeber  v. 
Roberts,  17  X.  Y.  Supp.  378;  Bab- 
cock  V.  Fitchburg  R.  R.  Co.,  140 
X.  Y'.  308;  35  X.  E.  Rep.  590. 
See  Losee  v.  Buchanan,  51  X.  Y. 
476  (boiler  exploding)  ;  ]\Iorris  v. 
Southworth,  154  111.  118;  39  X.  E. 
Rep.  1099;  Marshall  v.  Welwood, 
38  X'.  .J.  L.  339;  Washington  Gas- 
light Co.  V.  Eckloff,  4  App.  D.  C. 
174  (error  to  charge  the  jury  that 
an  unusual  explosion  on  the  prem- 
ises was  prima  facie  evidence  of 
negligence)  ;  Lee  v.  Vacuiun  Oil  Co., 
54   Hun    156;    7   X.   Y.   Sup.  426. 

The  mere  fact  that  a  building  was 
set   on    fire    from    gas    is    not    suffi- 


cient to  justify  the  inference  that 
an  increased  pressure  of  gas  caused 
the  fire.  Barrickman  v.  Marion  Oil 
Co.,  45  W.  Va.  634;  32  S.  E.  Rep. 
327;   44  L.  R.  A.  92. 

'Mere  o\\Tiership  of  gas  in  the 
pipes  does  not,  of  itself,  render  the 
owner  liable  for  injuries  caused  by 
escaping  gas,  if  the  owner  is  in 
no  manner  guilty  of  negligence. 
People's  Gaslight  Co.  v.  Amplilett, 
93  111.  App.  194;  Hammerschmidt 
V.  Municipal  Gas  Co.,  114  X.  Y. 
App.   290;    99  X.   Y.   Supp.   890. 

The  explosion  of  a  hot  water  ra- 
diator in  a  room  in  a  railroad  hotel 
does  not  raise  a  presumption  of 
negligence  on  the  part  of  the  lessor, 
who  had  charge  of  the  apparatus, 
toward  a  waiting  passenger.  Kirby 
V.  Delaware,  etc.,  R.  R.  Co.,  20  N. 
Y.  App.  Div.  473;  46  X\  Y.  Supp. 
777. 

'Mere  proof  of  a  leakage  does  not 
show  the  gas  company  was  guilty 
of  negligence.  Hammerschmidt  v. 
Municipal  Gas  Co.,  114  X.  Y.  App. 
290;    99  X.  Y.  Supp.  890. 

Prima  facie  proof  of  negligence 
is  made  by  showing  the  break  or 
leak  in  the  main  and  the  consequent 
escape  of  gas,  operating  proximately 
to  cause  the  loss.     Sipple  v.  Laclede 


LEAKS    AND   EXPLOSIONS.  703 

§612.     Presumption  of  negligence  arising  from  proof  of  explosion, 

Xot  in  all  jurisdictions  docs  the  ruh-  i>r('\:iil  that  has  Im-cii 
announced  u\  iSew  York.  The  United  States  Court  f<jr  tiie 
Southern  District  of  that  State  refused  to  follow  that  rule,  and 
adopted  the  rule  that  an  explosion  of  oil  in  a  buildinj!;  was  prima 
facie  evidence  of  negligence  on  the  ]nirt  of  the  defendant.  "  in 
the  Court  of  Appeals  of  this  State,"  said  District  Judge  Ijmwn, 
"  it  Avas  held  that  an  explosion  in  a  huilding,  unaccompanied 
by  any  explanation  by  the  owner,  or  by  any  evidence  of  care 
on  his  part,  furnishes  no  presumption  of  negligence ;  *°  and 
this-  was  reaffirmed  in  Rciss  v.  Steam  Company.'**  The  o])]io- 
site  conclusion,  held  by  Judge  Wallace,*'  seems  to  me  to  be  more 
sensible  and  just,  and  more  in  accordance  witli  legal  prin('i])les 
and  analogies.  The  same  ruling  was  made  on  appeal  in  the 
Circuit  Court. *^  This  ruling  is  based  upon  the  principle  (of 
wide  application  in  the  law  of  torts),  that  injuries  which  do 
not  ordinarily  hajJiKMi  when  reasonable  and  proper  care  is  taken 
to  avoid  them,  afford  a  presumption  of  negligence,  and  place 
upon  the  defendant  the  burden  of  proof  that  ordinary  and  rea- 
sonable care  was  taken  to  avoid  the  accident ;  and  also  upon  the 
principle  of  evidence^   that  ho  who  has   peculiarly  within  his 

Gaslight  Co.,  125  Mo.  App.  81;   102  Smith  v.   Boston   Gaslight  Co.,    120 

S.  W.  Rep.  COS.  Mass.   318.      (See   this  case   noticed 

A  jury  may  find  negligence  from  in  section  610)  ;  Hutchinson  v.  I'os- 

the  breaking  of  a  gas  main  and  the  ton    Gaslight    Co.,    122    Mass.    219. 

consequent  escape  of  gas;   but  it  is  (See  this  case  noted  in  section  COO)  ; 

for  the  jurors  to  say  whether  they  Tiehr   v.    Consolidated   Gas   Co.,    51 

will  do   so,  and,   if  there  are  other  X.    Y.    App.    Div.    440;     G5    X.    Y. 

circumstances  bearing  on   the  ques-  Supp.   10. 

tion,  tliey  must  weigh  them  all.    In-  *o  Citing  Cozulich  v.  Standard  Oil 

structions    that    evidence    "is    suffi-  Co.,    122  X.  Y.   118;   25  X.   E.   Rep. 

cient  to  show,"  or  "has  a   tendency  259. 

to   show,"   or   is  "enough   to   show,"  ■'i  128  X.    Y.   10.3;    28   X.    E.   Rep. 

or  "is  prima  facie  evidence  of,"  are  24. 

not    to    be    understood   as    meaning  ^2  Citing   Rose    v.    Stei)hens,    etc., 

that  there  is  a  presumption  of  fact.  Transportation    Co.,    11     Fed.    Rep. 

but  that  the  jury  are  at  liberty  to  438;  20  Blatclif.  411. 

draw  the  inference  from  them.    Car-  ^3  Citing  The  Sydney,  27  Fed.  Rep. 

mody    V.    Boston    Gaslight   Co.,    1G2  110,   123. 
Mass.    539;     39    N.    E.    Rep.    184; 


704  OIL    AXD    GAS. 

power  the  means  of  producing  evidence  of  reasonable  care,  shall 
be  required  to  produce  it."  The  opinion  conchides,  however: 
"  The  cause  of  tlie  accident  is,  in  fact,  unexpLiined.  Either  an 
accidental  fire,  or  some  violation  of  the  rules  by  workmen  in 
smoking,  or  carrying  a  light,  seem  the  only  imaginable  causes. 
The  evidence  offered  by  the  defendants  shows  a  busi- 
ness not  sjx^cially  dangerous  when  jjrosccuted  with  reasonable 
care;  that  there  were  suitable  regulations,  arrangements,  and 
reasonable  care  exercised ;  and  that  there  was  no  neglect  by  the 
defendants  to  enforce  such  regulations.  I  think  this  suffi- 
ciently rebuts  the  prima  facie  pr(^sumption  of  negligence;  and 
on  this  ground  the  libel  should  be  dismissed,  but  without 
costs."  "* 

§613.     Stop-cock  on  street  line. 

Unless  some  statute  (or  perhaps  a  municipal  ordinance) 
requires  it,  a  gas  company  is  not  required  to  place  a  stop- 
cock at  the  street  line,  or  outside  the  building  supplied,  so  it  can 
shut  off  the  gas  without  entering  the  premises  when  necessary ; 
and  if  the  stop-cock  is  placed  within  the  building  supplied,  the 
com])any  is  not  required  to  enter  and  cut  off  the  supply  when 
notified  by  the  consumer  to  discontinue  the  gas.  In  such  an 
instance  it  is  the  duty  of  the  owner  of  the  building,  or  the  tenant 
if  in  possession,  to  cut  off  the  supply  by  turning  the  stop-cock.^^ 

■1*  Warn  v.  Davis  Oil  Co.,  61  Fed.  relieve  the  company  from  liability. 

Rep.   631;   Judson  v.  Giant  Powder  See  also  Rockford  Uasliglit,  etc.,  Co. 

Co.,    107    Cal.    549;    40    Pac.    Rep.  v.  Ernst,  68   111.  App.  300.     But  in 

1020;     29    L.    R.    A.    718;    Dunlap  another   case   from   this  same   State 

Steamboat  v.  Reliance,  2   Fed.  Rep.  it  was  held  that  if  a  gas  company 

249;   Grimsley  v.  Hawkins,  40  Fed.  furnished  reasonably  good  and  suffi- 

Rep.  400    (boiler   explosion).  cient  material,  suitable  for  the  pur- 

In  Belvidere  Gaslight  and  Fuel  pose  for  which  it  was  intended  and 
Co.  V.  Jackson,  81  111.  App.  424,  it  used,  and  put  in  place  their  con- 
was  held  that  the  fact  of  the  gas  ducting  pipes  in  a  good  and  work- 
company  using  all  reasonable  and  manlike  manner,  it  ha<l  fulfilled  its 
proper  precautions  in  the  erection  duty  and  was  not  guilty  of  negli- 
and  operation  of  its  plant,  using  gence.  People's  Gaslight  &  Coke 
the  most  and  best  machinery  and  Co.,  102  111.  App.  461. 
appliances,  and  did  all  a  prudent  4^  Holden  v.  Liverpool  Gas  Co.,  3 
person  could  do  to  prevent  gas  es-  C.  B.  1;  15  L.  J.  C.  P.  301;  10 
caping,  did  not,  of  itself,  in  case  Jur.  883. 
actual    damage    resulted    to    others, 


LEAKS    AND    EXl'LOSIDNS.  705 

Where  the  sto]voo('k  in  a  sn]>]>ly  ])i]M'  outside  of  a  mill  sujtplicd 
with  gas  had  heeii  covered  uj)  by  a  third  ])erson  and  eonld  n<»t 
be  used  to  turn  otf  the  c:as  during  a  lire  in  the  mill,  it  was  held 
that  the  owner  of  the  building  could  not  recover  from  the  person 
who  had  covered  it  up  where  the  mill  took  fire  from  an  inde- 
pendent cause,  and  the  owner  had  allowed  the  stop-coeh  to  re- 
main covered  more  than  a  year;  for  the  inability  to  use  the 
stop-cock  was  not  the  ])roximate  cause  of  the  injury,  although 
the  damages  may  have  been  increased  by  the  escaping  gas  in- 
creasing the  flames.'*'^ 

§614.     Intervening  agency. 

A  gas  company  is  bound  to  know  the  consequences  that  will 
probably  follow  its  act  of  negligence ;  as,  for  instance,  the  use 
of  defective  pipes  and  the  turning  of  gas  into  them,  especially 
at  a  high  pressure.  In  an  instance  of  use  of  such  pipes  and  the 
maintenance  of  a  high  pressure,  and  gas  escajied  and  an  (explo- 
sion followed,  it  was  said  that  it  was  not  necessary  to  charge  in 
the  complaint  that  the  gas  company  had  special  knowledge  or 
notice  of  the  happening  of  such  consequences  flowing  from  its 
original  negligence,  in  the  order  in  which  it  occurred.  "  No 
principle  is  better  settled,"  said  the  court,  "  than  the  one  that 
every  person  who  is  sui  juris  is  presumed  to  know  and  in  duty 
bound  to  anticipate  the  natural  and  usual  consequences  flowing 
from  his  unlawful  acts  or  omissions.  The  only  serious  trouble 
that  sometimes  arises  in  the  application  of  this  princi])l(>  is  in 
determining  whether  or  not  a  given  result  may  bo  said  to  be  such 

46  Cochran    v.    Philadelphia,    etc.,  cut  otf  the  pas  when  its  use  is  i\\<- 

Co..   184   Pa.   St.   56.5;    39  Atl.   Rep.  continued,    or    if     it    uudcrtak.'    to 

206.  close    the    aperture    in    the    scrviie 

Where  it  is  alleged  a  leak  oc-  pipe  and  does  it  so  gas  escapes,  it 
curred  at  a  certain  place,  evidence  will  he  liable  for  an  explosion  oc- 
as to  whether  a  stop-cock  on  the  casioned  by  the  gas  escajiing  be- 
top  of  an  upright  pipe  is  a  danger-  cause  of  the  imperfect  work.  To 
ous  method  of  shutting  off  the  gas  undertake  to  do  the  work,  and  to 
must  be  rejected.  State  v.  Consoli-  do  it  imperfectly,  is  such  an  act  ot 
dated  Gas  Co.,  8.5  Md.  637;  37  Atl.  negligence  as  will  render  the  coni- 
Rep.  263.  pany  liable.     Lanigan  v.  New  York, 

If     a     gas     company     imperfectly  etc.,  Co.,  71  N.  Y.  20. 


706  OIL    AND    GAS. 

a  natural  and  ordinary  one  as  to  be  properly  chargeable  to  the 
defendant's  nciiligcnt  act  or  omission,  and  this  is  what  has  given 
rise  to  the  doctrine  of  proximate  canse.  The  negligence  of  the 
defendant  must  he  the  ])roximnte  canse  of  the  injury,  and  it  is 
the  proximate  cause  thereof,  if  it  can  be  properly  said  to  have 
produced  the  result  complained  of,  in  natural  and  continuous 
so(]uenee,  unbroken  by  any  efficient  intervening  cause.  The 
negligence  charged  may  be  the  })'roximate  cause,  although  not 
the  immediate  one ;  it  is  enough  if  it  be  the  efficient  cause  which 
set  in  motion  the  chain  of  circumstances  leading  up  to  the  in- 
jury." *^  Abundance  of  illustrations  will  be  found  in  these 
pages  of  the  princijilc  thus  laid  down.**  Where  a  complaint  al- 
leged that  the  gas  company  negligently  failed  to  turn  off  the 
gas  from  a  tenement,  after  directions  so  to  do,  in  order  that  a 
defect  in  the  pipe  within  the  cellar  might  be  located  and  re;- 
paired ;  and  that  the  plaintiff,  a  plumber,  while  searching  for 
the  defect,  was  injured  by  an  explosion,  it  was  held  that  it  did 
not  show  the  injury  was  the  proximate  cause  of  the  gas  com- 
pany's negligence ;  for  there  was  a  presumption  that  there  had 
been  an  intervening  responsible  agency,  for  which  such  com- 
pany was  not  responsible.*® 

§615.     Inspection  of  pipes  or  mains. 

A  gas  company  is  chargeable  with  notice  of  the  fact  that  gas 
pipes  and  mains  are  liable  to  rust  and  decay,  and  by  reason  of 

47  Alexandria  Mining,  etc.,  Co.  v.  the  asphalt  pavement  surrounding 
Irish,  IG  Ind.  App.  .5.34;  44  N.  E,  tlio  manhole  produced  a  spark  of 
Eep.   680.  fire  wliich   ignited  the  gas  escaping 

48  An-  illustration  came  under  the  from  the  manhole.  An  explosion 
personal  observation  of  the  writer.  was  thereby  occasioned  and  the 
Xatural  gas  escaped  from  a  street  horse  injured.  The  gas  company 
main  and  entered  a  sewer.  The  gas  settled  for  tlie  injury  occasioned  by 
company   were  negligent   in  permit-  the  explosion. 

ting  it  to  escape.     It  flowed   along  49  INIcGahon   v.   Indianapolis,   etc., 

the  sewer  until   it  came  to  a  man-  Co.,    140   Ind.   335;    37   N.   E.   Eep. 

hole  in  the  street,  and  escaped;  and  601;    29   L.   R.  A.  355. 
a   horse's    iron    shoe    striking    upon 


LEAKS    AND    EXPLOSIONS.  707 

such  rusting  or  cleeaying-  luMinit  gas  to  esea]X'.^"  Tliey  arc  also 
chargeable  with  notice  of  the  liability  of  piius  and  mains  hi  id 
in  streets  to  become  broken  by  reason  of  the  travel  in  the  streets 
or  of  the  settling  of  the  earth,  especially  when  sewers  have  been 
or  are  being  constructed  or  other  ])ipes  laid  therein,  or  the 
streets  are  being  rejiaired.  And  in  these  nuulcni  times  when 
the  use  of  electricity  has  become  so  universal  there  is  no  doubt 
that  they  are  chargeable  with  notice  of  its  etfect  upon  iron  or 
steel  pipes,  and  its  tendency  to  destroy  the  fibres  of  the  iron  or 
steel,  weaken  the  jiipes  and  render  them  unsafe  instruments  for 
the  conveyance  of  gas.^^  Being  thus  chargeable,  a  duty  de- 
volves upon  gas  companies  to  inspect  their  pipes  and  niains  and 
the  connections  therewith.  It  must  use  reasonable  care  in  mak- 
ing these  insix^ctions ;  and  if  a  leak  could  have  been  discovered 
and  prevented  by  such  an  ins])ection,  that  fact  of  itself  will  be 
sufficient  to  charge  the  com]iany  with  negligence,  if  it  fail  to 
make  the  inspection.^"  And  this  is  true  of  a  company  that  pur- 
chases the  plant  of  another  company,  with  respect  to  such  plant ; 
for  its  liability  is  not  dependent  on  its  knowledge  of  the  pi]ies' 
defective  condition,  or  escaping  gas ;  but  upon  its  care  in  keep- 
ing the  pipes  in  a  reasonably  safe  condition,  and  using  them 
so  as  to  not  unnecessarily  injure  persons  and  their  property.*^^ 
It  has  been  held  that  it  is  a  question  for  the  jury  whether  a  gas 
company  which  had  no  system  of  inspection,  but  waited  for 
complaints  before  ordering  an  ins})ection,  to  detect  a  leak  in 
the  pipes,  is  chargeable  with  negligence. °'*  Tn  a  Pennsylvania 
case   it   was   said:      ''While  no   absolute   standard   of  duty  in 

50  Pritchard  v.  Consolidated  Gas  51  N.  Y.  App.  Div.  446;  65  N.  Y. 
Co..  2  Pa.  Super.  Ct.  170;  39  \V.  N.  Supp.  10;  Consolidated  Gas  Co.  v. 
C.  28.  Crocker,   82  Md.   113;    33  Atl.   Kep. 

51  Siebrccht  v.  East  River  Gas  423;  31  L.  R.  A.  785;  Koplan  v. 
Co..  21  N.  Y.  App.  Div.  110;  47  Boston  Gasliplit  Co.,  177  :Mas-;.  15; 
N.  Y.  Supp.  262;   Koplan  v.  Boston  58  N.  E.   Rep.   183. 

Ga.slijrht  Co.,   177  Mass.    15;   58   N.  s.-i  Dow     v.     Winnipesaukee     Gas, 

E.  Rep.  183.  etc.,  Co.,  69  X.  11.  312;  41  Atl.  Rep. 

52  Pine  BlufT,  etc.,   Co.  v.  Schnei-       288;  42  L.  R.  A.  569. 

der,   62   Ark.    109;    34    S.   W.    Rep.  54  Pritcbard    v.    Gas    Co.,    2    Pa. 

547;    33    L.    R.    A.    366;    Rockford  Sup.  Ct.  Rep.  179 ;  Pritchard  v.  Gas 

Gaslijrht  Co.  v.  Ernst,  68   111.  App.  Co..  39  W.  N.  Cas.  28. 
300;  Tiehr  v.  Consolidated  Gas  Co., 


708  OIL    AND    GAS. 

dealing  with  such  agencies  can  ho  ])r("scrihcd,  it  is  safe  to  say, 
in  general  terms,  that  every  reasonahle  precaution  suggested  by 
experience  and  the  known  dangers  of  the  subject  ought  to  be 
taken.  This  would  reipiire,  in  the  case  of  a  gas  company,  not 
only  that  its  pijx?s  and  tittings  should  be  of  such  material  and 
workmanship,  and  laid  in  the  ground  with  such  skill  and  care, 
as  to  provide  against  the  escape  of  gas  therefrom  when  new,  but 
that  such  system  of  inspection  should  be  maintained  as  would 
insure  reasonable  promptness  in  the  detection  of  all  leaks  that 
might  occur  from  the  deterioration  of  the  material  of  the  pipes 
or  from  any  other  cause  within  the  circumspection  of  men  of 
ordinary  skill  in  the  business.^^  It  requires  nothing  unreason- 
able —  it  does  not  re(|uire  that  the  company  shall  keep  up  a  con- 
stant inspection  all  along  its  lines,  without  reference  to  the  ex- 
istence or  non,-existence  of  probable  cause  for  the  occurrence  of 
leaks  or  escape  of  gas."  ^^  Where  the  company  could  have  dis- 
covered the  defect  in  its  pipe  by  the  smell  of  the  escaping  gas, 
if  it  had  made  a  projxjr  inspection,  it  was  held  that  it  was  no  de- 
fense in  the  company  to  show  that  it  sent  a  workman  to  repair 
the  pipe  as  soon  as  it  had  notice  of  the  leak,  he  arriving  too  late 
to  do  so.^^  Of  course,  a  gas  company  is  required  only  to  inspect 
its  own  pipes  and  apparatus. *^^  Strictly  speaking,  it  has  no 
right  to  enter  upon  private  premises,  except  in  so  far  as  its  own 
property  extends;  but  the  usual  contract  between  a  gas  company 
and  a  consumer  gives  them  the  right  to  enter  the  premises  and 
inspect  the  gas  apparatus,  not,  however,  imposing  upon  it,  in 
terms,  a  duty  to  inspect.     There  is  no  doubt  that  if  a  gas  com- 

•>■•  Citing  Kibele  v.  City  of  Phila-  57  Mose  v.  Hastings,  etc..  Co.,  4 
ddphia;  105  Pa.  St.  41;  Holly  v.  F.  and  F.  .324;  13  Gas  J.  231;  Sie- 
Gaslight  Co..  8  Gray  123;  69  Am.  brecht  v.  East  River  Gas  Co.,  21 
Dec.  273;  Smith  v.  Gaslight  Co.,  129  N.  Y.  App.  Div.  110;  47  N.  Y.  Supp. 
Mass.  318.  262;  Consumers'  Gas  Co.  v.  Cor- 
se Koelsch  V.  Philadelphia  Co.,  baley,  14  Ind.  App.  549;  43  N.  E. 
152  Pa.  St.  355;   25  Atl.  Rep.   .522;  Rep.  237. 

.34   Am.   St.   Rep.  653;    18   L.   R.  A.  *57  United    Oil    Co.    v.    Rosel)erry 

759;  quoted  in  Consolidated  Gas  Co.  (Colo.),    69    Pac.    Rep.    588.      See 

V.    Crocker,    82    Md.    112;    33    Atl.  Smith    v.    Pawtuckct    Gas    Co.,    24 

Rep.  423;    31   L.   R.   A.   785;    State  R.  I.  292;  52  Atl.  Rep.   1078. 
V.    Consolidated    Gas    Co.,    85    Md. 
637;  37  Atl.  Rep.  263. 


LEAKS    AND   EXPLOSIONS.  709 

paiij  undertake  the  inspection  of  the  \)\])cs  and  i;as  (ixtiircs  of 
a  house  or  building  they  are  bound  to  exercise  diligence  in  dis- 
covering leaks  or  escaping  gas,  the  same  as  if  they  were  their 
own  pipes  and  fixtures.^^  A  gas  company  may  insist  upon  the 
right  to  enter  on  the  premises  and  ins|KK't  the  ])i]ies  and  gas 
fixtures,  before  turning  on  a  supply  of  gas,  to  see  if  they  are  in 
a  fit  condition  to  receive  it :  ^"  but  it  in  fact  is  not  boiind  In  do  so, 
for  it  may  take  the  property  ?wner's  assurance  that  all  things 
have  been  made  safe  for  its  rec  t>tion,  or  it  may  refuse  to  fur- 
nish him  gas,  unless  it  be  given  the  right  to  inspect.  If,  there- 
fore, after  such  assurance  the  company  should  turn  on  the  gas, 
which  should  escape  at  a  point  beyond  the  place  where  the  com- 
pany's duty  to  inspect  ceases,  and  from  the  escaping  gas  an  ex- 
plosion occur,  the  neglect  would  be  that  of  the  property  owner, 
and  not  that  of  the  gas  company.""  An  English  case  furnishes 
an  illustration  on  this  point.  The  plaintitf  was  the  owner  of 
a  new  house,  which  was  divided  into  two  separate  flats,  an 
upper  and  lower  one,  each  flat  having  a  se|>arate  entrance  from 
the  street.  When  he  built  the  house,  the  plaintiff  put  in  a 
service  pipe  from  the  street,  running  it  under  the  hall  door  steps 
inside  the  wall  of  the  house  to  the  upper  flat.  The  tenant  of 
the  upper  flat  gave  notice  to  the  gas  company  to  supply  his  flat 
with  gas ;  and  thereupon  the  company  made  connection  between 
its  main  in  the  street  and  the  service  pipe,  supplied  and  fixed  a 
meter  in  the  flat,  and  turned  on  the  gas.  Owing  to  a  defect 
in  the  service  pipe,  which  the  plaintiff  had  supplied,  leading  to 
the  meter,  gas  escaped  and  exploded,  injuring  the  house,  about 
an  hour  after  it  was  turned  on.  In  a  suit  to  recover  damages 
for  injuries  to  the  house,  the  court  ruled  that  there  was  no  duty 
resting  on  the  gas  company  to  test  the  service  pipe;  and  the  jury 
having  found  that  proper  connection  had  been  made  by  the  com- 

58  Lannen  v.  Albany  Gaslight  Co..  Gas  Co.,  27   N.   Y.   App.   Div.    5S4; 

46  Barb.  264;  44  N.  Y.  459;  Fergu-  50  N.  Y.  Supp.  5.37. 

son  V.   Boston   Co..   170  Mass.   182;  »!>  Flint     v.     Gloucester     Gaslight 

4!)  N.    E.   Rep.    115.     See  Vallee  es  Co..  .3  Allen  343;   9  Allen  552. 

qualite  v.  New  City  Gas  Co..  7  Am.  so  Holden  v.  Liverpool  Gas  Co.,  3 

Law  Rev.  767;  Bastian  v.  Keystone  C.  R.  1  ;   15  L.  J.  C.  P.  301  ;   10  .Fur. 

883. 


710 


OIL    AND    GAS. 


})an_v  between  its  luaiu  ami  llic  service  i>ii)e,  jiid^i^ncnt  was  given 
for  it,  the  cdurt  not  sustaininu-  the  plaintiif  in  his  contention 
that  if  the  company  choose  to  nse  a  pi]X3  not  laid  by  it,  it  was  its 
duty  to  see  if  it  were  in  good  condition."^  If  the  gas  company 
had  ])iit  in  the  defective  service  pipe,  there  would  have  been  no 
donbt  (if  its  liahility  to  the  ])laintitr."" 


^616.     Duty  to  make  repairs  immediately. —  Available  force. 

Jt  is  not  only  the  duty  of  a  gas  company  to  institute  and  main- 
tain an  efficient  system  of  oversight  and  superintendence,  but 
to  be  prepared  with  sufficient  force  ready  to  put  in  action  and 
fully  competent  to  supjily  and  furnish  a  ])rom]it  remedy  for  ac- 
cidents, defects,  and  the  like.''''     This  rule  requires  the  company 


«i  Henderson  v.  New  Castle,  etc., 
Gas  Co.,  37  Sol.  J.  403. 

02  Burrows  v.  Marsh  Gas  and 
Coke  Co.,  L.  R.  7  Exch.  96;  41  L.  J. 
Exch.  46;  26  L.  T.  318;  20  W,  R. 
493. 

When  the  evidence  showed  negli- 
gence on  the  part  of  the  gas  com- 
pany, the  admission  of  opinion  evi- 
dence as  to  whether  an  inspection 
should  have  been  made  was  held 
not  judicial  error.  United  Oil  Co. 
V.  Roseberry  (Colo.),  69  Pac.  Rep. 
688. 

Whether  or  not  a  gas  company  is 
guilty  of  negligence  in  not  insjx^ct- 
ing  a  house  that  has  been  vacant  for 
nearly  a  month,  is  a  question  for 
the  jury.  Baltimore  Consolidated 
Gas  Co.  V.  Getty  (Md.),  54  Atl. 
Rep.  660. 

It  is  not  negligence  contributing 
to  the  injury  to  a  vacant  house  by 
a  leakage  and  consequent  explosion 
of  gas,  that  the  owner  and  his  agent 
left  the  premises  without  inspection 
for  almost  a  month.  Consolidated 
Gas  Co.  V.  Getty,  54  A.  660;  96 
Md.  683. 


If  an  agent  of  a  gas  company 
testifies  that  he  inspected  the  prem- 
ises and  did  not  find  gas  escaping 
in  dangerous  quantities;  a  witness 
may  testify  that  he  told  him  at  the 
time  that  there  was  gas  enough  in 
the  cellar  to  blow  up  the  house  if 
he  would  go  down  into  it  with  a 
light,  in  order  to  contradict  him. 
Hunt  V.  Lowell  Gaslight  Co.,  3  Al- 
len 418. 

A  gas  company  is  not  required 
to  uncover  its  pipes  in  search  for 
leaks  without  reference  to  the  pre- 
vious existence  or  non-existence 
thereof.  ^Morgan  v.  United  Gas  Imp. 
Co.,  214  Pa.  109;  G3  Atl.  Rep. 
417. 

C3  Holly  V.  Boston  Gaslight  Co., 
8  Gray  123;  69  Am.  Dec.  233; 
Rockford,  etc.,  Co.  v.  Ernst,  68  HI. 
App.  300;  Belvidere,  etc.,  Co.  v. 
Jackson,  81  111.  App.  424;  Bar  rick- 
man  V.  Marion  Oil  Co.,  45  W.  Va. 
634;  32  S.  E.  Rep.  327;  44  L.  R.  A. 
92;  Otersbach  v.  Philadelphia,  161 
Pa.  St.  Ill;  28  Atl.  Rep.  991;  An- 
derson v.  Standard  Gaslight  Co.,  40 
N.   Y.   Supp.   671;    17   N.   Y.  IVIisc. 


LEAKS   AND   EXPLOSIONS. 


711 


to  take  nil  nccossnrv  stojis  to  i>roveiit  (laiiKiiics  that  iiia.v  he  occn- 
sioncd  In-  a  leak  as  s^on  as  it  lias  knowledge  of  it;  and,  as  else- 
where stated,  it  may  be  guilty  of  negligence  in  not  discovering 
such  leak.  If  it  has  no  knowledge  of  the  leak  until  informed 
of  it,  and  has  not  been  olhorwis(>  giiihy  of  negligence  —  as,  for 
instance,  not  having  used  proper  piping,  or  maintained  a  proper 
system  of  inspection  —  its  liability  will  depend  npon  the  ques- 
tion whether  or  not  it  has  used  due  diligence  to  prevent  the  in- 
jury after  it  has  received  notice  of  the  leak.  The  liability  of 
the  company  turns  upon  the  question  wlicther  it  has  used  due 
care  to  prevent  an  injury  after  it  has  notice  of  the  danger;  and 
the  care  it  must  use,  whether  due  care,  must  be  measured  by  the 
possibility  and  likelihood  of  an  injury  being  inflicted. ''^  In  an 
instance  of  this  kind  evidence,  in  defense,  of  the  company's  sys- 
tem and  course  of  business  in  regard  to  complaints  of  leaks  is 
admissible ;  '^^  and  also  of  the  precautions  it  takes  to  repair 
leaks.""  In  the  case  of  a  great  tire  —  as  the  Chicago  and  Boston 
fires  —  the  celerity  required  in  stopping  leaks  must  be  measured 
by  their  number,  tlie  extent  of  the  territory  over  which  they 


Rep.  625;  Pine  Bluff,  etc.,  Co.  v. 
Schneider,  62  Ark.  109;  34  S.  W. 
Rep.  547;  33  L.  R.  A.  300;  Con- 
solidated Gas  Co.  V.  Connor,  114  Md. 
140;  78  Atl.  725;  Pulaski  Gaslight 
Co.  V.  McClintock,  97  Ark.  576;  134 
S.  W.  1189,  1199;  Hashman  v.  Wy- 
andotte Gas  Co.,  83  Kan.  328;  111 
Pac.  468. 

No  duty  devolves  upon  the  gas 
company  to  repair  the  pipes  of  the 
owner  of  the  building,  he  owning  the 
pipes.  Harmer  v.  Brantford  Gas 
Co.,  13  Ont.  W.  Rep.  873;  but  it 
should  cut  off  the  gas  if  they  are 
leaking.  ^Memphis,  etc.,  Co.  v. 
Creighton,  183  Fed.  552. 

84  Hunt  v.  Lowell  Gaslight  Co., 
1  Allen  343;  Chisholm  v.  Atlanta 
GasRght  Co.,  57  Ga.  28 ;  Pine  Bluff, 
etc.,  Co.  v.  McCain,  62  Ark.  118; 
34  S.   W.  Rep.   549;   Rockford  Gas- 


light and  Coke  Co.  v.  Ernst,  68  Til. 
App.  300;  Consolidated  Gas  Co.  v. 
Crocker,  82  :Md.  113;  34  Atl.  Rep. 
423;  31  L.  R.  A.  785;  Hoin  v.  Lan- 
caster, 13  Lane.  L.  Rev.  131;  Mow- 
ers V.  Municipal  Gas  Co.,  126  N.  Y. 
Supp.  1033;  Gutekunst  v.  ^Municipal 
Gas  Co.,  126  X.  Y.  Supp.  1035. 

65  Holly  v.  Boston  Gaslight  Co., 
8  Gray  123;  69  Am.  Dec.  233. 

68  Powers  V.  Boston  Gaslight  Co., 
158  Mass.  257;   33  N.  E.  Rep.  523. 

Unexplained  defects  in  a  com- 
pany's gas  pipes,  allowing  gas  to 
escape  and  accumulate,  is  evidence 
of  negligence.  Morrison  v.  Superior 
W.  L.  &  P.  Co.,  134  Wis.  107;  114 
X.  W.  Rep.  434. 

Gas  escaping  from  an  unciipped 
pipe.  Kcnney  v.  South  Shore,  etc., 
Co.,  134  X.  Y.  App.  Div.  859;  119 
X.  Y.  Supp.  363. 


712  OIL   AND    GAS. 

arc  spread,  and  the  aniniiiit  nf  available  force  obtainable  to 
make  the  repairs.  In  sucli  iiistances  great  energy  is  recjuired 
of  the  eompany,  because  the  danger  is  great,  but  not  the  im- 
possible."^ 

§617.     Notice  of  leaks. 

It  is  the  duty  of  a  gas  company  as  soon  as  it  receives  notice 
of  a  leak  to  take  all  necessary  steps  to  prevent  an  explosion.  It 
matters  not  through  what  sources  it  receives  information  that 
there  is  a  leak,  it  must  at  once  act.  It  cannot  be  expecte<l  that 
a  gas  comjiany  will  repair  a  leak  of  which  it  has  no  notice;  but 
it  may  be  guilty  of  negligence  in  not  discovering  it,  and  if  it  is, 
it  will  be  liable  for  damages  occasioned  by  that  leak.''*  Any  one 
may  give  the  company  notice  of  the  leak,  and  it  will  be  bound 
by  it.  In  one  case  it  was  said  that  "  any  inmate  of  plaintiff's 
family  was  competent  and  had  a  right  to  communicate  to  the 
defendants  that  the  gas  was  escaping  from  some  leak  in  their 
pipes  into  the  house,  making  its  occupancy  either  unsafe  or  dis- 
agreeable or  offensive  " ;  that  it  was  proper  for  the  plaintiff's 
wife  to  send  a  message  to  the  company  to  that  effect  by  any  per- 
son to  whom  she  thought  fit  to  intrust  it ;  and  that  it  was  im- 
material how,  by  what  means,  or  through  whom  it  obtained  in- 
formation, so  that  it  was  sufficient  to  inform  them  of  the  leak.*® 
In  an  action  for  damages  occasioned  by  gas  escaping  into  plain- 
er Hutchinson  v.  Boston  Gaslight  also  charged  that  the  company  knew, 
Co.,  122  iVIass.  219.  or    by    ordinary    care    might    have 

68  Pine  Bluff,  etc.,  Co.  v.  Schnei-  known,  of  the  defective  condition 
der,  G2  Ark.  109;  34  S.  W.  Rep.  of  the  main;  and  the  proof  showed 
547;  33  L.  R.  A.  366;  State  v.  Con-  that  the  company  did  have  knowl- 
solidated  Gas  Co.,  85  Md.  637;  37  edge  of  such  defective  condition,  it 
Atl.  Rep.  203;  Siebrecht  v.  East  was  held  proper  to  predicate  an  in- 
Rivcr  Gas  Co.,  21  N".  Y.  App.  Div.  struction  both  upon  the  complaint 
110;  47  X.  Y.  Supp.  262;  Diehle  v.  and  proof,  and  permit  a  recovery 
United  Gas  Imp.  Co.,  225  Pa.  494 ;  for  defendant's  negligent  omission 
74  Atl.  Rep.  349;  Morrison  v.  Su-  to  prevent  the  escape  of  gas  after 
perior,  etc.,  Co.,  134  Wis.  107;  114  knowing  of  the  leak.  Sipple  v.  La- 
N.  W.  Rep.  434.  clede    Gaslight    Co.,    125    Mo.    App. 

Where  the  complaint  charged  that        81;   102  S.  W.  Rep.  608. 
the   company    negligently   permitted  "»  Hunt    v.    Lowell    Gaslight    Co., 

its  mains  to  become  defective,   and       1    Allen   343. 


LEAKS    AND   EXPLOSIONS.  713 

tiff's  collar  from  a  break  in  tlic  main  iniic  in  t^'.o  stn^ot,  it  was 
decided  by  the  court  *'  that  if  the  defendant's  servants,  the  otli- 
cers  of  the  company,  did  not  know,  and  by  tlie  use  of  due  care 
could  not  ascertain,  that  the  gas  was  escaping:  into  the  i)laintiff's 
house,  or  had  reasonable  cause  to  believe  that  it  was  not,  and  no 
notice  was  given  by  the  inmates  of  the  house  to  them  that  gas 
was  in  the  house,  the  defendant  is  not  liable;  but  if  they  did 
kno^v,  or  if,  with  their  knowledge  of  the  condition  of  the  street, 
they  had  reasonable  cause  to  suspect  that  th(>  gas  had  entered 
or  was  entering  the  plaintiff's  house  in  dangerous  quantities, 
and  gave  no  notice  to  the  inmates,  the  company  is  liable  in 
damages  if  the  plaintiff  used  due  care."  "  So  where  the  ex- 
plosion took  place  in  a  factory  supplied  neither  with  gas  nor  gas 
pipes,  the  street  line  being  within  a  few  feet  of  the  cellar  wall; 
and  a  few  months  before  a  sewer  connection  for  the  building  had 
been  made  which  passed  under  the  street  line;  the  claim  being 
made  that  the  gas  escaped  from  a  break  in  the  pipe,  passed 
through  the  sand  until  it  reached  the  sewer  pipe,  and  followed 
that  into  the  cellar,  and  there  collected ;  in  support  of  the  claim 
testimony  being  given  that  escaping  gas  had  been  detected  at 
that  point  for  several  -weeks  prior,  and  that  soon  afterwards  an 
old  rusty  break  in  the  gas  pipe  immediately  in  front  of  the 
premises  was  discovered ;  and  that  the  company  was  notified, 
more  than  two  wrecks  before  the  accident,  of  the  presence  of 
escaping  gas  in  the  neighborhood,  but  did  nothing  in  response 
thereto;  it  was  held  that  the  case  should  go  to  the  jury,  even 
though  the  company  denied  receipt  of  the  notice,  and  gave  evi- 
dence in  rebuttal  of  the  plaintiff's  case  generally.'^  Where 
the  gas  escaped  from  the  defective  pipes  of  a  plant  the  company 
had  purchased,  the  court  held  that  the  company's  liability  was 
not  dependent  on  its  knowledge  of  the  pipes'  defective  condition 
or  of  the  escaping  gas,  but  on  the  observance  of  care  by  it  in 
keeping  the  pipes  in  a  reasonably  safe  condition,  and  using  them 
so  as  to  not  unnecessarily  injure  others.'" 

70  Bartlett  v.  Boston  Caslifiht  Co.,  ^2  Dow  v.  Winniposaukoc  Gas,  etc., 
122  Mass.  209.                                                 Co.,    69    N.    H.    312;    41    At).    Kop. 

71  Henderson    v.    Allegheny    Heat-       288;  42  L.  R.  A.  500. 

ing  Co.,  17!)  Pa.  St.  .513;   39  W.  X.  A  gas  cnmpanv.  whieh  tliroHgli  its 

C.  485;  30  Atl.  Rep.  312.  pipes  supplies  gas   to   a   house,   and 


714 


OIL    iVND    GAS. 


§618,     Notice. —  Failure  to  discover  place  of  leak. 

If  a  company  has  notice  that  gas  is  escaping,  it  must  prevent 
its  escape  at  its  peril.  The  apparent  quantity  escaping  is  im- 
material ;  for  it  is  bound  to  investigate  thoroughly  the  place 
where  it  is  escaping  and  prevent  such  escape ;  and  if  it  fall  into 
error  concerning  the  probable  danger,  believing  that  only  a  small 
quantity  is  escaping,  and  the  gas  in  fact  escapes  in  sufficient 
quantity  to  be  dangerous,  the  company  will  be  liable  for  its 
error  in  estimating  the  danger,  and  cannot  shift  the  loss  occa- 
sioned by  the  explosion  upon  the  person  injured  in  his  property 
or  person. '^^  So  if  the  company  believes  the  gas  is  escaping  at 
a  particular  place,  and  there  attempts  to  prevent  its  escape  by 
repairing  the  supposed  defect  in  its  pipe  or  apparatus,  when  in 
fact  the  leak  is  at  another  place,  it  will  be  liable  for  all  tlie  con- 
sequences following  from  the  gas  escaping.'^''  But  where  the 
leak  was  apparently  a  small  one,  and  the  gas  company's  work- 
men searched  for  it  with  a  light,  it  was  held  to  be  a  ques- 
tion for  the  jury  whether  the  action  of  the  workmen  was  negli- 
gent.'^^ 


has  control  of  the  apparatus  for 
cutting  oil"  the  same,  when  notified 
tliat  gas  is  escaping  in  the  house, 
and  is  informed  of  injury  and 
danger  therefrom,  owes  a  duty  to 
such  occupants  to  exercise  reason- 
able diligence  in  shutting  off  the 
gas  therefrom,  and  it  is  immaterial 
that  the  pipes  where  the  leak  oc- 
curred were  owned  by  the  owner  of 
the  house.  Mempliis  Consolidated, 
etc..  Gas  Co.  v.  Creighton,  183  Fed. 
552. 

73  See  Otersbach  v.  Philadelphia, 
IGl  Pac.  St.  Ill;  28  Atl.  Rep.  991. 
Anderson  v.  Standafrd  Gaslight  Co., 
40  N.  Y.  Supp.  671;  17  N.  Y.  Misc. 
Rep.   625. 

The  burning  of  escaping  gas  on 
the  streets  on  which  tlie  defendant's 
pipes  are  laid  in  a  densely  popu- 
lated section  of  tlie  city,  justifies  a 
finding  that  the  defendant  knew,  or 
should  have  known,  of  the  defective 
condition  of  its  pipes.     Hashman  v. 


Wyandotte  Gas  Co.,  83  Kan.  328; 
111  Pac.  4G8:  Consolidated  Gas  Co. 
V.  Connor.  114  Md.  140;  78  Atl. 
725. 

74  Consolidated  Gas  Co.  v.  Crocker, 
82  Md.  113;  34  Atl.  Rep.  423;  31 
L.  R.  A.  785;  Pine  Bluff,  etc.,  Co. 
v.  Schneider,  G2  Ark.  109 ;  34  S.  W. 
Rep.  547;  33  L.  R.  A.  366. 

75  Ellis  V.  Londtin  Gaslight  Co., 
32  Gas  J.  849.  See  Riahmond  Gas 
Co.  V.  Baker,  146  Ind.  600;  45  N. 
E.  Rep.  1049:  36  L.  R.  A.  683.  See 
Bastian  v.  Keystone  Gas  Co.,  27  N. 
Y.  App.  Div.  "584;  60  N.  Y.  Supp. 
537. 

In  an  action  for  damages,  caused 
by  a  leak  in  a  gas  main  in  a  street, 
evidence  that  there  were  several 
leaks  in  adjacent  houses,  of  w^hich 
the  defendant  was  notified,  but  the 
odor  of  gas  was  not  traceable  to 
leakages  from  tlie  street  main,  was 
not  sufficient  to  charge  the  defendant 
witli  notice  of  tlie  lealc  which  caused 


LEAKS    AND    EXPLOSIONS.  714a 

§619.     Notice  of  leak,  when  not  necessary  to  fix  liability. 

It  is  the  duty  of  a  gas  company  to  I'liiploy  sale  and  sound 
mains  or  pipes  for  carrying  gas  to  its  customers.  It  must  exer- 
cise due  care  in  selecting  and  laying  lluin,  with  a  view  to  i)re- 
vent  leaks.  If  it  does  not  exercise  such  care  in  selecting  and 
laying  them,  or  if  it  knowingly  lays  defective  pipes  and  mains, 
it  cannot  insist  that  it  had  no  notice  of  tlie  leak  that  caused  the 
damages.  In  such  an  instance  it  is  chargeahle  with  notice  of 
their  condition  ;  and  if  a  leak  occur  by  reason  of  which  damage 
is  done  to  property  or  persons  it  will  be  liable,  although  it  had 
no  notice  of  the  leak.^® 

§620.     Evidence  of  notice  to  gas  company  of  danger  to  mains. 

It  is  always  admissible  to  show  that  the  gas  company  had 
notice  of  danger  to  its  mains  and  pipes,  from  whatever  cause, 
when  the  charge  is  that  the  pipes  were  broken  because  of  such 
threatened  danger  and  not  repaired  within  prop^^r  time.  Illus- 
trations of  this  rule  are  excavations  in  the  iiublic  streets  in  the 
near  proximity  to  the  mains  or  pipes  that  were  broken  by  reiison 
of  such  excavations.  Thus  where  gas  escaped  from  a  broken 
pipe  in  the  street,  the  break  being  occasioned  by  reason  of  a 
subway  being  constructed  in  the  street,  a  letter  from  the  chief 
engineer  of  the  construction  company  to  the  superintendent  of 
the  gas  company  relative  to  its  pipes  and  ofiVi-ing  facilities  to 
it  to  examine  and  care  for  them ;  and  also  testimony  of  conver- 
sations between  the  engineer  of  the  construction  company  and 
tlie  engineer  of  the  gas  company  in  which  the  latter  was  recom- 


the  injuries.     Mowers  v.  !Nrunioipal  "It    was    not    necessary    to    aver 

Gas  Co.,  12G  N.  Y.  Sup.  10.33;  Gutc-  that   api)cllant    knew    tlie    pas    was 

kunst  V.  ^Municipal  Gas  Co.,  12G  N.  escaping  from  the  broken  pipes  and 

Y.  Sup.   1035.  percohiting   tiirough    tlie    ground    to 

T6  Aurora  Gaslight  Co.  v.  Bishop,  the   place   of   the  explosion.     If  the 

81  III.  App.  493;  Hampton  v.  Crad-  appellant  had  knowledge  of  the  im- 

ley  Heath  Gas  Co.,   14  Gas  J.  GOG;  perfect    condition    of    the    pijies    as 

Smith   V.   Boston  Gaslight  Co.,    12!)  charged,  it  was  bound  to  know  also 

Mass.  318;  Crane  v.  Columbus  Con-  that   gas   would   esc^ipe.     This   was 

struction  Co.,  73  Fed.  Rep.  804;  4G  one   of    the    natural    results   of    the 

U.    S.    App.    52;    20   C.    C.    A.    233;  appellant's  negligence  and  for  these 

United  Oil  Co.  v.  Roseberry  (Colo.),  it  is  responsible."     Alexandria  Min- 

69  Pac.  Rep.  588;  Sipple  v.  Laclede  ing,  etc.,  Co.  v.  Irish.   10   Ind.  App. 

Gaslight    Co.,     125    ilo.    App.    81;  534;  44  N    E.  Rep.  680. 
102  S.  W.  Rep.  608. 


714b  OIL   AND   GAS. 

mended  to  havo  an  ins]wctor  on  tlie  line  of  work,  were  held  ad- 
missible on  the  ground  that  it  tended  to  show  to  the  gas  com- 
pany the  peculiar  dangers  to  which  the  pipes  were  exposed  and 
tlie  opjiortunity  afforded  it  to  guard  against  them/^  Where  a 
gas  company  had  repeatedly  repaired  a  cracked  elbow  it  had 
put  in,  that  was  held  to  be  sufficient  evidence  of  notice  of  the 
defect  and  to  hold  it  liable  for  a  failure  to  remove  it  or  to  close 
the  craek.'^^  So  it  may  be  shown  that  the  company  was  directly 
notified  of  the  escaping  gas  —  such  as  a  notice  to  its  ])ipe  line 
walker  ''^ —  that  workmen  were  seen  digging  at  the  place  for 
breaks  in  the  gas  pipes  with  tools  branded  with  the  initials  of 
the  company  —  the  same  brands  as  were  on  the  tools  of  the 
men  who  fixed  the  break  after  the  explosion  —  in  order  to  show 
knowledge  on  the  company's  part  that  the  pipe  in  that  locality 
frequently  leaked.*"  Testimony  by  a  former  occupant  of  a 
building  that  gas  was  smelled  in  the  cellar  a  year  previous  to 
the  time  of  the  explosion  was  held  admissible,  where  there  was 
other  evidence  of  siich  a  smell  after  such  occupant  left  the  build- 
ing, and  extending  up  to  about  the  time  of  the  explosion.^^ 

§621.     Evidence  of  other  leaks. 

Evidence  of  a  leak  from  which  gns  escaping  did  not  cause  the 
injury  is  not  admissible,  althongh  gas  escaping  from  a 
leak  did  cause  the  injury;  but  if  gas  from  both  of  them  com- 
bined to  any  extent,  then  evidence  of  both  leaks  are  admissible. 
But  if  the  charge  is  that  the  gas  pipes  were  old  and  decayed,  or 

T7  Koplan  V.  Boston  Gaslight  Co.  79  Consumers'    Gas    Trust    Co.    v. 

177  Mass.  15;  58  N.  E.  Rep.  183.  Perrego,  144  Ind.  350;  43  N.  E.  Rep. 

Where    gas   escaped    from    an   un  30G;  32  L.  R.  A.  14G. 

capped  pii^e,  declarations  by  an  em-  so  Lewis  v.    Boston   Gaslight   Co., 

ployee  of  the  gas  company,   sent  to  165  Mass.  411;   43  N.  E.  Rep.   178; 

the    house    to    install    a    gas    meter  Sipple  v.  Laclede  Gaslight  Co.,   125 

and  make  a  test  of  the  pipes  in  the  Mo.  App.   81;    102   S.  W.   Rep.   608. 

house,    made     to    j)lumb(ns     at     the  I^vidence    tliat    the    horse    injured 

house,   to   the    eifect   that   he  would  was  on  the  right  side  of  the  street 

make  the  test,  tliough  the  pipes  had  is  not  such  a  fatal  variance  as  will 

been   t<^sted,  was  held  admissible  as  defeat   a    plaintill'  who   alleges  that 

part  of  the  res  gestae.      Kenney  v.  the  horse  was  on  the  left  side;  nor 

South    Shore,    etc.,    Co.,    134    N.    Y.  is  the  verdict  erroneous  when  such 

App.  Div.  859;   119  N.  Y.  Supp.  363.  a  variance  is  specifically  shown  by 

78  Richmond    Gas    Co.    v.     Baker,  the  finding.    Alexander  Mining,  etc., 

146  Ind.   600;    45  N.  B.  Rep.   1049;  Co.  v.   Irish,    16   Ind.  App.   534;    44 

36    L.    R.   A.   683;    Consumers'   Gas  N.  E.  Rep.  680. 

Trust  Co.  V.  Corbaley,  14  Ind.  App.  "i  Werner  v.  Ashland  Lighting  Co., 

549;   43  N.  E.  Rep. '237.  84.  Wis.  C52;  54  N.  W.  Rep.  996. 


LKAKS    AM)     KXri.oSIoXS.  T 1  ."> 

had  been  injured  l)_v  the  Sdil  in  wliich  ihey  were  laid,  or  hy 
electrolysis,  then  evidence  of  other  leaks  near  hy  or  in  the  same 
neiglilK)rhood,  where  the  conditions  are  the  same,  is  admissihlo 
to  show  that  the  gas  company  had  notice  that  the  pipes  had 
become  decayed  by  long"  use,  or  atVected  by  the  nature  of  the 
soil,  or  by  electrical  action,  at  the  place  from  which  it  is  cliargctl 
the  gas  esca])ed,  and  consequently  fix  u]X)n  it  the  charge  of 
negligence  in  not  finding  and  repairing  the  particular  defect.**" 

§622.     Evidence  of  leaks. 

In  proving  a  leak  in  a  street  main,  from  which  the  escaping 
gas  caused  an  injury  by  explosion,  the  testimony  of  persons 
residing  in  the  neighborhood,  to  the  eifoet  that  they  had  smelt 
gas  for  some  time  and  on  the  day  of  the  explosion,  is  admissible, 
on  the  theory  that  it  tended  to  prove  the  leak.®^  Nor  is  the 
evidence  of  witnesses,  to  the  effect  that  they  had  perceived  an 
odor  indicating  the  escape  of  gas  from  certain  street  mains,  ren- 
dered incompetent  by  subsequent  evidence  assigning  another 
cause  for  the  odor.®*  And  a  witness  may  testify  that  the  odor 
was  similar  to  the  odor  of  escaping  gas  elsewhere  several  months 
before,  the  purpose  being  not  to  prove  aimtlior  leak,  ])ut  iiioi-(>ly 
to  identify  the  odor.®^  Evidence  of  the  condition  of  the  gnnind 
through  which  the  gas  escaiwd  into  the  house  injured  by  the  ex- 
plosion—  such  as  it  was  blackened  by  the  gas,  and  would  burn 
when  a  light  was  applied  to  it  —  as  well  as  tliat  gas  flowed  from 
the  defect  in  the  pipe  after  the  ex])losion,  is  admissible.'**'  Where 
the  charge  was  that  the  gas  escaped  into  a  sewer  and  thence  into 

82  Emerson  v.  Lowell,  3  Allen  410.  Boston  Gaslight  Co.,  12!)  Ma.s.s.  318; 
This  case  is  not  exactly  in  point;  Siebrecht  v.  East  Kiver  (Jus  Co.,  21 
but  it  is  believed  tliat  tlie  inujio.-i-  IS.'.  Y.  App.  IIU;  47  N.  Y.  Sup]).  202; 
lion  laid  down  in  the  text  is  sup-  Cohen  v.  Consolidated  (ias  Co.  (N. 
ported  by  it  in  principle.  Y.),   121   N.   \'.  Supp.  ()")(). 

In    an    action    for    injuries    to    a  84  Koplan  v.  Boston  Gasli;j;ht  Co., 

building  by   explosion  of  gas  negli-  supra. 

gently   permitt^'d   to  escape  between  **5  Koplan  v.  Boston  Gaslight  Co., 

the     w-alls,     floors,     and     studdings  supra. 

thereof  evidence  of  the  elTect  of  tlio  Evidence  of  odor  two  years  before, 

explosion  on  another  building  in  the  in   the   vicinity  of   the   house  where 

neighlwrhood  was  inadmissible.    Lin-  the  explosion   took    place,   was    held 

forth  V.  San   Francisco  Gas  &  Elec-  admissible.       Ilartman     v.    Citizens' 

trie  Co.,  15G  Cal.  58;    103  P.  320.  Nat.   Gas   Co.,  210    Pa.    1!);    5!)   Atl. 

83  Koplan  V.  Bo.ston  Gaslight  Co.,  Rep.  315. 

177   IMass.   15:    58   N.   E.    Rep.   183;  no  Consumers'    Gas    Trust    Co.    v. 

Consumers'  Gas  Trust  Co.  v.  Perre-  Perrego,  144  Ind.  3.')0;  43  N.  E.  Rep. 

go,    144    Ind.    350;    43    N.    E.    Rep.  300;  32  L.  R.  A.  140. 
300;    32    L.    R.    A.    140;    Smith    v. 


716  OIL    AND    GAS. 

plaintiff's  house,  in  order  to  show  that  the  gas  company  did 
iio<^  use  due  diligence  in  finding  and  stopping  the  leak  after 
notice,  it  was  held  i)ro]x?r  to  show  by  witnesses  passing  along  the 
street  to  what  extent  the  gas  escaped  in  the  street  and  also  that 
it  escaped  from  the  same  sewer  through  which  it  reached  ])laiii- 
tiif's  house  into  other  houses  at  points  beyond,  if  the  company 
had  notice  of  that  fact ;  but  it  was  not  admissible  to  show  that 
wherever  the  gas  escaped  into  other  houses  sickness  followed. ^^ 
It  may  l)e  shown  that  the  ground  was  frozen  and  the  gas  could 
not  escaix>  into  the  air;  but  would  naturally  follow  along  any 
opening  under  the  frozen  surface.** 

§623.     Breaks  occasioned  by  ordinary  use  of  streets. 

A  gas  company  is  bound  to  lay  its  pipes  in  such  a  manner 
that  the  ordinary  use  of  the  streets  for  traffic  will  not  break 
them ;  and  to  not  do  so  is  an  act  of  negligence.*'^  And  the  same 
is  true  in  regard  to  an  instance  of  repair  of  a  street.  Thus 
where,  in  repairing  a  street,  a  heavy  steam  roller  passed  over 
its  surface  several  times,  breaking  water  pipes  from  which  water 
bubbled  up  to  the  surface,  and  shortly  an  explosion  occurred, 
the  municipal  corporation,  which  owned  the  gas  pipes,  were  held 
liable,  although  the  pipes  were  laid  under  thirteen  inches  of 
granite  and  concrete,  wdiich  was  equivalent  to  thirty  inches  of 
earth,  a  witness  testified.  It  was  showm  that  the  roller  had 
broken  pipes  at  other  times ;  and  that  pipes  had  been  broken 
through  a  subsidence  of  the  ground,  which  was  loose  and  shift- 
ing. It  was  also  shown,  howovor,  that  the  roller  sometimes  had 
gone  over  the  ground  without  breaking  pipes.''" 

87  Emerson  v.  Lowoll,  3  Allen  410.  sensed  an  employee  of  the  gas  com- 

88  Siebreclit  v.  East  River  Gas  Co.,  pany  in  tlie  meter  room  with  coup- 
21  X.  Y.  App.  Div.  110;  47  N.  lings,  the  court  properly  admitted 
Y.   Supp.   2G2.  the  couplings  in  evidence.     Linforth 

Where   the   evidence   showed  that  v.  Ran  Francisco  Gas  &  Electric  Co., 

three  couplings,   one  of   which   was  156   Cal.  )58;    103  P.  320. 

defective,    was    found    in    the   meter  8o  BroA\Ti    v.    New   York    Gaslight 

room  after  the  explosion,  that  three  Co.,    Anthon    N.     P.    351;     Aurora 

new  couplings,  similar  to  the  three  Gaslight  Co.  v.  Bishop,  81  111.  App. 

found,   had   heen   put   in   the   meter  493;     Hampton    v.    Cradley   -Heath 

room,   and   that  on  the  morning  of  Gas  Co.,  14  Gas  J.  606. 

the   explosion,    and   within    a   short  9"  Pocock  v.  Brighton,   31   Gas  J. 

time  thereafter,  the  owner  had  ob-  429. 


LEAKS    AND    KXI'I.OSIONS.  717 

§624.     Action  of  frost. 

It  is  the  duty  of  a  c:ns  companv  to  lay  its  jtipcs  snlliciiMitly 
doop,  so  that  tlioy  will  l)o  Ixn-diul  tlio  action  of  fi-nst.  Tliis  is 
true  with  respect  to  its  power  to  supply  its  consumers;  for  if  it 
were  to  lay  its  pipes  so  near  the  surface  that  frost  would  pre- 
vent the  flow  of  gas  in  extreme  weather,  it  would  not  he  jwrforni- 
ing  its  duty  towards  its  consumers.  So  if  pipes  were  thus  laiil 
and  the  pipes  should  he  hroken  hy  reason  of  the  frost,  permitting 
gas  to  escape  to  the  iujury  of  a  person,  the  company  would  he 
liable;  although  it  should  immediately  stop  the  leak,  enough  gas 
having  escaped  to  cause  tlie  damage."^ 

§625.     Pipes  breaking  from  lack  of  support. —  Excavations  near 
pipe  line. 

If  the  gas  comjvany  has  laid  its  ]H])es  or  mains  in  iiiiprni)er 
soil  —  in  other  ^vords,  if  they  are  not  ]iro])erly  supported  —  it 
is  chargeable  with  notice  of  the  tendency  of  such  soil  to  sink  or 
subside,  leaving  the  pipes  or  mains  without  proper  support, 
whereby  they  are  broken.  The  improper  laying  of  a  gas  i)ipc 
is  an  act  of  negligence ;  and  if  for  that  reason  it  break,  gas  escape, 
and  an  explosion  inflict  an  injury,  it  will  be  liable,  the  phiintifF 
not  contributing  thereto.""  Evidence  of  the  existence  in  the 
street  of  holes  and  depressions  is  admissible  to  show  that  tlie 
gas  company  know,  or  should  liavc  known,  that  the  street  was 
likely  to  settle  and  cause  its  pipes  therein  to  break.'"'"'     If  ex- 

91  Rockford  Oaslight  and  Coke  Co.  Riobrecht  v.  East  Rivpr  Cas  Co.,  21 
V.  Ernst,  68  111.  A])p.  300;  Seller-  N.  Y.  App.  Div.  110;  47  N.  Y.  Siipp. 
morhnrn  v.  Metropolitan  Gaslight  262;  Metzger  v.  Schultz,  16  Ind. 
Co.,  5  Daly  144;  Thompson  v.  Cam-  App.  454;  4.3  N.  E.  Rep.  886:  45 
bridge  Daslight  Co.,  201  :\rass.  77;  N.  E.  Rep.  619;  Heh  v.  lonaolidatod 
87  N.  E.  Rep.  486.  In  Hampton  v.  Gas  Co.,  201  Pa.  St.  443;  50  Atl. 
Cradley  Heath  Gas  Co.,  14  Gas  J.  Rep.  094;  88  Am.  St.  Roj>.  81!); 
606,  it  is  said  that  a  gas  company  is  Thompson  v.  Cambridge  Gaslight 
not    liable    if    a    pipe    is    broken"  by  Co.    (Mass.),  87  N.  E.  Rep.  4S6. 

a  change   in   the  weatlier.     See  also  f.-i  I^owis    v.    Jioston    Gaslight    Co., 

Gould  V.  Winona  Gas  Co.,  100  Minn.  165  Mass.  411;   43  N.  E.  Rep.   178; 

258;   111  N.  W.  Rep.  2.54;    10  L.  R.  Koelsch  v.  Philadelphia,  152  Pa.  St. 

A.    (N.   S.)    880    (escape  of  gas  not  .355;   25  Atl.  Rep.  522;    18  L.  R.  A. 

discovered   until   following  .Tune).  750;    34   Am.  St.   Rep.   653;    Heh  v. 

92  Aurora  Gaslight  Co.  v.  Bishop,  Consolidated  Gas  Co.,  201  Pa.  St. 
81  111.  App.  403;  Crane  Co.  v.  Co-  443;  50  Atl.  Rep.  004;  88  Am.  St. 
lumbus,  etc.,  Co..  73  Fed.  Rep.  084;  Rep.  810. 

40  U.  S.  App.  52 ;   20  C.  C.  A.  233 ; 


718  OIL   AND   GAS. 

cavations  are  made  in  the  street  near  the  company's  mains,  it 
must  examine  such  excavations,  in  order  to  see  how  they  may 
affect  its  mains,  take  all  necessary  steps  to  prevent  the  earth  so 
settling  as  to  not  break  them.  Thus,  where  it  appeared  that 
the  leak  was  caused  by  a  failure  of  the  city  in  constructing  a 
sewer  to  properly  pack  the  earth,  whereby  the  gas  main  that 
broke  was  allowed  to  settle  ;  it  was  held  that  the  question  whether 
or  not  the  gas  company  had  used  due  diligence  to  see  that  the 
earth  was  properly  put  back  so  as  to  support  its  pipes  was  prop- 
erly left  to  the  jury."*  In  a  like  case  where  the  gas  had  been 
leaking  for  a  day  before  the  injury,  it  was  held  proper  to  give 
the  jury  an  instruction  that  the  plaintiff  could  not  recover  if 
the  city  did  not  ])ro{>erly  tamp  the  earth  when  replacing  it,  if 
the  defendant  was  ignorant  of  that  fact,  and  the  surface  of  the 
earth  did  not  show  the  defective  tamping,  there  being  evidence 
that  tests  could  easily  have  been  applied  to  determine  whether 
or  not  the  dirt  was  properly  tamped. '"'"'^  Where  a  gas  company 
had  no  notice  of  the  excavation,  nor  of  gas  escaping,  nor  that  its 
pipe  had  been  deprived  of  its  support;  and  the  traffic  on  the 
street  caused  it  to  break,  letting  the  gas  escape  for  two  or  three 
days  before  the  explosion,  it  was  held  that  the  character  of  the 
break,  the  length  of  time  the  gas  was  escaping,  and  the  absence 
of  any  one  on  behalf  of  the  company  at  the  time  and  the  place 
of  the  excavation,  constituted  evidence  of  negligence  on  its 
part ;  and  the  appeal  was  dismissed.""  The  fact  that  the  ex- 
cavation is  made  by  the  city,  or  by  a  city  contractor,  in  building 
a  sewer  or  making  other  public  improvements,  does  not  relieve 
the  gas  company,  where  the  failure  to  repair  is  the  proximate 
and  not  the  remote  cause  of  the  accident."^  Where  the  charge 
was  negligence  in  not  stopping  a  leak  in  the  main,  a  notice  is- 
sued by  the  company  to  its  consumers,  calling  attention  to  the 

»4  Biitfher  v.  Providence  Gas  Co.,  oe  Price  v.  South,  etc.,  Co.,  65   L. 

12    R.    I.    149;     34    Am.    Rep.    626;  J.  Q.  B.   126;    12  T.  L.  R.  .'51. 
Price  V.  South,  etc..  Gas  Co.,  65  L.  97  Oil   City   Gas  Co.  v.   Robinson, 

J.  Q.  B.  126;   12  T.  L.  R.  31.     Sec  99  Pa.  St.  1.     In  this  case  the  gas 

Vickerman    v.    Leeds,    etc.,    Co.,    15  company  had  notice  of  the  leak  suf- 

Gas   .J.   6r)4;    Chadvviek   v.   Corpora-  ficiently    lonfj   before    the   explosion 

tion  of  Wigan,  28  Gas  J.  562.  to  have  repaired  it. 

95  Greaney  v.  Holyoke,  174  Mass. 
437;    54  N.   E.   Rep.   880. 


LEAKS   AND    KXPLOSIONS.  719 

liability  of  leaks  occurring  from  the  digging  up  of  streets  by 
various  corporations,  copies  of  which  had  been  distributed  by 
its  agents  within  a  year  prior  to  the  accident,  was  held  ad- 
missible in  evidence  on  the  question  of  due  care  on  the  part  of 
the  company."'"* 

§626.     Property  owner's  duty  to  notify  gas  company  of  leaks. 

The  duty  of  notifvinii'  a  gas  company  of  a  leak  on  his  premises 
is  imiTosed  ujwn  its  owner,  and  he  must  give  the  company  notice 
of  it  as  soon  as,  or  at  least  within  a  reasonable  time  after,  he 
discovers  it.  The  time  within  which  he  must  give  the  notice 
depends  upon  the  amount  of  gas  escaping  and  the  danger  that 
will  probably  be  incurred  by  delay.  If  the  leak  should  be  insig- 
nificant in  amount,  there  is  not  that  urgency  required  as  if  it 
was  in  a  large  amount.  The  leak  nuiy  be  apparently  insignifi- 
cant in  amount,  and  yet  still  bo  very  considerable.  In 
such  an  instance  the  pro])erty  owner  is  justified  in  measuring 
his  conduct  by  the  appearance  of  things;  yet  even  here,  as  escap- 
ing gas  is  a  very  dangerous  thing,  he  is  required  to  act  witli 
that  promptitude  commensurate  with  the  probable  danger.  In 
one  case,  to  recover  damages  occasioned  to  his  health  by  escaping 
gas,  the  court  ruled  that  if  the  plaintiff  discovered  the  leak 
early  enough  in  the  day  to  liave  had  it  rejiaired  by  night,  if  he 
had  at  once  notified  the  company,  and  if,  in  consequence  of 
such  neglect  to  notify  it,  the  leak  was  not  repaired  that  night, 
and  the  plaintiff  was  injured  by  the  escaping  gas,  such  delay 
in  giving  notice  would  be  evidence  to  be  considered  by  the  jury 

98  Powers  V.  Boston  Gasliglit  Co.,  Upon    tlie    question    wlicllicr    tlio 

158  Mass.  257;  33  N.  E.  Rep.  523.  pipe  was  liandled  carefully  an.l  laid 

The   fact   that   no   nails,    wire   or  properly,    a    witness   may    not    {jive 

chain  was  found  after  an  explosion  his  opinion   as  to  whether  the   line 

of   a   gas    pipe,    is   not   sufTieicnt   to  was  laid   with   proper  skill  or  care, 

show    that    the    pipe    was    not    sup-  hut  he  may  give  an  o])inion  to  show 

ported    at    the    time    the    premises  that    men    of    experience    and    skill 

were   leased,   where   the   undisputed  were    eniployed,    accompjuiied    hy    a 

evidence   shows    that    the   pipe    was  statement    as    to    what    carelessness 

supported  by  a  chain   or   wire   sus-  or    lack   of   skill    there   was    in   the 

pended   from  a  joist  when  first  put  execution    <»f   the   work.      Crane   Co. 

in.     Metzger  v.  Shultz.  16  Tnd.  App.  v.  Columbus,  etc.,  Co..  73  Fed.  Rep. 

4.54;   43  N.  E.   Rep.   8R6 ;   rehearing  !tS4 :  40  l'.  S.  App.  52;  20  C.  C.  A. 

denied,  45  N.  E.  Rep.  619.  233. 


720  OIL    AND    GAS. 

of  waut  of  such  ordinary  care  as  avouIJ  defeat  the  action,  al- 
though the  defendant  may  have  been  negligent."''*  In  the  ease 
of  escaping  gas  it  is  undoubtedly  the  duty  of  the  owner  of  the 
premises  to  turn  olf  the  gas,  if  he  can  reasonaUy  do  so,  until 
the  servants  of  the  company  arrive  and  take  charge  of  the  gas 
apparatus.^""  Where  foul  ammoniacal  water  and  odors  had 
leaked  into  the  plaintiff's  cellar  from  a  leak  in  a  pipe,  for  nine 
months,  to  his  damage ;  and  he  then  gave  notice  to  the  gas  com- 
pany of  the  leak,  and  they  repaired  the  leak  within  five  days, 
it  was  held  that  he  was  not  entitled  to  recover  the  damages  he 
had  suffered  within  such  five  days,  because  of  his  failure  to 
give  notice  when  the  leak' began  and  during  the  period  of  nine 
months.^"^  So  where  the  leak  was  discovered  at  night ;  and 
plaintiff  did  nothing  until  the  next  morning,  although  all  con- 
sumers were  requested  on  the  back  of  their  bills  to  notify  the 
gas  manager  at  once  in  case  a  leak  was  discovered ;  and  in  the 
morning  the  plaintiff  employed  a  plumber  to  search  for  the  leak, 
who  did  so  with  a  lighted  candle,  when  an  explosion  followed,  it 
was  held  that  there  was  such  contributory  negligence  as  to  pre- 
vent a  recovery. ^°"  Plaintiff's  house  was  ninety  feet  from  the 
leak  in  the  main  of  the  defendant  company.  The  gas  passed 
nndcr  the  frozen  surface  of  the  earth  to  her  cellar.  She  was 
not  a  customer  for  the  gas  of  the  defendant,  but  was  of  another 
company.  Owing  to  a  disease,  she  was  not  able  to  detect  the 
escaping  gas  by  the  odor.  She  opened  the  cellar  door,  and  after 
a  few  minutes  the  gas  flowed  into  a  room  where  she  had  a 
lighted  lamp,  and  an  explosion  was  occasioned  by  the  gas  coming 
in  contact  with  the  flame  of  the  lamp.  It  was  hold  that  her 
failure-  to  notify  the  defendant  of  the  leak,  even  though  she 
knew  of  its  existence,  did  not  constitute  contributory  negli- 
gence.    In  such  an  instance  it  was  only  reasonable  in  her  to 

»9Hoily   V.    Boston    Gaslight   Co.,  3  C.   B.  1 ;    15  L.  J.  C.  P.  301;    10 

8  Gray  123;  69  Am.  Dee.  233;  Hunt  Jnr.   883. 

V.  Lowell  Gaslight  Co.,  1  Allen  343;  loi  flills  v.   Gaslight  Co.,   13  Gas 

Hills    V.    Gaslight    Co..    13    Gas    J.  J.   877. 

877.    See  Parkin  v.  Wirksworth  Gas  102  Parkin  v.  Wirksworth  Gas  Co., 

Co..  26  Gas  J.  946.  26  Gas  J.  946.     See  Bartlett  v.  Bos- 

looHolden  v.  Liverpool,  etc.,  Co.,  ton  Gaslight  Co.,  122  Mass.  209. 


LEAKS    AND    EXTLOSIONS.  Tlil 

3upix)se  tliiit  tlio  c:ns  escaped  from  the  pipes  of  the  eonipaiiy 
supplying-  her  with  gas.""* 

§627.     Company  misleading  plaintiff  as  to  extent  of  danger. 

If  the  gas  company  mislead  the  phiiiititf  concerning  the  ex- 
tent of  the  danger  he  is  incurring,  or  hills  his  suspicions, 
whereby  he  is  misled  to  his  injury,  it  will  ho  liahle.  In  cases 
of  doubt  as  to  the  danger,  a  person  has  a  right  to  rely  u[K)n  the 
representations  of  the  servants  or  agents  of  the  company ;  and 
even  in  cases  where  the  danger  appears  to  be  a  probable  one, 
under  the  assurance  of  the  servant  or  agent  of  the  company,  who 
the  plaintiff  knows  ought  to  know  whether  or  not  there  is  danger, 
that  there  is  none,  the  plaintiff  may  rely  thereon,  and  recover 
if  he  is  injured ;  unless  he  be  as  experienced  in  such  matters  as 
such  servant  or  agent.  And  if  the  plaintiff  is  as  experienced 
as  the  servant  or  agent  of  the  company,  yet  if  his  knowledge  is 
not  such  as  to  certainly  show  there  is  a  danger ;  and  such  servant 
or  agent,  who  the  plaintiff  believes,  or  has  a  right  to  believe, 
has  a  more  accurate  knowledge  of  the  situation  than  he,  by 
words  or  actions  lulls  his  suspicions,  and  for  that  reason  he  does 
not  take  the  precautions  he  otherwise  would,  and  is  injured,  he 
can  recover.  Thus  where  a  consumer  smelt  escaping  gas,  but 
was  assured  by  the  company's  employee  there  was  no  leak,  it 
was  held  that  he  was  not  guilty  of  such  contributory  negligence 
as  would  prevent  a  recovery  for  a  loss  occasioned  by  the  leaking 
gas  exploding.^*^* 

§628.     Municipality  operating  plant. 

Tf  a  Tnunici])ality  su])])lies  gas  to  private  consumers,  it  will 
be  liable  for  the  negligence  of  its  servants,  or  for  its  negligent 

103  Consumers'   Oas   Trust   Co.    v.  given    by    lu-r    lui-hand.      Tlioni"s(in 

Perrcgo,  144  Ind.  350;  43  X.  E.  Rep.  v.  Cambridge  (iasliglit  Co.,  201  Muss. 

306;  32  L.  R.  A.  146.  77;   87  N.   E.   Rep.   486. 

When    tlie    plaintifl"    testified    she  io-»  Anderson  v.  Standard  fiasliglit 

never   used  gas,   and   did  not  know  Co.,   17  X.  Y.   Misc.  625;   40  X.   Y. 

how  it  smelt,  and  did  not  know  what  Supp.    671;    Ricimiond   Gas    Co.    v. 

caused  the  odor  in  the  liouse  on  the  Baker,  146  Ind.  600;  45  X.  E.  Rep. 

morning    she    was    overcome    by    it,  1049;  36  Ij.  R.  A.  6S3;  Ix-e  v.  Tmy, 

it  was  held  that  she  was  not  negli-  etc.,  Co.,  98  X.  Y.  115;  Piillnian  P.il- 

gent,  as  a  matter  of  law,  in  failing  ace  Car  Co.  v.  Liiack,   143  111.  24!si 

to  notify  defendant  of  the  gas  prior  32  N.  E.  Rep.  285;   18  L.  R.  A.  215; 

to  the  time  notice  was  subsequently  allirming  41   111.  Aj)!).  34;   \Va.shing- 


,  22  on.    AND    GAS. 

acts,  the  same  as  an  iiidlviiliial  ur  jji'lvate  or  scnii-privatc  cor- 
porations engaging  in  the  same  business  and  being  guilty  of  the 
same  negligence  are  liable."^  It  is  held  to  the  same  degree  of 
diligence  and  care.^""  The  operation  and  maintenance  of  a 
gas  or  lighting  plant  by  a  city  is  a  private  corporate  function 
as  distinguished  from  purely  governmental  function,  rendering 
the  city  liable  the  same  as  an  individual.^"^ 

§629.     Gas    following    supply    pipe    from     main. —  Percolating 
through  soil. —  Sewer. 

Gas  companies  are  chargeable  with  notice  of  the  fact  that  the 
tendency  of  gas  escaping  from  their  mains  in  the  street  is  to 
follow  the  supply  pipe  into  the  honse  supplied,  especially  where 
the  soil  is  not  packed  closely  around  such  supply  pipe ;  that  it 
has  the  same  tendency  to  follow  their  mains ;  that  when  it  enters 
a  sewer  it  will  follow  that  into  the  houses  and  that  it  will  even 
j)ercolate  the  soil,  thereby  reaching  cellars  and  rising  to  other 
parts  of  the  building.  Gas  may  follow  pipes  for  long  distances, 
and  through  these  avenues  find  its  way  into  buildings,  there  ex- 
ploding without  any  seeming  connection  between  the  place  of 
its  escape  and  the  place  of  explosion.  In  all  such  instances  the 
original  negligence  is  either  failure  to  detect  the  leak  or^else 
the  nse  of  such  pipes  as  in  which  in  all  reasonable  likelihood 
leaks  will  occur.  The  apparent  nature  of  the  soil  may  be  such, 
or  the  distance  between  the  place  of  the  leak  and  that  of  the  ex- 
plosion so  great  tliat  no  reasonable  apprehension  exists  of  gas 

ton  Caslight  Co.  v.  EcklofT,  7  App.  v.    Philadelphia,    161    Pa.    St.    Ill; 

D.  C.  372;   Wagner  v.  H.  W.  Jayne  28  Atl.  Rep.  991;    Pocock  v.  Brigh- 

Chemical   Co.,   147   Pa.   St.   475;    29  ton,  M  Gas  J.  429;   Scott  v.  Mayor, 

W.   N.    C.    490;    23   Atl.    Rep.   772;  etc.,   of   Manchester,   37    Eng.    L.   & 

Charron  v.  Union  Carbide  Co.,   151  Eq.  495;  2  H.  and  N.  204;  26  L.  J. 

Mich.  087;    115  N.  W.  Rop.  718.  Exch.     132,    400;     3    Jur.     (N.    S.) 

105  Str.iwbridge  V.  Philadelphia,  13  590;     5    W.     R.    598;     Chadwick    v. 

Phila.    173;    30    I-X-g.    Int.    270;     13  Corporation    of    Wigan,    28    Cas    J. 

Rep.   216;    Strawhridge   v.  Philadel-  502;    Boothman    v.    Mayor,   etc.,   of 

phia,  2  Pennv  419;  Littman  v.  New  Burnley,  20  Gas  J.  585;    Richmond 

York  City,  36  N.  Y.  App.  Div.  189;  v.    Gay,    103    Va.    320;    49    S.    E. 

65   N.   Y.    Supp.   383:    affirmed    1.59  Rep.    482. 

N.    Y.    5.59;    54    X.    E.    Rep.    1003;  !"« Hoin    v.    Lancast^^r,    13    Lane. 

Shuter  v.  Philadelphia,  3  Phila.  228;  L.  Rev.   131. 

15  Leg.  Int.  333;  Esberg-Triist  Cignr  mr  Bullmaster    v.    St.    Joseph,    70 

Co.    V.    Portland,    34    Ore.    282;    55  Mo.  App.   60. 
Pae.  Rep.  961    (water)  ;   Ottersbach 


LEAKS    AND    EXPLOSIONS.  723 

traveling  tlirough  such  a  soil  or  for  such  a  distance;  yot,  never- 
theless, cither  one  of  these  facts  will  not  defeat  the  action,  the 
fact  renuiininu-  that  the  gas  was  negligently  i)cnnitted  to  escape, 
and  that  it  actually  did  travel  through  the  soil  or  the  distance 
intervening  between  thi'  i)hice  of  the  leak  and  the  place  of  tlie 
explosion,  tlie  character  of  the  soil  and  the  length  of  the  distance 
only  adding  to  the  improbability  of  the  gas  passing  through  it 
or  traveling  so  far.^''^  If  it  be  alleged  in  the  complaint  that 
the  gas  in  suthciciit  (jiiantities  passed  from  the  mains  ihi'oiigh 
the  soil  to  the  house  to  cause  an  explosion,  the  court  cannot 
take  notice  that  the  complaint  charges  an  impossibility;  but 
the  mere  allegation  of  that  fact  in  the  manner  indicated  is  not 
sufficient  to  withstand  a  motion  to  make  the  complaint  suffi- 
ciently definite  as  to  show  how  the  gas  was  conducted  from  the 
leak  in  the  main  to  the  house/"* 

§630.     Withdrawing  gas  from  mains  without  notice. 

A  gas  company  may  be  liable  for  negligence  in  withdrawing 
its  gas  without  notice  and  for  failure  to  give  notice  of  its  re- 
turn. In  this  instance  both  acts  must  have  been  negligent. 
Thus  where  a  consumer  lighted  the  gas  in  a  grate,  lay  down  and 
went  to  sleep ;  after  which  the  gas  company  withdrew  the  supply 

108  Fare  v.  Bath  (Jaslight  Co.,  25  137   Ky.   619;    126   S.   \V.    146;    129 

Gas    J.    566;    Vickerman    v.    Leeds  S.  W.  341 ;  34  Ky.  L.  Rep.  — . 
New  Gas  Co.,  15  Gas  J.  054;  Brown  los  Mississinewa     Mininjr     Co.     v. 

V.  Illius,  27  Conn.  84;   Hunt  v.  I^-  Patton,  129  Ind.  472;  28  N.  E.  Rep. 

well  Gaslight  Co.,  1  Allen  343;  Hoi-  1113;    28    Am.    St.    Rep.    203.      See 

ley  V.  Boston  Gaslight  Co.,  8  Gray  cases    of    percolating    through    soil. 

123;    69    Am.    Dec.    233;    Smith    v.  Consumers'    Gas  Trust   Co.    v.    Per- 

Boston  Gaslight  Co.,  129  Mass.  318;  rego,    144  Ind.   350;    43   N.  B.   Rep. 

Medex  v.  Gaslight  and  Coke  Co.,  Ii5  306;  32  L.  R.  A.  146  (ground  frozen 

Gas   J.   75;    Littman   v.  New  York,  on   surface);    Consolidated  Gas   Co. 

159  N.  Y.  559;  54  X.  E.  Rep.  1093;  v.    Crocker,    82    Md.    113;    33    Atl. 

affirming  36  N.   Y.   App.   Div.    189;  Rep.  423;   31  L.  R.  A.  785;  Aloxan- 

55   X.    Y.    Supp.   383;    Richmond    v.  dria    :\Iining,    etc.,    Co.    v.    Irish.    16 

Gay,    103    Va.    .320;    49    S.   E.    Rep.  Ind.  App.  534;    44  N.  E.  Rep.  080; 

482;    Bandler    v.    People's    Gaslight  Consumers'   Trust    Co.    v.    Corbaley, 

&.  Coke  Co.,  108  111.  App.  187;  Cof-  14    Ind.   App.    549;    43   N.    E.    Rep. 

feyville  Mining  &  Gas  Co.  v.  Carter,  237;    Sicbrecht    v.    East   River   Gas 

65    Kan.    565;    70   Pac.    Rep.    635;  ■Co.,    21    N.    Y.    App.    Div.    110;    47 

^Vatson    V.    Kentuckj',    etc.,    R.    Co.,  N.  Y.  Supp.  262   (a  frozen  surface)  ; 


'24 


OIL    AND    GAS. 


without  notice  and  then  turned  it  on  without  giving  notice  it 
had  done  so,  and  the  gas  escaped  into  the  room  and  injured  the 
person  so  asleep,  he  having  remained  continuously  asleep  from 
the  time  he  lay  down  until  awakened  by  the  escaping  gas,  it  was 
held  that  the  company  was  liable.""  To  withdraw  gas  from 
the  pipes  of  a  house,  without  notice  to  the  tenant  or  persons 
therein,  when  it  is  lighted ;  and  to  return  it  without  notice,  is  a 
gi'oss  act  of  negligence  on  the  part  of  the  gas  company,  and  a 
very  dangerous  thing  to  do."^ 


Heh  V.  Consolidated  Gas  Co.,  201 
Pa.  St.  443;  50  Atl.  Rep.  994;  88 
Am.  St.  Rep.  819;  People's  Gaslight 
Co.  V.  Amphlett,  9i3  111.  App.  194; 
Henderson  v.  Heating  Co.,  179  Pa. 
St.  513;   36  Atl.  Rep.  312. 

In  an  Indiana  case  it  was  held 
that  the  manager  of  a  public  service 
natural  gas  company  having  turned 
on  the  gas  at  the  street  valve  to  let 
it  into  the  pipes  in  the  house,  and 
then,  on  discovering  that  it  was 
leaking  somewhere,  undertaken  to 
turn  it  ofT,  was  negligent  in  not 
turning  it  off  at  the  street  valve, 
but  instead  turning  it  off  at  the 
house  valve — thus  allowing  the  gas 
escaping  from  a  break  in  the  pipe 
between  such  valves  to  get  through 
the  wall  into  the  cellar,  where  an 
explosion  occurred  —  though  the 
plumbing  had  previously  been 
tested,  and  then  found  to  be  secure; 
and  that  liis  negligence  in  turning 
the  gas  off  at  the  house  valve,  in- 
stead of  the  street  valve — thus  al- 
lowing the  gas  to  get  into  the  cellar 
from  the  leak  between  the  two  valves 
— ^was  a  concurrent  cause  of  an  ex- 
plosion occurring  while  the  plumber 
employed  by  the  o\vner  of  the  house 
was  searching  for  the  leak;  making 
the  company  liable  for  injury  to  the 
tenant,  who  was  not  at  fault,  though 
the  agency  acting  on  the  gas  to 
cause  the  explosion  is  not  showTi. — 


Huntington  Light  &  Fuel  Co.  v. 
Beaver,  37  Ind.  App.  4;  73  N.  E. 
1002. 

Evidence  merely  that  defendant 
maintained  a  gas  well  fifty  feet  from 
plaintiff's  premises,  and  that  gas 
accumulated  in  plaintiff's  cellar, 
causing  an  explosion,  and  that  gas 
was  found  in  water  wells  within  a 
radius  of  200  feet  of  the  gas  well, 
is  insufficient  to  warrant  a  conclu- 
sion that  the  gas  came  from  defend- 
ant's well,  or  that  defendant  was 
negligent.  Maxwell  v.  Coffeyville 
Mining  &  Gas  Co.,  68  Kan.  821;  75 
P.  1047. 

110  Beyer  v.  Consolidated  Gas  Co., 
44  N.  Y.  App.  Div.  158;  60  N.  Y. 
Supp.  028;  Skogland  v.  St.  Paul 
Gaslight  Co.  (Minn.),  93  N.  W. 
Rep.   608. 

111  See  McKenna  v.  Bridge  Water 
Gas  Co.,  193  Pa.  St.  033;  45  Atl. 
Rep.  52;  47  L.  R.  A.  790. 

To  disconnect  the  pipes  in  the 
house  without  shutting  off  the  gas 
is  an  act  of  negligence,  which  may 
render  the  gas  companj'  liable.  Top- 
olski  v.  Chicago,  etc.,  Co.,  150  111. 
App.    120. 

Increasing  pressure  without  no- 
tice. Indiana,  etc.,  Co.  v.  Long,  27 
Ind.  App.  219;  59  N.  E.  Rep.  410. 

Where  natural  gas  was  withdrawn 
from  the  pipes  without  notice,  unti! 
the   fires  went  out;    and,  the  housf 


LEAKS    AND    KXIM.OSIONS.  Tli") 

§631.     Undue  pressure  in  mains. 

In  some  States  the  pressure  in  natural  gas  mains  is  refjulated 
by  statutes ;  but  we  are  not  aware  that  such  a  statute  has  been 
made  applicable  to  artificial  gas  mains.  Thus  where  a  statute 
rc(iuir('(l  a  couipany  to  use  sound  wrought  or  cast  iron  ]>ii)es,  to 
test  them  to  a  pressure  of  four  hundred  pounds  to  the  Sfjuare 
inch,  and  to  not  exceed  a  pressure  of  three  hundred  pounds  in 
their  use,  it  was  held  to  be  an  act  of  negligence  to  not  test  the 
pipes  or  to  use  a  forliiddmi  pressure. ^^"  So  it  is  an  act  of  negli- 
gence to  unduly  increase  the  pressure  of  natural  gas  whereby  tlie 
stoves  and  furnaces  in  which  it  is  used  become  overheated  and 
set  fire  to  the  buildings  in  which  they  are  situated ;  and  this  is 
especially  true  if  the  j}ressure  increases  late  at  night  when  no 
one  is  around  to  watch  the  fires.  And  it  makes  no  difi'erence 
that  such  increased  pressure  arises  from  the  fact  that  many 
consumers  have  turned  off  the  gas,  thereby  increasing  the  sup- 
ply for  fires  kept  burning,  or  liiat  the  pressure  at  the  gas  wells 
increased ;  for  the  company  is  bound  to  anticipate  such  increase 
of  pressure  and  turn  its  valves  so  as  to  prevent  it.^^^ 

having    become    cold,    the    mistress  because  of  her  negligence  in  not  as- 

went  into  the  cellar  to  turn  up  the  certaining      before      throwing      the 

gas   in  the   furnace,  or  to  see  what  lighted     match     into     the     furnace 

was  the  matter,  and  finding  no  fire  \yhethcr  the  gas   had  been  returned 

in  the   furnace,  and  supposing  tliat  into  the  pipes,  or  whether  or  not  the 

the  servant  or  some  of  her  children  keys   were  turned   so   as   to  shut   it 

had  turned  off  the  gas,   and  acting  off. 

under  this  impression,  no  odor  of  112  Alexandria,  etc.,  Co.  v.  Irish, 
gas  being  perceptible  to  her,  and  16  Ind.  App.  534;  44  N.  E.  Rep. 
not  examining  the  keys  to  see  if  680;  Barrickman  v.  Marion  Oil  Co., 
it  had  been  turned  ofT,  she  threw  a  45  W.  Va.  634;  32  S.  E.  Rep.  327; 
lighted  match  into  the  furnace  pre-  44  L.  R.  A.  92;  Consumers'  Oas 
paratory  to  turning  on  the  gas,  but  Trust  Co.  v.  Perrego,  144  Tnd.  350; 
the  furnace  being  full  of  gas  from  43  N.  E.  Rep.  300;  32  L.  K.  A. 
the  fact  that  it  had  again  been  146;  Indiana,  etc.,  Co.  v.  I^ng,  27 
turned  on  (without  notice),  an  ex-  Ind.  App.  219;  59  X.  E.  Rep.  410. 
plosion  immediately  followed,  to  her  n^  Alexandria,  etc.,  Co.  v.  Pain- 
injury,  it  was  considered  by  cmi-  ter,  1  Ind.  App.  587;  28  N.  E.  Rep. 
nent  counsel  to  whom  the  question  113;  Alexandria,  etc.,  Co.  v.  Irish, 
of  the  company's  liability  was  sub-  supra;  Indiana,  etc.,  Co.  v.  New 
mitted,   that  siie  could   not   recover,  Hampshire,   etc.,    Co.,    23    Ind.   App. 


726  OIL    AND    GAS. 

v:;632.     Evidence  of  undue  pressure  at  other  places. 


The  <i-('iicral  nik'  is  Avlicre  it  is  charged  that  the  eoinpaiiy  iiog- 
ligeiitly  so  increased  or  ])€riiiitted  such  an  increase  of  the  flow 
of  gas  as  to  overheat  ]>L'iintiff's  stoves  or  furnaces  whereby  his 
house  was  set  on  fire,  that  evidence  cannot  be  given  of  the  effect 
of  such  increase  at  other  points  where  the  company  is  furnishing 
gas;  and  in  one  case  it  was  admitted  l)y  counsel  tliat  it  must 
further  be  "  shown  that  such  overheated  stoves  were  on  the  same 
low  pressure  pipe  lines,  received  their  fuel  from  the  same  supply 
under  similar  conditions,  and  through  similar  service  pipes ;  that 
the  mixers  and  burners  were  substantially  the  same;  that  tin; 
keys   regulating  the    fires  were   turned   down   as   in   the   stove 


298;  53  N.  E.  Rep.  485;  Ibach  v. 
Huntington,  etc.,  Co.,  23  Ind.  App. 
281;  '55  N.  E.  Rep.  249;  Barrick- 
man  v.  i\rarion  Oil  Co.,  45  W.  Va. 
634 ;  32  S.  E.  Rep.  327 ;  44  L.  R.  A. 
92;  Berns  v.  Gaston  Coal  Co.,  27 
W.  Va.  285;  Hollan  v.  Campton 
Fuel  &  L.  Co.,  127  Ky.  2&6;  105  S. 
W.  Rep.  426;  32  Ky.  L.  Rep.  178; 
]\Iarshall  Window  Glass  Co.  v.  Cam- 
eron Oil  &  Gas  Co.,  63  W.  Va.  202; 
59  S.  E.  Rep.  959;  Citizens'  Gas, 
etc.,  Co.  V.  Whipple,  32  Ind.  App. 
203;  69  X.  E.  Rep.  557;  Bandler  v. 
People's,  etc.,  Co.,  108  111.  App.  187. 

It  is  negligence  for  a  natural  gas 
company  to  permit  its  regulators  or 
other  appliances  to  remain  for  an 
unreasonable  time  in  a  condition 
that  they  will  not  control  the 
amount  and  pressure  of  gas  fur- 
nished. Barrickman  v.  Marion  Oil 
Co.,  supra;  Citizens'  Gas,  etc.,  Co. 
V.   Whipple,   supra. 

If  the  flow  of  gas  is  not  of  such 
pressure  as  to  destroy  the  valve 
whicli  tlie  customer  lias  to  regulate 
the  volume  of  gas  which  is  supplied 


to  liis  liglit  or  fire  burners,  the 
company  is  not  liable  for  damages 
resulting  from  such  flow.  Holloii  v. 
Campton  Fuel  &  Light  Co.,  127  Ky. 
206;  105  S.  W.  426;  32  Ky.  Law 
Rep.  178. 

It  is  not  error  to  not  direct  a 
verdict  for  the  defendant  gas  com- 
pany where  the  evidence  shows  that 
the  fire  might  have  been  due  to 
any  one  of  other  causes  as  likely 
as  that  of  the  company's  negligence. 
Hollan  v.  Campton  F.  &  L.  Co., 
supra.  In  this  case  it  was  also 
held  that  evidence  concerning  the 
condition  of  the  "by-path"  and  "reg- 
ulator," which  were  the  apparatus 
by  means,  of  which  the  pressure  of 
the  gas  was  regulated,  were  found 
the  morning  following  the  night  of 
the  fire,  was  not  admissible.  And 
it  was  still  further  held  that  the 
mere  fact  of  explosion  of  a  gas  regu- 
lator, which  up  to  that  time  had 
properly  performed  its  functions, 
was  not  a  circumstance  to  which 
tlio  rule  of  res  ipsa  loquitor  applied. 
Ibid. 


LEAKS    AND    EXPLOSIONS.  727 

Avliieli  burned  appellee's  house,  iuul  ihnt  there  \v;is  im  iiilerveii- 
ing  regnhitor  or  hiiulrmiee  to  obstruct  the  free  and  uniform  tlnw 
of  firas  in  such  lines/'  In  this  case  the  court  added:  "  In 
other  words,  to  nndce  such  evidence  competent,  it  was  lirst  neces- 
sary to  show  that  the  general  condition  of  the  other  stoves  was 
in  all  essential  respects  similar  to  the  one  that  caused  the  injury. 
Such  evidence,  when  the  conditions  are  thus  shown,  is  ad- 
missible " ;  ^^*  and  \\\c  court  ])rocccded  to  make  a  quotation  from 
a  West  Virginia  case,'"  in  whicli  it  was  said:  ''  The  condition 
and  pressure  of  gas  in  the  neighlxn-ing  houses  at  the  time  of  the 
fire,  there  being  no  intervening  regulator  or  hindrance  to  the 
force  of  the  gas  between  the  burned  house  and  the  other  houses 
mentioned,  would  clearly  indicate  what  it  was  at  the  house  of 
the  plaintiif,  and  I  see  no  valid  objection  to  the  answering  of 
the  questions."  In  the  Indiana  case  in  Avhich  the  admission 
was  made,  as  above  stated,  the  court,  after  giving  a  summary 
of  the  evidence,  said:  "We  think  tliat  all  tlie  witnesses  who 
testified  as  to  the  condition  of  other  stoves,  etc.,  on  that  night, 
brought  themselves  within  the  rule  laid  down  in  the  cases  cited. 
That  is,  we  do' not  think  that  before  it  can  be  shown  that  other 
stoves  were  overheated  than  tlio  one  causing  the  injury,  where 
the  supply  of  gas  is  received  from  the  same  general  source, 
that  such  other  stoves  were  supplied  by  the  same  sized  service 
pipes,  the  same  kind  of  valves,  and  the  same  kind  of  mixers ; 
that  fhcy  were  the  same  general  distance  from  the  mains,  and 
that  the  keys  were  turned  down  in  just  the  same  way.  Such 
a  rule  would  be  unreasonable,  and  the  law  does  not  require 
unreasonable  things  to  be  done.  The  rule  only  goes  to  the  ex- 
tent as  to  require  similar  conditions  to  be  shown.""     Tt  would 

"<  Indiana,  etc.,  Co.  v.  Lonj?.  27  etc.,   Co.,  23   Ind.   App.   298 ;   ."i3   N. 

Ind.  App.  219;  59  N.  E.  Rep.  410.  E.  Rep.  485. 

115  Barricknian  v.  Marion  Oil  Co.,  ii«The  court  then  cites  Wasliinp- 

45  W.  Va.  G34;  32  S.  E.  Rep.  327;  ton  Tp.,  etc..  Co.  v.  McC'ormick.   19 

44  L.  R.  A.  92,  Ind.  App.  003;  49  N.  E.  Rep.  1085; 

In     makinf?    this    admission    the  and    Indiana,   etc..  Gas  Co.    v.  New 

counsel      admitting       it      evidently  Hampshire,    etc.,     Co.,    supra,    ami 

had   in   mind   the   case   of   Indinna,  says   that  they   "should    ho   so   con- 

etc,    Gas    Co.    v.    New    Hampshire,  strued." 


728  OIL   AND    GAS, 

be  folly  to  say  that  two  i")€rsons  liviii-i-  in  ditforciit  houses  could 
testify  or  show  to  any  degree  of  exactness,  that  they  turned 
their  keys  just  alikf.  But  here  it  is  shown  that  the  service 
\n\)vs  were  of  different  sizes,  leading  to  diifercnt  stoves,  and 
yet  the  gas  was  forced  thrdugh  tlicsc  ditVcrent  sized  pipes  where 
the  keys  were  turned  low  to  such  a  degree  of  pressure  as  to 
overheat  the  different  stoves.  The  witnesses  all  received  their 
gas  from  low  pressure  mains.  It  is  not  shown  that  the  mixers 
were  all  alike,  hut  it  is  shown  that  ajipellant  furnished  them, 
and  we  think  all  these  facts  make  the  evidence  com|x>tent.  Two 
witnesses  were  permitted  to  testify  as  to  the  high  pressure  of 
the  gas  used  by  them  for  illuminating  purposes  on  the  night 
appellee's  property  was  destroyed.  The  gas  so  used  In'  them 
was  supplied  from  low  pressure  mains  of  appellant.  It  is  shown 
that  the  gas  used  for  illuminating  purposes  is  supplied  through 
different  burners  than  those  used  for  heating  purposes ;  that  the 
pijTes  are  smaller  as  a  rule  and  that  where  used  for  illuminating 
no  mixers  are  used.  It  thus  appears  that  in  such  case  condi- 
tions are  dissimilar  from  those  where  gas  is  used  for  heating, 
although  the  supply  is  from  the  same  general  source.  Under 
these  circumstances  we  are  inclined  to  the  n]iinion  that  the  evi- 
dence Avas  not  admissible  under  the  sale  herein  declared."  ^^^ 

§633.     Explosion  caused  by  act  of  servant  of  gas  company. 

If  the  explosion  is  brought  nlxmt  by  the  act  of  a  servant  of 
the  gas  company,  the  question  of  negligence  is  still  one  for  in- 

117  Indiana,  etc.,  Gas  Co.  v.  Loner,  admit  in  evidence  the  testimony  of 

27   Ind.    App.   219;    59    N.   E.   Rep.  witnesses  who  received  gas  from  the 

410.      The    court,    however,    consid-  same  main  as  defendant,  to  the  ef- 

ered    that    the    testimony    of    these  feet   that    they   had    an    insuflicipnt 

two  witnesses  was  harmless  in  view  supply   of   gas   during   the   time   in 

of  the  overwhelming  evidence  of  tiie  question,  without  showing  that  these 

negligence  of  the  defendant.  connections  were  of   the  same  or  a 

Where  the  suit  was  to  recover  the  similar  character  as  that  of  the 
amount  of  a  promissory  note  gi'en  defendant,  where  it  was  the  defend- 
in  payment  for  gas  to  be  supplied  nnt's  duty  under  the  contract  to  con- 
the  maker,  and  in  a  counter  ch^im  dnr-t  the  gas  from  the  main  to  his 
the  defendant  asked  damages  f"r  residence  W,T=hinwton  Tp.,  etc., 
failure  to  comply  with  the  contrart  Cn.  v.  TNTfrnrnMrk.  19  Ind.  App. 
to  furnish   gas,  it  was  held  error  to  663;   49  N.   E.   Rep.   1085. 


LEAKS    AND   EXPLOSIONS.  (2!) 

vcstiii'atiitii ;  for  the  (wplnsidu  nuiy  Imvc  been  (tccnsidiicil   willi 
out  any  negligeiK-e  (ni  the  part  (if  the  .^crvanl,  in  which  event  tiie 
coni]>any  woukl  not  he  liahle.      Whetliev  or  not  the  servant  neg- 
ligently occasioned  the  ex])losion  is  a  question  for  the  jury."" 

§634.     Company    undertaking    to    repair    consumer's    pipes    or 
fixtures. 

It  has  already  been  stated  that  if  a  gas  company  undertake  to 
inspect  a  consumer's  pipes  in  his  house  it  is  chargeable  Avith  the 

same  degree  of  care  as  it  is  in  the  ins|x^ction  of  its  own  pipes. 


Evidence  of  the  custonior's  neigh- 
bors that  along  alxiut  the  time  tlie 
house  burned  the  flow  of  gas  tlirough 
the  pipes  in  their  houses  was  un- 
usually strong  was  competent,  with- 
out proof  that  such  houses  were  lo- 
cated with  reference  to  the  main 
line  practically  the  same  as  the 
house  burned  and  that  the  equip- 
ment for  regulating  the  flow  was 
practically  the  same,  where  the  size 
of  the  to\\Ti  was  such  tliat  the  pipe 
and  equipment  were  necessarily  prac- 
tically the  same  and  the  company  did 
most,  if  not  all,  of  the  work  of  in- 
stallation. Ilollan  V.  Campton  Fuel 
&  Light  Co.,  127  Ky.  2GG;  105  S.  W. 
426;  32  Ky.  Law  Rep.  17S.  It  was 
also  held  in  this  case  that  evidence 
of  a  witness  who  has  tested  the 
pressure  an  hour  and  a  half  before 
the  fire,  and  who  said  he  had  found 
it  above  the  reasonable  and  proper 
pressure,  was  not  connected  sufli- 
ciently  close  to  the  time  of  the  fire 
to  be  admissible.     Ibid. 

lis  Ilann  v.  We\-mouth,  etc.,  Co., 
18  Gas  J.  186;  Lannen  v.  Albany 
Gaslight  Co.,  46  Barb.  264;  44  N. 
Y.  459;  Ward  v.  Gaslight  and  Coke 
Co.,  14  Gas  J.  915;  15  Gas  J.  45, 
75;  16  Gas  J.  10,  38,  74,  108;  Ger- 
man Ins.  Co.  v.  Standard  Gaslight 
Co.,  70  X.  Y.  Supp.  384;  34  N.  Y. 
Misc.  Rep.  594 ;  Ferguson  v.  Boston 
Gaslight  Co.,  170  Mass.  182;  4!) 
N.  E.  Rep.  115;  United  Oil  Co.  v. 
Roseberry  (Colo.),  69  Pac.  Rep.  5K8; 
Diehle  v.  United  Gas  Imp.  Co.,  225 


Pa.  494:  74  Atl.  Rop.  340;  ITanima 
V.  Haverhill  Gasligiit  Qi.,  203  Mass. 
572;  SO  X.  E.  Rep.  1043;  Kennoy  v. 
South  Shore,  etc.,  Co.,  134  X.'  Y. 
App.  Div.  859;  119  X.  Y.  Supp.  363; 
United  Oil  Co.  v.  IMiller,  19  Colo. 
App.  46;   73  Pac.  Rep.  627. 

Where  the  negligence  alleged  was 
the  opening  of  gas  jets,  and  it  was 
shown  that  the  defendant  had  au- 
thority to  supply  gas  to  consumers, 
and  that  it  was  its  duty  to  place 
meters  in  buildings  to  be  supplied 
with  gas,  that  an  application  had 
been  made  for  a  meter  in  an  apart- 
ment, and  that  shortly  after  two 
men  appeared  with  a  meter  and  ob- 
tained the  key  and  installed  a  meter 
in  the  basement,  it  was  held  to 
justify  the  inference  that  they  were 
employees  of  the  defendant,  llcinz 
v.  Consumers'  etc.,  Co.,  81  Kan.  261; 
105  Pac.  Rep.  527. 

Where  three  servants  testified 
they  had  not  left  the  plug  out  of 
the  end  of  a  pipe,  who  would  have 
been  in  fault  if  they  had,  there  was 
held  to  be  sulficient  evidence  that 
the  gas  companv  failed  to  plug  it. 
United  Oil  Co. 'v.  Miller.  19  Colo. 
App.  46;  73  Pac.  Rep.  627.  (See 
this  case  for  an  instruction  on  this 
point.) 

A  gas  company  must  use  ordinary 
precautions  in  ])utting  gas  in  a 
house  to  abate  danger  from  explo- 
sions. Collins  v.  Toronto,  etc.,  Co., 
13  Ont.  W,  Rep.  165.  citing  Parry 
V.   Smith,   4   C.   P.   Div.   325. 


730  OIL    AND    GAS. 

And  this  is  tnio  whore  it  undertakes  to  repair  such  pipes  or  the 
consumer's  fixtures.  Thus,  where  a  notice  to  consumers  was 
printed  on  the  hack  of  its  hills  that  as  soon  as  a  leak  in  the  house 
Avas  diseovered  the  cdinjtany  sliould  he  notified;  and  a  consumer 
notified  the  company  of  such  a  leak,  whereupon  a  messenger  sent 
to  the  house,  who  said  he  had  come  to  repair  the  leak,  which 
he  said  was  in  a  chandelier  in  the  front  room;  and  after  ex- 
amining it,  stayed  al)out  twenty  minutes,  and  left,  saying  it 
was  all  right;  and  that  night  the  plaintiff  was  injured  by  the 
escaping  gas,  the  leak  being  in  the  pipe  inside  the  casing  of 
the  chandelier  —  it  was  held  that  the  company  was  liable. 
"  Entering  u])cm  the  work,"  said  the  court,  "  the  defendant 
was  Ixuuid  to  do  it  with  reasonable  care."  ^^"  The  same  rule  of 
reasonable  care  was  applied  where  the  gas  company  insisted 
upon  making  all  gas  connections  between  the  house  mains  and 
its  pipes.^"° 

§635.     Injury  to  shade  trees. —  Shrubbery. 

If  a  gas  company  permit  gas  to  escape  from  its  pipes  or  mains 
whereby  shade  trees  or  foliage  in  the  street  or  upon  adjoining 
grounds  are  injured  or  killed  by  such  escaping  gas  it  will  be 
liable  for  the  damages  occasioned.  The  owner  of  property  may 
recover   for   trees,    destroyed    by    the   negligent   escape   of  gas, 

119  Ferguson  v.  Boston  Gaslight  nootions  does  not  make  it  liable  for 
Co.,  170  Mass.  182;  49  N.  E.  Rep.  damasres  to  the  plaintiff  because  of 
115;  Anderson  v.  Standard  Gaslight  shortage  in  supply  by  defects  in 
Co.,  40  N.  Y.  Supp.  G71;  17  K.  Y.  pipes  in  the  building,  over  which  it 
Misc.  Rep.  625;  United  Oil  Co.  v.  had  no  control.  Alverdes  v.  St. 
Roseberry  (Colo.),  69  Pac.  Eep.  Paul  Gaslight  Co.  (Minn.),  1.32  N. 
588;    Laclede   Gaslight    Co.    v.    Cot-  W.  275. 

tone,  152' Fed.  Rep.  629;  81  C.  C.  A.  If  a   plumber  undertakes   to   con- 

471.  nect   a   building   with   a   gas    main, 

120  Bastian  v.  Keystone  Gas  Co.,  and  carelessly  permits  gas  to  escape 
27  N.  Y.  App.  Div.  584;  50  N.  Y.  from  the  pipes  into  tlie  building, 
Supp.  537.  See  also  United  Oil  Co.  and  an  explosion  of  gas  occurs  tliere- 
V.  Roseberry  (Colo.),  69  Pac.  Rep.  in  he  is  liable,  in  the  absence  of  an 
588;  and  Smith  v.  Pawtucket  Gas  intervening  independent  cause, 
Co.,  24  R.  I.  292;  52  Atl.  Rep.  thougji  tlie  ignition  was  caused  by 
1078;  Consolidated  Gas  Co.  v.  Can-  some  one  other  than  himself.  jNIoore 
non,  114  Md.  140;   78  Atl.  725.  v.  Lanier,  52  Fla.  353;  42  So.  Rep. 

Acceptance  by  a  gas  company  of       462. 
an  order  to  furnish  meters  and  con- 


LEAKS    AND   EXPLOSIONS. 


7r50a 


]>lar.to(l  liy  him  in  the  strc(>t  iiniiR'diatcly  in  front  (if  his  prem- 
ises.''' An  instriuiion  that  the  gas  eompaiiy  is  not  liahh', 
unless  it  could  reasonably  have  apprehended  that  eseai)ing  gas 
would  cause  the  death  of  vegetation  is  erroneous;  for  the  com- 
pany is  bound  to  kn<i\v  \\iv  effect  of  gas  upon  trees  and  vegeta- 
tion.'"" Where  evidence  showed  that  the  death  of  the  trees 
was  coincident  witli  the  leakage  from  the  mains  nearby  of  a 
large  amount  of  gas;  and  that  after  the  mains  were  reealked 
there  was  a  renewed  growth  of  vegetation,  the  verdict  of  the 
jury  was  not  distiirhed  on  ajijieal,  altliough  there  was  other  evi- 
dence to  show  that  the  injury  to  the  trees  was  not  caused  in 
the  manner  alleged.''^  It  may  be  shown  that  other  trees  in 
the  same  vicinity  were  killed  by  gas  leaking  from  the  same 
place,  where  the  charge  is  that  the  gas  permeating  the  snil 
poisoned  and  killed  the  roots  of  the  trees.'"*  So  where  the 
charge  is  that  the  gas  escaped  into  a  sewer  and  l hence  into 
plaintiff's  greenhouse,  whereby  his  plants  were  killed,  evidence 
is  admissible  to  show  the  presence  of  gas  in  other  greenhouses 
situated  on  the  same  sewer. '"^ 


121  Rockford  Gaslip;lit  Co.  v.  Ernst, 
68  111.  App.  300;  Arnibruster  v.  Au- 
burn Gaslight  Co.,  18  N.  Y.  App. 
447;  4G  X.  Y.  Supp.  158;  Rauck  v. 
Cedar  Rapids  Gas  Co.,  IIG  Iowa  11; 
89  N.  W.  Rep.  88 ;  Gould  v.  Winona 
Gas  Co.,  100  Minn.  258;  111  N.  W. 
Rep.  254;  10  L.  R.  A.  (N.  S.)  889; 
Robbins  v.  Hartford  City  Gaslight 
Co.,  82  Conn.  394;  74 '  Atl.  Rep. 
113;  Johnson  v.  Northport,  etc.,  Co., 
50  Wash.  5G7:  97  Rac.  Rep.  74G. 

Such  a  liability  is  not  determined 
by  the  doctrine  of  insurance  of 
safety,  but  by  the  principle  of  neg- 
ligence applicable  to  authorized  pub- 
lic works.  Gould  v.  Winona  Gas 
Co.,  supra. 

For  an  instance  where  the  fumes 
from  a  smelter  killed  timber,  see 
Johnson  v.  Korthport,  etc.,  Co., 
supra. 

1-2  Wichita  Gas,  etc.,  Co.  v. 
Wrigiit,  9  Kan.  App.  730;  59  Pac. 
Rep.  1085. 


123  Evans  v.  Keystone  Gas  Co., 
148  N.  Y.  112;  42  N.  E.  Rep.  513; 
30  L.  R.  A.  651;  51  Am.  St.  Rep. 
681;  affirming  72  Hun.  503;  25 
N.  Y.  Supp.  191;  28  Chic.  L.  News 
160.  See  Rauck  v.  Cedar  Rapids 
Gas  Co.,  116  Iowa  11;  89  N.  W. 
Rep.  88. 

124  Rockford  Gaslight  and  Coke 
Co.  V.  Ernst,  68  111.  App.  300. 

125  Butcher  v.  Providence  Gas  Co., 
12  R.  I.  149;  34  Am.  ,  Rep.  626; 
Armbruster  v.  Auburn  Gaslight  Co., 
i8  X.  Y.  App.  Div.  447;  46  X.  Y. 
Supp.  158;  Sierbrecht  v.  East  River 
Gas  Co.,  21  X.  Y.  App.  Div.  110; 
47  X.  Y.  Supp.  262;  Dow  v.  Winni- 
pesaukee  Gas  Co.,  69  X.  II.  312;  41 
Atl.  Rep.  288;  42  L.  R.  A.  569. 
See  Denniston  v.  Philadelphia  Co., 
1  Super.  (Pa.)  Ct.  599;  38  W.  X. 
C.  332;   27  Pittsb.  L.  J.  X.  S.   H. 

If  other  causes  also  operated  to 
injure  or  kill  the  trees,  the  damages 
must  be  restricted  to  the  injury  the 


730b  OIL   AND    GAS. 

§636.     Illuminating  gas  driving  sewer  gas  into  house. 

If  illuiiiiualiiiii-  or  natural  i^as  is  negligently  permitted  to 
escajxi  into  a  sewer  in  sneh  a  (piantity  as  to  shove  or  drive 
sewer  gas  in  the  sewer  into  a  honse,  and  such  sewer  gas  in- 
jure the  inmates  thereof,  the  gas  company  will  be  liable, 
ahhoiigh  no  illuuiiiiating  or  natural  gas  lias  ever  entered  such 
house;  and  the  same  would  be  true,  of  course,  if  such  illuminat- 
ing; or  natural  c:as  did  enter  the  house,  but  carried  with  it  other 
gas  that  produced  the  damage.^"*' 


§637.     Explosion  caused  by  act  of  third  person. 

The  circumstances  may  be  such  that  the  company  will  be 
liable  although  the  explosion  is  occasioned  by  the  negligent  act 
of  a  third  person. ^"^  Thus  wliere  the  servants  of  a  city  injured 
oil  pipes  and  the  leaking  oil  found  its  way  to  a  sewer,  and 
thence  to  a  canal  which  flowed  under  a  mill  and  was  there  ex- 
ploded, to  plaintiff's  injury,  the  oil  company  was  held  liable.^'* 
So  where  gas  escaped  from  a  j)ipe  which  the  company  was  bound 
to  keep  in  repair,  and  a  servant  of  a  third  person  negligently 
set  the  gas,  which  had  accumulated  in  his  master's  building,  on 
fire ;  and  the  fire  spread  to  the  plaintiff's  building,  the  company 
was  held  liable. ^'^  So  where  the  plaintiff  employed  a  gasfitter 
to  ])lace  pipes  in  position  in  his  house  and  connect  them  with 
tlie  meter,  whose  servant  w^ent  in  search  of  escaping  gas  with 
a  lighted  candle,  using  the  candle  negligently,  it  Avas  held  that 
he  could  recover ;  and  that  it  could  not  be  said  he  had  contrib- 


defendant  did.    Eauck  v.  Cadar  Eap-  619;   126  S.  W.  Rep.  146;  129  S.  W. 

ids  Gas  Co.,  116  Io\;a  — ;  89  N.  W.  341;   34  Ky.  L.  Eep.  — . 

Rep.  88.  128  Lee  v.  Vacuum  Oil  Co.,  54  Hun 

i2cHunt  V.   Lowell   Gasliglit   Co.,  156;   7  N.  Y.  Supp.  426. 

8  Allen  169;  85  Am.  Dec.  697.  129  pine  Bluff,  etc.,  Co.  v.  McCain, 

127  Aurora  Gaslight  Co.  V.  Bishop,  62   Ark.    118;    34   S.   W.   Rep.   549; 

81   111.  App.  493;   Moore  v.  Lanier,  Lebanon,  etc.,  Co.  v.  Leap,  139  Ind. 

52  Fla.  3.>3;   42  So.  Rep.  462;  Wat-  443;  .39  N.  E.  Rep.  57;  McKenna  v, 

son  V.  Kentucky,  etc.,  Co.,   137  Ky.  Citizens'  Xat.  Gas  Co.,  198  Pa.  31; 

47  Atl.   Rep.   990. 


LEAKS    AND    EXPLOSIONS.  <.>1 

uted  to  the  injury,  for  he  had  no  cuntrol  over  tlio  servant.''" 
And,  as  has  been  elsewhere  discussed,  the  gas  company  is  n»tt 
excused  where  its  mains  are  injured  l»y  a  third  jiersun,  so  that 
gas  escape,  if  it  had  notice  of  the  injury  and  failed  to  proni[)tly 
stop  the  flow  of  gas.^''^  In  a  case  where  a  city  engineer  was 
superintending  the  construction  of  a  sewer,  and  a  uas  main  was 
so  injured  that  gas  escaped,  entered  a  sewer,  and  the  engineer, 
knowing  the  presence  of  gas  in  the  sewer,  entered  it  with  a  light 
which  ignited  the  gas;  it  was  held  that  the  failure  of  the  gas 
company  to  repair  the  pipe  was  the  jiroximate  and  not  the  re- 
mote cause  of  the  injury,  and  that  the  gas  company  was  liahle. 
"  The  calamity,"  said  the  court,  "  resulted  from  the  defendant's 
/legligence,  and  but  for  the  defective  pipe  there  would  have 
been  no  escajie  of  gas;  and  if  this  was  not  the  proximate  cause, 
where,  w^e  ask,  was  the  intervening  one  by  wdiich  the  conse- 
quences of  the  accident  are  to  be  shifted  from  the  defendant  to 
some  other  person  or  thing  ?  "  ^^"  In  another  instance  the  owner 
of  a  house  notified  a  gas  company  to  shut  off  his  supply  of  gas, 
as  he  desired  to  discontinue  its  use.  The  company  sent  its 
servant  to  cut  off  the  gas  at  the  property  line  and  take  out  the 
meter.  The  servant  cut  off  the  supply  by  means  of  a  key  nearly 
four  feet  in  length,  Avhieh  he  inserted  in  the  gas  box  at  the 
property  line,  and  then  went  into  the  house  and  removed  the 
meter,  leaving  the  end  of  the  supply  pipe  open.  When  he 
turned  off  the  gas  the  servant  left  the  key  in  the  gas  box,  an<l 
did  not  remove  it  until  after  ho  had  removed  the  meter  and 
returned  to  the  street.  After  leaving  the  house  and  before 
he  reached  the  key  again,  some  one,  witliout  his  knowledge, 
turned  on  the  gas  by  use  of  the  key.  Xot  more  than  ten  min- 
utes had  intervened.  The  wife  of  the  owner  of  the  house, 
perceiving  there  was   gas   in   the  basement,   went   and   opened 

130  Burrows    v.    March    Gas    and  I'^i  Smith  v.  Boston   Gaslinlit   Co.. 

Coke  Co..  L.  K.   7   Exch.  96;   41   L.  12!)  Mass.  .318;  Koelsoh  v.  Philadol- 

J.  Exch.  46;   26  L.  T.  318;   20   W.  phia   Co..   152  Pa.   St.   35;');   2r>  Atl. 

R.   493.  Rop.  .522:   18  L.  R.  A.  759;   .34  Am. 

See   where  a   thief  with   a  candle  St.    Rep.    6.53. 

caused   an   explosion,   and   the   com-  if^Oil   City  Gas  Co.  v.   RoMnson, 

pany   was   held   liable.      Griffiths    v.  90  Pa.  St.   1;    13   Rcpr.  2.">3. 
City  of  London  Gas  Co.,   16  Gas  J. 
139. 


732  OIL    AND    GAS. 

the  cellar  dtior  to  let  in  air;  and  as  it  was  night,  she  took  a 
lamp  to  enter  the  cellar.  As  soon  as  she  opened  the  door  an 
explosion  followed,  injuring  her  severely.  At  the  time  of  the 
explosion  the  gas  was  not  turned  off;  and  the  gas  company 
claimed  it  was  not  liable,  because  it  had  done  its  work  properly, 
and  the  gas  had  been  turned  on  by  a  stranger  without  its  knowl- 
edge. But  the  court  held  that  the  company  was  liable,  on  the 
theory  that  it  was  an  act  of  negligence  in  the  servant  to  leave 
the  key  in  the  gas  box  where  any  busy  meddler  could  turn  it 
on.  Having  undertaken  to  turn  off  the  gas,  it  should  do  so 
thoroughly ;  and  it  was  immaterial  that  some  third  person  turned 
it  on  in  the  manner  described."^  So  Avhere  it  was  charged  that 
the  father,  who  was  the  owner  of  the  house,  injured  the  pipe, 
causing  the  gas  to  escape ;  and  upon  his  request  the  gas  com- 
pany sent  its  servant  to  fix  the  pipe  and  prevent  the  escape  of 
the  gas,  and  he  carelessly  carried  a  light  into  the  cellar  where 
the  gas  was  escaping,  igniting  the  gas  and  injuring  the  father's 
child,  it  was  held  that  the  child  could  recover,  the  father's 
neglect  being  the  ^-emote  cause. ^^*  And  whore  a  gas  company 
ought  to  have  foreseen  that  the  construction  of  underground 
works  in  the  street  would  probably  injure  its  pipes,  of  which 
work  the  company  had  knowledge,  and  it  failed  to  furnish  an 
inspector ;  it  was  hel '  liable  where  the  explosion  producing  the 
injury  was  occasioned  by  the  act  of  a  stranger  to  it,  that  it  was 
liable  because  of  its  neglect  to  inspect. ^^^  But  wheie 
the  owner  of  a  private  gas  plant  supplied  a  hotel  with  gns' 
and  the  pipe  leading  to  the  hotel  became  so  stopped  or  clogged 
that  gas  would  not  flow  through  it,  and  the  person  who  had  con- 
structed the  plant,  but  not  then  in  the  owner's  service,  advised 
the  superintendent  of  the  hotol  owner  to  take  the  weight  out  of 
the  gasometer,  and  the  superintendent  followed  the  suggestion, 
and  tlioroupon  the  gasometer  turned  over  so  as  to  permit  gns  to 
escape,  causing  an  explosion  ;  it  was  held  tliat  tlie  owner  of  the 

!■'■■''  T-onisville    Gas    Co.    v.    Guten-  suit  to  recover  for  loss  of  sorvices, 

kunt/.   S2  Ky.  432.  another    question    would    linve    been 

1''^  T.annen     v.     .\ll)any     Oaslii^'ht  piesented. 
Co..   44   N.   Y.    4r.O  1 -I"' Koplan  V.  Boston  Gaslight  Co., 

If    the    father    had    broufrht    the  177  Mass.  15;  58  N.  E.  Rep.  183. 


LEAKS    AND    KXPI.OSIONS. 


■:],3 


gas  plant  was  not  liable;  fur  the  proximate  cause  of  the  injury 
was  the  ex}XM-iinent  mixdv  by  the  suixM-intendent,  there  l>eiiig  no 
evidence  that  the  owner  employed  incompetent  workmen  to  jmt 
up  the  plant.  It  was  considered  that  the  clogging  of  the  pipe 
had  no  connection  with  the  accident,  except  as  it  led  to  the  ex- 
periment.^"'" Where  a  gas  company's  pipes  were  not  connected 
with  a  building  until  the  owner  or  lessee  applied  for  gas,  being 
required  to  furnish  a  plan  of  the  pijies  in  the  buihling,  and  as 
soon  as  an  application  was  made  and  plans  furnished  it  would 
deliver  a  meter,  leaving  th(^  ;i])])lic;int  to  iiinkc  the  connection, 
without  itself  making  an  examination  ;  and  the  lessee  of  a  store- 
room, on  receiving  a  meter,  employed  a  plumber  to  make  a 
connection  with  the  company's  supply  pipe;  and  from  a  jiipe 
running  into  an  apartment  abov(>  the  store,  occupied  by  other 
tenants,  gas  escajied,  killing  the  ])laintiff's  intestate;  it  was  held 
that  it  was  a  question  for  the  jury  whether  the  gas  company  had 
used  reasonable  precautions.^''"  In  a  ^fassachusetts  case  it  was 
said :  "  If  the  ignition  of  the  gas  by  a  natural  cause,  or  by 
some  other  ]">erson,  ought  to  have  been  foreseen  as  a  probability, 
the  defendant  is  liable."  ^''^^ 

§638.     Gasfitter  ig-niting  escaping  gas. 

A  gas  company  may  become  liable  to  the  owner  of  property 
injured  by  the  explosion  of  escaping  gas,  even  though  it  was 
ignited  by  the  carelessness  of  a  plumber  or  his  servant  em- 
ployed to  repair  or  change  the  plumbing  in  the  house.  Thus 
where  a  gas  company  put  in  a  defective  supply  pi]ie  between 
its  mains  and  the  meter  on  plaintiff's  premises,  whereby  gas 
escaped  into  the  building;  and  a  workman  in  the  cui])loy  nf  a 

130  Taylor    v.     Baldwin,     78    Cal.  i"  Sflieoinor  v.  Casliirlit   Co..   147 

517;  21  Pac.  Rep.   124.  N.  Y.   529;   42   N.   E.   Rep.   202;    M 

By  permitting  a  consumer  to  em-  L.    R.    A.    653;    reversing   20    N.    Y. 

ploy  a  plumber  to  put  in  a  gas  pipe  Supp.  1128;  65  Hun  378,  and  20  X. 

and   turn   on    the   gas,    a   gas   com-  Y.  Snpp.   168. 

pany  does  not  make   such   plumber  i38  Koplan  v.  Boston  Casliglit  Co., 

its  agent,  so  as  to  render  it  liable  /mpra ;  Hampton  v.   Cradley  Heath 

for     an     explosion     caused    by    the  Gas  Co.,  14  Gas  J.  GOO. 
plumber's       notrli'xence.       Flint       v. 
Glouster  Gaslight  Co.,  3  Allen  .343. 


734  OIL    AND    GAS. 

gasfittcr,  callod  bv  the   })laiiititr  to   \n\\    in   ]ii])es  leading  from 
the  meter  to  the  burners,  negligently  took  a  lighted  candle  for 
the  ])nrpose  of  finding  ont  whence  the  r-as  proceeded ;  where- 
U]K)n  an  ox]ilosion  folloAved  by  reason  of  the  contact  of  the  gas 
with  the  candle  ilanie,  it  was  held  that  the  ])laintifr  could  re- 
cover damages  for  the  injury  to  his  house  occasioned  by  the 
explosion,  that  the  damages  were  not  too  remote,  and  that  it 
could  not  be  considered  that  the  plaintiff  contributed  to  the  in- 
jury, for  the  workman  was  not  under  his  control.^'*'''      And  in  a 
New  York  case,  where  the  pipe  was  broken  by  frost  in  conse- 
quence of  its  having  been  laid,  by  the  defendant,  too  near  the 
surface  of  the  ground,  from  which  gas  escaped  into  the  cellar, 
it  was  held  I  lint   the  ]ilaintiff  could  recover  damages  caused  by 
an  explosion  occasioned  by  a  plumber,  whom  he  had  called  to 
ascertain  where  the  leak  was,  ojieniug  the  cellar  door,  holding  in 
his  hand  a  lighted  candle;  and  it  made  no  difference  that  the 
])lumber  may  have  been  guilty  of  negligence,  for  he  was  not  the 
agent  of  the  plaintiif  so  as  to  make  the  latter  answerable  for 
his   negligence,   for  where   a   person   sustains   an   injury   from 
the   separate  negligence  of  two   persons   employed  to   do   two 
separate   things,   he   may   maintain   an   action   against  both   or 
either.""     Where  it  was  claimed  by  the  defendant  that  the  leak 
occasioned  by  the  city  officers  not  properly  packing  the  earth 
under  the  pipe  that  broke  in  building  a  sewer,  it  was  said  that 
''  the  defendants,  in  managing  a  dangerous  element,  were  bound 
not  only  to  use  due  care  on  the  part  of  themselves  and  their 
servants,  but  also  to  use  due  care  to  prevent  injury  from  the 
careless  or  wa-ougful  meddling  with  their  works  on  the  ]iart  of 
others;   that  they  could  not  int(>rfere  with  or  prevent  the  city 
from  building  a  sewer,  l)ut  they  had  a  right  to  and  were  boimd 
to  see  that,  in  restoring  the  earth  to  its  place,  their  own  p^^^es 

A  contractor  pcaving  a  street  who  R.   7  Exch.    96;   L.  R.  5  Exch.   67; 

ncjrliirently  disturbs  the  gas  mains,  41   L.   J.   Exch.   40;    26   L.   T.   318; 

wlicrcby  tlie  gas  escapes,  an  explo-  20  W.    R.   49.3;    Mersey   Docks   and 

sion  follows,  and  a   passerby  is  in-  Harbor  Board  v.  Liverpool,  etc.,  Co., 

jnred.   will   be   liable.      Fellwood   v.  26  Gas  J.  327. 

Pearson.  23  Gas.  J.  248.  i^o  Schermerhorn   v.   Metropolitan 

139  Burrows  v.  March  Gas  Co.,  L.  Gaslight  Co.,  5  Daly  144. 


I-K.VKS    AND    EXPLOSIONS.  735 

were  properly  supported,  and,  if  injured,  U>  sec  that  the  injury 
was  repaired  as  soon  as  it  could  reasonably  !><■  done  "  ;  and  that 
whether  the  defendant  had  exercised  due  care  in  these  particu- 
lars was  a  question  ior  the  jury.'" 

§639.     Negligence  of  fellow  servant. 

The  rule  in  negligence  cases  with  regard  to  fellow  servants 
applies  to  gas  explosions  or  leaks.  Thus  if  a  servant  of  a  gas 
company,  who  was  a  fellow  servant  with  the  plaintiff,  cause 
the  explosion,  there  can  he  no  recovery.^*-  In  the  case  just  cited 
there  was  really  no  negligence  on  the  part  of  the  company,  for 
it  had  used  proper  appliances ;  but  the  explosion  was  occasioned 
by  the  act  of  a  fellow  servant  in  carelessly  lighting  a  match 
near  the  escaping  gas.  The  same  rule  was  announced  in  a  case 
where  a  fellow  servant  caused  an  exjilosion  in  a  mine.^^^  Where 
an  employee  of  a  gas  company,  under  the  direction  of  the  com- 
pany's superintendent,  went  into  a  trench  to  repair  a  leak  in  a 
gas  main;  and  the  superintendent  approached  with  a  lighted 
lantern,  and  the  escaping  gas  ignited,  causing  an  explosion  ;  it 
was  held  that  the  action  of  the  sujx-rintendent  in  a])proacliing 
the  trench  with  the  lighted  lantern  was  the  proximate  cause 
of  the  injury,  and  that  under  a  statute  providing  that  where  the 
injury  resulted  from  the  negligence  of  any  person  in  the  service 
of  a  corporation  to  whose  order  or  direction  the  injured  eni- 
]doyee  at  the  time  of  tli(>  injury  was  bound  to  conform  and 
did  conform,  the  company  was  liable,  the  plaintiff  could  re- 
cover."*    A  similar  result  was  reached  Avhere  no  statute  seemed 

141  Butcher  v.  Providence  Gas  Co.,  i4s  Leliigh  Valley  Coal  Co.  v. 
12   R.   I.    149;    .34   Am.    Rep.    G2(i.            Jones,   8(5    Pa.    St.   4.32. 

A  gas  company  is.  not  liable  when  i44  Indianapolis   Gas  Co.    v.    Sliii- 

the  injury  is  occasioned   wholly   by  mack,    2.3   Ind.   App.   87;    54   N.    E. 

the  neglect  of  a  gasfitter,  called  by  Rep.  414. 

the  property  owner.     German-Amer-  Where   a    iratchmati    employed    to 

ican   Ins.   Co.   v.   Standard   Gaslight  patrol   a  street  being  excavated   for 

Co.,  67  N.  Y.  App.  Uiv.  539;   73  N.  the   laying  of   mains  and  to  report 

Y.  Supp.  973.  any  escape  of  gas.  and  he  was  noti- 

If  the  explosion   is  occasioned   by  fied  of  the  odor  of  escaping  gas,  hut 

the   superintendent  of   the  company  made  no  report  to  his  company,  and 

in    searching    for     a     leak     with     a  nine    hours    after    he    was    notified 

light,    the    comi)any    will    be    liable.  an  explosion   took    place   injuring  a 

Tipton  Light,  etc.,  Co.  v.  Newcomer  workman    of    the    company,    it    was 

(Ind.  App.).   67   X.    E.   Rep.   548.  held    that   the    company    was   liable. 

142  Allegheny  Heating  Co.  v.  Diehle  v.  United  Gas  Imp.  Co.,  225 
Rohan,    118    Pa.    St.    223;     11    Atl.  Pa.  494;    74  Atl.  Rep.  349. 

Rep.    789;    Warren    v.    Wilder,    20 
Gas  J.  892. . 


73G  OIL    AND    GAS. 

to  contrcil  it/*'  And  in  a  case,  not  strictly  in  line  with  the 
subject  matter  of  this  section,  where  the  action  was  against  a 
chemical  company  for  injuries  sustained  in  inhaling  fumes  of 
nitric  acid,  the  fact  that  the  complaining  person  left  his  work, 
saying  he  ct)nld  not  endure  it,  and  thereupon  the  superintend- 
ent assured  him  they  would  not  hurt  him,  it  was  held  that  it 
was  not  shown  that  the  employee  so  injured  knew  or  had  reason 
to  know  the  fumes  would  do  him  a  permanent  injury,  and  that 
it  was  not  negligence  for  him  to  return  to  work/'*" 

§640.     Person  on  premises  by  license. 

A  gas  company  not  only  owes  a  duty  to  the  owner  of  the  prem- 
ises and  the  inmates  thereof,  but  also  to  all  who  are  rightfully 
upon  or  rightfully  come  upon  the  premises,  or  who  come  there 
with  the  express  or  implied  permission  of  the  owner.  This 
will  include  not  only  the  servants  of  the  owner,  but  all 
the  servants  of  a  contractor  repairing  or  working  upon  the  prem- 
ises, all  persons  employed,  whether  by  the  day  or  by  the  piece, 
to  work  thereon  or  sent  there  by  another  to  do  work.^''"  The 
rule  is  broad  enough  to  include  a  guest  of  the  owner  of  the 
premises.^*®  The  negligence  of  the  owner  in  causing  the  ex- 
plosion, where  the  gas  company  has  also  been  negligent,  will  not 
defeat  such  person's  right  to  recover,  even  though  their  com- 
bined negligence  was  required  to  cause  an  explosion.^*® 

1*5  Citizens'  Gaslight  and  Heating  company  did  not  involve  tlie  relation 

Co.    V.    O'Brien,    15    111.    App.    400;  of  feilow  servant,  see  Hatfield  v.  St. 

affirmed   118  III.   174;   Citizens'  Gas-  John    Gaslight    Co.,    32    X.    B.    100. 

light    arid    Heating   Co.    v.    O'Brien,  i^^  Washington     Gaslight     Co.    v. 

19    HI.  App.   231;   affirmed  in   Citi-  Eckhoff.   22   Wash.   L.   Rep.   656;   4 

zens'   Gaslight   and    Heating   Co.   v.  App.  D.   C.    174 

O'Brien.  118  111.  174;   8  X.  E.  Rep.  i.^s  Defiance  Water  Co.  v.  Olinger, 

310.  .54  Ohio  St.  532;  35  Ohio  L.  J.  323, 

146  Wagner  v.  Brew  Chemical  Co.,  350;  44  N.  E.  Rep.  238:  32  L.  R.  A. 

147  Pa.  St.  475;  29  W.  N.  C.  490;  736.     See  note  150  of  this  section. 

23    Atl.     Rep.     722,    distinguishing  i*»  Pullman     Palace    Car    Co.    v. 

Beittenmiller    v.    Bergner,    etc.,    Co.  Laack.  143  Til.   242;   32   N.  E.  Rep. 

(Pa.).  12  Atl.   Rep.  599.  385:    18  L.  R.   A.  215;   affirming  41 

Eor    a    case    where    a    servant    of  Til.   App.   34;   Richmond  Gas  Co.  v. 

one    company   working   for    another  Baker,  146  Ind.  600;   45  N.  E.  Rep. 


LEAKS    AM)     EXri.OSIONS.  <  li" 

§641.     Guest  or  inmate  of  family  may  recover  from  gas  company 
where  owner  is  negligent. 

A  person  making  one  of  a  family  may  recover  for  jxTsonal 
injuries  occasioned  by  an  explosion  in  the  Jiouse,  and  is  not 
chargeable  with  the  negligence  of  the  head  of  the  family  or 
owner  of  the  dwelling,  or  of  any  member  of  the  family  with 
respect  to  the  danger  of  gas  escaping  into  the  dwelling  house.*^" 

§642.     Lessee's  right  of  action  against  the  gas  company. 

The  lessee  or  tenant  has  a  right  of  action  against  the  gas 
company  for  negligently  permitting  gas  to  escape  u]X)n  the 
leased  premises  and  injuring  liis  possessory  interest — as  be- 
fouling a  well  —  while  the  landlord  must  bring  the  action  for 
any  injury  the  reversion  may  sustain.  If  the  act  of  the  gas 
company  made  the  enjoyment  of  the  estate  less  beneficial,  or 
in  any  way  rendered  it  more  expensive  or  inconvenient,  without 
fault  on  his  part,  he  is  entitled  to  such  damages  as  he  has  thus 
suffered.^" 

§643.     Third  person  causing  gas  to  escape,  liability. 

If  a  third  person  —  one  not  connected  with  a  gas  company, 
and  for  whose  act  it  is  not  liable  —  negligently  cause  gas  to  es- 
cape to  the  injury  of  a  person,  he  will  be  liable  to  such  person 
for  all  damages  sustained.  And  where  a  municipality  in  con- 
structing a  sewer  did  the  work  in  such  a  negligent  manner  as  to 

1049;  36  L.  R.  A.  683;  McGahan  v.  lessor  recoverinfj  a  judjrment  for  an 

Indianapolis,  etc.,  Co..  140  Ind.  335;  injury  to  his   interest  in  the   prop- 

37  N,  E.  Rep.  601;  29  L.  R.  A.  355  erty,— the  action  not  heinp  between 

(a  plumber).  the  same  parties  nor  between  their 

isoRiohmond    Gas    Co.    v.    Baker,  privies.    Bartlett  v.  Boston  (Jaslii,'ht 

146  Ind.  600;  45  N.  E.  Rep.    1040;  Co..   122  IMass.  209. 

36  L.  R.  A.  683.     See  case  cited  in  Of   course,   for   an    injury   to   (he 

note    148  of  this  section.  person,    the    question    of   tenancy    is 

151  Sherman    v.    Fall    River    Iron  not  involved,  though   the  injury  oc- 

Works  Co..  2  Allen   524.  curs   in   the  house  the  plnintifT  ha»< 

The    failure    of   the   lessee   to    re-  le.ised.      Otterbnck    v.    Philndi-lnhj  i. 

cover  a  judgment  is  no  bar  to  the  161  Pa.  St.  Ill;  2S  Atl.  Rej).  991. 


738  OIL    AND    GAS. 

cause  the  gas  pipe  to  break  for  lack  of  support,  whereby  gas 
escaped  into  the  i)hiintitY's  house  so  as  to  cause  an  explosion,  the 
municipality  was  held  liable,  and  could  not  escape  liability  by 
delecatine:  the  construction  of  the  sewer  to  a  contractor,^^-  A 
natural  gas  company  furnished  a  mill  Avith  gas.  The  pipes  were 
arranged  so  that  gas  passed  through  a  "  regulator,"  which  re- 
duced the  pressure  before  it  reached  the  meter.  There  was  a 
pipe,  called  a  "  by-pass,"  through  which  gas  could  be  turned 
into  the  meter  at  the  full  pressure  of  the  main.  The  owner  had 
control  of  both  the  cock  used  to  tuni  on  the  gas  through  the 
"  regulator  "  and  the  one  to  turn  it  on  through  the  ''  by-pass." 
The  plaintiff  entered  the  mill  to  seek  work,  and  as  he  Avas  leaving 
the  mill  owner,  in  turning  on  the  gas,  accidcntly  turned  the  cock 
admitting  the  full  pressure.  The  result  was  that  the  meter  ex- 
ploded, injuring  the  plaintiff.  It  was  held  that  the  gas  com- 
pany was  not  liable ;  for  the  only  negligence  was  that  of  the  mill 
owner.  ^^^ 

§644.     Gas  turned  on  by  owner  or  strang'er. 

If  the  owner  of  the  property  or  a  stranger  turn  on  the  gas  at 
the  property  line  the  gas  company  will  not  be  liable  to  such 
owner  for  injuries  occasioned  by  an  explosion  of  the  gas,  thus 
turned  on,  occurring  upon  such  property.  The  gas  company  has 
a  right  to  control  the  turning  on  of  gas ;  the  stop-cocks  at  the 
property  line  is  its  own  property,  and  under  its  control.  The 
mere  fact  that  the  gas  company  did  not  object  to  the  gasfitter 
putting  pipes  in  a  building  for  the  owner  to  turn  on  the  gas  at 
the  property  line  will  not  make  it  liable  to  such  owner  for  an  in- 
jury occasioned  by  an  explosion  occurring  in  the  building  be- 
cause of  the  defective  piping  or  failure  to  close  up  pipe  ends. 
And  there  are  two  reasons  for  this :  first,  the  gas  company  has 
no  control  over  the  piping  within  the  building;  and  second,  the 

i52Hardaker   v.   Idle   Dist.   Conn-  ibs  Triple   State,   etc.,   Gas  Co,   v. 

oil    [1896],   1   Q.   B.   335;    65   L.   J.  Wellman,  114  Ky.  79,  70  S.  W.  Rep. 

Q.  B.   (N.  S.)   363;  74  Law  T.  Rep.  49;  24  Ky.  L.  Rep.  851. 
69;  44  W.  R.  323;  60  J.  P.  196. 


LEAKS    AND    EXPI.OSIONa.  739 

gasfitter  is  not  its  agent/'"*  Xor  is  the  gas  eonipany  liable,  al- 
though it  otherwise  would  have  been,  for  the  act  of  a  former 
employee  turning  on  the  gas,  where  the  consumer  requesting  it 
to  be  turned  on  knew  he  was  not  then  in  the  company's  em- 
ploy;  and  the  fact  that  such  ]>erson  may  have  turned  uu  the  gas 
for  other  jDcrsons,  in  which  the  gas  company  acquiesced,  does  not 
make  it  liable,  where  the  consumer  knew  he  was  not  its  em- 
ployee."^ Where  a  natural  gas  company  had  high  and  low 
pressure  mains,  controlled  by  valves  securely  enclosed  in  a  box ; 
and  an  employee  of  another  natural  gas  company,  desiring  to 
take  water  out  of  the  pipes  of  his  company,  opened  the  gas  box 
by  mistake  and  turned  on  the  gas  from  the  high  pressure  main 
to  the  low  pressure  main  ;  and  the  gas,  thus  turned  on,  flowed 
into  the  pijx^s  of  a  house  su])plied  from  such  low  pressure»main, 
and  bursted  the  gas  fixtures,  causing  a  fire  and  damages  to  the 
house ;  the  gas  company  whose  valves  he  had  thus  turned  was 
held  not  liable,  for  its  act  had  not  caused  tlic  injury,  and  it  had 
taken  proper  precautions  to  protect  its  valves  from  intermed- 
dling. But  the  gas  company  whose  employee  had  thus  inad- 
vertently turned  the  valves  was  held  liable,  although  at  the  time 
he  did  so  there  was  little  gas  in  the  high  pressure  main,  it  hav- 
ing been  turned  off  to  make  needed  repairs ;  and  the  fact  that  the 
company  owning  the  mains  may  have  been  negligent  in  with- 
drawing the  gas,  or  that  the  meter  and  regulators  were  out  of 
order,  was  held  to  be  no  defense;  for  neither  eoin]iany  could 
escape  if  the  concurring  negligence  of  both  of  them,  if  such  was 
the  case,  produced  the  result.''"  But  where  the  owner  of  a 
building  requested  the  gas  company  to  cut  off  his  gas  aiid  re- 
move its  meter;  and  the  company  sent  its  employee,  who  out  off 
the  gas  at  the  street  curbing  with  a  key  several  feet  long  which 
he  inserted  in  the  gas  box  for  that  purpose  and  left  there  while 
he  went  into  the  house  to  remove  the  meter;  and  after  he  had 
removed  the  meter  and  before  he  reached  the  gas  box  —  a  period 

154  Flint    V.    Gloucester  Cxas    and  i.io  McKenna  v.  }^ru\<:o  Water  C.as 

Light  Co..    .3   Allen    .343.  Co..    M)3   Pt.   St.   '133;    45   All.   Rep. 

I'''- Flint    V.    Gloucester  Gas    and        52;  47   L.  R.  A.  790. 
Light  Co.,  9  Allen  552. 


740  OIL    AND    (!AS. 

of  only  a  few  minutes  —  some  unknown  meddlesome  person 
turned  on  the  gas  again,  of  which  fact  the  employee  was  ig- 
norant; and  shortly  thereafter  an  injury  was  occasioned  by  the 
gas  escaping  from  the  end  of  the  service  pipe  extending  into  the 
cellar,  it  was  held  that  the  gas  company  was  liable  for  the  act  of 
the  stranger,  because  of  the  fact  of  the  employee's  negligence  iu 
leaving  the  key  in  the  position  he  did.^" 

§645.     Landlord's  right  of  action  against  tenant. 

There  is  no  doubt  that  if  a  tenant  carelessly  or  negligently 
cause  an  explosion  of  escaping  gas  in  the  house  he  is  occupying, 
although  he  in  no  way  caused  the  gas  to  escape,  he  would  be 
liable  to  his  landlord  for  the  damages  the  house  sustained ;  and 
much  more  so  would  he  be  liable  if  he  caused  the  gas  to  escape. 

§646.     Tenant's  right  of  action  against  landlord. 

A  tenant  may  have  a  cause  of  action  against  his  landlord, 
where  he  has  suffered  a  damage  from  escaping  gas  by  reason  of 
the  latter's  negligence.  Thus  where  a  landlord  had  the  meter 
removed  from  the  house,  and  the  fixtures  from  the  gas  pipe,  by 
a  gas  man,  who  left  one  of  the  pipes  open  and  uncovered  in  an 
upper  room,  which  was  afterwards  let  to  and  occupied  by  his 
tenant ;  and  the  landlord  subsequently  gave  the  tenant  of  the 
lower  floor  permission  to  introduce  gas  into  the  house,  which  he 
did,  without  notifying  the  other  tenant;  and  the  gas  pipes  in  the 
first  tenant's  apartment  had  been  left  open,  by  reason  of  which 
the  room  filled  with  gas,  and  when  she  entered  the  room  with  a 
candle  an  explosion  occurred,  injuring  her  greatly ;  it  was  held 
that  tlio  landlord  was  guilty  of  negligence,  even  though  the 
direct  cause  of  the  accident  was  the  negligence  of  the-  gas  man 

if'7  Louisville    Cias    Co.    v.    Gnton-  it   damages   the   buildinir,   tlio   lanil- 

kuntz,  82  Ky.  432.     The  question  of  lord    cannot     recover     damages    for 

neglect  to  close  the  end  of  the  pipe  the  injury   from   the  gas   company, 

does  not  seem  to  have  controlled  the  Creel    v.    Charleston,    etc..    Gas    Co., 

case.  51  W.  Va.  129;  41  S.  E.  Rep.  174. 

If  a  tenant  turns  on  the  gas,  and 


l.KAKS    AM)    KXri.OSIOXS.  711 

in  not  having  snliiciently  closed  the  tixtiiros.""  But  a  landlord 
is  not  liable  to  an  employee  of  hih  tenant  for  an  injury  resulting 
from  an  explosion  of  gas,  caused  by  defective  phuubing  done  by 
a  former  tenant  of  the  building,  who  employed  a  comjietent 
plumber  to  do  the  work,  in  which  the  defects  were  not  apparent 
and  of  which  such  landlord  had  no  actual  knowledge."" 

§647,     Owner  of  premises  liable  to  injured  person. 

The  owner  of  the  premises  may  liimsolf  bo  so  guilty  of  negli- 
gence as  to  be  liable  to  any  one  rightfully  upon  them  who  is 
injured  by  an  explosion.  Thus  if  gas  be  escaping  in  a  danger- 
ous quantity,  and  he  knowing  of  the  escaping  gas  and  the  extent 
of  it,  invite  another  on  the  premises,  and  does  not  warn  him, 
and  an  explosion  occurs  whereby  the  ])erson  so  invited  is  injured, 
such  owner  will  ho  liable  if  he  negligently  caused  the  explosion. 
Where  a  servant  of  a  water  company  went  upon  certain  premises, 
in  discharging  his  duty,  to  ascertain  from  a  water  meter  the 
amount  of  water  used  by  the  owner  of  the  premises,  and  was 
killed  by  an  cx]dosion  of  gas  that  had  escaped,  the  owner  of  such 
premises  was  hold  liabl(> ;  for  the  ]ierson  killed  was  rightfully 
on  the  premises,  being  more  than  a  licensee,  under  an  implied 
invitation  of  the  owner.  The  mere  fact  that  the  docoased 
smelled  gas  was  considered  not  to  be  such  contributory  negli- 
gence on  his  part  as  should  necessarily  defeat  him ;  for  he  was 
acting  under  the  stress  of  a  duty.^"" 

158  Kimmel    v.    Burfeind,    2    Daly  tion    not    beincj    between    the    same 

1.55.     The  question  of  the  plaintiff's  parties    nor   their   privies.     Hartlett 

due  care   was  not  considered.  v.   Boston   Gaslight    Co.,    122   Mass. 

Where   the    tenant    has    sued    the  209. 

gas   company   for   an    injury   to   his  mo  Metzper    v.     Sliultz.     1(5     Ind. 

leasehold,  and  failed  to  recover  jud<;-  App.    4.54;    48    N.    E.    Rep.    88G.    re- 

ment   upon   the   merits   of   the   case.  hearing-  denied.  4.5   N.   E.   Rep.  filO. 

such   judsment  is  not  a  bar  to   the  iC'O  Finepan    v.     Fall     River    Gas 

landlord    recovering    for    an    injury  Works.    159    Mass.    311;    34    N.    E. 

to  his  reversionary  interest,  the  ac-  Rep.   523. 


742  OIL    AND    GAS. 

^648.     Plaintiff  must  show  due  care  on  his  part. —  Contributory 
negligence. 

The  burden  rests  upon  the  })laiiitill:  to  show  that  he  was  act- 
ing with  due  care  and  with  ordinary  prudence  when  the  accident 
occurred ;  or  in  other  W(jr(ls,  his  act  did  not  contribute  to  the 
injury.  Ordinary  care  is  all  that  is  required  of  him;  but,  of 
course,  what  is  ordinary  care  will  depend  upon  the  amount  of 
danger  and  the  extent  of  the  plaintiff's  knowledge  of  the  dan- 
„.p^  161  Qj^p  Yias  no  right  to  expose  himself  to  the  mischievous 
effect  of  gas,  and  if  injured,  hold  the  gas  company  liable;  and 
the  burden  rests  upon  him  to  show  that  he  did  not  do  so.^*'^  If 
the  plaintiff,  by  the  exercise  of  diligence,  could  have  prevented 
the  injury,  he  cannot  recover;  and  if  the  injury  was  a  continu- 
ing one,  and  the  company  could  have  stopped  the  continuation  of 
the  loss  if  it  had  been  notified  of  it,  he  cannot  recover  for  any 
loss  sustained  after  it  became  his  duty  to  notify  the  company  of 
such  continuation,  his  act  being  considered  as  contributing  to 
the  loss  sustained  after  the  duty  of  informing  the  company  has 
been  imposed  upon  him.^®^  Where  the  plaintiff's  house  was  sup- 
plied with  gas,  but  another  company  had  a  gas  main  ninety  feet 
away  from  wdiich  gas  escaped,  which  passing  under  the  ground 
entered  her  cellar,  and  there  exploded ;  and  although  plaintiff 
supposed  the  gas  she  detected  was  from  the  company's  pipes  that 
suy)plied  her  with  gas,  though  she  knew  of  the  gas  leak  in  the 
other  company's  main,  yet  it  was  held  that  she  was  not  guilty 
of  such  contributory  negligence  as  would  defeat  a  recovery.^®* 

i«i  Holly  V.  Boston   Gaslight  fo.,  cerned  in  those  jurisdictions  where 

8  Gray  123;   69  Am.  Dec.  233;    Lee  tlie    burden    is  on   the   defendant  to 

V.    Troy    Citizens'    Gaslight    Co.,    98  show    contributory    negligence. 

N.   Y.   115;   Bartlett  v.  Boston  Gas-  lea  Hunt   v.    Lowell    Gaslight   Co., 

light    Co.,    117    Mass.    533;    19    Am.  1  Allen  343. 

Kep.  421;  Schmeer  v.  Gaslight  Co.,  1^4  Consumers'  Gas  Co.  v.  Perre- 
147  N.  Y.  529;  42  N.  E.  Rep.  202;  go,  144  Ind.  350;  43  N.  E.  Rep. 
30  L.  R.  A.  053;  German-American  306;  32  L.  R.  A.  146. 
Ins.  Co.  V.  Standard  Gaslight  Co.,  Where  gas  was  leaking  into  the 
67  N.  Y.  App.  Div.  539;  73  N.  E.  plaintifl's  cellar  from  a  gas  pij)e, 
Supp.  973.  That  is,  where  some  and  the  company's  superintendent 
statute  does  not  change  the  rule  as  came  to  locate  tlie  leak,  and  plain- 
to  the  burden  of  siiowing  contribu-  tiff  went  into  the  cellar  at  his  re- 
tory  negligence.  quest,   but  remained  no  longer  than 

162  Holly   V.   Boston   Gaslight   Co.,  was  necessary  to  point  out  the  place 

supra;    Hamma    v.    Haverhill    Gas-  of  the   supposed   leak,   and,   without 

light  Co.,  203   Mass.  572;    89  N.  E.  warning     her,     the     superintendent 

Rep.    1043.      Of   course,   this   is    not  lighted   a   match,   causing  an   e.xplo- 

true  so  far  as  the  "burden"  is  con-  sion,  it  was  held  that  the   plaintiff 


LEAKS    AND    KXPl.OSIONS.  74  o 

"  The  leak  was  acmss  the  street  from  appellee,"  said  the  cuurt. 
"  She  did  not  reeeive  her  gas  from  the  appellant.  It  is  hard, 
therefore,  to  understand  how  she  should  have  thought  that  the 
leak  at  apjx'Uant's  sleeve,  ninety  foet  distant,  even  if  she  knew 
its  existence,  which  does  not  appear  from  the  evidence,  could 
have  heen  the  source  of  any  danger  to  her."  Where  the  suit  was 
to  recover  for  injuries  incurred  from  escaping  gas,  the  plaintiif, 
to  establish  due  care  on  his  part,  it  was  held  could  not  prove  that 
the  gas  company's  agent  advised  the  occupants  of  a  neighboring 
house,  into  wliidi  the  gas  had  esca])ed  from  the  same  h^ak,  what 
to  do  to  avoid  the  ill  consequences  from  it,  and  that  he  did  the 
same  things  thus  advised,  if  such  agents  gave  him  directions  re- 
specting the  matter.  ^''^ 

^649.     Owner  removing  from  his  premises. 

The  circumstances  may  be  such  as  to  require  the  owner  or 
occupants  of  a  house  to  vacate  it  in  order  to  avoid  injury  to  him- 
self;  and  if  he  do  not  he  will  be  guilty  of  such  contributory 
negligence  as  will  bar  a  recovery.  Thus  where  the  plaintiff's 
health  was  injured  by  inhaling  gas  escaping  from  a  defective 
main  in  the  street  and  entering  his  dwelling  house,  it  was  held 
to  be  a  want  of  due  care  on  his  part  to  remain  in  the  house, 
after  he  had  a  reasonable  opportunity  to  procure  another  house 
or  place  of  residence  and  to  remove  thither;  and  that  the  gas 
company  could  not  properly  be  held  liable  in  damages  for  conse- 
quences which  ensued  after  such  removal  might  have  been 
made.^®"      So  where  the  plaintiff  was  a  minor  living  with  his 

was    not    giiilty    of   negligence   con-  bide  at  tlip  bottom,  caiisinfr  an  ex- 

tributinf^  to   the  explosion.      Tipton  plosion,  by  wliich  plaintifF's  intcslato 

Light,   etc.,   Co.   v.   Is'ewconier    (Ind.  was   killeii.      Tlie   water   in   tlu'   pi|)o 

App.),  ()7   N.   E.  Rep.  548.  could    easily    liave    Ik'cu    discMivcied 

105  Emerson     v.     Lowell     Gaslight  and  drained,  but  no  elFort  was  made 

Co.,  3  Allen  410.  to  do  so,  and   tlie  plumber  was  not 

Defendant  was  engaged  in  manu-  cautioned  against  permitting  the 
facturing  calcium  carbide,  a  product  water  to  run  out  on  tiie  floor.  It 
which  generated  a  higlily  explosive  was  held  that  deceased  did  not  as- 
gas  when  brouglit  into  contact  witli  sume  tlie  risk  of  injury  by  an  ex- 
water,  and  its  foreman  directed  a  plosion  caused  in  such  a  manner, 
plumber  in  its  employment  to  repair  since  it  was  not  an  ordinary  risk 
certain  water  pip<'s  near  an  elevator  wliicli  tlie  employees  of  other  dejiart- 
pit,  at  the  bottom  of  wliich  was  ments  assumed.  Cliarron  v.  I'nion 
stored  a  quantity  of  carbide.  When  Carbide  Co.,  151  Mich.  ()H7 ;  115 
the   plunilK'r  t(K)k  ayjart  the  pipe  to  N.  W.  71H. 

make  the  repairs,  the  water  therein  hio  n,nit   v.    Lowell   Gaslight    Co., 

ran   out   and    into    the  elevator    pit,  1  Allen  343. 
and  came   in  contact  with  the   car- 


744  OIL    AND    Li  AS. 

father,  and  was  injured  hv  inhaliiiir  Jras  at  iii'irhi,  wliicli  had 
escaped  from  a  street  main  during-  the  day  previous,  and  of 
whidi  the  gas  company  was  not  Twtified  until  the  afternoon,  it 
^vas  held  that  the  plaintiif  ciuild  not  maintain  his  action  if  his 
father  failed  to  adopt  suitable  precaution  against  the  hurtful 
effect  of  the  gas  after  it  was  discovered  to  be  filling  the  house ; 
and  that  it  was  for  the  jury  to  decide  whether  there  was  not  a 
manifest  want  of  prudence  in  remaining  in  the  house  after  it 
became  known  to  the  inmates  that  it  was  being  filled  with  gas,^"' 
Where  a  strong  smell  of  gas  prevailed  throughout  the  dwelling 
house,  and  the  gas  company  sent  its  servant  to  repair  the  leak, 
who,  after  professing  that  he  had  made  the  necessary  repairs, 
informed  the  family  that  all  was  safe,  and  assured  them  that 
the  odor  of  gas  came  from  a  gas  post  in  the  street,  it  was  held 
not  negligence  on  their  part  for  the  members  of  the  family  to 
remain  in  the  house  after  receiving  such  assurance.^"*  Of 
course,  the  rule  is  not  so  stringent  as  to  require  the  occupant  to 
leave  the  house  as  soon  as  he  smells  the  escaping  gas,  for  the 
odor  may  be  slight,  although  unusual.  But  even  though  the 
amount  be  small,  yet  it  may  so  accumulate  as  to  render  it  dan- 
gerous, either  by  reason  of  an  injury  inflicted  upon  him  by  an 
explosion  or  to  his  health,  to  remain  in  the  house ;  or  the  gas 
may  escape  in  such  volume  as  to  require  immediate  action  on 
his  part.  But  he  is  not  bound  to  remove  before  making  a  timely 
eifort  to  stop  the  flow  of  escaping  gas  or  to  have  the  gas  com- 
pany stop  it;  unless  it  is  clear,  or  there  is  a  strong  presumption, 
that  it  would  be  dangerous  to  remain  longer  in  the  house.^"" 
Of  course,  the  removal  here  discussed  is  a  removal  of  the  per- 
son and  not  of  his  goods;  for  he  is  not  bound  to  risk  his  healtli 
in  removing  them,  and  there  is  not,  usually,  much  likelihood 
that  they  will  be  injured.^®^* 

§  650.     Duty  of  property  owner  to  cut  off  supply  of  gas. 

The  owner  of  the  property  must  cut  off  the  gas  when  discon- 
tinuing the  supply,  where  the  means  of  cutting  it  off  is  on  his 

iBT  Holly   V.   Boston   Gaslight   Co.,  lo^a  It   has.  l)oon    iield   whether   or 

8  Gray    123;    6!)  Am.   Dec.  233.  not  it  is  c()ntril)utory  negligence  to 

1C8  Richmond    Gas    Co.    v.    Baker,  remain   in   a   house   in   which   gas   is 

146  Ind.   CiiH);   45  N.  E.  Rep.    1049;  escaping  is  a  question  for  the  jury. 

36  L.  R.  A.  683.  Richmond  v.  Gay,   103  Va.  320;   49 

109  Kibele     v.     Philadelphia,     105  S.  E.  Rep.  482. 
Pa.  St.  41. 


LEAKS    AND    KXPLOSIONS.  715 

own  premises,  or  at  least  within  his  iiuihliiiiis ;  and  the  gas 
company  is  under  no  duty  to  enter  tiie  huildin^-  and  cut  oif  the 
gas  in  order  that  explosions  nuiy  be  prevented.  Thus  where 
the  stop-cock  was  within  the  house,  sitiuitcd  between  the  inner 
wall  and  the  meter;  and  the  last  tenant,  on  removing,  gave  the 
usual  notice  that  he  diil  not  reipiire  any  further  supply;  and 
one  of  the  gas  com])any's  workingmen,  at  the  tenant's  request, 
removed  the  chandelier  from  one  of  the  rooms,  leaving  the  end 
of  the  pipe  pro])erly  secured,  the  internal  fittings  being  the 
property  of  the  owner  of  the  house ;  and  while  the  house  re- 
mained untenanted,  the  gas  by  some  unexplained  means  escaped, 
an  explosion  occurred,  and  the  house  was  injured;  it  was  held 
that  the  company  could  not  be  held  lia])le  on  the  theory  that  it 
was  its  duty  to  cut  off  the  supply  of  gas,  but  the  projierty  owner 
was  guilty  of  contributory  negligence  for  not  having  turned 
the  stop-cock  so  as  to  shut  off  the  flow  of  gas/^°  In  another  in- 
stance where  the  consunuM-  was  infonned  that  the  employee 
who  had  turned  on  the  gas  was  not  authorized  to  do  so,  that  it 
was  the  duty  of  another  employee  to  turn  it  on,  that  there  was 
a  leak  in  the  regulators,  and  that  it  could  not  attend  to  the  leak 
before  the  next  morning,  it  was  held  that  tlie  failure  of  the 
consumer  to  turn  off  the  gas  on  receiving  this  information  of 
the  defect  was  such  negligence  as  precluded  a  recovery."^ 

§651.     Searching  for  leaks  with  a  light. 

Courts  will  not  say  as  a  matter  of  law  that  it  is  contributory 
negligence  to  search  for  leaking  gas  with  a  lighted  candle  or  by 
the  use  of  matches.  It  is  not  negligence  per  se  to  thus  search 
for  escaping  gas.^"  Nor  is  taking  a  lighted  lamp  into  a  cellar 
filled  with  gas  an  act  of  contributoi-y  negligence,  as  a  matter  of 
law,  which   will  preclude  a  recovery  for  injuries  occurring  ten 

iTo  Holdon    V.    Liverpool    Gas   Co..  i72  pjne  Bluff,  otv.,  Co.  v.  Sehnei- 

3  C.   B.   1;    1.5  L.   J.  C.   P.  301;    10  der,    02    Ark.    109;    .34    S.    W.    Rep. 

Jur.    883.  .f-,47;   33  L.  R.  A.  3G6 ;  People's  Cns- 

171  Kohler    Brick    Co.    v.    N.    W.  li^rht  and  Coke  Co.  v.  Aniphlctt,   93 

Ohio.    ete..    Gas    Co..    11    Ohio    Cir.  111.    App.    194. 
Ct.  319;  5  Ohio  Cir  Dec.  379. 


74G  OIL    AXI)    GAS. 

minutes  later,  altliouiili  the  person  injured  knew  at  the  time  he 
took  the  light  into  the  cellar  that  it  was  tilled  with  gas.'"^  In 
such  instances  the  question  of  contrihutory  negligence  in  thus 
searching  for  escaping  gas  is  one  fur  the  jury.^'*  And  where 
the  tenant  of  the  plaintitl"  having  smelt  escaping  gas,  which  he 
reasonably  sup]X)scd  proceeded  from  the  furnace,  and  under  that 
impression  went  with  a  lighted  candle  into  the  cellar  to  examine 
such  furnace,  it  was  held  that  there  was  not  such  contributory 
negligence  as  prevented  a  recovery  for  the  damages  occasioned 
by  an  explosion,  the  candle  having  come  in  contact  with  gas 
escaping  from  the  defendant's  pipe/"^  "  The  other  ground  of 
defense,  as  to  the  contributory  negligence  of  the  plaintiff's  in- 
testate," said  the  court  in  one  case,  "  we  do  not  think  should  be 
taken  from  the  jury.  Sometimes  it  is  extremely  dangerous  to 
take  a  light  to  discover  the  location  of  a  gas  leak,  and  some*times 
it  is  not,  depending  upon  various  circumstances';  among  others, 
upon  the  extent  of  the  leak,  the  size  of  the  enclosure  where  lo- 
cated, and  the  length  of  time  the  leak  has  existed.  The  plain- 
tiff's intestate,  a  boy  of  18,  took  a  candle,  with  the  statement 
that  he  had  seen  gas  men  take  a  candle  to  find  a  leak,  and  it  is 
a  fact  that  they  do  so  upon  some  occasions.  The  whole  case  as 
to  the  contributory  negligence  of  plaintiff's  intestate  should  be 
submitted  to  the  proper  judges  of  fact."  ^'"  Searching  for 
leaking  gas  with  a  lighted  taper,  by  the  house  owner  who  dis- 
covers the  escajDe  of  gas  after  a  plumber  employed  to  put  in  gas 
fixtures  has  left,  is  not  contributory  negligence  per  se,  but 
whether  or  not  there  is  such  negligence  is  a  question  for  the 
jury.^^^     Tf  the  gas  is  escaping  in  large  quantities,  the  court 

173  Consolidated  Gas  Co.  V.  Crock-  991;    Stoner   v.   Pennsylvania,    etc., 

er,  82  Md.  1  13;  .'J3  Atl.  Rep.  423;  31  Co.,  40  Pa.  Super.  C't.  Rep.  oitO. 

L.  R.  A.  785.  ^"^  Bartlett     v.     Boston    Gaslight 

'i74Scheemer  v.  Gaslight  Co.,   147  Co.,   122  Masa.   209. 

N.  Y.  529;   42  N.   E.   Rep.  202;    30  i76  Scheenier      v.      Gaslight      Co., 

L.  R.  A.   653;   Pine  Bluff,  etc.,  Co.  swpra- 

V.   Sclineider,  supra;   German-Amer-  i""  Plouk    v.    .Tessop,    178   Pa.    St. 

ican   Ins.   Co.  v.    Standard   Gaslight  71:    27    Pittsb.   L.   J.    (N.   S.)     162; 

Co.,  '67  N.  Y.  App.  Div.  539;   73  N.  39  W.  N.  C.  150;  35  Atl.  Rep.  851. 

Y.   Supp.   973;    Oliver    Stove  Works  In    this    case    the    plaintiff    noticed 

V.    Ft.    Pitt    Gas  Co.,    210   Pa.    141;  leaking    gas,    hut    the    plumber    as- 

59  Atl.  Rep.  819;  Bandler  V.  People's  sured     him     that      "everything      is 

G.  &  C.  Co.,  108  111.  App.  187;  Peo-  right";    and   aft^-r   he    had   left,   the 

pie's   G.    &.  C.    Co.   V.   Amphlett,    93  plaintiff,    still    noticing    it,    took    a 

111.  Anp.  194;  Kibele  v.  Philadelphia,  lighted  candle   and    s^-arched   for   it, 

105  Pa.  St.  41;  Ottersbach  v.  Phila-  as  he  had  seen  the  plumber   do   it. 
delphia,   161   Pa.   Ill;   28  Atl.  Rep. 


LEAKS    AND    EXPLOSIONS.  747 

may  possibly  say  that  it  was  coiitribiitory  negligence  to  search 
for  the  leak  with  a  lighted  taper.'"'*  If  the  owner  of  the  prem- 
ises employ  a  ])lumber,  the  act  of  the  plumlx'r  in  entering  a 
cellar  with  a  lighted  candle  to  locate  a  leak  does  not  prevent 
such  owner  recovering  damages  occasioned  by  an  explosion.'^" 
Where  an  inspector  of  water  meters  went  to  a  shed  to  examine 
a  water  meter  therein  on  the  gaslight  comi)any's  premises,  and 
was  assured  by  the  company's  otticers,  who  were  present,  that 
there  was  no  danger,  although  he  detected  gas  that  had  escaped, 
and  demonstrated  the  fact  by  lighting  matches  themselves;  it 
was  held  that,  he  was  not  precluded  from  recovering  damages  on 
the  ground  of  contributory  negligence,  altliough  he  ap]>rehended 
danger  when  making  the  examination.  The  act  of  the  officers 
of  the  gas  company  had  lulled  his  suspicions;  and  he  had  a 
right  to  rely  upon  their  statements.'''"  So  where  a  laborer  was 
ordered  by  his  superior  to  enter  a  still  and  repair  it,  and  was 
killed  by  an  explosion  of  gas  which  had  entered  for  lack  of  a 
stop-cock,  and  which  was  ignited  by  a  lighted  candle  he  was 
carrying,  it  was  held  that  the  company  was  liable,  although  it 
was  almost  absolutely  certain  that  gas  from  the  other  stills 
nearby  in  use  would  turn  back  into  the  empty  still,  in  the  al)- 
sence  of  a  stop-cock.  It  was  said  that  he  did  not  assume  the 
risk ;  for  he  had  a  right  to  rely  upon  the  duty  of  the  master  to 
furnish  him  a  reasonably  safe  place  within  which  to  Avork.^*^ 
But  to  take  a  lighted  candle  to  a  place  where  it  is  known  that 
gas  in  a  consideral)le  quantity  is  escaping,  is  such  an  act  of 
negligence  as  Avill  prevent  a  recovery  for  damages  occasioned 
by  the  gas  exploding  by  reason  of  its  coming  in  contact  with 
the  light. ^*^  Tn  commenting  up)n  the  last  two  cases  cited.  t\u; 
Supreme  Court  of  Maryland  pointed  out  the  distincti(tn  lie- 
tween  them  and  those  cases  where  it  was  held  not  to  be  con- 
ies pine  BlufT,  etc.,  Co.  V.  Schnei-  "i 'Nrichols  v.  Brush,  etc.,  Co.,  5.3 
der,  stipra.                                                     Hun  137;  6  N.  Y.  Supp.  GOl. 

179  Sthermerhorn    v.   Metropolitan  is-  Oil   City  Giis  Co.  v.  Robinson, 

Gaslight  Co.,  5  Daly  144;  Parry  v.  90  Pa.  St.  1;  1.3  Rep.  253;  Lanipan 
Smith,  L.  R.  4  C.  P.  Div.  325,"  33  v.  Gaslight  Co.,  71  N.  Y.  29.  See, 
Gas  J.  899.  also.  King  v.  Consolidated  Gaa  Co., 

i»o  Washington    Gaslight     Co.     v.       90  N.   Y.   Aj>p.   Div.    160;    85   N.   Y. 
Eckoff,  7  App.  Cas.  D.  C.  372.  Supp.  728;  Ixxlge  v.  Ignited  Gas  Co., 

209  Pa.  553;  5S  Atl.  Rep.  925. 


748  OIL    AND    GAS. 

tributory  negligence  to  use  a  light  in  searching  for  gas:  "  In 
these  cases  where  the  explosion  instantly  followed  upon  a  light 
being  brought  in  contact  with  the  gas,  and  there  could  be  no 
possible  dispute  that  the  bringing  of  the  light  in  contact  with 
the  gas  caused  the  cxi)losion ;  but  when  there  is  not  such  a 
connection  between  the  act  of  entering  the  house  with  a  lighted 
lamp  and  the  explosion  of  gas  as  to  establish  with  a  certainty 
and  to  the  exclusion  of  any  other  reasonable  hypothesis,  the 
relation  of  cause  and  effect,  the  question  as  to  what  caused  the 
explosion  is  for  the  jury  to  solve  under  projx^r  instructions  from 
the  court.  When,  therefore,  as  here,  more  than  ten  minutes 
intervened  between  the  time  the  lamp  w^as  taken  into  the  cellar 
and  the  time  the  subsequent  explosion  occurred,  and  when,  as 
liere,  the  lamp  itself  was  uninjured,  it  would  be  im])0ssible  for 
the  court  to  assume  that  the  lighted  lamp  caused  the  explosion, 
and  to  rule,  as  a  conclusion  of  law,  that  the  plaintiff's  employees 
were  guilty  of  contributory  negligence  in  taking  the  lamp  into 
the  cellar ;  this  is  true  also  with  respect  to  the  lighting  of 
matches  to  ignite  the  gasoline  in  the  stove."  "'^  Where  gas 
escaped  into  a  sewer  from  a  defect  in  a  ]npe,  and  the  plaintiff, 
a  civil  onginoor,  entered  the  sewer,  whereupon  an  explosion 
followed,  it  was  held  that  there  could  be  no  recovery,  the  court 
saying:  "  The  gas  company  was  responsible  for  wdiat  might, 
in  the  nature  of  things,  occur  from  its  neglect,  and  its  re- 
sponsibility w^as  not  limited  by  what  its  officers  may  have 
thought  to ,  be  improbable  or  even  impossible.  The  gas  pipe 
and  sewer  were  in  the  immediate  vicinity  of  each  other.  In 
the  former  was  a  defect,  and  from  it  the  gas,  not  merely  by 
absorpti-on  or  by  gravity,  but  also  by  pressure,  found  its  way 
into  the  sewer.  This  certainly  resulted  from  the  defendant's 
negligence,  because  but  for  the  defective  pipe  there  could  have 
l)een  no  escape  of  gas.  But  the  iilaintift'  was  also  bound  to  the 
exercise  of  a  reasonable  care  for  his  own  safety.  lie  was  a 
civil  engineer,  and  may  be  presumed  to  have  had  some  knowl- 

183  Consolidated  Gas  Co.  v.    Crocker,  supra. 


LEAKS   AND    EXPLOSIONS. 


749 


edge  of  the  dangerous  nature  of  illutninating  gas,  of  its  power 
to  penetrate  the  eartli,  and  of  itvs  explosive  character  wlicu 
mixed  in  certain  quantities  with  common  air.  The  defen(huit 
was  bound  for  the  consequences  of  its  uej^lect,  tliough  these 
consequences  were  not  and  could  iidt  by  ordinary  prudence  have 
been  anticipated,  whilst  the  phiintitf  was  bound  only  to  a 
knowledge  of  the  probable  consequences  of  the  fact  which  he 
was  cognizant,  and  to  that  ordinary  prudence  which  the  conse- 
quences required."  ^**'* 


184  Oil  City  Gas  Co.  v.  Robinson, 
supra.  See  Sauvage  v.  English  Gas 
Co.  of  Paris,  4  Gas  J.  136  (a  French 
case)  ;  Vallee  es  qualite  v.  New  City 
Gas  Co.,  7  Am.  Law.  Rev.  767 ; 
Crown  V.  New  York  Gaslight  Co., 
Anthon's  X.  P.  Cas.  351;  Parkin  v. 
Wirksworth  Gas  Co.,  26  Gas  J.  496. 
Perhaps  if  the  gas  be  accidentally 
lighted  there  may  be  a  recovery. 
Bartlett  v.  Boston  Gaslight  Co.,  122 
Mass.  2^9.  But  where  the  pipes  of 
the  defendant  under  and  around  the 
plaintiff's  building  leaked,  and  a 
blacksmith  carelessly  .  permitted  a 
red-hot  iron  to  fall  through  the  floor 
of  his  shop  in  the  building,  whereby 
an  explosion  was  occasioned,  it  was 
held  that  the  defendant  was  not 
liable;  for  the  leaking  was  not  the 
proximate  cause  of  tlie  fire.  Jen- 
nings V.  Davis,  187  Fed.  703. 

It  is  not  negligence  for  the  owner 
of  a  house  to  leave  a  house  vacant 
for  nearly  a  month  without  inspec- 
tion. Where  a  house  was  thus  left 
vacant,  and  an  odor  of  gas  was  dis- 
covered in  and  about  it,  and  the 
neighbors  called  a  policeman,  who, 
in  searching  for  tlie  place  of  tiie 
escape  of  the  gas,  presented  a 
lighted  candle  at  an  opening,  caus- 


ing an  explosion,  it  was  held  tliat 
the  negligence  was  not  tlie  negli- 
gence of  the  owner.  Baltimore  Con- 
solidated Gas  Co.  V.  Getty  (Md.), 
54  Atl.  Rep.  660. 

Early  in  the  morning  it  was  dis- 
covered that  gas  was  escaping  in  a 
house,  and  one  occupant  of  it  was 
asphyxiated.  The  owner,  being  un- 
able U^  shut  it  off  from  the  building, 
between  8  and  fl  o'clock,  telejihoned 
the  defendant,  stating  tlie  facts,  and 
asked  that  some  one  be  sent  at 
once,  which  was  promised,  but  no 
one  came  until  2  o'clock  in  the  after- 
noon. Abotit  noon  he,  in  attempt- 
ing to  find  the  leak,  lighted  a 
match,  wliicli  caused  an  explosion 
of  gac  accumulated  inside  of  a  par- 
tition where  was  a  defect  in  a  l>ipe, 
which  caused  the  leak. 

It  was  held  tliat  the  plaintiff, 
wiio  occupied  a  room  in  the  house, 
was  entitled  to  recover  for  damages 
she  suffered  by  the  explosion,  and 
that  one  of  the  causes  of  her  injury 
was  the  failure  of  the  defendant  to 
act  with  reasonable  promjitness 
when  notified  of  the  dangerous  ctin- 
dition  of  the  premises.  Memphis 
Consolidated  Gas,  etc.,  Co.  v. 
Creighton,   183  Fed.  552. 


;o 


OIL    AN])    GAS. 


§652.     Contributory  negligence  a  question  for  the  jury. 

Whether  or  not  tlic  ])l:iiiitiir  has  hecn  guilty  of  such  negli- 
gence as  ('ontrih\it(Ml  tn  the  iiijiirv  is  a  question  for  the  jury, 
under  the  instrnetion.s  of  the  court. ^'^^  Where  the  charge  was 
injury  to  the  plaintiff's  health  by  gas  esca])ing  into  the  house, 
it  was  held  to  be  a  question  for  the  jury  whether  remaining  in 
the  house  after  a  knowledge  that  gas  was  escaping  was  not  a 
manifest  lack  of  prudence.^**^  And  where  the  charge  was  that 
gas  escaped  into  the  ])arn  and  killed  ]>laintiff's  horse,  it  was 
held  a  (]uestion  for  the  jury  to  determine  whether  he  was  guilty 
of  contributory  negligence  in  leaving  the  horse  in  the  barn 
after  discovering  the  odor  of  gas,  the  odor  not  being  so  strong 
as  to  possibly  impress  upon  him  a  sense  of  actual  danger. ^^^ 
To  defeat  the  plaintiff,  his  contributory  negligence  must  con- 
tribute materially  and  essentially  to  the  injury;  and  the  jurors 
are  the  judges  of  this  question. ^^^^  The  conduct  of  the  parties 
may  be  shown,  in  order  that  the  jury  may  determine  whether  or 
not  the  plaintiff  neglected  to  use  ordinary  care  in  seeking  relief 
or  resorting  to  expedients  readily  available  for  his  own  pro- 
tection and  security.^'*''  Where  the  deceased  was  killed  by  in- 
haling gas,  but  the  evidence  showed  that  he  was  under  certain 


185  Kibele  v.  Philadelphia,  105  Pa. 
St.  41;  Ottersbach  v.  Philadelphia, 
161  Pa.  St.  Ill;  28  Ail.  Rep.  991; 
Holly  V.  Boston  Gaslight  Co.,  8 
Gray  123;  69  Am.  Dec.  233;  Schee- 
mer  v.  Gaslight  Co.,  147  N.  Y.  529; 
42  N.  E.  Rep.  202 ;  30  L.  R.  A.  653 ; 
Pine  Bluff,  etc.,  Co.  v.  Schneider, 
62  Ark.  109;  34  S.  VV.  Rop.  547; 
33  L.  R.  A.  366;  German-American 
Ins.  Co.  V.  Standard  Gaslight  Co., 
67  N.  Y.  App.  Div.  539;  73  N.  Y. 
Supp.  973;  Oliver  Stove  Works  v. 
Ft.  Pitt  Gas  Co.,  210  Pa.  141;  59 
Atl.  Rep.  819;  Handler  v.  People's 
G.    &    C.    Co.,    108    111.    App.    187; 


People's  G.  &  C.  Co.  v.  Amphlett,  93 
111.  App.  194.  See  Hamma  v.  Haver- 
hill Gaslight  Co.,  203  Mass.  572;  89 
N.  E.  Rep.   1043. 

186  Holly  V.  Boston  Gaslight  Co., 
8  Gray  123;  69  Am.  Dec.  233.  See 
Hunt  V.  Lowell  Gaslight  Co.,  1 
Allen  343. 

187  Lee  V.  Troy,  etc.,  Co.,  98  N.  Y. 
115. 

188  Oil  City  Fuel  Supply  Co.  v. 
Boundy,  122  Pa.  St.  449;  15  Atl. 
Rep.  865;  Lanigan  v.  New  York 
Gaslight  Co.,  71  N.  Y.  29. 

189  Holly  v.  Boston  Gaslight  Co., 
supra. 


LEAKS    AND   EXPLOSIONS.  751 

stress  of  duty,  it  was  hold  to  Ix'  a  (luestion  for  the  jurv  wlicthcr 
the  risk  run  did  not  sccni  to  be  great,  and  if  tlicrc  had  been 
ventilation  would  not  have  been  great ;  and  for  that  reason  he 
could  have  taken  the  risk  without  releasing  the  defendant  by 
his  contributory  negligence.*""  An  inspect<u'  (jf  a  water  com- 
]>any  went  upon  the  premises  of  a  gas  company  to  examine  a 
gas  meter.  The  meter  was  in  a  shed,  and  the  officers  of  the 
gas  company  assured  him  that  there  was  no  danger  in  taking 
a  lighted  candle  into  the  shed,  and  demonstrated  the  fact  by 
themselves  lighting  matches  first.  He  was  injured  by  an  ex- 
plosion of  gas  that  had  accumulated  in  the  shed.  It  was  held 
that  the  fact  the  inspector  had  apprehended  danger  was  r\oi 
conclusive  evidence  of  contributory  negligence  on  his  part,  but 
the  question  was  one  for  the  jury."^ 

§653.     Negligence  of  parent,  wife  or  servant. 

In  those  jurisdictions  where  the  negligence  of  the  father  or 
mother  is  allowed  to  defeat  the  right  of  his  minor  child  to  re- 
cover damages  caused  by  the  inhaling  of  gas  or  its  explosion,  the 
child  must  show  not  oidy  that  it  was  free  from  contributory 

190  Finnegan  v.  Fall  River  Gas  asphyxiation  by  gas  from  defective 
Works  Co.,  159  ]\tass.  311;  34  X.  E.  fixtures  in  the  room  assigned  to 
Rep.  523:  Citizens'  Gaslight,  etc.,  him,  the  question  is  for  the  jury, 
Co.  V.  O'Brien,  118  111.  174;  8  N.  whether  the  defendant  was  negli- 
E.  Rep.  310.  gpnt    and    the     jilaintiir    free    from 

191  Washington  Gaslight  Co.  v.  contributory  negligence.  If  the 
EcklofT,  7  App.  D.  C.  372.  defect  in  the  room  was  obvious,  the 

Where  a  city  caused  breaks  in  gas  guest  must  use  reasonable  care  to 
pipes  in  digging  a  sewer,  it  was  avoid  the  injury,  and,  if  he  failed 
held  that  the  owner  of  a  cellar,  in  to  do  so,  he  can  not  recover.  'Ihe 
which  an  explosion  occurred  could  innkeeper  was  not  an  insurer  of  his 
not  have  anticipated  that  the  cs-  guest's  personal  safety,  but  his 
caping  gas  would  follow  an  old  liability  does  extend  to  injury  re- 
sewer  into  his  cellar.  Aurora  Gas-  ceived  by  him  from  being  placed  in 
light  Co.  V.  Bishop,  81  111.  App.  493.  unsafe  or  unsanitary  rooms.   Patrick 

In   an   action   by   a   guest   against  v.    Spring    (N.   C),    70    S.    E.    Rep. 

an     innkeeper     for     damages     from  395. 


752  OIL   AND    GAS. 

negligence,  but  also  its  father  or  mother ;  and  a  want  of  ordinary 
care  of  the  father  or  mother  will  defeat  its  cause  of  action.*""'^ 
But  it  has  been  held  that  negligence  on  the  part  of  the  parent 
which  partly  occasioned  the  accident  was  not  such  negligence 
as  would  defeat  its  cause  of  action  ;  and  that  negligence  which 
would  not  defeat  an  adult  was  not  such  as  would  defeat  a 
minor. ^'■*"'  Where  the  evidence  in  a  case  showed  that  the 
mother  and  her  infant  child,  who  was  the  plaintiff,  slept  together 
in  a  room  without  gas  fixtures,  and  in  the  morning  the  mother 
was  found  dead  and  the  child  insensible,  and  there  was  an  en- 
tire absence  of  evidence  to  show  that  either  the  mother  or  child 
knew  of  the  escape  of  gas,  or  was  conscious  of  its  presence,  in 
time  to  leave  or  take  precautions  against  or  prevent  its  effect 
by  opening  the  windows ;  and  it  was  shown  that  the  mother 
was  a  sober  and  prudent  woman ;  and  that  on  the  day  before 
there  was  no  smell  of  gas  in  the  street,  it  was  held  that  the  evi- 
dence showed  due  care  on  the  part  of  the  child. ^"^  The  negli- 
gence of  the  husband  or  his  servant  acting  under  his  directions 
will  bar  the  right  of  the  wife  to  recover.^^^  So  the  negligence 
of  the  plaintiff's  servant  will  bar  his  (the  plaintiff's)  right  to 
recover;  as  where  he  went  with  a  lighted  candle  to  search  for 
escaping  gas.^""  So,  again,  the  negligence  of  the  deceased  will 
bar  his  representatives.^^^  But  where  the  deceased  was  a 
servant,  and  was  directed  to  go  to  the  place  by  the  use  of  a  ladder 
of  a  certain  length,  but  selected  one  much  shorter;  it  was  held 
that  he  was  bound  to  select  the  course  which  was  farthest 
from  danger,  and  if  there  was  any  difference  in  the  two  ways, 
it  was  a  question  for  the  jury  to  determine  if  he  deliberately 
chose  the  most  dangerous  one.^*^^ 

192  Holly  V.  Boston  Gaslight  Co..  hand  sent  a  servant  to  search  for 
8  Gray  123;  69  Am.  Dec  233.  gas,  who  took  a  lighted  candle. 

193  Lannen  v.  Albany  Gaslight  loe  pine  Bluff  Water  and  Light 
Co..  46  Barb.  264;  affirmed  44  N.  Y.  Co.  v.  Schneider,  62  Ark.  109;  34 
459.  S.  W.  Rep.  547 ;  33  L.  R.  A.  366. 

194  Smith  V.  Boston  Gaslight  Co.,  i9t  Lehigh  Valley  Coal  Co.  v. 
129   Mass.    318.  Jones,   86   Pa.   St.  432. 

195  Vallee  es  qualite  v.  New  City  i98  Citizens'  Gaslight,  etc..  Co.  v. 
Gas  Co.,  7  Am.  Law  Rev.  767.    Hus-  O'Brien,  118  111.  174;   8  N.  E.  Rep. 

310. 


LEAKS   AND    EXPLOSIONS.  753 

§654.     Contributory  neg^ligence   of  tenant  may  bar  landlord, — 
reversionary  interest. 

The  negligence  of  the  tenant  will  bar  the  landlord  recovering 
for  damages  to  his  property  caused  by  an  explosion.'""  Tims 
where  gas  csca|)od  from  a  street  main  into  a  house,  and  the  ten- 
ant going  in  search  of  the  esca])ing  gas  with  a  lightctl  candh! 
caused  an  explosion,  it  was  held  that  if  he  was  negligent,  thus 
causing  the  explosion,  the  landlord  could  not  recover  for  injuries 
to  his  house.  'Mf  tlie  tenant,"  said  the  court,  "  u]wn  discovering 
the  presence  of  gas  in  a  large  (piantity  in  the  house,  neglected 
to  give  notice  to  the  .agents  or  servants  of  the  gas  company,  or 
take  reasonable  precautions  to  remove  or  exclude  the  gas,  and 
recklessly  brought  the  flame  of  a  candle  in  contact  with  it,  thus 
bringing  about  injurious  effects  wliieli  would  not  have  followed 
but  for  such  reckless  or  negligent  conduct  on  his  part,  the  gas 
company  ought  not  to  be  held  responsible  for  those  results.  If 
the  intervening  misconduct  of  the  occupant  of  the  building 
produced  the  explosion,  which  was  the  immediate  cause  of  the 
injury  to  the  building,  the  plaintiff  cannot  charge  the  legal  re- 
■  sponsibility  for  that  result  upon  the  original  negligent  act  or 
omission  of  the  gas  company."  ^°°  But  if  the  tenant  was  not 
guilty  of  any  negligence,  then,  of  course,  the  landlord  could 
recover  damages  from  the  gas  company.  In  such  an  event  the 
landlord  has  the  burden  to  show  that  the  injury  was  caused  by 
the  gas  company's  negligence ;  that  the  tenant's  negligence  did 
not  materially  contribute  to  the  injury,  in  addition  to  slnnving 
that  his  own  act  did  not  contribute  to  it ;  and  that  the  tenant, 
if  he  discovered  the  presence  of  gas,  took  reasonable  means  and 
precautions  to  remove  and  exclude  it,  or,  if  he  had  no  knowledge 
of  what  precautions  should  have  been  taken,  he  made  ])roper  ef- 
forts to  notify  the  gas  company.  If  the  tenant  accidentally 
ignited  the  gas,  or  if  he  reasonably  supposed  the  gas  proceeded 
from  another  source,  as  from  a  furnace,  and  under  that  impres- 
sion went  in  search  of  it  with  a  light,  thus  causing  an  explosion, 

mnrrool    v.    Charlpston.    eto..    Gas  2""  Bartlott     v.     Boston     CJnslight 

Co..  51    W.  Va.    120;    41    S.   E.  Rep.       Co..  117  Mass.  r)33 ;   19  A.  Rop.  421. 
174. 


754  OIL   AND   GAS. 

tlic  landlord  may  recover  for  the  damages  occasioned  his  house 
by  the  ox])losion.'°^ 

§655.     Negligence  of  contractors. —  Lessee. 

A  gas  company  cannot  escajjc  liability  by  simply  placing  the 
management  of  its  gas  works  in  charge  of  a  person  called  a 
"  lessee."  """  But  there  is  no  doubt  that  the  company  would 
not  be  liable  if  it  had  made  an  actual  lease -of  its  plant,  and 
surrendered  all  control  over  it.  Where  a  contractor  had  not 
yet  turned  over  to  the  gas  coinjiany  the  plant,  including  the 
mains  in  the  street,  he  was  constructing  for  it ;  and  gas  escaped 
because  the  mains  Avere  not  securely  connected  with  each  other, 
the  gas  company  was  held  liable.  As  to  third  persons  the  con- 
tractor was  regarded  as  the  agent  of  the  gas  company,  on  the 
ground  that  the  right  to  lay  and  put  down  gas  mains  in  the 
street  was  a  permission  from  the  miuiici])ality  and  the  exercise 
of  a  right  under  its  charter;  and  therefore  the  gas  company 
could  not  escape  liability  of  letting  the  contract  to  an  independ- 
ent contractor.  In  passing  on  the  case  the  court  used  the  fol- 
lowing language:  "Even  though  the  person  who  causes  the 
injury  is  a  contractor,  he  will  be  regarded  as  the  servant  or 
agent  of  the  corporation  for  which  he  is  doing  the  work,  if  he 
is  exercising  some  chartered  privilege  or  power  of  such  corpora- 
tion with  its  assent  which  he  could  not  have  exercised  inde- 
pendently of  the  charter  of  such  corporation.  In  other  words, 
a  company  seeking  and  accepting  a  special  charter  must  take 
the  responsibility  of  seeing  that  no  wrong  is  done  through  its 
charter  powers  of  persons  to  whom  it  has  pennitted  their  exer- 

201  Bartlett     v.     Boston     Qiislifftit  source  of  the  escapinjr  gas,  causing 

Co.,    122    ]\Iass.    209.      See    Sherman  an  explosion  by  which  he  is  injured, 

V.    Fall    River    Iron    Works    Co.,    2  has  contributed  to  hi^^  injury  to  tlie 

Allen  524.  cxteht  that  he  is  barred  from  recov- 

It  cannot  be  said  as  a  matter  of  ering    damages.      People's    Gaslight 

law  that  a  tenant  of  a  flat,  who  per-  and    Coke    Co.    v.    Amphlett,    0.3    111. 

ceives  the  odor  of  escaping  gas,  en-  App.  104. 

ters  an  adioinin<T  vacnnt  anartment  -"^  rnnso^idated    Coal    Co.  v.   Sen- 

without  permission,  litrhts  a    nvtrh  inirer.  70  111.  App.  4.^6 •  affirmed  170 

to     aid     him     in     ascertiiinin^     the  111.  370. 


cise 


LEAKS    AND    KXl'I.OSIONS.  755 

"  203     33ijt  a  result  diainotrionlly  opposite  to  this  decision 


was  reached  in  another  State ;  and  in  passing  on  the  case  the 
court  used  the  following  language:  "It  is  to  be  regretted 
that  corporations  invested  with  the  right  of  appropriating  pri- 
vate property  and  entering  the  puhlic  highways  for  the  ])urj)ose 
of  laying  their  pipes  in  which  to  transport  and  distribute  one  of 
the  most  dangerous  natural  agencies  in  existence  should  he 
permitted  to  relieve  themselves  from  the  duties  and  responsibili- 
ties of  business  by  letting  part  of  the  work  rocpiiring  the  highest 
degree  of  care  to  an  independent  contractor,  but  the  law  is  so 
settled."  '"*  Where  the  plaintiff  was  a  butler  in  the  employ 
of  a  club,  and  defendant  had  been  employed  by  the  club  to 
make  alterations  in  the  club  house,  and  he  had  contracted  with 
a  gasfitter  to  do  the  gas  fittings,  which  he  did ;  it  was  held 
that  if  the  gasfitter  laid  down  any  pipe  not  specified  in  his  con- 
tract with  the  defendant,  and  by  reason  of  a  defect  in  such  pipe 
the  gas  escaped,  the  defendant  was  not  liable;  and  it  was  also 
held  that  even  if  the  pipe  was  included  in  the  contract,  and  the 
gas  had  been  turned  on  by  the  plaintiff's  own  order  while  the 
defendant's  men  were  in  the  house,  the  house  being  unoccupied 
and  not  completed,  that  the  plaintiff  could  not  recover."'^' 


203  Economic  Fuel  Gas  Co.  v.  My- 
ers, 168  111.  139;  49  N.  E.  Rep.  66; 
affirming  64  111.  App.  270;  1  Cliic. 
L.  J.  Wkly.  276.  A  similar  decision 
is  Hardaker  v.  Idle  Dist.  Council 
[1896],  1  Q.  3.  335;  65  L.  J.  Q.  B. 
(N.  S.)  363;  74  Law.  T.  Rep.  69; 
44  W.  R.  323;  60  J.  P.  196.  For 
other  cases  to  same  effect,  see  Gray 
V.  Pullen.  5  B.  and  S.  970;  34  L.  J. 
Q.  B.  265;  11  L.  T.  569;  13 
W.  R.  257;  Woodman  v.  Metropt)!- 
itan,  etc.,  Co.,  149  Mass.  335;  21 
N.  E.  Rep.  482;  4  L.  R.  A.  213; 
Denninjj  v.  Terminal  Ry..  49  N.  Y. 
App.  Div.  493;  63  N.  Y.  Supp.  615; 
Vosheck  V.  Kellorr  (Minn.).  80  \. 
W.  Rep.  957;  Holliday  v.  Nat.  Tele- 
phone Co.,  68  L.  J.  Q.  B.    101(1;    81 


L.  T.  2.52;  47  W.  R.  658;  15  T.  L. 
R.  483;    [1899]  2  Q.  B.  392. 

-"•*  Chartiers  Valley  Gas  Co.  v. 
Lynch.  118  Pa.  St.  362;  12  All.  Rep. 
435;  Chartiers  Valley  Gas  Co.  v. 
Waters.  123  Pa.  St.  220;  16  Atl. 
Rep.  423;  25  Am.  and  Eng.  Corp. 
Cas.  400.  See  Phopnix,  etc.,  Co.  v. 
Dethick,  14  Gas  J.  536. 

A  pas  company  l>y  perniittinij  a 
consimier  to  employ  a  person  to  put 
in  a  gas  pipe  and  turn  on  the  gas, 
does  not  make  such  person  its  agent, 
so  as  to  render  it  liahle  for  an  ex- 
plosion caused  hy  his  negligence. 
Flint  V.  Gloucester  Gaslight  Co.,  3 
Allen    343. 

2"-^  Rapson  V.  Cnl.itt.  9  Mess.  & 
Wels.,  710;  C.  and  M.  64. 


756  OIL.   AND   GAS. 

§656.     Right  of  action  over. 

The  fact  that  a  gas  company  has  l)ecn  compelled  to  pay  dam- 
ages because  of  its  negligence  will  not  always  bar  its  right  to 
recover  from  the  person  guilty  of  the  original  act  that  led  on  to 
the  negligent  conduct  of  the  company.  Thus,  where  it  appeared 
from  the  evidence  that  an  explosion  was  occasioned  by  gas  leak- 
ing from  a  broken  ])ij)C  of  the  ])laintilf  gas  company,  and  that 
judgiuents  had  been  recovered  against  it  by  the  parties  injured, 
from  which  appeals  had  been  taken  which  were  subsequently 
compromised ;  it  was  held  that  the  gas  company  could  recover 
from  the  traction  company  the  damages  it  had  sustained  by 
reason  of  the  negligence  of  the  latter  in  excavating  the  street 
and  causing  the  breaking  of  its  pipe,  in  an  action  of  trespass 
brought  to  recover  the  money  paid  by  it  for  the  injuries  caused 
by  the  negligence  of  such  traction  company.^"^ 

§657.     Liability  of  g-asfitter. 

If  a  gasfitter,  in  fitting  up  a  house,  put  in  defective  pipes; 
or  if  in  repairing  those  already  in,  he  repairs  them  defectively, 
and  thereby  gas  escape  and  injure  the  inmates,  or  explodes, 
injuring  the  house,  he  will  be  liable  for  the  damages  sustained, 
the  same  as  where  a  gas  company  negligently  permits  gas  to 
escape.  ^"^ 

§658.     Evidence  to  show  due  care  on  gas  company's  part. 

The  defendant  gas  company  may  always  show  that  it  had 
used  due  care  to  prevent  leaks  or  explosions,  and  for  that  pur- 

The  action   for   damajres   incurred  Atl.   Rop.   9.34.     See  District  of  Co- 

from    the    operation    of    a    plant    is  liimbia  v.  Washington  Gasliaht  Co., 

properly  brought  against  the  person  'J   Mackey   .30;    161    U.    S.   316. 

operating  it,  although   another  per-  207  Parry  v.  vSmith,  L.  R.  4  C.  P. 

son   defectively   erected   such   plant.  Div.  325;  33  Gas  J.  800;  Hemstead 

Hyde     Park,     etc.,     Co.     v.     Porter,  v.   Phoenix  Gaslight,  etc.,  Co..   3  H. 

167    111.    276;    47    N.    E.    Rep.    206;  and  C.  745;    11   Jur.  N.  S.  626;    13 

affirming  64  Til.    App.   152.  W.  R.  662;    34  L.  J.  C.  P.   108;    14 

201  Philadelphia     To.     v.     Ccntnl  Gas    J.    390;    Moore    v.    Lanier,    52 

Traction   Co.,    165   Pa.    St.   456;    30  Fla.  353;  42  So.  Rep.  462. 


LEAKS   AND    EXPLOSIONS. 


7;-)? 


pose  it  niav  show  that  it  had  uscil  pnijicr  material  in  tlic  om- 
structioii  of  its  phuit ;  that  it  had  used  j)roper  pipes  or  mains, 
where  the  charge  is  that  they  liad  hecome  weak  and  rotten  from 
long  use  or  from  the  effect  of  the  elements  \ipon  them."""  And 
where  the  eharii-e  is  that  it  neiiliiicntlv  |»eniiilted  the  pis  to 
escape  after  it  had  notice  that  it  was  escajnng,  the  company,  to 
show  due  diligence  on  its  part,  may  show  its  system  of  com- 
plaints for  leaks,  and  what  was  its  course  of  business  with 
regard  to  such  comjilaints,  for  the  j)ur]iose  of  showing  that  due 
preparation  for  accidents  had  been  made  by  it,  but  not  for  the 
purpose  of  showing  that  it  had  exerted  the  same  degree  of  dili- 
gence it  did  in  the  case  as  it  had  done  in  other  cases.^°°  In  one 
case  it  was  held  that  the  original  entries  in  the  gas  company's 
books  of  leaks  and  repairs  along  the  line  of  pipe  for  five  months 
prior  to  the  explosion  where  it  was  charged  the  leak  occurred 
were  competent,  as  tending  to  show  that  the  company  had  pro- 
vided an  adequate  system  for  the  ]iroteetion  of  the  ]iuhlic  from 
the  unusual  danger  of  escaping  gas.-^'^  Copies  of  notices  sent 
by  the  gas  company  to  consumers  calling  attention  to  the  lia- 
bility of  leaks  to  occur  from  the  excavations  being  made  in  the 
streets  by  the  city  or  various  construction  companies  within 
a  year  or  so  prior  to  the  accident  complained  of,  are  ad- 
missible on  the  question  of  due  care  on  the  part  of  the  gas  com- 
pany.-^ 


208  Consumers'  Gas  Trust  Co.  v. 
Corbaley.  14  Ind.  App.  ;)49;  4.3  N. 
E.  Rep.  237. 

2on  Holly  v.  Boston  Cxaslifrlit  Co., 
8  Gray  123;  60  Am.  Dec.  233. 

aioKoplan  v.  Boston  Gaslight  Co., 
177  Mass.  1.5;  58  N.  E.  Rep.  183; 
Powers  V.  Boston  Gaslight  Co..  158 
Mass.  257 ;  33  X.  E.  Rep.  523. 

The  rules  of  boards  of  fire  under- 
writers and  other  electric  light  com- 
panies, prescribing  the  manner  of 
wiring  buildings,  are  inadmissible 
evidence  on  an  issue  whether  an 
electric  light  company  had  defective- 
ly insulated  its  wires  in  a  building. 


Dcchert  v.  Municipal,  etc.,  Co.,  57 
N.  Y.  Supp.  225. 

211  Powers  V.  Boston  Gaslight  Co., 
158  Mass.  257;   33  N.  E.   Rep.  .523. 

^^■here  tlie  gas  escaped  from  a 
street  main,  passed  under  the  fro/en 
crust  of  the  surface  of  the  ground 
into  the  plaintiff's  cellar,  a  witness, 
experienced  in  digging  holes 
through  tlie  frozen  earth,  was  al- 
lowed to  testify  how  much  labor  it 
would  take  to  dig  such  holes  as  had 
l)een  dug  by  the  gas  company 
throiigh  the  frozen  earth  in  search 
for  the  leaks,  in  order  to  show 
wlictlicr  it  bad  \ised  reasonable  dili- 


758  OIL   AND   GAS. 

§659.     Expert  evidence  to  show    effect  of  electrolysis. 

Where  the  question  arises  that  the  defects  in  the  gas  mains  or 
pipes  were  caused  bv  electrolysis,  experts  may  be  called  to  show 
what  effect  electricity  has  u|X)n  <ras  mains  or  pipes,  and  its 
tendency  to  destroy  the  iron  til)re  and  render  them  unsafe,  and 
to  give  their  opinions  that  the  pipes  were  affected  by  electrolysis, 
and  tlio  reasons  for  their  opinions. "^^ 

^660.     Evidence  in  cases  of  inhalation  of  gas. 

In  an  action  to  recover  damages  occasioned  by  the  inhalation 
of  gas,  aside  from  the  question  of  an  expert  evidence,  it  may 
be  shown  that  the  plaintiff  and  other  members  of  his  family 
living  witli  him  had  been  in  good  health  until  the  influx  of 
gas;  and  that  after  that  they  all  l^ecame  ill,  or  even  some  of 
them  died.'^^  Xo  particulars,  however,  of  the  sickness  of  the 
other  members  of  the  family  are  admissible  to  show  the 
nature  of  the  gas  and  its  effects  upon  such  other  mem- 
bers, who  inhaled  it  at  the  same  time  with  the  plaintiff.^"  Xor 
is  it  admissible  to  show  that  wherever  the  gas  entered  a  house 
in  the  neighborhood,  where  their  drains  were  connected  with 
the  sewers  through  which  the  gas  escaped  into  the  plaintiff's 
house,  sickness  followed. "^^  Xor  can  it  be  shown  that  gas  es- 
caped into  a  block  of  houses  directly  opposite  plaintiff's  house, 
in  order  to  charge  the  defendant  with  notice  of  the  leak,  before 
it  is  shown  it  came  into  the  ])laintiff's."^*''  Where  the  plaintiff's 
theory  is  that  the  gas  escaped  into  a  sewer,  and  thence  through 
the  house  drain  into  his  house,  it  may  bo  shown  that  it  entered 
other  houses  simiharly  connected  with  the  same  sewer,  or  with 
a   sewer   entering   into   the   sewer   into    which    it   is   claimcMl    it 

gence   in   finding   and    stopping   the  Co.,   44    N.    Y.    App.   Div.    158;    60 

leak.      Emerson   v.    Lowell    Gaslight  N.  Y.  Supp.  628. 

Co..  3  Allen  410.  2i4Hunt   v.    Lowell    Caslight   Co., 

2i2Koplan  V.  Boston  Gaslight  Co.,  8  Allen  160;   85  Am.  Dec.  697. 
177  Mass.    15;    58   N.    E.   Rep.    183.  ^ir,  TJnnt    v.    Lowell    Gaslight   Co., 

213  Hunt  V.   Lowell   Gaslight   Co.,  3  Allen  410. 
1    All.^n   343:    TTiint    v.   Lowell    Gas-  210  Emerson     v.     Lowell     Gaslight 

lig-ht  Co..  8  Allen  169;   85  Am.  Dec.  Co..  6  Allen   146;   83  Am.  Dec.  621. 

697.     See  Beyer  v.  Consolidated  Gas  But   see   .\pfelbach   v.    Consolidated 

Gas  Co.    (Pa.),  54  Atl.  Rep.  359. 


LEAKS   AND    EXPLOSIONS. 


7;')!) 


escaped. "^^  The  gas  company  may  not  introduce  evidonoo  to 
show  that  plaintiff's  sickness  iuid  his  family's  was  in  fact 
typhoid  fever,  that  earlier  occupants  c^f  the  house  had  heen 
attiicted  with  much  illness  of  the  same  character,  that  several 
families  had  been  compelled  to  recover  from  it  on  tluit  account, 
and  that  its  location  was  low,  u])on  made  land,  and  it  was 
generally  regarded  to  he  uidiealthy.-'"  It  may  be  shown  that 
gases  were  set  in  motion  by  the  illuminating  or  natural  gas 
escaping  into  the  sew(>r  wluu-e  they  were,  and  that  they  were 
pushed  into  the  plaintiff's  house,  causing-  illness  of  wlii<-h  com- 
plaint is  made.''"  If  the  charge  l>e  that  the  company's  escaj)- 
ing  gas  caused  the  death  of  the  plaintiff's  child,  the  plaintiff 
must  shoAV  not  only  the  negligence  of  the  company,  the  fact  that 
the  death  was  due  to  it.  and  that  neither  he  nor  the  cliild  con- 
tributed to  it,  where  the  plaintiff  is  required  to  show  his  free- 
dom from  contributory  negligence.''"  In  the  case  just  cited, 
the  child  was  found  dt^id  in  a  cellar,  the  gas  csca])Ing  fi'oiii  a 
leak  in  a  joint  of  the  gas  pijie,  which  had  never  leaked  bef(U'o 
and  around  which  the  plaintiff  had  just  caused  a  load  of  coal 
to  be  thrown  ;  but  the  ]->hysician  could  not  say  that  its  death 
was  due  to  the  iidinlaticui  of  gas;  and  it  was  held  that  an  in- 
struction to  find  for  the  gas  company  was  proper.'"'      Evidence 


21'^  Butcher  v.  Providence  Gas  Co., 
12  R.  I.  149;  34- Am.  Kep.  (i2G;  18 
Alb.  L.  Jr.  372.  Ottawa  Gaslight 
and  Coke  Co.  v.  Graham,  35  111. 
346. 

218  Hunt  V.  Lowell  Gaslight  Co., 
1    Allen    343. 

219  Hunt  V.  Lowell  Gaslight  Co., 
8  Allen  1G9;  85  Am.  Dec.  007. 

As  to  what  is  suflicient  to  show 
due  care  on  the  part  of  the  plaintiff 
who  has  breathed  the  gas  while 
asleep,  see  Smith  v.  Boston  Gaslight 
Co.,  129  Mass.  318,  cited  elsewhere, 
and  Rhogland  v.  St.  Paul  Gaslight 
Co.    (Minn.).  93  N.  W.  Rep.  (if.S. 

220  State  V.  Consolidated  Gas  Co.. 
85  Md.  637;  37  Atl.  Rep.  263.  See 
Apfelhach  v.  Consolidated  Gas  Co., 
(Pa.),  54  Atl.  Rep.  3.59;   Morgan  v. 


tJnited  Gas  Imp.  Co.,  &14  Pa.  109; 
63  Atl.  Rep.  417. 

2-'i  It  may  be  shown  that  the 
plaintiff  for  a  long  time  —  as,  for 
two  years  —  made  no  claim  for  dam- 
ages. Emerson  v.  Lowell,  3  .Mien 
41ft. 

The  master  is  not  liable  for  in- 
juries to  his  servant  from  exjinsure 
to  poisonous  gases  generated  by  coal 
fires  in  his  shop,  whose  elTect  is  en- 
liaiued  by  the  admission  of  extreme 
cold  air,  where  he  is  ignorant  of 
the  unwholesome  and  dangerous  con- 
dition of  tlie  building,  and  could 
not,  by  the  exercise  of  ordinary  care, 
have  known  of  the  danger.  Mait- 
land  V.  C.  L.  &  R.  R.  Co.,  3  Ohio 
Leg.  News.  289. 


760 


OIL   AND    GAS. 


is  admissible,  in  case  of  an  iiijurv  frdiii  inlmlintj:  S'^^)  to  show 
that  wlien  artificial  rcsj)iration  was  resorted  to  the  odor  of  gas 
coming  from  the  lungs  was  perceptible.'"" 

§661.     Expert  evidence  on  inhalation  of  gas. 


Where  the  action  is  to  recover  damages  caused  to  the  ])lain- 
tiif  or  his  intestate  by  the  iidialing  of  gas  that  had  been  negli- 
gently released,  or  permitted  to  escape,  testimony  of  i)hysicians 
to  show  the  etfect  upon  the  health  or  system  of  the  plaintiff  or 
the  intestate  is  admissible;  and  they  may  testify  whether  or 
not  the  breathing  of  the  gas  produced  the  ]>articular  sickness  it 
is  claimed  to  have  done.^"^  But  a  physician  who  had  been  in 
practice  for  several  years,  without  any  experience  concerning 
the  effects  upon  the  health  by  breathing  iUuniinating  gas,  was 
held  not  to  be  qualified  to  testify  in  relation  thereto  as  an  ex- 
pert, and  ex]>erience  gained  from  attending  upon  other  persons 
made  ill  by  breathing  gas  from  the  same  leak  was  not  sufficient 
to  qualify  him  to  testify,  nor  was  he  permitted  to  testify  that  ■ 
the  plaintiff  had  told  him  that  gas  entered  his  house  a  year  or 


The  owner  of  a  blast  furnace  is 
not  liable  to  his  servant  for  injuries 
received  by  the  inhalation  of  gas 
not  sufficient  in  quantity  to  affect 
an  ordinary  individual. —  as,  where 
his  lungs  are  over-sensitive  from  a 
previous  illness,  if  such  master  had 
no  reason  to  suppose  he  was  not 
sufficiently  strong  to  endure  the  gas 
without  risk.  Parlin,  etc.,  Co.  v. 
Finfrouck..  C.i   111.  App.   174. 

For  instance  where  the  conduct 
of  the  superintendent  in  quisting 
the  fears  of  the  servants  were 
enougli  to  prevent  tlic  dffcnso  of 
contributory  negligence,  see  Wag- 
ner v.  H.  W.  Jayne  Chemicnl  Co., 
147  Pa.  St.  475;  29  W.  N.  C.  490; 
23  Atl.  Rep.  772. 

2;2^Ienneillpy  v.  Employers',  etc., 
Corp..  148  N.  Y.  .590;  43  N,  E.  Rep. 
54;    31    L.  R.   A.  68f>. 


External  injury  in  an  action  to 
recover  damages  occasioned  to  the 
person  by  an  explosion  of  gas  need 
not  be  .shown.  Felhvood  v.  Pearson, 
23  Gas  J.  248.  The  fact  of  actual 
injury  is  a  question  for  the  jury. 
Sipple  V.  Laclede  Gaslight  Co.,  125 
:Jo.  81;   102  S.  W.  Rep.  608. 

Damages  for  a  severe  shock  oc- 
casioned by  an  explosion  may  be 
recovered.  Felhvood  v.  Pearson,  su- 
pra. 

a-'.-i  Hunt  V.  Lowell  Gaslight  Co., 
8  Allen  109;  85  Am.  Dec.  697. 

Evidence  that  the  plaintifT  did 
not  claim  any  damages  for  more 
tlian  two  years  after  the  injury  is 
admissil)le;  but  evidence  that  the 
plaintifT.  while  sick  in  bed  from 
the  efTects  of  the  .gas.  did  not  as- 
cribe it  to  the  effects  of  the  gas  or 
say  anything  as  to  the  cause  of  it, 
is  not  admissible.  Emerson  v.  Lo- 
well Gaslight  Co.,  3  Allen  410. 


LEAKS    AND    EXPLOSIONS.  7f)l 

SO  before,  and  that  the  inlialation  of  it  iiiado  him  sick.""*  And 
in  this  same  case  it  was  hckl  that  the  evidence  of  an  agent  <d" 
the  company  in  charge  of  its  gas  works,  who  did  not  know  or 
believe  gas  was  noxious  to  healtli,  was  not  admissible  for  the 
purpose  of  affecting  the  question  of  care  and  diliucucc  which 
it  w^as  the  duty  of  the  company  to  exercise,  but  it  was  held  that 
he  was  competent  to  give  his  opinion  upon  the  general  questinn 
as  to  the  alleged  deleterious  effect  of  gas  upon  the  hoahh  <if 
persons  exposed  to  it.'"°  The  plaintiff  mny,  however,  show  all 
the  facts  and  circumstances  attending  his  sickness,  to  which 
may  be  added  the  opinions  of  skilled  and  experienced  persons 
as  to  the  cause  which  produced  it ;  and  the  opinion  may  be 
taken  as  to  whether  or  not  it  might  have  been  or  jn-dhably  w:'S 
produced  by  the  gas  to  wdiich  plaintiff  w^as  exposed  in  his 
house.^""  So  expert  evidence  is  admissible  to  show  that  hard 
coal  burned  in  a  generator  would  produce  carbonic  acid  gas 
and  carbonic  oxide,  that  both  are  poisonous,  ami  the  foi-nicr, 
because  it  is  lighter  than  air,  would  ascend  to  the  ceiling,  in 
order  to  show  the  presence  of  gas  at  the  place  where  the  victim 
fell ;  but  he  may  not  be  asked  if  gas  was  present  at  such  place, 
being  only  permitted  to  say  that  if  such  gas  escaped  it  would 
liave  a  tendency  to  go  to  the  place  where  the  deceased  fell.""^ 
And  a  witness  having  no  practical  experience,  all  his  knowl- 
edge having  been  acquired  from  reading  standard  authorities 
and  study,  may  testify  as  to  the  effect  of  gases  from  hard  coal 
on  the  human  being.""* 

§662.     Proof  of  effect  upon  growing  vegetation  or  grass. 

In  order  to  determine  whether  or  not  gas  escaped  to  the  in- 
jury of  the  plaintiff,  it  may  not  only  be  shown  that  the  odor 

224  Emerson    v.    Lowell     Gaslight  O'Brien.    15    111.   App.   400;    alTirnioil 
Co..  G  Allen   Hfi;   83  Am.  Dec.  021.  118    III.    174. 

225  Ihid.   Emerson   v.    Lowell   Gas-  22<*  Citizens'   nasliplit.   etc..  Co.   v. 
light  Co.,   3  Allen  410.  O'Brien.  15  Bradw.  400. 

228  Emmerson   v.   Lowell   Gaslight  Such  a  witness  may  be  asked  what 

Co..  supra.  practieal     experience     he     has     had 

227  Citizens'  Gaslight,  etc.,  Co.  v.       with  such  gases.    Citizens' Gaslight, 


762  OIL   AND    GAS. 

of  gas  was  perceptible  """  at  the  point  in  controversy,  but  its 
extent  or  amount,*^"  the  discoloration  of  the  ground  or  earth 
caused  by  it,^^*  and  also  the  effect  upon  vegetation  or  grass ; 
and  in  order  to  show  the  effect,  the  state  of  the  vegetation  before 
the  leak  occurred,  (hiring  the  time  the  gas  was  flowing,  and 
after  it  ceased  to  flow  may  be  shown."''  Thus  proof  of  the 
decay  of  vegetation,  its  death,  together  with  the  leakage  of  a 
large  amount  of  gas  after  the  gas  main  was  laid  and  until  it 
was  recalked,  the  liealthy  growtli  of  the  vegetation  after  such 
recalking,  will  support  the  conclusion  of  the  jury  that  the 
escape  of  the  gas  was  the  cause  of  the  injury  to  the  vegetation."^' 

§663.     What  acts  of  negligence  a  question  for  the  jury. 

^t  is  impossible  to  lay  down  any  general  rule  with  reference 
to  what  acts  or  admissions  shall  be  determined  by  the  court 
and  what  by  the  jury  as  instances  fixing  a  liability  upon  those 
guilty  of  them.  In  instances  of  leaks  and  explosions  the  gen- 
eral rules  of  negligence  apply,  the  only  confusion  being  that 
which  arises  out  of  their  application  to  particular  instances. 
Illustrations  have  already  been  given ;  and  further  illustrations 
must  necessarily  be  little  more  than  a  digest  of  the  cases. 
Where  premises  had  been  vacant  several  weeks,  of  which  fact 
the  gas  company  had  due  notice,  and  had  been  requested  to 
cut  off  the  gas  supply ;  and  on  the  evening  of  the  explosion  they 
were  let  to  some  negroes ;  and  it  appeared  that  the  company 
had  cut  off  the  gas  by  the  meter  cock,  but  not  by  the  service 
cock,  which  was  under  the  curbstone ;  that  some  one  had  tam- 

etc,  Co.  V.  O'Brien,  118  111.  174;  8  fuld,  etc.,  Co.  v.  Calkins,  1  T.  and  C. 
N.  E.  Rep.  310.  O*'-  Y.)   549. 

229Koplanv.  Boston  Giisligbt  Co.,  232  Siebreeht    v.    East    River    Gas 

177   Mass.   15;    58   N.   E.   Rep.   183.      Co.,    21    N.    Y.    App.    Div.    110;    47 

230  Emerson  v.  Lowell  Gaslight  N.  Y.  Supp.  262;  Butcher  v.  Provi- 
dence Gas  Co.,  12  R.  1.  14!);  .34  Am 


Rep.  626;    18  Alb.   L.  Jr.  372 


Co.,  3  Allen  410;  Johnson  v.  North- 
port,    etc.,    Co.,    50    ^^•asll.    5(i7 ;    97 

Pac    Rep    74G  233  Evans    v.    Keystone    Gas    Co, 

23iConsume;s'   Gas   Trust    Co.   v.  '^'  ^-   ^^  ''•^'  ^^  N.  E.  Rep.  513, 

Perrego,    144    Ind.    350;    43    N.    E.  ^^  Chic.  Leg.   News.   160;    30  L    R 

Eep.  306;   32  L.  R.  A.   14G;   Bloom-  •^-  ^'''^'  ^^  '^'^-  ^*-  ^"P"  ^^^'  ^^'■™' 

ing  21  N.  Y.  Supp.  191. 


LEAKS   AND   EXPLOSIONS.  763 

pered  with  the  meter  cock  and  let  the  gas  on,  cutting  it  off 
again  ;  and  if  the  gas  had  boon  cut  off  at  the  service  cock  thoro 
Avonhl  liave  boon  no  oxjilosion.  It  was  liold  that  it  was  a  (lues- 
tion  for  the  jnrv  whether  the  gas  eoinjiany  was  guilty  of  negli- 
gence, or  whether  the  accident  happened  in  consequence  <if 
the  negligence  of  the  plaintiff  or  his  tenant.  A  non-suit  was 
held  to  be  erroneous."^*  Where  the  explosion  was  alleged  to 
have  been  occasioned  by  a  gasfitter  called  to  nud<e  a  connection, 
who,  it  was  claimed,  did  so  without  turning  off  the  gas,  it  was 
held  to  be  a  question  f(n-  the  jury  to  decide  whether  the  gas 
company  was  guilty  of  negligence.  The  evidence  was  conflict'- 
ing."^^  Where  the  explosion  was  occasioned  liy  ihe  light  of  the 
workman  making  a  connection  ;  and  the  company  insisted  that 
there  was  not  a  strong  smell  of  gas,  and  the  workmen  were 
therefore  justified  in  using  the  light,  it  was  held  to  be  a  question 
for  the  jury  whether  or  not  the  workmen  had  been  guilty  (d' 
negligence.*'*'  Where  the  city  officers  had  removed  the  earth 
supporting  the  gas  company's  pipes,  in  constructing  a  sewer, 
and  the  gas  company  requested  the  court  to  charge  the  jury  that 
it  was  unreasonable  to  re(piire  it  to  have  an  inspector  present 
to  see  if  the  pipes  were  proj^erly  supported,  and  having  a  right 
in  the  street,  it  might  rely  upon  the  city  to  notify  it  of  the  con- 
dition of  the  pipes;  but  the  court  refused,  and  charged  the  jury 
that  it  was  a  question  for  it  to  decide  whether  or  not  the  com- 
pany had  used  due  care."^'  \\liere  it  Avas  alleged  that  the  com- 
pany had  negligently  permitted  gas  to  escape  from  its  street 
mains  and  enter  a  house  where  lights  were  known  to  be  burning, 
and  the  evidence  showed  that  the  company's  servants  requested 
that  the  lights  be  ])ut  out;  but  the  plaintiff  insisted  that  the  gaa 

234  C'liisholm    V.    Atlanta    Gasligbt  llio  iiiotcr.      Hacker   v.   I.onilon  Caa 
Co..   57   Ga.   28.  light  Co.,  32  Gas  J.  781. 

235  Mersey    Docks,   etc.,   v.    Liver-  2.10  EHis  v.  London  Gaslight  Co.. 
pool,  etc.,   Co..  26  Gas  J.  .327.     The  32  Gas  .T.  84fl. 

verdict  was  for  the  plaintiff.  237  r?utcher  v.  Providence  Gas  Co., 

The  same  method  of  determining  12    K.    T.    140;    34    Am.    Rep.    fi2b( 

the  company's  negligence  was  adopt-  Chad  wick  v.   Corporation  nf  W'igan, 

ed    where    the    explosion    was    occa-  28  Gas  J.   562. 
sioned  by  a  failure  to  keep  water  in 


7Gi  OIL    AND    GAS. 

found  entrance  through  an  open  window  nearly  level  with  the 
trench  from  the  main,  a  hole  having  heen  made  in  the  main 
near  the  window  for  a  service  ]ii])e;  it  was  held  that  it  was  a 
question  for  the  jury,  even  though  it  thought  the  gas  thus  en- 
tered, wlicihc!-  ihc  gas  [)eop]e  might  reasonahly  liavo  foreseen 
it,  were  bound  to  have  the  window  closed. "^^  Where  the  service 
pipe  did  not  fit  the  main,  and  there  was  a  subsidence  of  the  soil 
whicli  carried  down  the  main  a  year  before  the  accident,  which 
was  known  to  the  ('()m])any's  servants;  and  the  gas  passed 
Tuider  the  ground  from  the  ])lacc  wlioro  the  service  pipe  en- 
tered the  main,  entering  the  kitchen  and  exploded,  it  was  held 
that  there  was  sufficient  evidence  to  go  to  the  jury."^  Where 
gas  escaped  from  the  pipes  laid  twelve  years  before,  of  which 
the  gas  company  was  duly  notified  ;  and  it  sent  servants  to  ex- 
amine the  place,  who  said  there  was  no  danger ;  and  on  a  second 
notification  of  gas  escaping  the  company  sent  two  men  who  put 
in  an  esca])0  tube;  and  four  days  later  an  explosion  occurred, 
injuring  the  plaintiff;  it  was  held  to  be  a  question  for  the  jury 
whether  or  not  the  company  had  exercised  due  care  under  the 
circumstances.'***  Where  it  was  alleged  that  the  servants  of 
the  gas  company  causing  the  explosion  were  drunk  when  re- 
pairing the  leak,  and  that  there  was  a  small  explosion  previously 
from  a  break  in  the  pijx",  which  had  been  improperly  repaired; 
it  was  held  that  the  defendant's  care  was  a  question  for  the 
jiiry.^"  Where  tlie  plaintiff  put  in  a  "  bent,"  close  to  the  joint 
with  the  service  pipe,  and  also  put  in  other  pipes,  all  of  which 
was  inspected  and  approved  by  the  gas  company,  and  the  evi- 
dence showed  they  had  been  carefully  ])ut  in,  and  there  was  no 
decisive  (evidence  to  show  how  the  "  br^nt  "  became  cracked,  but 
it  was  shown  that  the  explosion  was  caused  by  a  servant  of  the 
company  carelessly  lighting  a  match  in  the  cellar  into  which 
the  gas  had  escaped  from  the  leak  in  the  "  bent  " ;  it  was  lield 

23S  Blriikiron     v.     Great     Central  240  Bootliinan    v.    ]\Iayor,    etc.,    of 

Gas,  etc..   Co.,   2   F.  and   F.  437;   9  Burnley,    20  Gas  J.   5So.     The  ver- 

Gas   J.   292,    776;    3    L.    T.    R.    317.  diet   was   for  the  plaintiff. 

The  verdict  was  for  the  defendant.  241  Hann    v.   \Veyniouth,  etc.,   Co., 

23n  Fare    v.     Bath     Gaslight     and  18  Gas  J.   186. 
Coke  Co.,  25  Gas  J.  566. 


LEAKS    AM)    EXPLOSIONS.  Tlio 

that  the  leak  in  tho  ])laiiililT's  ]uj)o  was  iK^t  as  a  matter  of  law 
evidence  of  the  jihiini  ill's  negligenc(\  hut  thai,  it  was  a  ipiestion 
for  tlie  jnrv."''"  W'iuM'e  the  defendant  denied  that  it  had  ncjijli- 
gently  permitted  gas  to  escape  from  its  Jiiix?,  and  insisted  that 
the  leak  was  cansed  hy  the  negligence  of  the  city  dtlieers  in  not 
projierly  packing  the  earth  under  a  pipe  in  building  a  sewer,  it 
was  held  to  be  a  question  for  the  jury  whether  or  not  the  com- 
pany had  used  due  care  in  seeing  that,  in  restoring  the  earth 
to  its  place,  its  pijx^s  were  projjcrly  suppdvted,  am!  il"  injui-ed, 
to  see  that  the  injury  was  repaired  as  soon  as  it  could  reason- 
ably be  donc."'*^  Where  it  appeared  that  the  exjdosion  was 
occasioned  by  a  theft  of  a  gas  pipe  and  the  going  into  the  cellar 
with  a  light;  and  the  evidence  was  conilicting  whetlier  notice 
of  the  leak  had  been  given  to  the  company,  the  secretary  testify- 
ing that  the  complaint  book  showed  that  no  notice  cf  a  leak  had 
been  given ;  the  court  charged  the  jurv  that  it  was  a  question  for 
them  Avhether  the  accident  had  been  caused  by  the  negligence  of 
the  company."'''*  Where  it  was  claimed  that  an  explosion  oc- 
curred from  the  negligence  of  the  meter  taker,  who  had  re- 
moved a  meter  and  left  a  pipe  open,  so  that  when  the  plaintiff 
turned  on  the  gas  it  flowed  from  the  ])ipe  and  ignited,  and 
the  company  insisted  that  the  employee  properly  stopjx^d  the 
pipe  with  white  lead,  etc.,  it  was  held  to  be  a  question  for  the 
jury  whether  he  had  done  so."*°  ^^^lether  applying  one's  nose 
to  an  o|XMiing  in  a  floor  wherein  a  gas  pipe  was  plugged,  and 
from  which  the  gas  escaped,  to  ascertain  if  the  gas  was  escaping 
is  an  act  that  due  care  requires,  there  being  other  well  known 
tests,  was  held  to  be  a  question  for  the  jury.  Where  the  plaiii- 
tiff  lighted  a  gas  radiator,  laid  down  on  a  conch  in  the  room  and 
went  to  sleep;  and  while  asleep  the  gas  company,  in  order  to 
improve  the  gas  pressure,  cut  off  the  gas  in  the  building,  drew 

242Lanneii     v.     Albany     Oaslight  2-»-t  OrifTiths  v.  City  of  London  (ias 

Co.,    46    Barb.   2G4;    afTirnied   44    N.  Co..   10  Uas  J.   1:5!). 

Y.   459.  24.'.  Ward    v.    Caslifrlit    and    Coke 

s*.-?  Biitfbor  V.  Providonco  Cas  Co.,  Co..    14   Cas  .T.  01.");    1")  Cas  J.  45, 

12    R.    I.    140:    :u    Am.    Hop.    620;  75;    16  Gas  J.    10,  38,  74,  108. 
Modex  V.  Oaslij,dit  and  Coke  Co.,  15 
Gas  J.  75. 


7GG  OIL    AND    GAS. 

nflP  the  water  accumulated  iu  the  pipes,  aud  turued  ou  the  gas 
agaiu,  its  usual  jiractice  hciug  to  waru  the  tenants  of  buildings 
of  its  intention  to  obstruct  the  flow  of  gas,  but  the  evidence  was 
ct>ntlicting  as  to  what  steps  the  companv's  servants  endeavored  to 
warn  the  plaintilf,  there  being  testimony  that  they  knocked  on 
the  door,  l»ut  not  sufficiently  lound  to  arouse  the  plaintiff;  it  was 
held  that  it  was  a  question  for  the  jury  whether  the  company's 
employees  used  such  care  as  was  incumbent  on  them  under  the 
circumstances,  but  there  was  no  question  of  contributory  negli- 
gence.'"'"' Where  gas  esca}x?d  into  a  cellar  from  a  pipe  eleven 
feet  away  resting  in  soft  and  shaly  soil ;  and  there  was  an  aban- 
doned coal  mine  under  the  entire  neighborhood  ;  and  after  the 
explosion  the  coal  was  found  to  Ix"  buniing;  and  one  witness 
testified  that  the  piiie  had  broken  on  account  of  a  sewer  excava- 
tion, and  another  that  the  pipe  was  rotten ;  and  there  was  evi- 
dence of  an  earlier  trouble  at  the  same  point ;  it  was  held  that 
it  was  a  question  for  the  jury,  under  the  gas  company's  claim 
that  the  leakage  was  caused  by  the  mine's  caving  in  on  account 
of  the  fire,  whether  it  had  been  guilty  of  negligence,  and  that  it 
was  error  to  direct  a  verdict  in  its  favor."*'  Where  a  company's 
piping  was  not  connected  with  the  piping  in  a  building  until  the 
owner  or  tenant  made  an  application  for  gas  and  furnished  plans 
of  the  piping  in  the  building,  whereupon  the  company  delivered 
a  meter,  letting  the  applicant  make  connection  with  its  pipes, 
witluiut  itself  making  an  examination  ;  and  the  tenant  of  a  store 
room,  having  received  a  meter,  engaged  a  plumber  to  put  it  in 
and  make  the  connection ;  and  a  pipe  running  into  an  apartment 
above  the  store  was  uncapped,  from  which  gas  escaped,  killing 
the  tenant's  child;  it  was  held  to  bo  a  (piostion  for  the  jury 
whether  the  gas  company  had  used  reasonable  precautions.^** 
Wlierc  the  gas  escaped  through  a  break  in  the  street  pipe  into 
the  ])laintiff's  sleeping  room,  to  his  injury;   and  the  evidence 

240  Beyer  V.  Cnnsnlidatcd  Gas  Co.,  248  Schiiicor    v.     Gaslight     Co.    of 

44  N.  Y.  Apj).  Div.    loS;   fin  X.  Y.  Syracuse,   147  N.   Y.  529;   42  N.  E. 

Supp.    628.  Rep.  202:    30  L.  R.   A.  0.53;   revers- 

2-i7Heh    V.    CoiT^olidated   Gas   Co..  in<r   65   Him    .STS;    20    X.    Y.    Supp. 

201    Pn.   St.  44".:   r,0  Ail.   Rep.  994;  1128;  20  N.  Y.  Supp.   168. 
88   Am.   St.  Rep.   819. 


LEAKS    AND    EXPLOSIONS.  TGGa 

showed  that  tlie  hreak  was  probably  caused  1)V  the  settliiiir  <if 
the  eartli  after  the  eonstnu'tiou  of  a  nearby  sewer;  and  tliat  the 
gas  had  been  escapinj:;  a  wlioli^  (hiy  wlien  discovered  by  a  ])olice- 
nian ;  it  was  hehl  that  there  was  evidence  enough  to  justify  the 
submission  of  the  case  to  the  jury."'"*  Whore  tbe  bills  of  the 
gas  company  had  a  notice  on  them  that  infiirniatinn  of  all  leaks 
should  be  sent  to  tbe  office  of  the  company;  that  a  com])laint 
of  a  leak  was  made  to  an  employee  of  the  company,  and  he 
promised  to  have  it  repaired  ;  that  afterwards  a  man  sent  to 
examine  the  leak  found  it  in  a  cliandelier,  and  worked  about 
twenty  minutes  in  repairing  it ;  that  the  gas  escaped  during 
the  night,  to  plaintiff's  injury,  from  the  chandelier,  in  which 
the  next  day  was  found  a  leak,  which  an  ex{5ert  testified  could 
not  be  properly  stopped  without  taking  down  the  chandelier  and 
taking  off  the  casing;  it  was  held  that  there  was  evidence  for  the 
jury  from  which  to  determine  whether  the  gas  company  had 
undertaken  to  find  and  stop  the  leak,  in  which  event  it  would 
be  liable. """  Where  the  gas  company  had  no  system  of  inspec- 
tion, but  waited  for  complaints  before  making  inspections ;  and 
some  of  its  pipes  had  been  laid  in  cinder  for  twenty  years, 
which  had  a  tendency  to  corrode  them ;  the  question  of  negli- 
gence was  considered  one  for  the  jurv."^^  The  coincidence  of 
the  decay  and  death  of  vegetation  with  tlie  leakage  of  a  large 
amount  of  gas  after  the  laying  of  a  new  main  and  until  its 
recalking;  and  the  fact  of  the  healthy  growth  of  vegetation  after 
the  recalking,  will  sustain  a  conclusion  of  the  jury  that  the 
escape  of  the  gas  was  the  cause  of  the  injury. '''-  A  gas  com- 
pany's street  main  ran  within  a  few  feet  of  the  cellar  of  a  fac- 
tory. An  explosion  occurred  in  the  factory,  injuring  tho 
plaintiff.  Several  months  jirevious  to  t-.at  time  a  sewer  con- 
nection  for  the  factory  had   been   made,  which   ran   under  the 

24»Greaney  v.   Holyoke,  etc.,  Co.,  Co..  2  Pa.  Super.  Ct.  179;  .39  W.  X. 

174  Mass.  4.37;   54  N.  E.  Rep.  880.  C.  28. 

250  Ferguson    v.    Boston    Gasliq:ht  252  Evans    v.    Keystone    Gas    Co., 

Co..   170  Mass.    182;   49   N.   E.   Rpp.  148  N.  Y.   112;   42  N.  E.  Rep.  51.3; 

115.  28   Cliio.  Lep.  News.    100;    .30  T..   R. 

261  Prichard   v.   Consolidated   Gas  A.  0.')!  :  51  .Am.  St.  Ron.  681;  afTirni- 

ing  21  X.  Y.  Supp.  161. 


76()b  OIL   AND    GAS. 

gas  main.  The  tostinioiiv  of  the  ])Iaiiitiit'  londed  to  show  escap- 
ing gas  had  hecii  (U'tectcd  at  the  jihicc  where  the  gas  main 
crossed  the  sewer  connection  for  several  weeks  prior  to  the  ex- 
plosion, which  occurred  on  the  opening  of  a  trap  door  into  the 
cellar;  that  soon  after  an  old  and  rusty  break  in  the  pipe  imme- 
diately in  front  of  the  factory  was  discovered,  and  that  the  com- 
pany had  been  notified  of  the  presence  of  gas  in  the  neighbor- 
hood more  than  two  weeks  before  the  explosion,  but  did  nothing 
in  response  to  it.  The  gas  company  denied  receiving  notice,  and 
gave  testimony  in  general  rebutting  the  ])laintiff's  testimony. 
The  plaintiff  claimed  that  the  gas  escaped  from  a  break  in  the 
gas  main,  passed  through  the  sand  until  it  reached  the  sewer 
pipe,  followed  this  into  the  cellar,  and  there  collected.  It  was 
held  that  the  case  was  one  fur  the  jury."^^  For  two  weeks  prior 
to  an  explosion  of  gas  in  a  sewer  manhole  escaping  gas  had  been 
detected ;  and  it  was  the  duty  of  the  employees  of  the  gas  com- 
pany lighting  street  lamps  to  report  leaks  they  had  detected. 
A  leak  in  a  main  one  hundred  feet  from  the  explosion  was 
found  in  this  main  immediately  after  the  explosion  occurred, 
was  repaired,  and  the  gas  ceased  to  flow.  About  two  weeks  be- 
fore the  explosion  the  company  had  been  notified  of  escaping 
gas ;  and  upon  examination  no  escape  of  gas  had  been  found. 
It  was  possible  for  the  escaping  gas  from  the  leak  to  find  its 
way  through  the  earth,  enter  sewers,  and  accumulate  in  covered 
sewer  holes.  There  was  no  probability  of  gas  escaping  from 
any  other  gas  main  than  that  of  the  defendant  company.  It 
was  held  that  there  was  evidence  enough  to  support  a  verdict 
for  the  plaintiff,  in  an  action  to  recover  damages  occasioned  by 
the  explosion. ^^'^  Where  the  action  was  to  recover  for  the  death 
of  a  horse,  occasioned  by  it  inhaling  gas,  an  instruction  to  the 
jury  that  if  the  plaintiff  "  had  reason  to  believe  that  the  gas 
was  escaping,  and  knew  the  danger  of  escaping  gas,  and  left  the 

as.-?  Henderson   v.  Allc^iheny  Heat-  The    court   chnrfred   the  jury  tliat 

ing  Co.,  179  Pa.  St.  513;   39  W.  N.  the  evidence  should  exclude  all  other 

C.  485;   36   Atl.  Rep.  312.  theories  than  the  plaintiff's,  tracing 

25*  Tiehr  v.  Consolidated  Oas  Co.,  the   origin   of  the   exploding  gas  to 

.'51    X.   Y.   App.  Div.  446;    65  N.  Y.  the  break  in  the  defendant's  pipe. 
Supp.  10. 


LEAKS    AND    EXPIX)SIONS.  767 

horse  there  without  providing  for  the  danger,  thinking  the 
escape  of  gas  was  not  sufficient  to  do  any  damage,  he  cannot 
recover,"  was  hekl  to  have  heen  properly  refused;  for  as  a 
matter  of  law  negligence  was  not  an  inevitable  and  necessary 
inference  from  the  facts  stated,  but  was  a  (piestion  for  the 
jury.-'^  Wiiere  the  defect  in  a  gas  pipe  was  occasioned  by 
the  construction  of  a  sewer,  it  was  held  to  be  a  question  for  tlie 
jury  whether  or  not  the  gas  company  having  a  proper  system 
of  inspection  ought  to  have  known  of  the  leak  sooner  than  it 
was  in  fact  discovered.-"'"  If  there  be  no  evidence  to  show 
negligence  on  the  part  of  the  gas  company,  then  the  court 
must  direct  the  jury  to  find  against  the  plaintiff;  and  it  is 
error  to  submit  the  (juestion  of  negligence  to  the  jury."" 
Where  the  explosion  occurred  in  the  cellar,  the  exploding  gas 
having  escaped  from  a  break  at  the  junction  of  the  service 
pipe  with  the  "riser";  and  the  company's  workmen  were 
engaged  in  repairing  the  mains  opposite  the  house  in  which 
the  explosion  occurred,  but  there  was  no  evidence  to  connect 
them  in  any  way  with  the  explosion,  or  to  show  that  their 
work  in  any  way  affected  the  service  pipe,  the  complaint  was 
dismissed. -•'^^  In  an  action  against  a  natural  gas  company  to 
recover  damages  for  injuries  arising  from  an  explosion  of  gas 
in  plaintiff's  cellar,  the  case  is  for  the  jury  where  there  is  evi- 
dence tending  to  show  that  the  gas  could  only  have  come  from 
one  of  defendant's  gas  lines,  and  that  it  could  have  escaped 
from  a  break  in  such  line.-'"'*     Where  it  appears  that  the  day 

255  Lee   V.   Troy,   etc.,    Co.,   98   N.  (on    the    duty    of    a    patrolman    to 

Y.  115.  notify  the  city  of  a  leak  wiiere  the 

If   it   is   shown   that  a    pipe   was  city  is  furnisliing  gas  to  consumers) . 

broken    and    gas    escaped    from    it  257  Allegheny   Heating  Co.   v.   Ro- 

whereby    one    is    injured,    the    jury  han,   118  Pa.  St.  223;    11   All.  Rep. 

may  infer  negligence  on  the  part  of  789. 

the    gas '  company    from    the    facts  It    was    hold    tliat    tlie    evidence 

thus    shown.      Carmody    v.    Boston  of   an    explosion   was    insufTiciont    to 

Gaslight  Co.,   1G2  Mass.  539;   39  N.  submit  to  the  jury.     Hutchinson   v. 

E.  Rep.  184.  Boston  Oaslight  Co.,  122  Mass.  219. 

250  Koelsch     V.     Philadelpliia     Co.,  ^.-.s  Krzywoszynski  v.  Consolidated 

152  Pa.  St.  35.3;   25  Atl.  Rep.  522;  Gas  Co.,  4  N.  Y.  Ajip.  Div.   ICl;   38 

18   L.  R.   A.   759;   34  Am.   St.  Rep.  X.  Y.  Supp.  929. 

653;   Holly   v.  Boston  Gaslight  Co.,  2.'.9  Stoner    v.    Pennsylvania,    etc., 

8  Gray  123;   G9  Am.  Dec.  633;   Ki-  Co.,  40  Pa.  Super.  Ct.  Rep.  599. 
bele  V.  Philadelphia,  105  Pa.  St.  41 


768  OIL    AND    GAS. 

before  the  explosion  of  natural  gas  which  injured  plaintiff's 
house,  there  was  a  l)reak  in  the  main  which  caused  gas  to  enter 
plaintiff's  house,  that  the  break  was  repaired  before  the  acci- 
dent, that  three  days  thereafter  the  gas  again  escaped  at  the 
point  where  the  break  occurred,  and  the  evidence  showed  that 
the  repair  had  been  negligently  done,  the  question  of  the  gas 
company's  negligence  is  for  the  jury.-""  Where  in  an  action 
to  recover  damages  for  injuries  occasioned  by  a  defective  oil 
burner,  and  there  was  a  conflict  in  the  evidence,  it  was  held  to 
raise  a  question  for  the  jury.-"^ 


§  663a.     Shipping  explosives. 

It  is  the  duty  of  a  person  shipping  an  explosive,  Qf  an  article 
that  is  otherwise  dangerous,  to  fully  disclose  its  dangerous 
character  to  the  carrier  before  shipment.  This  is  especially 
true  of  a  shipment  on  ship  where  the  article  will  be  stored  in 
the  vessel  with  its  cargo  often  beyond  the  possibility  of  exami- 
nation. The  act  of  negligence  is  the  failure  to  disclose  the 
dangerous  character  of  the  article  shipped ;  and  the  burden 
to  show  there  was  no  disclosure  is  upon  the  carrier.  Such  was 
said  to  be  the  case  of  a  shipment  of  soap  (Fels  Naptha  Soap), 
which  contained  from  six  to  nine  per  cent,  of  chemically  free 
naphtha.  But  when  the  manufacturers  of  a  soap  informed  the 
shipping  agent  of  the  defendant  of  the  character  of  the  soap, 
that  it  gave  off  naphtha  fumes,  which,  if  the  soap  was  stowed 
in  a  confined  space,  might  be  dangerous,  and  arranged  that 
the  amount  shipped  should  be  stowed  in  a  place  in  which  there 

260  O'Donavan  v.  Philadelphia  Co.,  tion   was   for   the   jury.      Shirey   v. 

223  Pa.  234;  72  Atl.  Rep.  527.  Consumers'    Gas    Co.,    64   Atl.    541, 

26iGarr  v.  Locomotive  Co.,  29  R.  215   Pa.   399. 

I.  276;   70  Atl.  Rep.  196.  Employment  in  labeling  bottles  of 

In  an  action  by  plaintifT  for  in-  beverage  charged  with  carbonic  acid 
juries  received  by  the  explosion  of  gas  is  not  dangerous  as  a  matter  of 
gas,  it  was  admitted  that  defendant  law,  through  their  likelihood  to  ex- 
gas  company's  main  broke,  and  the  plode  wliile  being  handled.  Herbert 
gas  found  its  way  into  plaintiff's  v.  Parham,  86  S.  C.  352;  68  S.  E. 
house  where  it  exploded,  but  there  564. 

was  a  dispute  as  to  the  cause  of  Whether  a  broken  main  was  so  laid 
the  break  in  the  gas  main,  there  as  to  cause  it  to  break  is  a  question 
being  evidence  of  an  old  fracture  for  the  jury.  Thompson  v.  Cam- 
therein,     It  was  held  that  the  qucs-  bridge   (IVIass.),  87  N.  E.  Rep.  486. 


LEAKS    AND    EXPLOSIONS.  7()i) 

was  a  free  circulation  of  air;  and  at  a  subsofiuent  shipment 
of  a  large  amount  of  the  same  soap  similarly  labeled  he  made 
no  statement  concerning  its  explosive  character,  but  the  carrier 
stowed  it  in  place  where  no  free  circulation  took  place,  and 
an  explosion  took  place,  it  was  held  that  the  carrier  was 
sufficiently  informed  of  the  dangerous  character  of  the  soap, 
and  that  it  could  not  recover  damages  of  the  shipper,  because 
he  had  made  a  full  compliance  with  the  requirements  of  the 
law.-«- 

§  663b.     Stove  polish  exploding. 

To  put  an  inflammable  stove  polish  on  the  market  is  an 
act  of  negligence.  Thus  where  it  was  shown  that  a  stove 
polish  contained  naphtha,  but  it  was  represented  to  the  pur- 
chaser that  it  could  be  used  on  a  warm  stove;  and  while  so 
using  it,  it  exploded,  injuring  the  person  using  it,  it  was  held 
that  the  jury  had  a  right  to  infer  that  the  temperature  of  the 
stove  was  the  cause  of  the  explosion;  and  that  it  was  proper 
to  deny  a  non-suit.-*''^  To  place  such  a  stove  polish  on  the 
market  without  properly  labeling  it  so  as  to  show  its  explosive 
character,  is  an  act  of  negligence.-"* 

§  663c.     Pleading-  charge  of  explosion  caused  by  negligence. 

It  is  not  enough  to  merely  allege  that  the  injury  complained 
of  was  occasioned  "by  an  explosion  of  natural  gas  caused  by 
the  defendant's  negligence  in  not  properly  caring  for  their 
gas  pipes  running  in  front  of  plaintiff's  place  of  business, 
whereby  gas  escaped  from  said  pipes  into  plaintiff's  said  prem- 
ises and  became  ignited."-"'  But  the  complaint  need  not  state 
what  particular  gas  main  was  defective.-®" 

282  International    Mercantile    Ma-  tween  the  complaint  and  proof  con- 

rine  Co.  v.  Fels,  170  Fed.  Rep.  275,  cerning    how    ignition    was    caused 

affirming  104  Fed.  Rep.  337.  was  not  fatal  to  the  plaint ifT,  if  he 

so-  Cunningliam    v.    C.    R.    Pease  was    using   the    stove    polish   as    di- 

House    Furnishing    Co.,    75    X.    H.  rected  and  without  negligence. 

290;   73  All.  Rep.  405.  sc,  Williams  v.  Brentford  Gas  Co., 

284  Clement     v.      Crosby     &      Co.  13  Ont.  W.  Rep.  G05. 

(]VIich.),    122    X.   W.    Rep.    263;    16  200  Richmond  v.  Gay,  103  Va.  320; 

Det.   Leg.   X\   542.      In   this   case   it  49  S.  E.  Rep.  482. 
was   also    held  that   a   variance   be- 


CHAPTER  XXX. 

INJURIES  CAUSED  BY  OIL  AND  GAS— NEGLIGENCE. 

§G()4.     Scope  of  chapter. 

§665.     Fire  on  railroad  communicating  with  refinery. 

§666.     Neglect  in  not  providing  stop-cock. —  Injury  to  servant. 

§667.     Injuries  from  shooting  wells. 

§668.     Oil  escaping  into   sewor.s. 

§669.     Injury  occasioned   by  exploding  gasoline   fire-pot. 

§670.     Use  of  false  brands. —  Explosion. 

§671.     Negligent    care    of    grounds. —  Fire    communicating    to    adjoining 

houses.  ' 

§672.     Oil  escaping  from   an  exploding  refinery. 
§673.     Rescuer  injured    by  negligence  of  an  oil  or  gas  company. 
§674.     Minor's  employe's  oil-soaked  clothes  catching  fire. 
§675.     Explosion  of  benzine  used  in  paint. 
§676.     Servant  of  oil  company  injured  by  defective  appliances. 
§677.     Injuries  to  servant  of  purchaser. —  Sale  in  violation  of  statute. 
§678.     Sale   of  oil  of  low  fire  test,  explosion. —  Deception. 
§679.     Implied  warranty  in  sale  of  illuminating  oil. 
§680.     Gas  box  in  sidewalk. 
§681.     Negligence  of  contractor. 

§682.     Streets  rendered  dangerous  by  laying  gas  mains. 
§68.S.     Imperfectly  constructed  gas  building. 
§684.     Exploding  tank  injuring  servant. 
§685.     Servant  entitled  to  safe  place  in  which  to  work. 
§686.     Servant  injured  by  use  of  defective  ladder. 
§686a.  Kindling  fire  with  oil. 
§686b.  Drawing  gasoline  near  furnace  fire. 
§686c.  Gasoline  plant,  out  of  doors,  exploding. 
§G86d.  Escaping  oil  or  gas  injuring  land. 

§664.     Scope  of  chapter. 

It  is  not  tlie  intention  to  repeat  in  this  chapter  what  has  been 
(liscnssed  in  other  chapters  and  nnder  heads  more  appropriate. 
]Vor  can  there  he  any  systematic  arrangement  of  the  contents  of 
this  chapter  —  the  aim  being  to  gather  np  sneh  decisions  as 
]iertain  to  iTijnries  that  liave  been  cansod  by  oil  or  gas,  or  by 
negligent  condnct  in  the  operation  of  gns  works  or  pipe  lines, 
or  in  the  operation  of  oil  leases.     Under  the  head  of  Leaks  and 

770 


INJURIES    CAUSED    BY    OIL    AND    GAS — NEGLIGENCE,  771 

Explosions  will  be  found  a  discussion  of  negligence  in  connec- 
tion therewith. 

^665.     Fire  on  railroad  communicating  with  refinery. 

A  railway  company  left  standing  on  its  switch  a  car  used  in 
carrying  tar.  A  passing  locomotive  set  fire  to  it,  and  tlie  fire 
communicated  to  an  oil  tank  thirty-six  feet  away,  which  was  a 
part  of  the  plaintiff's  oil  refinery.  The  fire  then  communicated 
with  the  refinery  and  it  was  destroyed.  The  company  was  held 
liable,  and  in  passing  on  the  case  the  court  used  the  following 
language:  "  While  this  is  perhaps  a  close  case  upon  its  face, 
we  are  of  the  opinion  that  the  judgment  must  be  affirmed.  It 
could  not  have  been  withdrawn  from  the  j*iry,  nor  are  we  able 
to  see  any  error  in  the  manner  of  its  submission.  The  learned 
judge  could  not  have  ruled,  as  a  question  of  law,  that  the  plain- 
tiff was  guilty  of  contributory  negligence  in  erecting  his  oil  tank 
where  he  did.  The  sparks  from  the  locomotive  were  not  likely 
to  set  fire  to  oil  in  the  tank,  nor  did  they  do  so  in  this  case.  The 
accident  would  not  probably  have  occurred,  had  not  the  defend- 
ant company  permitted  a  car,  used  for  carrying  tar,  to  stand 
on  the  track  opposite  to,  and  near,  plaintiff's  oil  tank.  This  car 
caught  fire  from  the  sparks  of  the  engine,  and  was  wholly  or 
partly  consumed.  It  was  the  fire  from  this  car  which  ignited 
the  oil  and  caused  the  destruction  of  plaintiff's  works.  The 
accident  could  have  been  avoided  by  running  the  car  a  short 
distance  away  after  it  had  taken  fire.  This  was  eminently  a 
jury  case."  ' 

§666.     Neglect  in  not  providing  stop-cock. —  Injury  to  servant. 

An  oil  company  must  provide  the  usual  means  to  prevent  in- 
juries in  case  of  an  accident,  so  that  the  flow  of  the  oil  liiay  be 
controlled,  especially  where  it  is  used  in  connection  with  fires. 
We  take  the  following  statement  from  an  Illinois  case,  where  a 

1  Confers  v.  New  York.  etc..  R.  R. 
Co..  146  Pa.  St.  31;  23  Atl.  Rep. 
202. 


(  /  2  OIL   AND    GAS. 

company  using  large  quantities  of  oil  was  held  liable :  ''  This 
was  an  action  on  the  case  by  api)ellee  against  ap])ellant,  to 
recover  for  ])ersonal  injury  alleged  to  have  been  received  through 
the  negligence  of  appellant.  For  several  years  before  the  acci- 
dent, ap|iellant  had  been  engaged  in  burning  brick,  and  appel- 
lee worked  as  its  servant  in  that  business.  In  1887,  appellant 
commenced  burning  brick  with  crude  oil  for  fuel,  and  ap{)ellee, 
before  his  injury,  had  assisted  in  burning  several  kilns  of  brick 
by  the  new  method.  In  May,  1888,  shortly  after  the  kiln  was 
fired,  the  injury  occurred.  The  kiln  being  burned  was  70  or 
80  feet  long  and  al)out  ;>0  feet  wide;  there  were  18  or  20  arches 
running  through  from  side  to  side.  Around  the  kiln,  a  little 
way  from  it,  near  th^  ground,  two  pipes  were  laid  side  by  side, 
each  about  two  inches  in  diameter.  One  of  these  pipes  carried 
steam,  and  the  other  oil  for  fuel.  Opposite  the  end  of  each 
arch,  two  short  pipes,  three-fourths  of  an  inch  in  diameter,  ex- 
tended towards  the  arch,  one  connected  with  the  oil  pipe,  and 
the  other  the  steam  pipe.  The  short  pipe  was  about  two  feet 
and  a  half  long;  the  small  oil  pipe  j>erhaps  a  foot  long.  On  the 
end  of  the  steam  pipe,  at  each  arch,  was  placed  what  was  known 
as  the  "  burner."  In  the  small  oil  pipes  there  was  a  check  valve 
or  stop-cock,  near  the  main  oil  pipe,  and  the  connection  was  made 
between  this  ])ipe  and  the  burner  by  a  rubl^er  tube  connecting 
the  short  pij^e  with  the  burner.  The  purpose  for  which  the 
rubber  was  used  was  to  permit  expansion  and  contraction  of  tlie 
small  steam  pipe ;  in  other  words,  so  as  to  make  the  pipe  con- 
taining the  oil  flexible.  The  burner  was  by  this  means  ex- 
tended, not  into,  but  as  near,  the  arch  as  possible,  and  the  oil 
injected  into  the  arch  by  the  action  of  the  steam  through  the 
burner.  On  a  side  track,  20  feet  or  more  away  from  the  kiln, 
common  railroad  oil  tanks  were  run  on  their  trucks,  and  the  oil 
carried  therefrom  by  means  of  a  two-inch  pipe,  and  emptied  into 
the  oil  pipe  surrounding  the  kiln.  Prior  to  the  time  of  the  acci- 
dent, but  one  tank  had  been  used  at  a  time,  and  the  supply  pipe 
from  the  tank  was  fitted  with  a  check  valve  near  its  entrance 
into  the  feed  pipe,  or  the  pipe  encircling  the  kiln.  Each  of  the 
small  pipes  extending  from  the  steam  and  feed  pipes  were  sup- 


INJURIES    CAUSED    UY    OIL    AND   GAS — NEGLIGENCE.  773 

j'lied  with  a  stoi>cock  near  the  feed  pipe,  so  that  both  steam  and 
( il  could  be  shut  off  froui  auy  iudividual  bunier.  There  was 
also  a  check  valve  ou  the  taidv,  by  cldsiui:;  wiiich  the  llow  of  oil 
from  the  tank  could  be  shut  dtl'.  This  valve. was  so  arranged 
that  it  could  not  be  turned  by  hand,  but  necessarily  rocpiired 
the  use  of  a  wrench  or  tonics.  In  the  afternoon  before  the  acci- 
dent, the  kiln  i)('in«i'  in  condition  to  tiro.  Williams,  iho  kiln  fore- 
man, was  ordered  by  ajjiiellant,  through  its  su|)erintendent,  to 
cut  the  feed  pipe  in  the  middle  of  the  kiln  on  each  side  and  stop 
the  ends,  which  was  done.  Prior  to  this,  there  had  been  in  use 
what  was  known  as  the  Brown  burner.  They  were  directed  to 
attaeli  the  Brown  burner  to  one-half  of  the  feed  pipe,  or  the  pipe 
encircling  one-half  of  the  kiln,  which  appellee  and  the  gang  of 
men  with  him,  under  the  direction  of  the  steamfitter  of  appel- 
lant, did.  By  the  cutting  of  the  oil  ]ti])o,  the  circulation  (»f  oil 
around  the  kiln  was  impossible,  and,  to  supply  the  other  end, 
another  tank  was  run  upon  the  side  track,  and  attached,  by  a 
new  supply  pipe,  with  the  other  half  of  the  feed  pipe,  so  as  to 
furnish  oil  to  run  the  other  burners  to  be  thereto  attached.  The 
purpose  was  to  test  the  relative  merits  of  the  Brown  burner, 
and  another  called  the  Cannon  burner,  to  see  which  would  con- 
sume the  greater  amount  of  oil  in  producing  the  requisite  con- 
tinued heat.  The  attachment  between  the  additional  tank  and 
the  pipe  surrounding  the  half  of  the  kiln  at  which  the  Cannon 
burners  were  to  be  tested,  including  putting  on  the  burners, 
was  made  by  '  Mr.  Cannon  and  his  men,'  possibly  assisted  by 
Mr.  Williams,  kiln  foreman,  and  perha])s  other  fellow  workmen 
about  the  kiln.  Cannon  had  been  a  gasfitter,  was  familiar  with 
the  work,  but  neither  he  nor  the  men  under  him  were  in  the  em- 
ploy of  appellant.  In  making  connection  ])etween  the  tank  and 
the  feed  pipe  encircling  the  half  of  the  kiln  at  wbicli  ihc  Cannon 
burners  were  put,  no  stoi>cock  or  valve  was  put  in  where  the 
supply  pipe  from  the  tank  joined  the  feed  pipe,  so  that  the  oil 
running  to  the  Cannon  burners  could  be  shut  off  only  at  two 
points  —  at  the  tank,  and  at  the  small  stoji-cocks  where  the  small 
burner  pipes  joined  the  feed  pipe.  At  the  other  end,  the  supply 
pipe  formerly  in  use  was  put  in,  which  was  supplied  with  the 


774  OIL    AND    GAS. 

check  valvo  near  the  feed  pipe  This  arrangement  of  the  pipe 
to  Avhicli  the  Cannon  l)urners  wore  attached  was  made  by  Can- 
non, and,  as  before  said,  possibly  with  the  knowledge  of  the 
foreman ;  but  appellee,  not  the  gang  of  men  with  whom  he 
worked,  had  no  notice  that  the  stop-cock  at  the  joining  of  the 
su})j)ly  and  feed  i)ipcs  had  been  omitted.  The  rubl)cr  ]>i])e  lead- 
ing to  the  burner,  from  the  heat  and  action  of  the  oil,  was  soon 
destroyed,  and  would  break  or  crack  off,  permitting  the  oil  to 
escape,  and  the  oil,  being  highly  inflammable,  would  catch  fire 
from  the  heat  of  the  arch,  and  prevent  the  close  of  the  small 
check  valve  in  the  pipe  leading  to  the  burner ;  and  in  such  case 
the  stop-cock  at  the  junction  of  the  supply  and  feed  pipes  had 
always  been  used,  and,  by  shutting  off  the  oil  there,  a  conflagra- 
tion was  prevented.  This  condition  of  tilings  was  known  to 
appellant,  and  it  had  supplied  rubber  tubing  in  considerable 
quantities  to  take  the  place  of  such  as  might  be  destroyed  in 
that  way.  It  is  shown  that  the  breaking  of  the  rubber  and 
escape  of  the  oil  was  frequent,  the  rubber  lasting  sometimes 
during  the  burning  of  a  kiln  and  sometimes  not.  The  kiln  was 
fired  in  the  evening.  Appellee  and  the  gang  of  men  under  him 
were  in  charge  of  the  end  of  the  kiln  to  which  the  oil  or  Brown 
burners  were  fixed,  and  Williams  and  another  shift  of  men  in 
charge  of  the  other  end,  until  about  12  o'clock  midnight,  when 
Williams  and  his  gang  retired,  and  appellee  and  two  helpers 
took  charge  of  the  entire  kiln.  About  4  o'clock  in  the  morning 
appellee  was  on  a  ladder  at  the  side  of  the  kiln,  observing  the 
top,  when  a  rul)l>er  hose,  connecting  with  one  of  the  Cannon 
burners  burst,  and  the  oil  immediately  took  fire,  and,  extending, 
so  covered  the  small  stop-cock  that  it  was  impossible  to  close  it. 
He  ran  immediately  to  the  place  where  the  supply  pipe  joined 
the  feed  pipe,  ex]">ecting  to  find  the  stop-cock,  where  it  had  al- 
ways previously  been  found,  but  found  none.  He  called  to  the 
other  employees,  and  went  himself  about  200  feet,  and  turned 
in  the  fii-e  alarm,  and  immediately  returned  to  the  end  of  the 
kiln  where  the  fire  was  spreading.  The  fire  was  spreading 
rapidly,  was  very  hot,  and,  fearing  an  explosion  of  the  oil  in  the 
tank,  appellee  determined  to  disconnect  the  tank  from  the  sup- 
pl}'-  pipe,  and  get  it  away  from  the  fire.  For  this  purpose  he 
directed  one  of  the  men  to  shut  off  the  tank ;  that  is,  to  close  the 


INJURIES    CAUSED    BY    OIL    AND    GAS NEGLIGENCE.  775 

valve  between  the  tank  and  the  supply  i)ii)o.  One  <tf  the  men 
went  on  to  the  tank  for  that  pur]X)se,  and  ac^ain  jj^ot  dif.  Aj)- 
pellee  inquired  if  the  valvp'liad  been  closed,  and  one  of  the  uicn 
replied  that  it  had.  lie  again  iiKpiirod,  and,  u]i<iii  Indng  as- 
sured that  it  liad  been  closed,  he  went  under  the  tank,  discon- 
nected the  fe<cd  pi])e  from  the  tank,  when  the  oil  from  the  taidv 
flowed  over  him,  and  saturated  his  clothing;,  whidi  instant l_v 
caught  fire  from  the  l)nriiinii-  oil  spreadinii'  from  the  iced  pipe. 
Appellee  was  seriously  injured.  Jt  appears  that  the  man  who 
went  upon  the  tank  to  close  the  valve  endeavored  to  do  so  with 
his  hands.  Finding  that  impossible,  he  ran  to  get  a  wrench ; 
but  upon  his  return  the  flames  were  sweeping  over  the  tank,  and 
drove  him  away..  The  negligence  charged  in  the  declaration, 
in  the  first  count,  was  the  neglect  of  ap})ellant  to  furnish  proper 
and  safe  connections  between  the  tank  and  the  brick  kiln,  and 
that  appellant  negligently  and  improperly  provided  and  used 
a  connection  made  of  rubl)er,  which  was  unsnitablo  and  im- 
proper for  such  purposes ;  that  the  rubber  became  heated  and 
cracked  and  broke,  permitted  the  oil  to  escape,  which  took  fire, 
etc  The  second  count  alleged  the  use  of  crude  oil  was  dan- 
gerous and  hazardous ;  that  plaintiff  was  in  appellant's  employ 
as  assistant  to  the  foreman,  and  his  employment  necessarily 
brought  him  near  to  the  tanks,  kilns,  etc.,  and  it  became  and 
was  the  duty  of  appellant  to  exercise  a  high  degree  of  care  and 
diligence  in  providing  proper  and  safe  appliances  around  the 
brick  kiln  and  oil  tank,  and  proper  connections,  etc.,  and  also 
to  provide  a  safety  check,  or  some  suitable  device,  to  stop  the 
flow  of  oil  in  case  of  accident,  etc.,  so  as  to  insure  the  safety  of 
its  employees;  yet  appellant  did  not  do  so,  but  carelessly,  negli- 
gently, and  improperly  provided  a  connection  made  of  rubber, 
which,  on  becoming  heated,  vulcanized  and  broke,  and  the  oil 
thereby  escaped,  and,  not  having  provided  snitablo  and  ]>rop;'r 

appliances  by  which  the  flow  of  the  oil  could  be  checked,  the 
flames  from  tlio  kiln  communicated  witli  the  oil,  resulting, 
etc."- 

2  Pullman      Palace      Car     <'o.      v.       2Sr) ;    IS    L.    R.    A.    2ir);    \Vat-<on    v. 
Laack,   143   111.  242;   .32  X.  K.   Rip.       Kentucky,  etc.,  R.  Co.,  137  Ky.  fil!); 


77 G  OIL    AND    GAS. 

§667.     Injuries  from  shooting  wells. 

I'lulcf  j)i-opor  circuiiistaiict's  and  at  projx?r  times  it  is  not 
unlawful  to  shoot  a  well  so  as  to  increase  the  flow  of  gas  or  M\; 
but  to  shoot  a  well  in  a  Jcnselv  scttltMl  eoniniunity,  as  in  a  city, 
is  so  danii'orous  an  undertakinjj:  that  a  court  of  equity  will  enjoin 
it.^  A  well  may  he  shot  so  carelessly  or  at  so  im])ro[)er  a  time 
as  to  render  those  shootinc^  it  liable  for  damages  incurred  by  the 
act  of  shooting  it.  Thus  whore  a  company  engaged  in  the  busi- 
ness of  shooting  wcllo  with  powerful  explosives,  was  employed 
to  shoot  a  well  in  a  village,  and  its  practice  was  to  carefully 
lower  the  explosive  to  the  bottom  of  the  w^ell,  and  then  explode 
it  by  dropping  into  the  well  a  weight  called  a  "  go-devil  " ; 
and  the  shooting  company  claimed  that  its  agent  instructed  the 
owner  of  the  well  not  to  drop  the  "  go-devil  "  until  morning  ar- 
rived, and  that  he  disol)eyed  the  instruction  and  let  it  drop  at 
7:30  in  the  evening;  and  it  appeared  because  of  the  season  (it 
was  Septeml)er)  fires  and  lights  w^ere  burning  when  the  well  was 
shot ;  and  it  was  well  known  that  when  a  well  was  shot  large 
quantities  of  gas  would  escape  from  the  well  and  settle  close 
to  the  earth  under  certain  conditions  of  the  atmosphere,  and 
explode  if  it  came  in  contact  with  fire;  and  it  was  shown  that 
an  engine  near  the  well  had  a  fire  in  it;  and  when  the  well  was 
shot  gas  escaped,  exploded  and  injured  a  boy  permanently,  the 
shooting  company  w^as  held  liable,  and  could  not  shift  the  lia- 
bility upon  the  owmer  of  the  well;  for  it  w^ts  hired  to  shoot  the 
well,  and  the  owmer  in  dropping  the  "  go-devil  "  Avas  simply  act- 
ing for  and  in  tluur  ]>lace  and  stead.*  Tn  this  case  it  was  held 
proper  to  ask  a  witness,  who  knew  the  prevailing  custom  of  well 
shooters,  if  100  quarts  of  nitroglycerine  were  lowered  into  a 
Aveii,  the  well  "  logged  "  on,  the  derrick  boarded  up  except  an 
opening  facing  the  engine  and  belt  house,  the  well  situated  80 
to  200  feet  from  residences  surrounding  it,  the  village  contain- 

126  S.  W.  Rep.  146;    129  S.  W.  .341.  3  People's   Gas   Co.    v.   Truer,    1.31 

Defective  gate  valve  for  gas.   I'nitod  Ind.  277;   31   N.  E.  Rep.  59;    16  L. 

States  Nat.   Gas.  Co.  v.   Hicks,    134  R.  A.  443;   Hill  v.  Schneider,  43  N. 

Ky.  12;   119  S.  W.  Rep.  166;  Stand-  Y.    Supp.    1;     13    N.    Y.    App.    Div. 

ard   Oil   Co.  v.   Wakefield,    102    Va.  299;   4  N.  Y.  Ann.  Cas.  70. 

824;   47  S.  E.  Rep.  830.  4  Ohio,   etc.,    Co.   v.    Fishburn,    61 

Ohio  St.  608;   56  N.  E.  Rep.  457. 


INJURIES    CAUSED    BY    OIL    AND    GAS — NEGLIGENCE.  777 

ing  1,200  inhabitants,  and  the  condition  of  the  atniosjjhere  was 
such  that  when  the  o;as  was  lilx?rated  it  wouhl  settk>  near  the 
earth  - —  if  it  would  he  a  proper  1  iiiic  tn  sin  mi  the  well  at  7  :•')()  in 
the  evening  of  September  7,  when  darkness  liad"  intervened  and 
fires  and  lights  were  lit  in  residences  and  l)nsiness!  houses.  It 
was  said  that  the  fact  called  for  was  not  an  ultiniate  fact  in 
issne,  was  not  a  subject  of  coninion  knowledge,  nor  one  that  llie 
jury  could  as  well  judge  as  the  witness.  As  the  exi)ert  knew 
all  the  dangers  incident  to  the  explosion,  at  the  ]dace  and  hour 
and  in  the  surroundings,  it  was  considered  that  his  opinion 
would  aid  the  jurv  in  drawing  a  conclusion,  better  than  they 
could  draw  from  the  facts  ]irov('n.'*'' 

§668.     Oil  escaping  into  sewers. 

It  is  the  duty  of  an  oil  company  to  keep  its  oil  on  its  own 
premises,  and  if  it  j^ermit  it  to  escape,  and  thereby  another  is 
injured,  it  will  Ix^  liable.  The  liability  does  not  seem  to  rise 
out  of  any  negligent  act ;  but  out  of  a  duty  of  the  company  to 
keep  on  its  own  premises  an  agency  that  may  work  an  injury  to 
another,  or  at  least  in  all  likelihood  will  do  so.  Thus  where 
petroleum  escaped  from  an  oil  tank,  percolated  tbrougli  the  soil 
to  a  sewer  in  which  gases  formed  from  the  oil,  and  found  tlicir 
way  into  a  bakery  and  so  contaminated  the  air  as  to  injure  the 
products  manufactured  by  the  baker,  it  was  held  that  the  com- 
pany ]>ermittiiig  tlie  oil  to  escape  was  lial)le.  The  fact  of  the 
sewer  conveying  the  gases  to  the  bakery,  and  that  they  would 
not  have  reached  the  bakery  but  for  it,  was  considered  not  to 
iriake  the  negligence  of  the  owner  of  the  oil  remote,  for  the  reason 
that  the  sewer  was  a  condition  rather  than  a  cause,  not  an  inde- 
pendent cause  rif  the  injury  making  it  the  ]iroximate  cause.*^      If, 

4a  In   selling  and   dolivpring  paso-  Ark.  608;   OG  S.  W.  Jlvp.  .342:    W:i- 

line   a   company   must   use  ordinary  ters-Piorce  Oil  Co.  v.  Parker  (Ark.), 

care  in  transferring  it.     Tliis  is  true  !)(i    S.    W.    Rep.    .353;    Waters-Pierce 

if    it    is    delivering    it    into    a    tank  Oil  Co.  v.  Burrows,  77  Ark.  74;   !H> 

connected    with    a    private    lighting  S.  \V.  336. 

system.     If  it  fails  to  do  so,  it  will  o  Brady   v.    Detroit,   etc.,   Co.,    102 

be  liable  for  any  injury  which  is  the  M.ich.  '277;   GO  N.  W.  Rep.  G87 ;   26 

direct   result  of   such   lack   of   care.  L.  R.  A.  175. 
Waters-Pierce  Oil  Co.  v.  Knisel,  7!) 


778  OIL    AND    GAS. 

liowever,  the  oscaix'  of  the  nil  is  uiiaNdidnlilc,  ilicn  the  dil  coin- 
jiaiiy  will  iidt  lie  lialilc  for  its  escape  and  the  injury  it  inflicts. 
Tliiis  where  oil  was  i)r(iperly  stored,  but  a  lire  broke  out  on  the 
premises  without  the  neglect  of  the  company,  and  the  oil  es- 
caped to  adjoining:  premises,  from  whicli  it  was  drained  by  a 
ditch  dnj:-  jmi'suant  to  the  orders  of  the  fire  chief  of  the  city 
into  a  sewer,  no  j)erson  or  officer  of  the  oil  company  giving  any 
direction  concerning  the  digging  of  the  ditch  or  as  to  the  turn- 
ing of  the  oil  into  it;  and  the  petroleum  generated  gases  in  the 
sewer,  which  explodcil,  I'csulting  in  a  death,  it  was  hekl  that  the 
oil  coni])any  was  not,  but   the  city  was,   liable. "^ 

§669.     Injury  occasioned  by  exploding  gasoline  fire-pot. 

A  tinner  was  em])loyed  to  pnt  on  a  jiart  of  a  building  a  tin 
roof,  while  ii]Min  the  remaining  ])art  a  shingle  roof  w^as  being 
pnt  on,  by  another  contractor.  In  doing  so  he  nsed  a  gasoline 
fire-pot  to  heat  his  soldering  iron.  The  wand  was  blowing,  and 
to  prevent  it  blowing  the  fire  the  tinner's  servant  set  np  some 
shingles  on  both  sides  of  the  fire-]iot ;  but  they  catching  afire,  he 
set  np  some  tin.  The  tin  so  reflected  the  heat  of  the  fire  as  to 
raise  the  temperature  of  the  gasoline  in  the  tank  of  the  fire-pot 
that  it  exploded,  and  injured  a  servant  of  the  person  putting 
on  the  shingle  roof.  The  tinner's  servant  know  that  gasoline 
wonld  ex])lode  when  heated  snfiiciently.  Tt  was  held  that  the 
tinner  was  liable  to  the  servant  of  the  contractor  putting  on  the 
shingle  roof.^ 

6  Fuclis  V.  St.  Louis.  133  'Mo.  wlion  tlioy  wore  filled  they  were  sub- 
leS;  31  S.  W.  Rep.  115;  34  S.  W.  joct  to  a  test  much  greater  than 
Rep.  508;   34  L.  R.  A.   118.  coiitiruied     afterwards,    there    being 

The  owner  of  dangerous  oil   must  no   general    usage   or    custom   as    to 

keep  it  under  control.     Langabough  testing  them.     Kilbridge  v.  Carbon, 

V.  Anderson,  22  Ohio  Cir.  Ct.   Rep.  etc.,  Co.,  201  Pa.  552;   51  Atl.  Rep. 

nS;    12    Ohio   €.    D.    341.  347. 

7  Evans  v.  Hoggatt,  9  Kan.  App.  A  dealer  in  building  materials  is 
540:    59    Pac.    Rep.    381.  not    liable    for    damages    occasioned 

When    a    cylinder    charged    with  by  a  fire  originating  from  some  un- 

carl)on     dioxide    very     unex[)ectedly  known  cause  in  the  basement  of  his 

exploded;    and    such    explosion    was  store  where  he  kept  oils,  paints,  var- 

very   unusual,   the   owner   was   held  nishes  and  cotton.     Cook  v.  Ander- 

not   liable,    although    he    had    made  son,  85  Ala.  99;  4  So.  Rep.  713. 
no  test  of  the  cylinders  except  that 


INJIKIES    CAUSED    15Y    OIL    AND    liA> 


-NEGLIGENCE. 


779 


§  670.     Use  of  false  brands. — Explosion. 

If  oil  he  falsely  ])raii(U'(l.  lo  rciidrr  llic  oil  coinpai:y  liahli-  for 
damages  occasioned  by  it  exploding  tlie  deception  must  in 
some  way  have  led  to  or  he  connected  with  the  injury.  Thus 
where  74  -degrees  gasoline  was  marked  "puroline,"  and  both 
oils  were  manufactured  from  petroleum,  and  both  as  the  evi- 
dence showed,  were  equally  dangerous,  the  deception  was  held 
not  to  be  such  as  to  render  the  oil  company  liable  for  an  explo- 
sion, which  would  have  occurred  even  if  that  grade  of  gasoline 
had  actually  been  furnished.^  If  a  dealer  in  oil  negligently  or 
unknowingly  mixes  with  it  gasoline  and  then  sells  it  as  oil 
of  a  pure  and  standard  grade,  without  notice  to  the  purchaser, 
the  sale  is  an  act  of  negligence  for  which  he  will  be  liable  in 
damages  resulting  to  the  purchaser;  and  if  the  purchaser 
retail  it  to  a  vendee  who  is  injured,  the  first  vendor  will  be 
liable.*"^  So  it  is  an  act  of  negligence  to  deliver  gasoline  upon 
an  order  for  kerosene.'^''  If  the  ])urchaser  has  notice  that 
the  oil  he  purchases  is  gasoline,  tlien  he  is  chargeable  with 
notice  of  its  dangerous  character,  and  must  govern  himself 
accordingly.*'^ 


sSocala  v.  Chess  Carley  Co.,  39 
La.  Ann.  344;  1  So.  Rep.'  824.  In 
this  case  the  servants  of  the  plain- 
tiff Avere  guilty  of  negligence  in 
drawing  the  oil  at  night  and  using 
a  lighted  lantern  to  aid  them  in 
seeing  how  to  work. 

Acti'.m  given  by  statute.  National 
Oil  Co.  V.  Ramkin,  G8  Kan.  G('!); 
75  Pac.  Rep.  1013;  Peterson  v. 
Standard  Oil  Co.,  55  Or.  511;  IOC 
Pac.  Rep.  337. 

»*a  Waters-Pierce  Oil  Co.  v.  De- 
selms,  18  Okl.  107;  8f)  Pac.  Rep. 
212;  Wilkins  v.  Standard  Oil  Co., 
74  N.  J.  L.  151;  64  Atl.  Rep.  985. 
But  the  fact  that  the  wholesaler 
knew  the  retailer  had  kerosene  cus- 
tomers will  not  render  him  liable, 
if  he  told  the  retailer  that  he  was 
getting  gasoline.  Morples  v.  Stand- 
ard Oil  Co.,  71  N.  J.  L.  352;  59  Atl. 
Rep.  32. 

sbAtkiss  V.  New  Staunton  Coal 
Co.,  147  111.  App.  241;  DuBois  v. 
Luthnier,  147  Iowa  315;  12(j  N.  W. 
Rep.   147. 

8c  Conrad  v.  J.  W.  Oraham  &  Co., 
54  Wash.   (141;    103  Pac.   Rep.    1122. 

Where    it    was    charged    that    the 


defendant  sold  gasoline  to  the  plain- 
tiff for  kerosene,  with  the  malicious 
intent  to  injure  him,  neglecting  to 
inform  him  it  was  kerosene,  it  was 
held  that  it  was  a  chargi'  of  inten- 
tional injurv.  Morrison  v.  Lee 
(N.  D.),   102  N.  W.  Rep.  223. 

If,  in  consequence  of  his  intoxica- 
tion, plaintiir  was  prevented  from 
using  Ills  s<'nscs,  and  was  on  that 
account  injured  by  tlie  explosion  of 
a  lamp  filled  with  a  flashlight  chem- 
ical sold  him  by  defendant,  he  could 
not  recover,  though  the  ciiemical  was 
of  a  more  dangerous  kiiul  tiian  tiiat 
ordered,  and  defendant  was  negligent 
in  selling  it.  Conrad  v.  .bdm  W. 
Graham  &  Co.,  54  Wash.  (141;  103 
P.   1122. 

Where  it  appeared  that  the  plain- 
tiff was  an  experienced  man  in  pho- 
tography with  flashlight  clieniicals, 
knew  that  only  magnesium  could  be 
used  in  his  magi/ine  lamp,  and 
also  that  such  package  was  usually 
liilKded;  and  a  messenger  sent  by 
liiin  to  the  defendant  for  magnesium 
was  given  another  kind  of  chemical, 
which,  on  being  used  by  the  plain- 
tiff,   exploded    and    injured    him,    it 


780 


OIL    AND    GAS. 


§  671.     Negligent  care  of  grounds. — Fire  communicating  to  ad- 
joining houses. 

An  oil  company  must  keep  its  premises  in  such  a  condition 
that  it  will  not  be  liable  to  lightly  or  easily  catch  fire,  and 
thereby  endanger  properties  near  it.  Thus  where  an  oil  com- 
pany permitted  its  buildings  and  grounds  to  become  soaked 
with  oil,  and  also  allowed  a  large  number  of  "jackets"  used 
on  oil  cans  and  barrels  to  accumulate  on  the  premises,  so  that 
a  passing  locomotive  easily  set  them  on  fire,  and  the  fire 
reached  adjoining  buildings  and  destroyed  them,  the  oil  com- 
pany was  held  liable,  for  the  reason  that  if  it  had  kept  its 
premises  and  buildings  in  a  proper  condition  the  fire  would 
not  have  been  started,  and  if  started  could  have  been  con- 
trolled. In  this  case  the  plaintiff's  buildings  that  were  burned 
had  been  built  after  he  knew  of  the  condition  of  the  oil  com- 
pany's premises  and  buildings;  but  this  was  held  to  make  no 
difference."  Nor  would  it  have  made  any  difference  if  the 
plaintiff  had  previously  sold  the  grounds  to  the  company  to 


was  held  proper  to  charge  the  jury 
that  if  the  defendant  notified  the 
messenger  tnat  tlie  chemical  fur- 
nished was  not  magnesium,  but  a 
more  dangerous  chemical,  and  such 
chemical  was  labeled,  cautioning 
■against  its  use  in  a  magazine  lamp, 
and  if  the  plaintiff  saw  and  read, 
or  by  exercising  reasonable  care 
could  have  seen  and  read  such 
caution,  but  nevertheless  used  the 
chemical  in  his  lamp,  he  could  not 
recover.  Conrad  v.  John  W.  Graham 
&  Co.,  supra. 

A  complaint,  alleging  that  F.,  a 
merchant,  ordered  of  defendant  a 
certain  kind  of  kerosene  that  would 
stand  an  open-fire  test  of  120  de- 
grees; that  defendant  negligently 
delivered  to  him,  in  a  tank  marked 
as  containing  the  article  ordered,  a 
distillate  that  would  only  stand  a 
test  of  88  degrees;  that  F.,  relying 
on  his  contract  and  the  label,  sold 
.some  of  it  to  plaintiff's  intestate,  as 
the  article  ordered;  that  she,  wliile 
trying  to  kindle  a  fire  witli  it,  with- 
out negligence,  was  killed  by  an  ex- 
plosion which  resulted;  and  that, 
liad  it  Ijeen  as  represented,  no  ex- 
plosion would  have  resulted — is 
sufTicient,  at  least  as  against  a  gen- 
eral   demurrer,   witliout   any   allega- 


tion of  the  dangerous  character  of 
such  distillate.  Peterson  v.  Stand- 
ard Oil  Co.,  55  Or.  511;  106  Pac. 
Eep.  337. 

In  an  action  for  injuries  to  a 
child  due  to  an  explosion  of  gasoline 
alleged  to  have  been  negligently  de- 
livered to  her  for  kerosene  in  a  can 
not  intended  for  gasoline,  where  it 
was  shown  that  on  the  morning 
after  the  accident  children  of  the 
family  to  wliich  she  belonged  were 
seen  in  possession  of  a  gasoline  can 
properly  painted  and  labeled,  their 
declarations  as  to  what  they  were 
going  to  do  with  it  were  admissible 
as  verbal  acts  explanatory  thereof. 
DuBois  V.  Luthmer,  147  Iowa  315; 
126  N.  W.  147. 

It  w^as  also  held  that  it  was 
proper  to  show  that  on  the  morning 
after  the  accident  the  children  of 
the  family  to  which  she  belonged 
were  seen  in  j)osse&sion  of  a  gasoline 
can  proj)erly  painted  and  labeled,  as 
well  as  what  its  mother  said  ten 
minutes  after  the  explosion  con- 
cerning liow  the  accident  occurred. 
DuBois  V.  Luthmer,  supra. 

9  Waters-Pierce  Oil  Co.  v.  King, 
6  Tex.  Civ.  App.  03;  24  S.  W.  Rep. 
700;  Moeckel  v.  C.  A.  Cross  &  Co., 
190  Mass.  280;  76  N.  E.  Rep.  447. 


INJURIES    CAUSED    BY    OIL    AND    GAS — NEGLIGENCE.  781 

use  in  their  oil  l)usiness."'  In  sueh  an  instance,  tlie  general 
practice  and  custom  of  oil  conii)anies  is  admissible  to  rebut 
the  charge  of  negligence,  but  evidence  of  the  practice  and 
custom  of  a  particular  company  is  not.'' 

§  672.     Oil  escaping  from  an  exploding-  refinery. 

Where  oil  escaped  from  a  refinery  l)ecaiise  of  an  explosion, 
and  flowed  down  a  ]iipc  line  to  a  lighter  in  a  harbor,  used  for 
the  conveyance  of  oil,  set  it  on  fire,  causing  it  also  to  explode, 
and  by  reason  of  it  exploding  a  vessel  moored  in  the  liarbdr  was 
set  on  fire,  the  refining  company  was  held  not  liable  for  the 
loss  of  the  vessel ;  for  the  reason  that  it  was  not  shown  that  the 
refinery  company  was  negligent  in  the  operation  of  its  works 
nor  the  explosion  caused  by  negligence.  Tlie  mere  fact  of  the 
explosion  was  held  not  to  show  negligence,  for  the  reason  '^  That 
there  is  a  general  disposition  among  men  to  preserve  their  prop- 
erty and  escape  liability,  and  ordinarily  their  motives  will  se- 
cure that  degree  of  care  and  caution  which  the  safety  of  the 
]ml)lie  demands;  hence  the  presumption  of  duty  ])crf(»rnied 
which  in  cases  of  fire  will  protect  him  until  the  facts  be  proven 
from  which  negligence  can  be  inferred.''  '"  But  this  rule  has 
not  always  been  accepted,  some  of  the  courts  holding  that  the 
fact  of  an  explosion  raises  a  presumption  of  negligence.'"^  Where 
oil  esca}:)ed  from  a  refinery  and  reached  water  in  a  liarlxir;  and 
it  was  set  on  fire  by  a  iierson  throwing  a  lighted  match  into 
the  water,  and  the  fire  burned  a  boat,  the  refinery  company  was 
held  not  liable,  the  escape  not  being  the  proximate  cause  of  the 
loss.'* 


As  to  case  of  malicious  burning,  plodod,   burning   the   plaint ifT.      See 

see   Watson   v.    Kentucky,   etc.,    Co.,  Donaliue   v.   Kcllv,    ISl    Pa.   St.   !(3; 

137   Ky.  019;    12'J   S.   \V.  Rep.  341;  37   Ail.   Kep.    18(i;   5!)   Am.   St.   Hep. 

modifying  126  S.  W.  Rep.  14tj.  032. 

lojudson    V.    Giant    Powder    Co.,  i- Cosulich    v.    Standard    Oil    Co., 

107    Cal.    549;    40    Pac.    Rep.    1020;  122  N.  Y.    118;    25   N.   E.   Rep.  259. 

29  L.  R.  A.  718.  is  Warn  v.  Davis  Oil  Co.,  01   Fed. 

11  Standard   Oil    Co.    v.    SAvan,    80  Rep.  631;    Judson   v.  Ciant  Powder 

Tenn.  434;    14  S.  W.   Rep.  92«;    15  Co.,    107    Cal.    540;    40    Pac.    Rej.. 

S.   W.   Rep.   1068;    10  L.  R.  A.   306.  1020;    20   L.   R.   A.   718. 

Employee  in  restaurant  throwing  n  Neal   v.   Atlantic   liefining   Co, 

out  naming  gasoline  lamp  that  e.\-  4  Pa.  L)ist.  Rep.  49. 


782  ^11'    AND    GAS. 

§673.     Rescuer  injured  by  neg^ligence  of  an  oil  or  gas  company. 

To  rentier  an  oil  or  ^as  eonijjnny  liable  to  one  who  has  been 
injured  in  attempting  to  rescue  one  inijx'rilhMl  l>v  a  tire  or  an  ex- 
plosion, tlie  conijiany  ninst  have  l)een  liuilty  of  negligence  in 
some  way  that  inquM-iileil  the  ])erson  whom  the  injured  ])erson 
attemi)ted  to  rescue.  in  such  an  instance  the  oil  coniiiany  must 
have  been  gnilty  of  negligence  toward  the  j^ei-son  who  was  in 
danger,  or  to  the  rescuer,  in  order  to  hold  it  liable.^"'  But  where 
a  city  dug  a  trench  in  the  street,  in  which  gases  accumulated  to 
such  an  extent  that  the  workingmen  abandoned  it,  leaving  it 
open  several  days ;  and  there  was  such  an  arrangement  of  tim- 
bers leading  down  into  it  as  amounted  practically  to  a  ladder, 
down  which  a  boy  descended  to  secure  his  ball  that  had  fallen 
into  the  ditch,  the  place  where  he  descended  being  near  a  school 
playground  in  a  |X)])ulous  ])art  of  tlie  city,  when  he  was  overcome 
with  the  gas ;  and  his  playmate,  seeing  him  fall  back  into  the 
ditch  as  he  was  coming  out,  went  to  his  rescue,  not  knowing  of 
the  gas,  and  lost  his  life  in  endeavoring  to  save  his  comrade,  it 
was  held  that  the  city  was  liable  for  the  death  of  the  latter, 
being  Ixuuid  for  the  consequences  of  its  neglect,  though  such  con- 
sequences were  not  and  could  not  by  any  ordinary  prudence  have 
been  anticipated.  The  acts  of  the  boy  who  went  to  the  rescue  of 
his  ])laymate,  it  was  held,  must  be  considered  in  view  of  the 
circumstances  that  he  had  no  time  to  think,  but  must  act  at  once, 
and  that  others  had  gone  into  the  ditch  before  and  returned 
safely,  and  also  that  his  playmate  whom  he  went  to  rescue  re- 
turned after  recovering  from  the  effects  of  the  gas,  and  above  all 
that  he  went  to  the  rescue  of  a  human  being  in  great  and  im- 
minent danger.  Consequently  he  was  not  chargeable  with  er- 
rors of  judgiuent  resulting  from  the  excitement  of  the  moment.** 

1^' Jackson    v.    Standard    Oil    Co.,  R.    A.    715.      For    analogous    oases, 

98  Ga.  74!);  26  S.  E.  Rep.  60;   Don-  see  Maryland  Stool  Co.  v.  Moornoy, 

ahue   V.    Wabash,    etc.,    Co.,    83    Mo.  SS    Md.    482;    42    Atl.    Rep.    60;    42 

i>60;    Pennsylvania    Co.    v.    Langen-  1,.    IJ.     \.    842:    Peyton    v.    Texas   & 

dorf,  48  Ohio  St.  .316;  28  N.  E.  Rep.  Pa.ifio    Ry..    41    La.    Ann.    861;    6 

172;    1.3  L.  R.   A.   1!)0.  So.  Rep.  690;   Gibney  v.  State,   137 

ifi  Corbin  v.  Philadelphia.  195  Pa.  X.  Y.   1;   .33  N.  E.  Rep.   142;    19  L. 

St.  461;   45  Atl.  Rep.    1070;   49   L.  R.  A.  365. 


INJURIES   CAUSED    BY    OIL    AND    GAS — NEGLIGENCE.  782a 

§674.     Minor  employee's  oil-soaked  clothes  catching  fire. 

A  Ixiv  was  Wdi-kiiii;-  for  nil  nil  (■()iiii);iii_v,  ami  his  I'lotliing  ho- 
caino  soaked  with  oil.  It  was  a  cold  day,  and  becoming 
chilled  he  was  directed  hy  the  superintendent  in  charge  of  the 
place  to  go  to  an  n]i])er  mom  of  the  hiiiiding  the  eoni])any  was 
using  and  warm  himself  at  the  stove  in  the  room.  lie  was  iioi 
warned  that  his  clothing  was  liable  to  take  fire  if  he  got  close 
to  the  stove.  He  went  np  into  the  room  and  approached  close 
to  the  stove,  which  was  quite  hot,  when  his  clothing  took  fire. 
He  tried  to  escape  from  the  room,  but  the  door  having  become 
fastened  by  reason  of  the  lock  being  defective,  he  jum})ed  out 
of  an  upper  window  and  received  injuries  from  which  he  died. 
The  oil  company  was  held  liable,  because  it  was  the  sujierin- 
tendent's  duty  to  warn  the  l>oy  of  the  danger  of  getting  close 
to  the  stove  when  his  clothes  were  in  their  oil  soaked  condi- 
tion.'' 

§675.     Explosion  of  benzine  used  in  paint. 

A  master  painter  sent  his  servant  to  paint  the  inside  of  a 
water  tank,  which  was  ten  feet  in  diameter  and  twelve  feet 
deep.  He  furnished  the  servant  paint  that  had  been  in  common 
use  twelve  years;  and  the  master  did  not  know  the  paint  was 
dangerous.  It  was  supposed  that  the  paint  contained  a  certain 
amount  of  benzine ;  and  when  the  cans  were  opened  and  the 
paint  applied  to  the  sides  of  the  tank  it  threw  oflF  some  gas 
which,  coming  in  contact  with  a  light  necessarily  used,  caused 
an  explosion  and  injured  the  servant.  The  master  w^as  held  not 
liable,  on  the  ground  that  he  had  provided  such  material  and 
implements  as  were  ordinarily  used  by  persons  in  the  same 
business,  and  he  was  required  to  do  nothing  more.  He  was 
not  re(|uired  to  secure  the  best  known  material,  or  subject  the 
material  he  used  to  a  chemical  analysis  in  order  to  discover  a 
possible  or  remote  hazard  incurred  by  the^r  use.** 

17  Wallace    v.    Standard    Oil    Co.,  of  vprmin.     The  fa<a  that  the  ga-^o- 

66   Fed.    Kep.   260.  line  e.xploded  does  not  sliow  that  tlio 

i«  Allison    Manufacturing    Co.    v.  iiia.ster    was    ne-iiij^eiit    in    directing 

McCorniick,     118    Pa.    St.    519;     12  tlie  servant  to  so  u.se  it.     Aih'ghenv 

Atl.  Kep.  273.  •  Imp.    Co.    v.    Weir     (Ark.),    1^2    S. 

It   is   not  negligence    in   a   master  W.  462. 
to  use  gasoline  in  the  e.\terniinati<ju 


782b  on,    AND    GAS. 

§676.     Servant  of  oil  company  injured  by  defective  appliances. 

Whore  a  servant  uf  an  uil  eunipanv  was  injiircMl  liv  a  defective 
still  in  the  refinery,  the  refining  company  was  held  liable.  In 
this  case  the  still  was  Imilt  by  an  indejx'ndent  contractor  ac- 
cording to  the  plans  of  the  ])rcsidcnt  of  the  company,  and  by  him 
placed  in  the  refinery  of  the  coin])any.  "  If  I  employ  a  well 
known  and  reputable  machinist,"  said  the  court,  "  to  con- 
struct a  steam  engine  and  it  blows  uj)  from  bad  materials  or 
unskilled  work,  I  am  not  responsible  for  any  injury  which  may 
result,  whether  to  my  servant  or  to  a  third  person.  The  rule  is 
different  if  the  inaeliine  is  made  according  to  my  own  plan,  or 
if  I  interfere  and  give  directions  as  to  the  manner  of  construc- 
tion. The  machinist  then  becomes  my  servant,  and  respondent 
superior  is  the  rule."  ^"  A  servant  descended  with  a  light  into 
an  oil  still  to  repair  it,  and  gas  exploding,  he  was  killed.  His 
employer  was  a  distiller  of  crude  petroleum,  and  used  the  tank 
for  that  purpose.  In  the  distilling  of  the  oil  large  quantities 
of  gas  were  generated,  which  escaped  into  a  running  room  when 
the  stills  were  in  operation  ;  but  wlien  the  stills  M'cre  empty, 
some  of  the  gas  which  escaped  from  the  pipes  into  the  running 
room  found  its  way  back  into  the  stills,  because  no  stop-cocks 
had  been  put  in  the  pipes  to  shut  it  off.  It  was  necessary  for 
the  employee  to  have  the  light  when  ho  wont  into  the  still  to 
repair  it.  The  oil  refining  company  was  held  liable  on  the 
ground  that  it  had  not  furnished  safe  appliances  and  a  safe 
place  in  which  to  work.""  A  refinery  employed  a  servant  to 
manufacture  varnish,  in  which  na])htlia  was  used,  by  a  process 
known  only  to  hiinsolf.  lie  was  injured  by  an  explosion.  lie 
claimed  that  the  company  was  lialtlo  because  the  appliances 
and  structure  for  the  manufacture  of  the  varnish  were  defective, 
that  the  place  whore  ho  worked  was  unsafe,  because  near  a 
furnace,  to  the  fire  of  which  the  fumes  or  gas  of  the  naphtha 

19  Ardesco  Oil  Co.  v.  Gilson.  63  tion  nf  the  appliances  could  he 
Pa.    St.    146.  shown   liy  a   conversation   wliich   an- 

20  Nicholas  v.  Brush.  .'>:?  Hun  137;  other  an<!  farmer  emnloyee  liad  with 
6  N.  Y.  Sunp.  601.  In  this  case  it  flie  superintendent  of  the  refinery, 
was   held   that    the   defective   condi- 


INJURIES    CAUSED    BY    OIL    AND    GAS  NEGLIGENCE.      783 

could  reach,  as  it  did  wlu'ii  he  was  iiijiircMl,  of  which  ch-ircts  thr 
company  had  notice.  It  appeared  tliat  tlie  servant  had  dcsij^ned 
the  appliances,  and  there  were  doors  which  could  he  closed  so 
the  gases  from  the  naphtha  could  not  reach  the  furnace  fire, 
which  was  in  an  adjoining  room.  The  servant  had  full  charge 
of  the  work,  was  skilled  in  his  art;  while  the  defendant  had 
been  owner  of  the  plant  only  a  week.  The  servant  had  been 
in  the  service  of  the  former  owner  of  the  plant  many  months. 
The  defendant  was  held  not  liable."^  So  where  a  servant,  who 
had  been  at  the  same  work  over  a  year,  went  into  a  still  with  a 
light,  knowing  the  danger  of  an  (>x))losion  of  the  gas  by  reason  of 
its  coming  in  contact  with  the  lighted  candle  he  w^as  carrying, 
and  was  injured  by  an  explosion,  it  was  held  that  the  employer 
was  not  liable."' 

§677.     Injuries  to  servant  of  purchaser. —  Sale  in  violation   of 
statute. 

It  is  the  duty  of  a  vendor  of  a  dangerous  article  to  give  notice 
of  its  dangerous  qualities  to  the  person  to  whom  he  sells  it;  and 
if  he  do  not,  and  an  injury  to  such  person  is  occasione(l  by  il, 
which  is  the  natural  and  probable  consequence  of  the  vendor's 
neglect,  such  vendor  ^s  liable.  And  if  the  sale  has  been  made 
by  an  agent  of  the  vendor,  and  such  agent  is  ignorant  of  the 
dangerous  character  of  the  article,  and  sells  it  to  a  ])urchaser 
without  warning,  the  vendor  will  still  be  liable.  The  luir- 
chaser's  servant  has  the  same  right  to  recover,  in  case  he  is  in- 
jured, as  the  purchaser  possesses.  Thus  where  the  agent  of  a 
company  sold  110  gallons  of  naphtha  of  the  grade  of  87  degrees, 
the  most  dangerous  nai)htha  manufactured  and  sold,  to  a  laun- 
dryman,  and  assisted  him  in  storing  it  in  a  shed  on  the  rear  of 
the  laundry  premises,  alKuit  thirty  feet  from  where  the  furnace 
of  the  laundry  was  situated;  and  twic(>  a  d;iy  they  drew  ten 
irallons  and   took   it    into  the   laundi'v    to  heat   the   ii'oiiinir  ma- 


21  Hauk  V.  Standard  Oil  Co.,  38  city  waterworks,  of  wliicii  an  eni- 
N.  Y.  App.  Div.  G21;  50  N.  Y.  Siipp.  jjIovop  liad  no  notice,  is  not  one  of 
273.  tlic  ordinary  and  ohvious  iiazards  of 

22  Bonfield  v.  Vacuum  Oil  Co.,  75  liis  cinpIoynH-iil,  wiiicli  he  assumes 
Hun  '2()!l;   27  N.  Y.  Supp.   Ki.  by  acccplinj;   it.     Reed   v.  Syracuw, 

The  danger  of  an  explosion  from  83  Neb.  713;   120  N.  W.  Rep.  180. 
gasoline    in   the    pumping   pit   of    a 


J  84  OIL    AND    GAS. 

L'liiuery;  and  it  \vas  the  duty  of  a  Ixiv  and  a  foroinaii  to  remove 
the  gasoline  fnmi  tlic  i)laee  of  storage  for  use;  and  when  tliey 
were  doing  this  on  a  July  day  gas  escaped  from  the  storage 
tank,  penetrated  the  atmosphere,  entered  the  open  door  and  win- 
dow of  the  laundry  hiiilding,  eame  in  contact  with  the  fiirnace 
fire,  exploded,  and  so  injured  the  Im.v  that  he  died,  the  oil  nnii- 
jiany  was  held  liahle.  No  one  knew  of  the  dangerous  qualities 
of  the  gasoline  except  the  company,  even  its  agent  being  ig- 
norant of  them,  who  innocently  represented  that  there  was  no 
danger  in  storing  the  gasoline  where  it  was  put,  upon  which 
statements  the  purchaser  relied.  The  court  considered  that  the 
local  agent  had  a  right  to  make  the  representations  he  made,  they 
coming  within  his  apparent  authority,  and  they  were  binding 
u]X)n  it,  although  authority  to  make  them  was  not  given  him. 
The  court  refused  to  allow  the  oil  company  to  show  by  a  general 
agent  that  it  was  not  the  custom  ta  make  any  representations  con- 
cerning storage  and  the  use  of  gasoline,  in  view  of  the  fact  that 
representations  were  actually  made  and  the  purchaser  was  not 
aware  of  the  custom ;  and  also  in  view  of  the  fact  that  the  law 
required  a  vendor  of  a  dangerous  article  to  notify  the  vendee 
of  its'  dangerous  qualities.  The  court  also  held  that  the  proxi 
mate  cause  of  the  injury  was  the  failure  to  give  the  purchaser 
notice  of  the  dangerous  qualities  of  87  degree  gasoline  and  the 
employment  of  an  agent  ignorant  of  such  qualities.  The  court 
did  not  consider  that  the  negligence  of  the  company  was  re- 
mote by  reason  of  the  fact  that  tlie  heat  from  the  laundry  may 
have  generated  the  gas,  because  the  oil  was  stored  where  the 
local  agent  of  the  company  directed  it  to  be  placed,  and  also 
because  the  laundryman  was  induced  to  ]iurchase  it  by  reason 
of  the  representations  of  the  local  agent  that  it  was  safe,  that 
he  knew  the  use  to  which  it  was  to  be  put,  and  the  oil  company 
must  have  known  how  it  was  to  be  used,  for  they  shipped  it 
directly  to  tlie  ])uvchas('r."'''  Whore  n  st'itute  provided  that  "  no 
gasoline  shall  be  sold,  given  away  or  delivered  to  any  person 
in  this  State  until  the  package,  cask,  barrel  or  vessel  contain- 
ing the  same  has  been  marked  gasoline  " ;  and  a  dealer  sold 

23  Waters-Piorro  Oil  Co.  ^■.  Divis, 
24  Tex.  Civ.  App.  508;  GO  S.  W. 
Rep.  453. 


INJIKIES     CAISKD     1!Y     Oil,     AM>    OAS  N  KC  l.Ki  KN<'K.        7S5 

jrasdliiic  in  ini:-  witlidUt  iii;irkiiii:-  it;  mikI  tin'  iiiiimr  ciiiM  of 
the  jMircliMscr  was  iiijnn'd  liy  it,  it  \v:is  held  liial  ilic  vendor  was 
liable.  The  court  considered  that  the  statute  was  for  the  \my 
teetiou  of  all  j)ersons  in  th(>  State,  the  label  or  mark  bcini^  re- 
quired to  warn  them  of  the  sui)stance  they  were  hamlling,  so 
that  the  failure  of  the  vendor  to  jiroperly  mark  the  j)ackage  or 
cask  was  nejiliii-enee  pet-  sc.  In  this  instance  the  ,i!;irl,  having 
no  knowledge  that  the  oil  was  gasoline,  put  a  small  quantity  of 
it  in  the  stove  to  light  the  fire,  and  on  lighting  it,  it  exploded, 
setting  fire  to  her  clothes.  The  father  and  the  purchaser  knew 
the  jug  contained  gasoline,  but  did  not  tell  her  of  it.  His  neg- 
ligence was  held  not  to  be  imputable  to  her."* 

§678.     Sale  of  oil  of  low  fire  test,  explosion. —  Deception. 

A  sale  of  oil  of  low  tire  test  fm-  illuuiinat ing  i)iir])0ses  nu\y 
render  both  the  salesman  and  the  manufacturer  liable,  in  case 
of  an  explosion  producing  an  injury;  and  so  far  as  the  manu- 
facturer is  concerned,  it  matters  not  how  many  deaUu-s'  hands 
through  which  it  passes.  "A  manufacturer  of  oil,"  sai<l  the  court 
in  one  case,  who  sells  it  as  bearing  a  high  and  safe  tire  test, 
*'  when  in  fact  he  knows  that  its  fire  test  will  not  exceed  0-t  to 
65  degrees  Fahrenheit,  and  that  this  is  a  most  explosive  and 
unsafe  oil  for  domestic  use,  can  ])lead  nothing  in  a  defense  of 
this  willful,  terrible  wrong  to  a  confiding  community.  Tie  bears 
with  him  a  heart  regardless  of  social  duty,  evidencing  malice 
in  a  legal  sense  in  a  high  degree."  ''^  So  where  a  maiuifacturer 
knowingly  sold  to  a  retail  dealer  luiphtha  oil  for  illuminating 
oil,  and  the  retail  dealer  sold  some  of  it  to  a  consumer,  and  an 
explosion  occurred  when  the  consumer  attempted  to  use  it  in  a 
lamp,  the  manufacturer  was  held  liable,  the  consumer  not  know- 
ing the  kind  of  oil  it  actually  was.""     Ignorance  of  the  law  re- 

24  Ives  V.  Wilden,  114  Iowa  476,  the  company  from  liability  for  in- 
87  N.  W.  Rep.  408;  54  L.  R.  A.  jury  sustained  by  the  Jatter  in 
854.  using,    in   the  customary   manner,   a 

25  Eikins  V.  iMcKean,  79  Pa.  St.  fluid  wliicli  l)otli  he  and  his  innocent 
493.  vendor    supposed    wjis    coal    oil,    but 

26  Wellington  v.  Downer  Kerosene  which  the  oil  company,  knowing 
Co.,  104  Mass.  64.  that    it   contained   gasoline,    sold    to 

The  absence  of  any  contractual  such  vendor  as  coal  oil  in  violation 
relation  between  an  oil  company  and  of  statute,  and  with  the  expectation 
a  private  consumer  does  not  relieve       that  it  would  be  retailed  to  the  pub- 


78G  OIL    AND    GAS. 

(juiriiig  a  test  or  wIiciIkt  the  oil  is  below  the  test  will  not  excuse 
the  vendor.'^  The  illeijal  intent  will  l>e  j)resunied;  and  any- 
thing in  rebuttal  thereof  is  a  pro})er  matter  for  the  defense.^" 

§679.     Implied  warranty  in  sale  of  illuminating  oil. 

In  the  sale  of  ilhiniinating  oil  there  is  an  implied  warranty 
that  it  is  fit  for  the  jnirpose  sold,  and  that  it  is  not  Ixdow  the 
test  required  by  law,  where  a  statute  requires  a  test  to  be  made 
and  fixes  the  standard.  In  a  case  of  a  sale  of  oil  that  was  not 
up  to  the  test  recpiired,  and  it  exploded,  causing  the  death  of  a 
person,  it  was  held  that  not  only  the  immediate  salesman  was 
liable,  but  also  the  refiner  who  put  it  on  the  market. ^^  Where 
an  oil  dealer  sold  a  grocer  naphtha  for  kerosene,  and  the  latter 
sold  it  to  a  consumer,  who  knowing  not  the  contrary,  in  using  it 
\vas  injured  by  it  exploding,  it  was  held  that  the  dealer  was 
liable  to  the  person  injured.^''  A  specification  in  a  contract 
by  the  manufacturer  of  refined  petroleum  for  its  sale,  to  the 
effect  that  it  shall  be  of  a  certain  brand,  color,  and  fire  test,  does 
not  exclude  an  implied  warranty  that  it  shall  ])e  free  from  latent 
defects  arising  from  the  process  of  manufacture  which  would 
render  it  unmerchantable.^^  A  provision  in  such  a  contract  that 
the  acceptance  of  the  petroleum  by  the  buyers'  inspectors  shall 
be  an  acknowledgment  that  the  goods  are  in  accordance  with 
the  contract;  and  a  certificate  by  the  inspector  to  that  effect,  do 
not  relieve  the  manufacturer  from  liability  on  an  implied  war- 
rantv  that  the  petroleum  is  free  from  latent  defects  arising 
from  the  process  of  nianufaetnre,  which  renders  it  unmerchant- 
able.^"     Evidence  that  the  defendant  knew  from  the  manner  in 


lie  for  domestic  use  as  such.    Judg-  29  Elkins  v.   McKean,   79   Pa.   Si. 

ment   (1907)   89  P.  212,  18  Okl.  107,  49.3;  ITourigan  v.  Nowoll,  110  Mass. 

afTirmed.      Waters-Piorco   Oil    Co.    v.  470. 

Desolms.,  29    S.   Ct.  270;    220  U.   S.  •"•"  Wellington  v.  Downer  Kerosene 

270;   .5.3  L.  Ed.  — .  Co.,    104   Mass.    64. 

27  T3o\vning  v.  State,  66  Oa.   160;  fi  Carleton  v.   Lombard,  etc.,  Co., 

Ilorrigan  v.  Xowell,   110  Mass.  470.  149   N.   Y.    137;    43   X.   E.  422;    re- 

-s  Ibid.    A  statute  prohibiting  the  hearing   denied,    14fl    X.    Y.    35;    44 

sale   of   naphtha    does    not    prohibit  X.  E.  Rep.   183. 

the  generation  of  gas  from  naphtha  32  Carleton  v.  Lombard,  etc.,  Co., 

by    a    stationary    gas    engine.      An-  supra. 
derson  v.  Savannah,  09  Ga.  472. 


IXJrUIES    CAUSKI)     BY    Oil.     AND    GAS  M-Xil.lUKNCK.       787 

M-liicli  it  was  [)a('kccl  ami  fi-t»iii  nthcr  sources  tlif  jilacc  to  whidi 
it  was  to  bc^  scMit  Ity  the  plaintitV,  wlio  purcliascMl  the  oil  troiii 
him,  was  held  admissible,  in  an  action  fur  breach  of  an  implied 
warranty  that  it  was  free  from  latent  defects  which  would  render 
it  unmerchantable.""'  Where  a  statute  provided  tlnit  if  any 
inspector  or  deputy  falsely  branded  or  markc(l  any  liMircK  or 
was  guilty  of  any  fraiul  ov  culpable  nciiligence,  in  the  discharge 
of  his  official  duties,  he  should  be  liable  to  the  jtarty  injured 
for  all  dauuiges  resulting  therefrom,  it  was  held  that  intt'n- 
tional  wrong  or  culjiable  negligence  "vvas  esseutial  to  render 
such  inspector  or  his  deputy  civilly  liable,  and  that  there  must 
be  a  casual  connection  between  the  false  branding  to  render 
him  liable  for  the  injury  and  damages  of  which  complaint  is 
made.''* 

§680.     Gas  box  in  sidewalk. 

A  company  empowered  to  inanufacture,  make  and  sell  illu- 
minating gas  for  a  city  or  its  streets,  and  any  buildings,  manu- 
factories or  houses  therein,  and  to  lay  pipes  in  the  streets  for 
the  purpose,  is  liable  for  an  injury  occasioned  by  a  gas  box  in 
the  sidewalk  which  furnislies  access  to  a  cock  in  the  service 
pipe  conducting  the  gas  from  the  main  to  the  house;  for  it  is 
a  part  of  the  apparatus  of  the  company  over  which  it  is  bound 
to  exercise  proper  care  to  prevent  an  injury  to  persons  on  the 
sidewalk.^^ 

§681.     Negligence  of  contractor. 

A  gas  company  had  the  ju-ojier  authority  to  lay  its  gas  mains 
in  the  streets  of  a  municij)ality,  and  contracted  with  one  (\  to 

S'"*  Carleton   v.  Lombard,  etc.,  Co.,  branded    would    not    i-eiidcr    tlie    in- 

svpra.  spector  liable,  if  the  injury  resulted 

34  Hatfher  v.  Dunn,  102  Iowa  411;  from  some  otlier  cause,  such  as  the 

71    N.    \V.    Rep.    .343     (aflirniinf!;    on  use    of    a    defective    and    an    unsafe 

rehearing   66  N.   W.   Rep.   OOo)  ;    36  lamp, 

L.    R.   A.   680.     In  this  case  it  was  ••i.''>  WashinjTton     Oaslijiht     Co.     v. 

also    held    that   liability   of    the    in-  District  of  Columbia.  161  U.  S.  310 : 

spector  and  his  sureties  were  purely  16  Sup.  Ct.  Rep.  564;   aflirminjj  20 

statutory.      It    was    also    held    that  D.  C.  39;.  Loan  v.  Boston.  106  Mass. 

the    fact    that   the    oil    was   falsely  450. 


788  OIL    AND    GAS. 

lay  tlicni.  Tlio  ('(Uitractdr  failed  to  j)roj)erly  rotill  the  trench, 
and  a  horse  fell  into  it  and  was  injiifcd.  1 1  was  held  that  the 
owner  of  the  horse  conld  niaintaiii  his  action  against  the  gas 
company,  on  the  gronnd  liuit  it  was  obliged  to  restore  the  streets 
to  a  safe  condition  ;  and  that  they  conld  not  escape  liability  by 
slidwiiii:'  that  tliey  eoiit  ractc"!  with  others  to  iK-rforiii  theii'  <lnty 
tor  tlieni."'"  And  if  a  contractoi-  building  a  sewer  f<ir  the  city 
injnre  the  gas  company's  jnjx^s,  lie  will  be  lia])le  to  the  com- 
pany.'' A  contractor  was  to  dig  a  trench  in  the  street  for  a 
gas  company  nmlrr  the  siiper\-ision  of  the  company's  engineer. 
By  a  snbcontract  he  passed  the  work  to  one  Doris,  who  proceeded 
to  dig  the  trench  into  which  the  phiintiff  fell  and  broke  his  leg. 
Doris  employed  ami  supervised  the  hands  who  did  the  work,  and 
the  original  contractor  had  no  control  over  them.  It  was  held 
that  the  original  contractor  was  not  liable.""^ 

g682.     Streets  rendered  dangerous  by  laying  gas  mains. 

A  gas  company  is  liable  to  any  one  injnred  by  reason  of  its 
having  torn  np  the  streets  of  a  city  or  town  and  not  having 
taken  sufficient  ])recantions  to  ]n^otect  the  traveling  jniblic,  the 
same  as  an  individual;  and  it  is  no  excuse  that  it  has  torn  them 
lip  with  the  ])ermission  of  the  public  autliorities."''^  After  the 
gas  company  has  restored  the  streets  to  their  former  conditions 
as  nearly  as  possible,  it  is  not  l>ound  to  kec]>  them  in  repair 

soMcCamus   v.   Citizens'   Gaslight  pool,   etc.,   Gas  Co.,   47    J.    P.   231; 

Co.,  40   Barb.   380;    Lebanon   Light,  Whallen    v.    Citizens'   Gaslight    Co., 

etc.,  Co.  V.  Leap,   139  Ind.  443;   39  63  N.  Y.  Rop.  317;   30  N.  Y.  Siipp. 

N.   E.   Rep.   57;    29   L.   R.   A.   342;  1077;  Pine  BIufT,  etc.,  Co.  v.  Derreu- 

Ellis   V.    Sheffield    Gas,    etc.,    Co.,    2  isseau.x,  5G  Ark.  132;   19  S.  W.  Rop. 

Ell.  and  B.  757;   18  Jur.  140.  428;  San  Antonio  Gas  Co.  v.  Single- 

3T /h,  re  Houghton,   20   Hun  395;  ton,   24   Tex.   Civ.   App.   341;    59   S. 

Croft,    etc..    Gas    Co.    v.    Pryor,    31  W.  Rep.  920;   Cressy  v.  South,  etc., 

Gas  J.  38G.  Gas  Co.,  94  L.  T.  790;  70  J.  P.  405; 

38Wray  v.  Evans,  80  Pa.  St.  102.  4  L.  G.  R.   1049;   Everett  v.  Tp.  of 

soGoodson    v.    Sunbury,    etc.,    75  Raleigh,  21  Ont.  Rep.  91. 
L.  T.  Rep.  251;   00  J.  P.  585;   Scott  For  a  case  of  a  lioavy  pipe  rolling 

V.  Manchester,  2  H.  and  N.  204;   26  over    a    child     and    killing     it,     see 

L.  J.  Exch.  132,  40-0;  3  Jur.   (N.  S.)  O'llara  v.  Laclede  Gaslight  Co.,  131 

590;  5  W.  R.  598;  Hornby  v.  Liver-  Mo.  App.  428;    110  S.  W.  Rep.  642. 


INJURIES    CAUSED    BY    OIL    AND    GAS — NEGLIGENCE. 


78!) 


thereafter/"  A  township  in  Pennsylvania  is  not  lialih-  tor  an 
explosion  of  gas  in  the  highway  eseaping  from  a  ga.s  pipe, 
where  tliere  is  no  evidence  that  the  townsliip  anthoritics  ever 
knew  there  was  a  gas  pi]x^  in  snch  highway.'"  Where  a  hnrse 
was  frightened  hy  reason  of  the  noise  caused  hy  a  well,  and  the 
wagon  it  was  drawing  came  in  coiitaet  witli  a  long  exposed  gas 
pipe  in  the  highway,  occasioning  an  injury  tli(  rehv  to  the  plain- 
tiff, the  gas  comixiny  owning  it  was  lield  liahle.''"  If  a  gas  com- 
pany so  inn^erfectly  till  up  a  trench  in  which  it  has  laid  its  gas 
main  tliat  the  filling  subsides  and  leaves  a  hole  in  the  street,  it 
will  be  liable  to  any  one,  without  fault,  falling  into  the  hole  and 
injured  thereby,  even  though  the  work  had  been  ap])roved  and 
accepted  by  local  authoi-ities.  It  is  not  oidy  the  duly  of  the 
company  to  put  the  street  in  as  good  condition  as  it  was  before, 
but  also  to  exercise  a  careful  foresight  in  order  to  ]u-event  any 
injury^. afterwards  which  might  l)e  occasioned  to  the  work  by 
storms  and  rainfalls,  and  which  would  render  the  work  danger- 
ous to  travelers.*^  If  the  gas  eom])any  o]x^n  a  hole  in  the  side- 
Avalk  necessary  to  the  prosecution  of  its  work,  it  must  see  that 
it  is  properly  protected.'** 


40  Grundy  v.  Janesville,  84  Wis. 
574;  54  X.  W.  Rep.  1085. 

"  Otto  Townsliip  v.  Wolf,  106  Pa. 
St.    608. 

42  Potter  V.  Natural  Gas  Co.,  183 
Pa.  St.  575;  30  Atl.  Rep.  7;  Snyder 
V.  Philadelphia  Co.,  54  W.  Va.  149; 
46  S.  E.  Rep.  306;   63  L.  R.  A.  896. 

43  Dillon  V.  Washington  Gaslight 
Co.,  1  iLxcArthur  (D.  C.)  626; 
Robinson  v.  Imperial,  etc.,  Co.,  15 
Gas  J.  883;  Weld  v.  Gaslight  Co., 
1  Starkie  150;  Chisholm  v.  Halifax, 
29  Nov.  Sco.  402. 

44  Buesching  v.  St.  Ixjuis,  etc.,  Co., 
73  Mo.  219;  11  Rep.  075,  reversing 
6  Mo.  App.  85. 

An  agreement  that  the  trench 
slialJ  be  "well  and  sufTiciently  closed 
up"  and  the  land  and  premises 
"made  good"  is  not  complied  with 
where    the    soil    covering    the    pipes 


is  in  i)!aces  from  two  to  two  and 
a  half  feet  above  the  original  level. 
Chisholm  v.  Halifax,  supra. 

Where  a  passenger,  injured  while 
alighting  from  a  car  by  l)eing 
throA\Ti  by  a  block  of  wood  placed 
across  a  trench  by  a  gas  company, 
sued  the  carrier  and  gas  company 
jointly,  alleging  in  her  statement 
of  claim  that  the  block  had  been 
I)laced  by  the  gas  company  in  a 
dangerous  jjosition,  and  that  she 
had  l>oen  negligently  directed  to 
alight  at  such  p'aee  by  the  carrier, 
the  sustaining  of  a  demurrer  to  her 
complaint  was  pro])er,  since  the 
alleged  negligence  consisted  of  sej)- 
arate  and  independent  acts  of  both 
defendants,  over  which  neither  had 
entire  control.  Howard  v.  Union 
Traction  Co.,  45  Atl.  1076,  195  Pa. 
St.  391. 


790  OIL    AND    GAS. 

§683.     Imperfectly  constructed  g^as  building. 

A  person  was  eniploved  as  a  master  machinist.  A  fire  oc- 
curred in  the  gas  ruoin  of  the  company;  and  he  was  directed  hy 
a  superior  to  l)rcak  down  a  door.  He  did  as  directed;  but  a 
wall  fell  on  liini  and  killed  liini.  It  was  claimed  that  several 
times  the  roof  had  burned  off  the  buildini>-,  and  after  the  last 
fire  an  iron  roof  supix)rted  by  heavy  girders  had  been  put  on 
the  building-.  It  was  also  claimed  that  the  previous  fires  had 
so  weakened  the  wall  that  it  was  not  able  to  support  the  iron 
roof  and  girders ;  and  that  these  girders  expanded  because  of 
the  fire,  and  the  gable  being  weak,  it  all  tended  to  cause  the 
wall  to  fall.  It  was  held  that  as  the  complaint  did  not  shcAV 
the  deceased  was  not  acquainted  with  all  the  defects  and  risks, 
or  had  been  lately  employed,  or  that  the  wall  became  weak 
during  his  employment  or  he  did  not  have  charge  of  that  par- 
ticular part  of  the  building,  and  consequently  out  of  his  line  of 
duty,  or  the  gas  room  was  unfit  for  the  purpose  for  which  it 
was  constructed,  the  com])laint  was  deficient,^^ 

§684.     Exploding  tank  injuring  servant. 

A  railroad  company  had  its  own  gas  plant,  to  manufacture 
gas  it  used.  The  person  who  was  killed  by  it  exploding  was 
employed  by  the  company  before  it  was  luiilt.  The  railroad 
company  organized  a  voluntary  fire  department  composed  of  its 
employees ;  and  tlie  person  killed  was  its  chief.      No  one  was 

Where  a  gas  company  had  given  sureties    thereon    parties    defendant, 

hond  to  a  city  to  indemnify  it  from  contains     but     a     single     cause     of 

damages       resulting       from       suits  action.     Omaha  fias  Co.  v.   City  of 

against  the  city  on  account  of  acci-  Omaha,  71  Neb.  115;  98  X.  W.  437. 
dents  occasioned  by  excavations,  and  ^s  Allen    v.    Augusta    Factory,    82 

a   judgment   was   recovered    against  Oa.  76;  8  S.  E.  Rep.  68;   Hulett  v. 

the  city,  which   it  satisfied,  a   peti-  Pudsey  Gas  Co.,  2S  Gas.  J.  663.    See 

tion,     in    an     a«tion    by     the    city  as  to  fall   of  a  gate,  Allen  v.  New 

against  the  gas  company,  setting  out  Gas  Co.,  L.  R.  1  Exch.  Div.  251;  45 

the  recovery  of  the  judgment  and  a  L.  J.  Exch.  668. 
copy  of  the  bond,   and   making  the 


INJURIES    CAUSED    IJY    Oil,    AM)    <;AS  NEGLIGENCE.       T'.'l 

roquii'od  to  join  tlio  firo  ('oiii|iaiiy.  Tlic  olijcct  <if  its  funnatinn 
was  to  oxtiiiiruisli  tiros  broakin^  out  in  tho  railroad  shdps.  The 
railroad  company  located  the  water  pluf];s  and  ]>i]H's,  fiirnisho<l 
the  fire  apparatus,  permitted  the  persons  composing  the  fire  eoni- 
pany  to  drill  frequently  duviiiii;  workiiii;  lidurs,  duriiiL^  whirji 
hours  they  were  paid  their  roirular  wages.  Once  a  week  llie 
chief  was  allowed  an  hour  to  inspect  the  shops  as  a  precautinn 
against  fire.  The  chief  was  killed  hy  an  explosion  of  the  gas 
])lant  when  endeavoring  to  put  out  a  fire  in  tlic  sliojis.  lie  ha<^ 
nothing  to  do  with  the  manufacture  of  tlio  gas.  Ix'ing  employed 
only  as  a  machinist,  although  he  frequently  repaired  the  gas 
])laut.  It  was  claimed  that  the  railroad  company  had  negli- 
gently used  a  tar  roof  when  it  should  liave  used  a  shite  or  a 
metal  one;  and  that  the  gas  tanks  were  too  close  to  the  fire  in 
the  gas  retorts.  The  gas  tanks  were  twelve  feet  from  the  gas 
retorts,  and  were  separated  by  a  hrick  wall.  ]\retal  roofs  were 
generally  in  use  on  such  buildings,  where  roofs  were 
used.  On  tlie  ground  that  the  negligence  of  tbe  railroad 
company  must  have  been  a  reckless  indifference  to  the  safety 
of  the  public  to  render  it  liable,  or  an  intentional  failure  to  j)er- 
form  a  manifest  duty,  the  company  was  held  not  liable.*'' 

§685.     Servant  entitled  to  safe  place  in  which  to  work. 

A  servant  is  entitled  to  a  safe  place  in  which  to  work.  Thus 
where  a  contractor  had  one  ''  gang  "  of  men  digging  a  trench 
and  another  laying  pipe  in  the  same  trench  ;  and  a  servant  with 
the  latter  gang  was  assured  by  the  master  that  the  trench  was 
a  safe  place  in  which  to  work,  and  tlicvc  was  nothing  to  indicate 
that  it  was  unsafe,  the  master  was  held  liable  to  the  servant  for 
injuries  he  received  by  the  walls  of  the  trench  caving  in  ujion 
him.*^  A  servant  of  a  gas  company  dug  a  trench  in  front  of  a 
1)oiler,  and  left  it  in  an  unsafe  condition.      Another  servant  who 

*«  Collins  V.   Cincinnati,  etc.,  Co.,  •'t  Schmidt    v.    Gillcn,    41    X.    Y. 

13  Ky.  Rep.  670;   18  S.  \V.  Rep.  11;  Ai)p.  Div.  302;  58  X.  V.  Supp.  45S; 

King   V.   Xational    Oil   Co.,   81    Mo.  Baird  v.  lleilly,  92  Fed.  Rep.  884. 
App.  155. 


■92 


oil.    AND    GAS. 


firo<l  the  fiii-iiacc  iiii(](m-  the  Imilcr,  nnd  who  in  so  (loiiijT  had  to 
work  near  the  trench,  was  injured  because  of  its  unsafe  condi-. 
tion.  It  was  hekl  that  as  tlie  injured  servant  assumed  only 
such  risks  as  were  incident  to  liis  employment,  and  such  as  were 
n])])arent  and  the  ordinary  risks,  \\v  did  not  assume  the  risk  of 
the  hole  in  front  of  the  boiler,  and  was  entitled  to  recover," 
It  was  held  differently  where  a  trench  was  dug;  by  a  city,  which 
the  master  had  no  control  over  and  never  saw,  and  the  city  or- 
dered the  master  to  remove  some  cas  ]upe  from  the  trench,  and 
to  comply  with  the  order  sent  the  servant  to  do  so,  and  in  doing 
so  the  earth  caved  in  and  injured  him/"  A  servant  of  a  gas 
company  assisted  in  raising  a  gas  tank  over  a  building.  In 
doing  so  some  boards  were  left  on  a  scaffolil  built  along  the  wall 
of  the  building  over  which  the  tank  was  to  be  raised.  The 
boards  were  loose  and  in  an  unsafe  condition,  and  fell  because 
the  foreman  failed  to  steady  the  tank  which  shook  them.  They 
fell  and  injured  the  servant;  and  it  was  held  that  the  com- 
pany  was  liable,  on  the  theory  that  the  master  was  lK)und  to 
furnish  the  servant  a  safe  place  in  which  to  work,  and  was 
bound  to  remove  the  boards  that  caused  the  injury.'^" 

§686.     Servant  injured  by  use  of  defective  ladder. 

A  servant  of  a  gas  company  was  directed  to  remove  some 
boards  which  were  over  a  gas  generator.  To  do  this  he  had  to 
use  a  ladder;  and  he  used  one  that  was  shorter  than  the  one 
he  was  directed  to  use.  He  ascended  to  the  ])lace  directed,  the 
ladder  was  too  short  to  reach  it,  l)ut  he  used  other  means.  He 
was  overcome  with  gas  that  liad  accnmulated  at  the  place  to 
which  he  was  directed  to  go  and  fell,  receiving  severe  injurit'S 
trom  which  he  died.  In  an  action  brouirht  to  recover  for  his 
death  on  the  ground  that  the  place  to  wliidi  he  was  sent  wrs 
a  dangerous  one,  it  was  held  to  be  immaterial  wlicther  the  lad- 

48Frye  v.  Bath  Gas,  etc.,  Co.,  94  13   N.   Y.  Misc.   Rep.    6;    34   N.   Y. 

Me.   17;   46  Atl.  Rep.  804.  Supp.   187. 

49  Hughes    V.    Maiden,    etc.,    Co.,  Notice  of  danger  of  gas   in  cask. 
168  :\Iass.  397;   47  N.  E.  Rep.  125.  King  v.    National    Oil    Co.,    81    Mo. 

50  Bagley  v.  Consolidated  Gas  Co.,  App.  155. 


INJURIES    CAUSED    BY    OIL    AND    GAS NEGLIGENCE.  7i)2ll 

(ler  was  too  sliort  or  iidt,  fur  it  lind  iiotliim;  to  <li>  with  the  fall; 
because  the  fall  Avas  oaiisod  bv  the  inhalation  of  poisonous  ijasos, 
and  it  could  nuikc  no  diflForenco  how  he  made  his  ascent.'"'  It 
was  the  duty  of  a  servant  to  light  the  lamps  in  fi-mit  of  his  mas- 
ter's residence,  and  to  do  this  he  ha<l  to  use  a  laddci-.  The 
ladder  was  insecure  because  of  the  absence  of  si)ikes,  and  the 
servant  told  his  foreman  of  that  fact,  M'ho  promised  to  juit  in 
proper  spikes,  but  did  not  do  it,  and  on  being  told  a  secon<l  time, 
made  the  same  ]U'omise.  The  defect  in  the  ladder  continu('<l, 
and  the  servant  fell  from  it  one  stormy  night  and  was  injured. 
The  fall  was  occasioned  by  the  absence  of  the  spikes.  Tt  was 
held  that  the  master  was  not  liable,  f<ir  th(>  reason  that  the  work 
and  use  made  of  the  ladder  was  only  ordinary  Inb'u*;  and  the 
servant  was  as  familiar  with  the  defects  as  his  master.'*"  A 
servant  of  a  gas  company  had  for  several  years  been  employed 
to  make  general  repairs.  By  one  in  authority  he  was  directed 
to  clean  a  condenser.  To  get  to  the  place  to  do  the  cleaning  he 
had  to  use  a  ladder,  and  used  one  furnished  by  the  company. 
The  ladder  had  no  spikes  in  the  end  resting  on  the  floor,  and  the 
place  where  it  rested  was  smeared  with  grease  and  oil.  When 
the  servant  was  ascending,  it  slip]x^d,  he  was  thro\vn  to  the 
ground,  and  injured.  He  claimed  the  injury  was  caused  by  the 
absence  of  the  spikes.  The  servant,  some  time  before  the  acci- 
dent, had  told  the  officers  of  the  gas  company  that  the  ladder 
was  unsafe.  It  was  held  that  the  attempt  to  ascend  the  ladder 
under  the  circumstances  was  negligence,  if  not  recklessness,  and 
A  bar  to  a  recovery ;  for  the  servant  knew  the  facts  as  well  as 
the  master.^' 

§  686a.     Kindling  fire  with  oil. 

The  use  of  kerosene   for  the  purpose  of  kindling  a  fii-e   is 
not  in  itself  contributory  negligence."**     In  an  action  for  dani- 

•  Bi  Citizens'   Gaslight,   etc.,    Co.    v.  53  Corcoran     v.     ^til\vaukee,     etc., 

O'Brien,  118  111.  174;   8  N.  E.  Rep.  Co.,    81    Wis.    101 ;    51    X.    W.    Rop. 

310.  328. 

02  Marsh  v.  Chickering,  101  N.  Y.  54  Peterson    v.    Standard    Oil    Co., 

306;    5   X.   E.    Rep.   56.      Tlie   court  55  Or.  511;   106  Pao.  Rep.  337;  Ellis 

said  that  tlie  rule  applicable  to  com-  v.    Republic    Oil    Co.     (Iowa),     110 

plicated    machinery    did    not   apply.  N.   W.   Rep.   20    (gasoline   u.sed   but 

thought  to  be  kerosene ) . 


792b  OIL    AND    GAS. 

ages  occasioned  by  exploding  oil  negligence  is  shown  on  the 
part  of  the  defendant  where  it  is  alleged  that  the  oil  sold  by 
the  defendant  was  ])elow  the  statutory  test,  and  that  if  it  had 
been  up  to  that  test  no  explosion  would  have  taken  place  and 
consequently  no  injuries  been  inflicted.'^' 

§  686b.     Drawing  gasoline  near  furnace  fire. 

It  is  an  act  of  negligence  to  draw  so  volatile  a  substance  as 
gasoline  from  tanks  near  a  fire ;  for  the  gases  arising  from 
the  gasoline  will  almost  certainly  spread  to  the  fire  and  cause 
an  explosion.  And  it  is  no  defense  that  the  fire  in  the  furnace 
never  before  ignited  the  gasoline  when  a  drawing  took  place. 
A  person  who  has  handled  petroleum. and  gasotine  is  chargeable 
with  notice  of  the  highly  inflammable  character  of  the  gases 
generated  by  them ;  and  he  must  exercise  great  care  to  prevent 
an  injury  which  a  prudent  man  would  reasonably  forsee  might 
result  from  an  explosion.  It  may  be  shown  by  any  one  well 
acquainted  with  gasoline,  that  gas  given  off  from  it  is  ignitible 
at  distances  remote  from  it,  and  such  distances  may  be  shown 
by  him,  after  the  conditions  have  been  shown  upon  w^hich  to 
predicate  his  testimony.^® 

§  686c.     Gasoline  plant  out  of  order  exploding. 

The  owner  of  a  dwellinghouse  constructed  a  gasoline  plant 
for  lighting  it ;  and  when  it  was  constructed  the  builder  of  the 
plant  instructed  the  owmer's  servant  how  to  fill  it.  The  de- 
fendant ordered  a  dealer  of  gasoline  to  furnish  him  a  barrel 

55  Peterson    v.    Standard    Oil    Co.,  ants  violated  the   Iowa  Code,  Supp. 

55    Or.    511;     lOG    Pac.    Rep..  337.  1-907,   Sec.   2510j,   in   filling   it,   was 

Where     an     action     against     store-  not  material  to  any   inquiry  in  the 

keepers,    for    personal    injuries    due  case,   as   it   was   not   the   proximate 

to  an  explosion  of  gasoline,  claimed  cause  of  her  injuries  resulting  from 

to   have   been   negligently    delivered  the  explosion   when   she  afterwards 

to    plaintiff   for   kerosene    in   a   can  undertook  to  use  a  part  of  the  oil  to 

not    intended    for    gasoline,    it    ap-  replenish    a    fire    in    a    cook    stove, 

peared   plaintiff   took   the  can   from  DuBois  v.  Luthmer,   147  Iowa  315; 

her    parents,    and    presented    it    to  12G  N.  W.   147. 

defendants    as    a    proper    reoeptp-cle  ■''O  Waters-Pierce    Oil    Co.    v.    Snel, 

for  gasoline  or  kerosene,   whichever  47   Te\.    Civ.   App.   413;    106    S.   W. 

she  ordered,   and  the  can   then   had  Rep.  170. 
some  oil  in  it,  the  fact  that  defend- 


INJURIES    CAUSED    1$Y    OIL    AND    (IAS NEGLIGENCE.  TXi 

of  gasoline  for  llu'  tank;  and  he  lirouj^lil  a  han-cl  to  it.  Tlic 
tank  was  tilled  through  a  receiving  hox  on  tlw  outside  of  the 
house,  where  the  person  tilling  the  tank  eould  not  see  it,  the 
tank.  The  dealer  had  no  reason  to  ai)prehenil  that  any  of  the 
appliances  about  the  taidc  wei-e  not  in  perfect  order.  In  tilling 
it  the  oil  overflowed  and  an  exi)losion  took  place.  The  dealer 
did  not  know  it  was  overflowing.  It  was  held  that  the  defend- 
ant was  not  liable..''^ 

§  686d.     Escaping  oil  or  gas  injuring  land. 

If  the  owner  or  controller  of  a  gas  or  oil  well  negligently 
permit  the  oil  or  gas  to  escape,  and  it  injures  the  land,  the 
owner  of  the  land  or  lessor  has  a  right  of  action  against  him."''* 

B7  Waters-Pierce    Oil    Co.    v.    ^'an  ■>»  Talbott  v.  Southern  Oil  Co.,  60 

Elderen,    137   Fed.   Rep.   557.  W.  Va.  423;  55  S.  E.  Rep.  1009. 


CHAPTER  XXXI. 

INSURANCE. 

§687.  E.xtent  of  discussion. 

§688.  Conflict  between  rider  or  written  part  and  printed  part  of  policy. 

§089.  "  On  the  premises." 

§690.  "  Contiguous  "   to   insured   building. 

§691.  Oil  for  illumination. 

§692.  Time  of  (illinj^  lamps. 

§693.  Failure  to  extinguish  lamps. 

§694.  'Hie   oil  prohibited. 

§695.  Prohibited  user  not  occasioning  loss. 

§696.  Owner  himself  must  violate  terms  of  policy. —  TenanL 

§697.  Explosions. —  No  clause  of  exemption. 

§698.  Explosions  of  oil  or  gas. 

§699.  Failure  to  disclose  use  of  oil. 

§700.  Warranty. —  Hazard  not  increased. 

§701.  Particular  use  allowed. 

§702.  Extent  of  prohibited  use. 

§703.  Occasional  use  of  hazardous  articles. 

§704.  Increase  of  risk. 

§705.  Proof  of  custom  or  the  usual  practice. 

§706.  Implied  consent  to  prohibited  use. —  Custom. 

§707.  "  Storing." — "  Keeping." 

§708.  Store. 

§709.  Grocery. 

§710.  Watchmaker. 

§711.  Furniture  store. — Wagonshop. 

§712.  Factory. 

§713.  Drug  store. 

§714.  Laundry. 

§715.  Patent  leather  factory. 

§716.  Painter. —  Paintshop  or  factory. 

§717.  Torch  to  remove  paint  from  house. 

§718.  Cleaning  clothes. —  Destroying  vermin. 

§719.  Cleaning  or  lubricating  machinery. 

§720.  Waiver  by  knowledge  or  acquiescence  in   use  of  building. 

§721.  Waiver  by  knowledge  or  acquiescence  in  use  of  building  —  Continued. 

§722.  Waiver  by  receiving  premium  with  knowledge  of  prohil)ited  user. 

§723.  Waiver  by  adjtisting  loss  or  accepting  proof  without  objection. 

794 


INSURANCE.  7t)5 

§724.     Insurant'o   company  s   ri;,'lit   of   action    to   recover   damages. —  Effect 

of  insurance  on  right  of  action. 
§725.     Gas  company  causing  fire  liable  to  insurance  company. 
§726.      Inhaling  gas,  accident   or  life  insuranie  policy. 

g687.     Extent  of  discussion. 

Necessiirilv,  the  extent  of  the  discussidii  <if  the  subject  mat- 
ter of  this  chapter  must  he  hrief,  and  only  insurance  cases  be 
cited.  Little,  if  any,  methodical  order  can  be  followed.  Usu- 
ally liticfation  concerninp:  the  use  or  storap;e  of  oil  in  the  insured 
buildino:  arises  over  the  difference  between  the  printed  terms 
and  the  written  clauses  of  the  policy,  or  because  of  the  conflict 
between  the  ''  rider  "  and  the  terms  of  the  policy  proper.  The 
custom  of  trade,  too,  must  be  taken  into  consideration,  for  it 
has  a  very  decided  bearing  upon  the  interpretation  of  fire  in- 
surance policies. 

§688.     Conflict  between  rider  or  written  part  and  printed  part  of 
policy. 

A  "  rider  "  is  always  something  attached  to  a  policy,  and  is 
an  addition  to  it,  either  by  expressly  changing  the  terms  of 
the  policy  or  adding  thereto.  It  is  regarded  as  the  last  ex- 
pression of  the  parties  to  the  policy.  In  case  of  a  conflict  be- 
tween the  language  of  the  policy  and  rider,  the  latter  will 
control;  just  as  in  case  there  is  a  conflict  Ix'tween  the  ])rinted 
portions  of  a  policy  and  written  words  inserted  in  it,  the  latter 
will  control,  if  the  two  cannot  be  construed  together.^ 

§689.     "On  the  premises." 

It  is  sometimes  difficult  to  determine  whether  or  not  the 
prohibited   article  has   Ix-cn   kept   on   the   premises   witliin    the 

1  Yoch  V.  Home,  etc.,  Ins.  Co.,  Ill  :\Iin.     400;     52     X.     W.     Rep.     000; 

Cal.   503;    44   Pac.   Rep.   189;    34   L.  Phoenix    Ins.    Co.    v.    Flenuning.    ()5 

R.  A.  857;   Lancaster  Fire   Ins.  Co.  Ark.    54;    44    S.    W.    Rep.    464;    30 

V.  Lenheim.  80  Pa.  St.  407:  33  Am.  L.    R.    A.    780;    Faust    v.    American 

Rep.  778;  Onnther  v.  Liverpool,  etc..  Fire  Ins.  Co..  01  Wis.  l.-)a;  64  N.  W. 

Ins.  Co.,  85  Fed.  Rep.   846;   Russell  Rep.  883;  30  L.  R.  A.  783. 
V.  Manufacturers',  etc.,  Ins.  Co.,  50 


796  OIL    AND    GAS. 

meauing  of  a  provision  prohibiting  the  keeping  of  such  an  ar- 
ticle "  on  the  premises."  It  is  clear  that  such  a  phrase  cannot 
be  so  extended  as  to  inchide  a  l)uildiiig  other  than  the  one  cov- 
ered by  the  policy,  so  that  keeping  the  i)rohibitcd  article  in 
sncli  buikling  will  not  avoid  the  policy."  The  keeping  of  gas- 
oline in  the  yard  twelve  feet  from  the  insured  building  is  not 
a  breach  of  a  condition  of  a  ])olicy  wliicli  ])roliil)its  the  storage 
or  use  of  gasoline  in  or  on  the  premises."  ISIor  is  such  a  policy 
avoided  by  the  storage  of  the  gasoline  in  a  tank  imderground 
thirty-five  feet  from  the  insured  building,  wdiere  by  means  of 
certain  nuieliinery  it  is  va]X)rized  and  the  vapor  carried  into 
the  building  by  a  pipe  and  used  for  lighting.'*  A  policy  placed 
on  a  "  three-story  brick  gravel  roof  hotel  building,  occupied  by 
the  assured,"  and  known  as  the  Tremont  Hotel,  situated  on  lots 
9  and  12  gave  permission  "  to  light  premises  with  gasoline," 
but  provided  that  ''  no  gasoline  should  be  stored  on  the  prem- 
ises." It  was  held  that  the  word  "  premises  "  meant  the  build- 
ing insured,  ?nd  the  insured  was  not  prohibited  from  depositing 
gasoline  for  the  use  of  the  hotel,  in  reasonable  quantities,  on  his 
own  lots  outside  the  hotel. '"^  A  policy  on  a  specifically  described 
steam  flour  mill  and  machinery  prohibited  the  keeping  of  petro- 
leum on  "  the  premises."  The  insured  kept  a  barrel  of  petro- 
leum in  an  engine  house  adjoining,  but  not  included  in  the  speci- 
fic description  of  the  premises.  The  fire  that  destroyed  the  mill 
originated  in  it  and  not  in  the  engine  room.  It  was  hold  that 
the  petroleum  had  not  been  kept  on  "  the  premises,"  and  that 
the  policy  was  not  avoided.*'  The  use  of  naphtha  for  four 
weeks  to  burn  off  the  paint  on  the  outside  of  a  house,  using  it 
within  a  few  inches  of  the  outer  wall,  is  the  bringing  of  naphtha  ^ 

2  Sperry  v.  Insuranre  Co.,  22  Coinmerce  Ins.  Co.,  69  N.  Y.  191; 
Fed.  Rep.  516.  See  Hanover  Fire  2.5  Am.  Rep.  168,  affirming  7  Hun 
Ins.  Co.  V.  Stoddard,  52  Neb.   745;       455. 

73  N.  W.  Rep.  291.  s  Northwestern,    etc.,    Ins.    Co.    v. 

3  La  Force  v.  Williams,  etc.,  Ins.  Germania  Fire  Ins.  Co.,  40  Wis. 
Co.,  43  Mo.  App.  '518.  446. 

'«  Queen    Ins.    Co.    v.    Sinclair.    1  "Carlin  v.   Western,  etc.,   Co.,   57 

Ohio   Cir.   Ct.   Rep.   496;    Arkell   v.      Md.  515;  40  Am.  Rep.  440. 


INSURANCE. 


'Ii7 


"on  the  premises.""'     rtM-niissidii  was  given,  lu  remove  insured 
goods    to    ''  the    three-storv     .     .     .     building   occupied    as    a 
.     .     .     store,  situated  at  ]S'o.  72  E.  Street."     Just  back  of  the 
three-story  building  was  a  onc-storv  addition  which  oi^oned  into 
it  by  a  door  and  window,  wliieli  was  inehnled  under  the  street 
number  72.     For  a  long  time  previous  to  the  granting  of  the 
permission  the  addition  was  occupied  as  a   part  of  the  store, 
and   in  it  some  of  the  insured  goods  were   jiut.      Jt  was  held 
that  this  addition  was  such  a  part  of  the  ])rennses  as  to  prohibit 
the  keeping  of  gasoline  in  it."'      In  this  instance  the  gasoline 
was  kept  and  used   in  a  gasoline  stove  in   an   upstairs  room 
•  which  had  no  connection  with  the  store,  and  was  reached  by  an 
outside  stairway.      A  policy  ])rovided  that  it  should  l)e  voi<l  if 
illuminating  gas  or  vapor  should  be  generated  in  the  building 
or  adjacent  thereto,  to  use  therein.      The  insured  manufactured 
a  gaseous  fluid  from  gasoline  and  other  ingredients,  which  was 
kept  in  a  shed  separated  from  the  insured  building,  and  -used 
in  a  lamp  for  lighting,  a  ]X)rtion  of  it  being  kept  on  a  shelf  in 
the  back  part  of  such  building.     The  insured  had  used  all  the 
fluid  several  days  before  the  fire  occurred,  and  was  not  using  it 
at  the  time  of  the  fire.      It  was  held  tliat  tlie  facts  warranted 
a  finding  that  no  illuminating  gas  was  generated  in  the  building 
for  use  therein.*     Where   the   jiolicy   prohibited  the  using  o 
depositing  of  oil  on  the  premises,  the  policy  covering  the  house 
only;  and  the  gasoline  was  kept  in  the  barn  and  bronglit  into 
the  house  as  needed  and  there  used,  it  was  held  that  the  policy 
was  thereby  avoided.^ 

§690.     "  Conti^ous  "  tovinsured  building. 

A  policy  prohibited  "  the  generating  or  evaporating  within 
the  building,  or  contigiTous  thereto,  of  any  substance  for  a  bnrn- 

7  First   Confrregational    Cburch   v.  «  Plioenix  Ins.  Co.  v.  Slioarnian,  17 

Holycke,    eto.,    Ins.    Co.,    1.5S    Tuass.  Tox.  Civ.   App.  450;   4.3  S.   W.   Rpp. 

47.');  .3.3  N.  E.  Rep.  .572;  .3.5  Am.  St.  930.    10fi3. 

Ren.   508;    10  L.   R.   A.  587.  n  Pennsylvania  Ins.  Co.  v.   Faires. 

*7  Boyer    v.    Orand    Rapids    Fire  13    Toy.    Civ.    App.    Ill:    .35    S.    U. 

Ins.   Co..    124  Mieh.  455;   83  N.   W.  Rep.    5.5. 
Rep.     124;    Xorwaysz    v.    Thuringia 
In.s.  Co.,  204  111.  334;  OS  N.  E.  Rep. 
551,  afiirming  104  III.  App.  390. 


798  OIL    AND    GAS. 

ing  gas,  or  the  use  of  gasoline  for  lighting."  After  the  policy 
was  issued,  the  insured  constructed  works  fifty  feet  from  the 
building  for  the  nianufactiire  of  gas  from  gasoline;  and  the 
gas  when  manufactured  was  conducted  to  the  building  by  pij>es. 
It  was  held  that  the  policy  was  not  avoided,  for  the  gas  works 
were  not  "  contiguous  "  to  the  building,  within  the  meaning  of 
the  clause  quoted." 

§691.     Oil  for  illumination. 

The  prohibition  against  the  use  of  enumerated  oils  upon  the 
premises  will  not,  as  a  rule,  prohibit  their  use  for  necessary 
illuminating  purposes.  Such  was  held  to  be  the  case  of  the  use 
of  naphtha,"  and  of  kerosene.^"  Whore  a  clause  in  a  policy 
prohibited  the  storing  or  use  of  "  petroleum,  rock  or  earth  "  oil 
on  the  premises,  and  another  clause  prohibited  the  lighting  of 
the  premises  by  means  of  certain  inflammable  substances,  not 
including  kerosene,  lighting  the  building  with  kerosene,  and 
keeping  on  hand  in  it  a  reasonable  quantity  for  that  purpose, 
was  held  not  to  avoid  the  policy. ^^ 

§692.     Time  of  filling  lamps. 

Where  the  use  of  oil  is  expressly  permitted  for  illuminating 
purposes,  a  clause  is  frequently  inserted  providing  when  the 
lamps  must  be  filled,  almost  universally  requiring  that  work  to 
be  performed  in  the  day  time.  A  violation  of  such  a  provision 
avoids  the  policy.  Thus  where  a  ]X)licy  required  the  lam}>s  "  to 
be  filled  and  trimmed  by  daylight,"  it  was  held  that  the  policy 
was  avoided  by  tlie  drawing  on  the  premises  of  carbon  oil  to  loan 
to  a  neighbor  about  dusk,  near  a  lighted  lantern,  though  not 

1"  Arkoll    V.    Commerce    Ins.    Co.,  North  British,  etc.,  Co..  8  Daly  471; 

69    N.    Y.    191;    25    Am.    Rep.    108;  Hall  v.  Insurance  Co.,  58  N.  Y.  292; 

affirming  7  Hun  455.  17  Am.  Rep.  255;  Bennett  v.  North 

11  Putnam  v.  Commonwealth  Ins.  British,  etc.,  Ins.  Co.,  81  N.  Y.  273; 
Co..  4  Fed.   Rep.  753.  37  Am.  Rep.  501. 

12  Jones  V.  Howard  Ins.  Co.,  117  i^  Buchanan  v.  Exchange  Fire 
N.  Y.   10.3;   22  N.  E.  Rep.   578;    10  Ins.  Co.,  61  N.  Y.  26. 

N.    Y.    St.    Rep.    120;    Bennett    v. 


INSURANCE.  709 

for  the  purpose  of  filling  lamps,  hy  any  jx^rson  actiiijx  fur  llic 
insured,  whereby  a  fire  was  caused,  the  policy  »)nly  ]>erniiuing 
carbon  oil  to  be  used  on  the  premises  for  lighting  puri)oses.'* 
But  where  a  policy  provided  that  the  insurer  should  not  be 
liable  for  a  loss  caused  by  the  use  of  kerosene,  unless  })crmitted 
on  the  policy  in  writing,  it  was  held  that  a  recovery  on  the 
policy  could  not  be  defeated  on  the  ground  that  lamps  were  filled 
with  kerosene  in  the  evening,  and  by  artificial  light,  unless  it 
was  shown  that  the  loss  was  occasioned  thereby."  So  where  the 
policy  prohibited  the  use  of  camphcne,  spirit  gas,  burning  fluid, 
or  cliemical  oils,  but  permitted  the  use  of  refined  coal  oil,  kero- 
sene, or  other  carbon  oil  for  lights,  if  drawn  and  the  lamps 
filled  by  daylight,  it  was  held  that  it  was  not  avoided  by  using 
lard  oil  and  candles,  and  filling  the  lamps  with  it  at  night.^® 

§693.     Failure  to  extinguish  lamps. 

A  policy  granted  the  privilege  of  using  kerosene  oil  for  lights 
in  the  day  time,  and  provided  that  they  should  be  extinguished 
at  the  close  of  the  day's  business.  It  was  held  that  the  mere 
fact  that  at  some  time  during  the  life  of  the  policy  the  insured 
failed  to  extinguish  the  lamiKS  at  the  close  of  the  business  of 
the  day  could  not  prevent  a  recover}^,  unless  the  risk  by  such 
failure  w^as  increased ;  for  the  reason  that  the  doing  of  an  act 
which  the  policy  prohibits  for  the  manifest  purpose  of  prevent- 
ing an  increase  of  the  risk  will  not  work  a  forfeiture." 

§694.     The  oil  prohibited. 

If  a  particular  kind  of  oil  is  prohibited,  then  the  keeping  of 
another  kind  will  not  avoid  the  policy.  Thus  prohibiting  the 
use  of  camphene,  spirit  gas,  burning  fluid,  or  chemical  oils,  but 

i<  Gunther  v.  Livprpool.  etc.,  Ins.  ir>  Jones  v.  Howard   Ins.   Co..   117 

Co..  134  U.  S.  110;  10  Sup.  Ct.  Rep.       N.  Y.   10.3;  22  N.  E.  Rep.  578. 
448;     Liverpool,    etc..    Ins.    Co.    v.  is  Carlin  v.  Western,  etc.,  Co.,  5"^ 

Gunthor.    116    U.    S.    113;    34    Fed.       Md.   .'Sl.'j;   40  Am.  Rep.  440. 
Rep.   501.  17  Fireman's  Ins.  Co.  v.  Cecil,   12 

Ky.  L.  Rep.  48,  259. 


J^OO  OIL    AND    GAS, 

periiiittiug  the  use  of  rofiuod  coal  oil,  kcvoscnc,  or  ntlicr  carlxni 
oil  for  li'i'hts,  if  drawn  and  tlio  lain])s  he  tilh'd  hv  da_vli<:lit,  will 
not  prohibit  the  use  of  lard  oil  and  candles,  ev'en  thoiiiih  the 
lamps  Ik'  tilled  at  niiiht.^"*  lint  a  clause  ])rohil)itinf!^  the  keeping 
of  petrolenm  will  prohibit  the  keeping  of  gasoline,  for  gasoline 
is  a  prodnct  of  petrolenm,  thongh  it  be  not  named  in  the  policy 
as  a  prohibited  article."'  In  the  absence  of  proof  a  court  cannot 
hold  kerosene  oil  to  be  a  "  burning  fluid  or  chemical  oil."  ^" 
"  French  Electric  Fluid  "  has  been  held  to  be  the  eqnivalent 
of  benzine.'"^  Whether  benzine  was  a  "  burning  fluid  or  chem- 
ical oil  "  within  the  meaning  of  a  ])olicy  on  a  distillery  forbid- 
ding the  assured  to  keep  or  have  "  camphene,  spirit  gas,  or  any 
burning  flnid  or  chemical  oils  "  on  the  premises  was  held  to  be  a 
qnestion  of  fact.""  A  policy  provided  that  "  camphene,  spirit 
gas,  naphtha,  benzine  or  benzole,  chemical,  crude  or  refined 
coal  or  earth  oils  "  should  not  be  kept  or  used  on  the  premises, 
but  this  was  held  not  to  prevent  the  use  of  kerosene  oil,  the 
phrase  "  crude  or  refined  coal  or  earth  oils  "  being  limited  by 
the  remaining  words  in  the  sentence  in  which  they  were  used 
so  as  not  to  proliil)it  the  use  of  kerosene.^^  Where  an  assured, 
thinking  he  was  using  a  mixture  of  sperm  and  lard  oils,  for 
lubricating  purposes,  when  in  fact  he  was  using  a  compound  of 
those  oils  with  petroleum,  which  was  equally  as  safe,  it  was  held 
that  there  was  no  breach  of  a  condition  of  the  policy  that  only 
sperm  and  lard  oils  should  be  used.^* 

18  Carlin  v.  Western,  etc.,  Co.,  57  elude    giant    powder,    the    evidence 

Md.  .515;   40  Am.  Rep.  440.  showing  that  the  latter  was  almost 

10  Kings  County   Fire  Ins.   Co.   v.  wholly     composed     of     the     former. 

Swigert,   11   111.  App.  500.  Sperry  v.  Springfield,  etc.,  Ins.  Co., 

20  Mark  V.  National  Fire  Ins.  Co.,  26  Fed.  Rep.  234;  15  Ins.  L.  Jr. 
24  Hun  5G5.  270. 

21  Phoenix  Ins.  Co.  v.  Shearman,  Under  a  policy  insuring  goods 
17  Tex.  Civ.  App.  456;  43  S.  W.  while  locatoa  and  contained  in  a 
Rep.  930,   1063.  building   descril>ed   on    premises    de- 

22  Mears  v.  Humboldt  Ins.  Co.,  scribed,  and  providing  that,  if  illu- 
92  Pa.  St.  15;  37  Am.  Rep.  647.  minating  gas  or  vapor  be  generated 

23  Morse  v.  Buffalo,  etc.,  Ins.  Co.,  in  the  building,  or  there  be  kept, 
30  Wis.  534;    11   Am.  Rep.  587.  used,    or    allowed    on    the    premises 

24  Copp  V.  German-American  Ins.  dynamite  or  other  explosives,  the 
Co.,  51  Wis.  637;  8  N.  W.  Rep.  127,  policy  shall  be  void,  a  contention 
glQ  that  explosives  stored  in  the  build- 

A  prohibition  against  thr  keeping  ing  were  not  forbidden  by  the  policy 
of    nitroglycerine    was    held    to    ex-       is    untenable.      Kennefick-Hammond 


INSIKANCK. 

§695.     Prohibited  user  not  occasioning  loss. 


801 


Wlu'tlicr  (ir  not  the  u.^^or  nf  the  jiroliiliitcd  article  oocasioncd 
the  lo.>^s  is  an  innnatcrial  ([nestion;  I'm-  if  the  arliclc  he  used 
contrary  to  the  terms  of  the  i)oliey,  it  will  avoid  such  iMjlicy, 
althouf!;h  the  loss  be  occasioned  by  another  and  distinct  cause.*" 
But  where  a  policy  provided  that  the  insurer  "  will  not  be  liable 
under  or  liv  virtue  of  this  policv  for  loss  or  daniai^e  caused  bv 
the  working  of  mechanics  .  .  .  nor  for  the  use  of  kerosene 
unless  permitted  hereon  in  writing";  and  it  was 
claimed  that  the  insured  violated  the  policv  by  filling  his  laniiis 
with  kerosene  in  the  evenings,  by  artificial  light;  it  was  held 
that  as  the  fire  and  the  consequent  loss  did  not  have  its  origin 
from  the  use  of  the  kerosene  the  insurer  was  liable.""  So  it 
has  been  held  that  if  gasoline  was  brought  upon  the  ]>remises 
contrary  to  the  jiroliiliitory  clause  of  the  ])olicv,  but  it  was  not 
there  when  the  loss  occurred,  the  policy  was  not  thereby  avoided, 
although  if  it  had  been  there  when  the  fire  occurred,  the  policy 
would  have  been  avoided."'  So  where  kerosene  could  only  be 
used  for  lighting  purposes,  Imt  it  was  used  for  fuel  ]tur]i<ises,  the 
company  was  held  liable,  the  use  of  the  kerosene  not  causing 
the  fire.-^ 


Co.  V.  Norwich  Union  Firo  Ins.  Soc, 
80  S.  W.  C94;  St.  Paul  Fire  &  Ma- 
rine Ins.  Co.  V.  Penman,  151  Fed. 
Rep.  961;  81  C.  C.  A.  151. 

25  Pennsylvania  Fire  Ins.  Co.  v. 
Faires,  13  Tex.  Civ.  App.  Ill;  35 
8.  W.  Rep.  55;  Williams  v.  People's 
Fire  Ins.  Co.,  57  N.  Y.  274;  Faiilk- 
er  V.  Central  Fire  Ins.  Co.,  1  Ken 
(N.  B.)  279;  Trustees,  etc..  v.  Wil- 
liamson, 26  Pa.  St.  196;  Commer- 
cial Ins.  Co.  V.  Mehlman,  48  111. 
313;  Couch  v.  Rochester,  etc.,  Ins. 
Co.,  25  Hun  469;  Duncan  v.  Sun 
Fire  Ins.  Co.,  6  Wend.  488;  Diehl 
V.  Adams  County,  etc.,  Ins.  Co..  5S 
Pa.  St.  443;  Murdock  v.  Chenancro, 
etc.,  Ins.  Co.,  2  N.  Y.  210;  White  v. 
Western,  etc.,  Co.  (Pa.),  6  Atl.  Rep. 


113;  Kennefick-Hammond  Co.  v. 
Norwich,  etc.,  Soc,  80  S.  W.  Rep. 
604 :  Xorwaysz  v.  Thurinjri:i  Ins.  Co., 
204  111.  334:  68  X.  E.  Rop.  551,  af- 
firming: 104  111.  App.  390. 

20  Jones  v.  Howard  Ins.  Co.,  117 
N.  Y.  103;   22  N.   E.  Rep.   .^)7S. 

27  Traders'  Ins.  Co.  v.  Catlin.  10;i 
111.  2.5G;  45  N.  E.  Rep.  255;  .■>!»  111. 
App.  162.  See  New  En,<rland.  etc.. 
Ins.  Co.  V.  Wet  more,  32  111.  221; 
Germania  Firo  Ins.  Co.  v.  Klewer, 
129  111.  599;  22  N.  E.  Rep.  48!>; 
Phcrnix,  etc.,  Co.  v.  ilunper  (Tex. 
Civ.  App.),  49  S.  W.  Rep.  271. 

See  the  rather  remarkable  c;ise  of 
Traders'  Ins.  Co.  v.  Race,  142  111. 
338;  31  N.  E.  Rep.  392. 

28  Snyder  v.  Dwellinpf  House  Ins. 
Co..  59  N.  J.  L.  .544;  3,  .\<1.  Rep. 
1022.   reversing  34   Atl.  Kcp.  931. 


802  OIL    AND    GAS. 

§696.     Owner  himself  must  violate  terms  of  policy. —  Tenant. 

The  rule  is,  to  avoid  a  jwlicy,  the  insured  himself  must  have 
done  the  act  prohibited  by  it,  or,  at  least,  suffered  others  to  do 
it.  Thus  where  workmen  in  a  factory  used  friction  matches 
to  some  extent  contrary  to  orders  of  the  insured,  the  court  in- 
structed the  jury  that  the  use  of  matches  contemplated  by  the 
policy  to  render  it  void  must  have  been  a  use  by  authority,  ex- 
press or  implied,  of  tlio  insured  ;  that  what  was  going  on  in  the 
premises  he  was  bound  to  know ;  that  if  he  knew,  or  as  a  prudent 
man  ought  to  have  known,  that  matches  were  used,  then  his 
order  would  not  help  him ;  and  that  the  use  meant  was  a  known 
and  permitted  use.  These  instructions  were  held  to  be  cor- 
rect. ^''  But  if  a  person  occupying  the  premises  with  the  con- 
sent of  the  insured,  as  his  tenant,  for  instance,  violates  the 
prohibitory  clause  of  the  policy,  his  act  is  the  act  of  the  in- 
sured."" The  fact  that  the  breach  of  the  policy  occurred  through 
the  orders  of  the  husband  and  general  manager  of  the  tenant 
of  the  assured,  althovigh  he  was  not  acting  by  express  or  implied 
authority  from  such  insured,  was  held  not  to  relieve  him  from 
the  responsibility  for  the  breach  of  the  prohibitory  condition.^^ 

§697.     Explosions. —  No  clause  of  exemption. 

If  there  be  no  clause  in  the  policy  exempting  the  insurer  from 
loss  occasioned  by  an  explosion,  then  such  insurer  will  be  liable 
for  the  loss.  Thus  where  a  policy  had  no  such  exempting 
clause,  and  a  match  was  applied  to  a  keg  of  powder  which  ex- 
ploded,  threw  off  the  roof  of  the   insured   building,   and   did 

29  Farmers'  etc.,  Tns.  Co.  v.  Sim-  lino  for  a  lijrht)  ;  Adair  v.  Pouthern, 
mons,  30  Pa.  St.  209.  etc.,  Ins.  Co.,  107  Ga.  207:  .3.3  S.  E. 

30  German  P'ire  Ins.  Co.  v.  Board,  Rep.  78;  Norwavsz  v.  Thurinrria 
54  Kan.  732;  30  Pac.  Rep.  697;  Ins.  Co.,  204  111.  App.  334;  68  N.  E. 
Kelly  V.  Worcester,  etc.,  Ins.  Co.,  Rep.  551;  104  111.  App.  390; 
97  Mass.  284;  5  P>onn.  Fire  Tns.  Co.,  McCurdy  v.  Orient  Ins.  Co.,  30  Pa. 
122;   Duncan  v.   Run  Fire  Ins.  Co.,  Super.  Ct.  77. 

6  Wend.  4SS;    Badper  v.  Platts,  68  •''i  Liverpool,  etc.,  Ins.  Co.  v.  Gun- 

N.  H.  222;   44  Atl.  Rep.  296;   Kohl-  ther,  116  U.  R.  113;  6  Sup.  Ct.  Rep. 

mann  v.  Selvage,  34  N.  Y.  App.  Div.  306;   Gunther  v.  Liverpool  Ins.  Co., 

380;   54  N.  Y.  Sunp.  230    (landlord  85  Fed.  Rep.  846. 
did  not  know  tenant  was  usin-j  gaso- 


INSURANCE.  803 

other  damage,  the  insurer  was  held  liable.'^  A  clause  in  a 
policy  provided  that  the  insurer  should  not  be  liable  "  for  any 
loss  caused  by  the  explosion  of  gunj)o\V(ler,  canijtlicne,  or  any 
explosive  substance,  or  explosion  of  any  kind."  The  building 
insured  was  destroyed  by  fire,  which  was  the  immediate  result 
of  an  explosion  ;  and  the  insurer  was  held  liable,  the  court  saying 
of  the  jx)licy :  "It  secures  exemption  from  liability  from 
losses  caused  by  explosions,  but  not  from  liability  for  losses  by 
fire  caused  by  explosions."  ^^ 

In  a  Missouri  case  the  following  language  was  used,  which 
shows  the  line  of  reasoning  in  cases  of  this  kind  :  "  If  fire 
was  the  direct  and  ]>roximate  cause  of  the  damage,  the  responsi- 
bility therefor  becomes  fixed.  It  would  make  no  difference 
whether  it  manifested  itself  in  combustion  or  explosion.  .  .  . 
The  explosion  of  a  coal  oil  lamp,  caused  by  the  generating  of 
gas,  may  not  in  a  moment  communicate  the  fire  to  the  entire 
building,  but  it  may  result  in  as  complete  destruction  as  the 
ignition  of  gas,  which  permeates  every  part  of  the  building, 
and  destroys  the  whole  by  an  instantaneous  blaze.  Powder  may 
be  ignited  either  in  quantities  only  sufficient  to  commnnicnte 
fire  to  combustible  materials  around  it,  or  sufficient  to  demolish 
the  largest  building.  There  would  be  only  a  difference  in  de- 
gree between  the  one  and  the  other.  Xo  reason  can  be  seen  why 
an  exception  to  an  indemnity  against  loss  by  fire  should  be  made 
because  the  work  of  destruction  is  instantaneous  and  by  explo- 
sion, rather  than  through  the  slow  process  of  gradual  communi- 
cation and  combustion."  ^* 

32  Scripture  v.  Lowell,  etc.,  Ins.  S.  W.  Rep.  402;  German-American 
Co.,  10  Cush.  356;  Waters  v.  Mer-  Ins.  Co.  v.  Hyman,  42  Colo.  156; 
chants',   etc..   Ins  Co.,   11    Pet.   213;        94  Pac.  Rep.  27. 

Hobbs    V.    Guardian,    etc.,    Co.,    12  Where   a   policy  of   insurance  ex- 
Can.  Sup.  Ct.  031.  eludes  damages  caused  by  explosion, 

33  Commercial  Ins>.  Co.  v.  Robin-  and!  the  insurer  in  an  action  thereon 
son,  04  111.  205;  Heflron  v.  Kittan-  proves  tlian  an  explosion  preceded 
ning  Ins.  Co.,  132  Pa.  St.  580;  20  the  fire,  the  burden  is  on  plaintilf 
Atl.  Rep.  098;  Renshaw  v.  Missouri,  to  prove  the  extent  of  the  damages 
etc.,    Ins.    Co.,    33    Mo.    App.    394;  suffered    from    the    subsequent    fire. 

Greenwald  v.  Ins.  Co.,  3  Gorman-American    Ins.    Co.    v.    lly- 

Phila.    323;    City    Fire    Ins.    Co.    v.  man,  .supra. 

Corlies,    21    Wend.    307;    Boatman's  34  R^nsliaw  v.  Missouri,  etc.,  Ins. 

Fire  Ins.  Co.  v.  Parker,  23  Ohio  St.  Co.,    103    Mo.   595;    15    S.    W.    Rep. 

85;     Hall    &    Hawkins    v.    National  945;   Aetna  Ins.  Co.  v.  Boon,  95  U. 

Fire    Ins.    Co.,    115    Tenn.    513;    92  S.   117;   American  Steam,  etc.,   Ins. 


804 


on.    AND    GAb. 


§698.     Explosions  of  oil  or  gas. 

The  general  rule  is  tliat  tJie  ordinarv  fire  jx)licies  do  not 
cover  losse&occasioneil  \)\  explosions  nut  directly  connected  with 
fire,  such  as  a  loss  occasioned  by  the  explosion  of  a  steam 
boiler.^'  So,  too,  an  explosion  of  gunpowder  that  wrecks  a 
house  is  not  such  an  act  as  a  fire  policy  covers ;  and  it  cannot 
lie  said  that  the  fire  which  ignited  the  powder  was  the  fire  in- 
sured against^**  So  where  a  policy  provided  that  the  insurance 
company  should  not  lx>  liable  "  for  loss  caused  by  .  .  .  ex- 
plosions of  any  kind  unless  fire  ensues,  and  then  for  the  loss  or 
(hiinnge  by  fire  only";  and  va])ors  arising  from  the  works  in 
the  mill  insured,  wliere  the  rectifying  of  spirits  was  carried 
on,  came  in  contact  with  a  burning  lamp  in  the  mill,  left  there 


Co.  V.  Chicago,  etc.,  Co.,  57  Fed. 
Kep.  294;  21  L.  R.  A.  572;  Boat- 
man's, etc.,  Ins.  Co.  v.  Parker,  23 
Ohio  85. 

A  house  contained  an  acetylene 
gas  plant.  One  of  the  owner's  chil- 
dren filled  the  generating  machine 
of  the  plant  with  water  and  car- 
bide. This  was  in  the  cellar.  Shortly 
after  the  owner's  wife  sraelled  gas, 
ajid  one  of  the  children  struck  a 
match,  and  as  she  did  so  there  was 
a  flash  of  light  all  over  the  house, 
followed  by  a  report  and  the  falling 
of  the  plaster.  Immediately  after 
the  report  some  of  the  studding,  raf- 
ters and  furniture  was  found  on  fire. 
It  was  shown  that  gas  generated 
by  carbide  would  not  explode  unless 
ignited.  It  was  held  that  the  ex- 
plosion was  a  fire  within  a  policy 
stipulating  for  indemnity  from  loss 
by  fire  and  containing  no  exemp- 
tion from  explosions.  Furbash  v. 
Consolidated,  etc.,  Ins.  Co.,  140 
Iowa  240;    118  N.  W.  Rep.  371. 

Although  not  liable  for  damages 
caused  by  an  explosion,  j'et  a  com- 
pany is  liable  for  the  damages 
caused  by  the  fire  started  by  the  ex- 


plosion. HcfTron  v.  Kittaning  Ins. 
Co.,  132  Pa.  St.  580;  20  Atl.  Rep. 
698. 

A  fire  causing  an  explosion  and 
rendering  an  insurer  liable  for  the 
damage  caused  by  the  explosion 
under  a  policy  excluding  explosion 
as  causes  of  loss  must  be  an  actual 
fire  according  to  the  common  use 
of  the  term,  and  not  a  blaze  pro- 
duced by  lighting  a  match,  gas  jet, 
or  lamp.  German-American  Ins.  Co. 
V.  Hyman,   42   Colo.    156;    94   P.   27. 

35  Insurance  Co.  v.  Tweed,  7  Wall 
44;  Waldecl<  v.  Springfield,  etc., 
Ins.  Co.,  56  Wis.  96;  14  N.  W.  Rep. 
1;  12  Ins.  L.  Jr.  177;  St.  John  v. 
American,  etc.,  Ins.  Co.,  11  N.  Y. 
516;  1  Duer  371;  3  Benn.  Fire  Ins. 
Casi  760;  ]\Iillaudon  v.  New  Or- 
leans Ins.  Co.,  4  La.  Ann.  15;  3 
Benn.  Fire  Ins.  Cas.  4. 

36  Everett  v.  London  Assurance 
Co.,  supra;  Caballero  v.  Home  In- 
surance Co.,  15  La.  Ann.  217;  Ger- 
man Ins.  Co.  V.  Roost,  55  Ohio  St. 
581;  45  N.  E.  Rep.  1097;  36  L.  R. 
A.  236;  Phoenix  Ins.  Co.  v.  Adams 
(Ky.),  127  S.  W.  Rep.  1008;  34 
Ky.   L.   Rep.  — . 


INSUIIANCE.  805 

hv  persons  r(^p;iirinir  tlic  inacliiiicrv,  cinisiiiir  ;ni  Iiisf niitanonus 
explosion,  which  blew  off  tho  roof  of  the  mill,  blew  down  the; 
greater  part  of  the  walls,  injured  the  nuu'hiner\-,  and  produced 
a  fire  which  occasioned  some  damaji:e,  thoufijli  sli<2;ht  compared 
with  that  caused  hv  the  ex])losion,  it  was  held  that  the  insur- 
ance company  was  liable  only  for  tlie  danKii.n's  caused  l)y  the 
fire,  and  not  for  those  caused  hy  the  exjdosion  itself.''^  So 
where,  under  a  like  exeui]>tion  clause,  a  mixture  of  whiskey 
vapor  in  a  store  insured  and  atmosphere  eauu^  in  contact  with  a 
gas  jet  and  exploded,  setting  a  fire  in  motion  which  destroyed 
the  insured  property;  it  was  held  that  the  loss  was  from  the  fire 
occasioned  by  the  explosion,  and  that  the  company  was  not  liable 
for  it,  and  that  the  burning  gas  jet  "  Avas  not  such  a  fire  as  was 
contemplated  by  the  parties  as  the  peril  insured  against."  The 
court  said :  "  The  gas  jet,  though  burning,  was  not  a  de- 
structive force,  against  the  immediate  effects  of  which  the  policy 
was  intended  as  a  protection.  Although  it  was  a  possible  means 
of  putting  such  destructive  force  in  motion,  it  was  no  more  the 
peril  insured  against,  than  a  friction  match  in  the  pocket  of  an 
incendiary."  ^*  The  same  was  held  where  illuminating  gas  in 
a  room  was  ignited  by  the  striking  of  a  match,  for  the  reason 
that  the  explosion  and  not  the  lighting  of  the  match  was  the 
proximate  cause  of  the  loss.^®  So  where  a  loss  was  occasioned 
by  a  lighted  fire  being  applied  to  some  unknown  substance 
placed  in  a  doorway,  which  broke  the  windows,  broke  the  door 
sill  and  slightly  discolored  some  of  the  paint  on  the  house,  it 
was  held  that  the  company  was  not  liable.""^     But  where  fire 

37  Briggs  V.  North  American,  etc.,  gomery    v.    Fireman's    Ins.    Co.,    16 
Ins.  Co.,  53  N.  Y.  446.  B.   Mon.  427. 

38  United  Life   Ins.   Co.  v.  Foote,  ""' Pliocnix    Ins.    Co.    v.    Greer,    Gl 
22  Ohio  St.  340;   2  Ins.  L.  Jr.  190.  Ark.  509;   33  S.  W.  Rep.  840. 

38  Heuer     v.     Northwestern,     etc..  See  on  this  same  subject  Ilohb.s  v, 

Ins.  Co.,  144  III.  303;  33  N.  E.  Rep.  Cuardian,    etc.,    Co.,    12    Can.    Sup. 

411;   Heuer  v.  Winchester  Fire  Ins.  Ct.   631;    Washburn  v.   Miami,   etc., 

Co.,    151    111.    331;    37    N.    E.    Rep.  Ins.  Co.,  2  Fed.  Rep.  633;   2  Flipp. 

873;     affirming    45    111.    App.    239;  664;    9    Ins.    L.    Jr.    68;     Dowe    v. 

Tannert  v.  Ina.  .Co.,  34  Faneuil    Hall    Ins.    Co.,    127    Mass. 

La.    Ann.    249;     Roe    v.    Columbus,  346;   Transatlantic  Fire  Ins.  Co.  v. 

etc.,    Ins.    Co.,    17    Mo.    301;    Mont-  Dorsey,  56  Md.  70;   Smiley  v.  Citi- 
zens',   etc.,    Co.,    14    W.    Va.    33. 


806  OIL    AND    CiAS. 

exists  on  tlie  promiso8  or  on  tlio  jivoniisos  adjaoont  tlioroto,  and 
in  its  progress  reaches  an  explosive,  eansing  an  explosion,  from 
which  loss  resnlts,  the  fire  is  the  proximate  cause  of  the  loss,  and 
the  insurer  liable/^  A  policy  of  insurance  provided  that 
''  neither  will  the  company  be  responsible  for  loss  or  damage 
by  explosion,  except  from  explosion  by  gas."  On  the  premises 
an  inflammable  and  explosive  vapor  was  evolved  in  the  process 
of  extracting  oil  from  shoddy.  The  oil  caught  fire  and  after- 
wards exploded,  causing  a  furtlier  fire,  besides  the  damage  by 
the  explosion  itself.  It  w-as  hold  that  the  word  "  gas "  as 
used  in  the  policy  meant  illuminating  coal  gas,  and  that  the 
insurer  was  liable  for  the  damage  caused  by  the  exploding  gas 
wliieli  occurred  in  the  course  of  the  fire,  but  not  for  the  damages 
caused  by  the  explosion  and  the  fires  which  it  caused. ■*'  Where 
a  policy  issued  to  an  express  company  provided  "  that  no  loss  is 
to  be  paid  arising  from  petroleum  or  other  explosive  oils  or  in 
case  of  a  collision ;  and  a  collision  took  place  with  a  train  loaded 
with  petroleum,  and  the  petroleum  took  fire  and  the  fire  con- 
sumed the  goods  insured,  the  insurer  was  held  not  liable.*^ 
Gasoline  was  kept  in  a  retail  store  and  tin  store.  The  store  was 
covered  by  a  policy  insuring  the  stock  of  goods,  and  to  the  policy 
was  attached  a  written  clause  which  included  a  grant  of  the 
privilege  to  keep  a  limited  quantity  of  gasoline.  The  printed 
clauses  of  the  policy  excluded  all  liability  for  explosives  of  any 
kind,  unless  fire  ensued,  and  then  covered  loss  or  damage  by  fire 
only.  An  explosion  was  caused  by  the  gasoline,  and  for  the  loss 
thus  incurred  the  insurer  was  held  not  liable.*^ 

"Washburn  v.  Western  Ins.  Co.,  73;    17   L.   T.    (X.   S.)    513;    16   W. 

2    Fed.    Rep.    633;    Fed.    Cas.    No.  R.  300. 

17216;  9  Ins.  L.  Jr.  424;  Washburn  «  Imperial  Fire  Ins.  Co.  v.  Fargo, 

V.  Artisans'  Ins.  Co.,  Fed.  Cas.  No.  1)5  U.  S.  227. 

17212;  9  Ins.  L.  Jr.  68;  Orient  Ins.  4*  Mitchell    v.    Potomac    Ins.    Co., 

Co.  V.   Uonard,    120  Fed.   Rep.   808.  183  U.   S.  42;   22  Sup.  Ct.  Rep.  22, 

*2  Stanley    v.    Western,    etc.,    Co.,  aflirming  10  U.  S.  App.  D.  C.  241. 
L.  R.   3   Exch.   71;    37   L.   J.   E.xch. 


i.\sri:A\(E.  807 

§699.     Failure  to  disclose  use  of  oil. 

If  the  insurcnl  does  not  rovcnl  the  fact  at  tlio  tiiiio  lio  socnros 
insurance  on  his  projjorty  that  oil  is  habitually  ko])t  on  the 
premises  where  it  is  situated  or  contiguous  thereto,  it  may  Iki 
such  a  misrepresentation  as  will  avoid  his  policy.  Such  was 
held  to  be  the  case  where  the  dias^ram  of  the  property  furnished 
by  the  insured  and  his  application  did  not  show  that  a  biiildiiif; 
was  eontiiruous  to  the  one  insured,  and  that  it  was  used  as  a 
place  for  painting  barrels,  benzine  being  used  and  kept  in  it." 

§700.     Warranty. —  Hazard  not  increased. 

The  description  in  a  policy  may  amount  to  a  warranty  that 
the  contents  of  the  store  insured  are  not  hazardous  merchandise. 
If  such  is  the  case,  the  keeping  of  a  small  quantity  of  the  goods 
declared  in  the  policy  to  be  hazardous  will  avoid  the  jKjlicy, 
although  the  risk  be  not  thereby  increased.  Such  was  the  case 
where  the  goods  were  described  in  the  ]X)licy  as  a  "  stock  in 
trade,  consisting  of  not  hazardous  merchandise,"  and  provid- 
ing that  if  the  store  should  be  used  for  carrying  on  or  exer- 
cising any  trade  or  business  or  keeping  merchandise  denomi- 
nated hazardous  in  the  terms  of  the  policy,  or  if  the  risk  shouUl 
be  increased  with  the  consent  of  the  assured,  it  should  be  void.''" 

§701.     Particular  use  allowed. 

If  a  policy  provides  that  {X^troleum  shall  not  be  kej^t  or  used 
on  the  premises  except  for  lighting  purposes,  the  keej)ing  or 
using  of  it  on  the  premises  as  a  fuel  will  avoid  the  policy.''^ 

§702.     Extent  of  prohibiting  usage. 

As  a  rule  the  amount  of  use  of  the  prohibited  product  is  im- 
material.     Thus  the  temporary  use  of  naphtha  on  a  single  ocea- 
ns McFarland  v.  Peabody  Ins.  Co.,  *^  White  v.  Western,  etx:.,  Co.,  18 
6  W.  V'a.  425.                                               W.   N.   i.'.    (Pa.)    279;    6   All.   Rep. 

<8  Richards  v.  Protection  Ins.  Co.,       113. 
30  Mo.  273. 


808  OIL    AND    GAS. 

sioii  \v;is  licld  to  avoid  tlic  iinlicy.'"'  Wlioro  no  iiKjiiirv  was 
made  bv  the  company  at  tlio  time  it  issued  a  policy  concerning 
the  use  of  gasoline  on  tlie  premises,  the  use  of  it  thereafter  in 
contravention  of  a  ]n<!liil)it(iry  clause  in  the  ]"»olicy  will  avoid 
s\ich  ]M)licy,  altJKinuli  it  was  used  when  the  polies'  was  issued/* 

^703.     Occasional  use  of  hazardous  articles. 

It  has  been  held  that  the  occasional  use  of  articles  denomi- 
nated hazardous  would  not  avoid  a  policy  conditioned  against 
their  use."**  The  temporary  use  of  benzine  to  renovate  furni- 
ture and  carpets  will  not  avoid  a  policy,  although  the  risk 
thereby  be  increased  contrary  to  its  terms.'^^  "Where  permis- 
sion was  given  to  use  gasoline  stoves,  providing  the  assured 
warranted  that  no  gasoline  should  be  kept  within  the  building 
except  that  contained  in  the  reservoir  or  stove,  it  was  held 
that  the  keeping  of  a  gallon  gasoline  can  with  gasoline  in  it,  in 
the  pantry  next  the  kitchen  where  the  stove  was  kept  was  a 
violation  of  the  terms  of  the  policy."''"  But  where  the  keeping 
of  gasoline  was  prohibited,  the  keeping  of  a  half  pint  of  it  in  a 
bottle  securely  corked  and  which  was  not  the  cause  of  the 
fire,  w^as  held  not  sufficient  to  avoid  the  policy.^^'' 

§  704.     Increase  of  risk. 

Not  infre(iueutly  policies  provide  that  any  increase  of  the 
hazard  assumed  by  the  insurer  shall  avoid  the  policy.    Whether 

48  Wheeler    v.    Trader's    Tns.    Co.,  on    tlie    premises    a    half    day    and 

62  N.  H.  326,  4.50.      (But  it  should  which    caused    the    fire;    ptilicy    not 

be  remarked  that  the   naphtha  was  avoided). 

used  in  this  case  several  times,  and  49  McFarland    v.    St.    Paul,    etc., 

a  cask  of  it  was  taken  on  the  prem-  Ins.   Co.,   46   Minn.   519;    4'9   N.   W. 

ises.)       ^ratson    v.    Farm    Building  Rep.  253. 

Fire    Ins.    Co.,    73    N.    Y.    310;    29  50  Merchants',    etc.,     Ins.     Co.     v. 

Am.  Rep.  149,  reversing  9  Hun  415;  Washington,  etc.,  Ins.  Co.,  1  Handy 

Heron     v.    Phoenix,    etc.,     Ins.     Co.,  40S;  La  Force  v.  Williams,  etc.,  Co., 

180  Pa.   St.   257;    40  W.  N.   C.  55;  43  Mo.  App.  518. 

36  Atl.  Rep.  740;   36  L.  R.  A.  517.  si  Bcntly     v.     Lumberman's     Ins. 

A  casual  deposit  of  the  prohibited  Co.,   191   Pa.   St.  276;    43  Atl.   Rep. 

article    in    the    building    was    held  209. 

not  to  avoid  the  policy.     Hvnds  v.  siaXorwaysz    v.     Thurin^ia     Ins. 

Schenectndy.  etc.,  Tns.  Co..  11  N.  Y.  Co.,  204  111.  334;  68  N.  E.  Rep.  551; 

554:  affirming  16  Barb.  119;  Spring-  104  111.  Ann.  300. 

field,  etc.,  Ins.  Co.  v.  Wnde,  95  Tex.  sih  Arnold    v.    American    Ins.    C5o., 

508;    68   S.  W.  Rep.  977    (a   gallon  148  Cal.  660;  84  Pac.  Rep.  182. 


INSURANCE.  809 

or  not  the  particular  thing  done,  and  wliicli  it  is  insisted  avoids 
the  policy,  increased  the  hazard  is  a  qiu'stion  for  the  jury."- 
Where  the  policy  provided  that  it  siiould  he  void  if  the  liazard 
was  increased,  or  any  of  the  products  of  petroleum  of  a  greater 
inflamniahility  than  kerosene  were  used  or  kept  on  the  prem- 
ises; and  when  the  policy  was  issued  the  insured  was  using  coal 
as  a  fuel,  and  afterwards  he  sustituted  for  the  coal  a  "reduced 
oil"  of  less  inflamraahility  than  kerosene,  it  was  held  that  the 
only  question  was  as  to  the  method  of  using  the  oil,  and 
whether  the  hazard  was  thereby  increased.'*''  A  clause  in  a 
policy  avoided  it  if  there  was  an  increase  of  the  hazard.  For 
several  months  before  the  fire  the  insured  kept  in  a  room  where 
the  merchandise  insured  was  situated,  a  jug  containing  crude 
petroleum  for  medical  purposes.  The  petroleum  did  not  cause 
and  had  nothing  to  do  with  the  fire ;  but  the  evidence  tended 
to  show  that  its  presence  was  dangerous,  and  tended  to  increase 
the  risk.  It  was  held  error  for  the  court  to  refuse  to  charge 
the  jury  that  if  the  risk  was  actually  and  materially  increased 
it  avoided  the  policy.'^*  Evidence  is  admissible  to  show  that 
the  occupation  of  the  premises  for  finishing  chairs,  wherein 
an  alcohol  lamp  was  used  and  exploded,  causing  the  fire,  that 
the  risk  was  thereby  increased.^*  A  policy  prohibiting  the  keep- 
ing of  baled  liay  is  avoided  by  keeping  large  (juantities  of  loose 
unbaled  hay ;  for  the  reason  that  loose  hay  is  more  hazardous 
than  baled  hay.^''  To  put  up  a  frame  building  near  the  one 
insured  in  which  is  placed  an  incubator  heated  by  the  use  of 
gasoline  or  kerosene  as  a  fuel  is  to  increase  the  risk  of  the  in- 
surer.'^' Where  gasoline  had  been  kept  in  violation  of  the  terms 
of  the  ix)licy,  but  at  the  time  of  the  fire  none  were  on  the  prem- 
ises, it  was  held  to  be  a  question  of  fact,  on  which  the  testimony 
of  experts  was  admissible,  whether  the  risk  had  In'oii  increased; 

B2Pool    V.    ^Milwaukee,    etc.,    Ins.  '•*  Willianis   v.   People'*   Fire   Ins. 

Co.,  91   Wis.   530;    C5   N.   W.  Rep.  Co.,  57  N.  Y.  274. 
64;    Williams  v.   People's   Fire   Ins.  •'>•"  Appleby  v.  Astor  Fire  Ins.  Co., 

Co.,    57    N.    Y.    274;     Atherton    v.  54  X.  Y.  253. 

British,   etc.,    Co.,    91    Me.    289;    39  r.o  Dittnier   v.  (Jermania   Ins.   Co., 

Atl.  Rep.  1006.  23  La.  Ann.  458;   8  A.  M.  Rep.  GOO. 

S3  Grand  Rapids,  etc.,  Co.  v.  Anier-  •'•'  Ventzer    v.    Farmers',   etc.,    Ins. 

ican    Fire    Ins.    Co.,   93    Mich.   390;  Co.,  200  Pa.  St.  325;   49  Atl.  Rep. 

53  X.  W.  Rep.  538.  7G7. 


SIO  OIL    AND    GAS. 

and  tlio  oflFoet  of  tho  cliaTijjjod  condition  on  the  premium  i-nte 
Avliicli  sliould  have  hovu  oharued  hy  uiid(>rwriters  generally  fur 
the  insurance  of  the  jirojierty  may  be  shown  as  bearing  on  the 
issue,  though  it  is  not  conclusive.'** 

§705.     Proof  of  custom  or  the  usual  practice. 

As  a  rule  proof  is  admissible  to  show  what  was  the  custom  or 
usual  practice  with  reference  to  the  keeping  of  prohibited  ar- 
ticles where  it  is  claimed  tliat  the  nature  of  the  property  insured 
was  such  that  the  articles  prohibited  were  a  necessary  part  of 
the  whole.  As  in  the  case  of  a  country  store,  proof  is  admissible, 
in  an  action  on  the  policy,  to  show  custom  or  practice  with  refer- 
ence to  the  keeping  of  prohibited  articles,  such  as  gasoline.^" 
But  if  there  is  an  express  provision  that  a  certain  oil  shall  not 
be  kept  or  permitted  on  the  premises,  then  the  keeping  of  it  for 
trade  will  avoid  the  policy.*^" 

§706.     Implied  consent  to  prohibited  use. —  Custom. 

An  implied  consent  to  use  the  buildings  in  a  manner  pro- 
hibited by  the  p)licy  may  be  drawn  from  the  use  to  which  the 
building  was  being  put  at  the  time  the  policy  was  issued,  or 
from  the  nature  of  the  stock  insured.  Thus  where  keeping  gun- 
powder was  prohibited,  yet  the  store  insured  was  such  a  store 
as  usually  contains  gnn|x)wder  for  retail;  and  at  the  time  the 

58  Traders'  Ins.  Co.  v.  Catlin,  163  75;    Maril  v.   Connecticut   Fire  Ins. 

111.  256;   415  N.  E.  Rep.  255,  revers-  Co.,  95  Ga.  604;  23  S.  E.  Rep.  463; 

ing  59   111.  App.   162.     See  Cornish  30  L.  R.  A.  835;   Hall  v.  Insurance 

V.    Farm,   etc.,    Ins.   Co.,    74   N.    Y.  Co.,  58  N.  Y.  292;  17  Am.  Rep.  255; 

295;     Planters',    etc.,    Ins.    Co.    v.  Citizens'    Ins.    Co.    v.    McLaughlin, 

Rowland,   66   Md.  236;   7  Atl.   Rep.  53   Pa.  St.  485;   l\ibb  v.  Liverpool, 

257;    Luce   v.   Dorchester,   etc.,   Ins.  etc.,  Ins.   Co.,  106  Ala.  651;    17  So. 

Co.,    105   Mass.   297;    Lietch    v.   At-  Rep.  615. 
lantic,  etc.,  Ins.  Co.,  66  N.  \.  100.  oo  Birniingham    Fire    Ins.    Co.    v. 

89  American,     etc.,     Ins.     Co.     v.  Kroegher,   8'3    Pa.    St.    64;    24   Am. 

Green,    16   Tex.   Civ.   App.    531;    41  Rep.   147.     In  this  case  a  barrel  of 

S.  W.  Rep.  74;  Masc<jtt  v.  Granite,  petroleum   was   kept   for   sale   in   a 

etc.,    Ins.    Co.    (Vt.),    35    Atl.    Rep.  store. 


INSURANCE.  811 

policy  was  issnod  the  insuranoo  aj]jpnt  know  iipnipowdpr  was 
actually  kept  for  that  ]>nrposc  in  the  store,  it  was  lield  that  the 
kee]iing  of  the  amount  usually  carried  by  retail  storekeepers 
did  not  avoid  tli(>  jxtlicy."'  So  where  a  pilicy  ]>lac('<l  with  a 
silver  platinj;  company  on  its  stock  and  machinery  in  its  fac- 
torv',  provided  "  that  the  entire  policy,  unless  otlierwise  ])ro- 
vided  by  agreement  indorsed  hereon  or  added  hereto,  shall  bo 
void  (anything  contrary,  iiotwithstanding)  if  there  lie  ke])t, 
used,  or  allowed  on  the  above  described  premises  .  .  .  gas- 
oline," was  held  not  to  prohibit  the  use  of  gasoline  in  the  com- 
pany's business,  it  being  so  used  at  the  date  of  the  policy,  and 
the  use  being  necessary.  The  fact  that  only  such  amount  was 
brought  into  the  factory  at  any  one  time  as  was  used  in  a  single 
day  seems  to  have  had  some  bearing  on  the  decision.""  A  policy 
containing  a  provision  declaring  it  to  be  void  if  gasoline  lie 
"kept,  used  or  allowed  "  on  the  premises  does  not  prohibit  the 
keeping  in  the  building  gasoline  to  be  used  in  filling  gasoline 
torches  for  use  in  removing  paint  from  the  building,  in  order 
to  repaint  it.*^^  Under  a  policy  placed  on  household  and  kitchen 
furniture  and  family  stores,  a  claiise  prohibiting  gasoline 
on  the  premises  will  not  }>revent  the  use  of  gasoline  in 
the  kitchen  gasoline  stoves,  it  being  shown  that  household  and 
kitchen  furniture  ordinarily  include  gasoline  and  gasoline 
stoves.*"*      It  was  held  that  the  prohibitory  clause  was  repugnant 

61  Kenton   Ins.   Co.   v.   Dowtis,   90  62  Fraim  v.  National  Fire  Ins.  Co., 

Ky.  236;    13  S.  W.  Rep.  882;   Mas-  170    Pa.     St.     151;     37     W.    N.     C. 

cott  V.  Granite,  etc.,  Ins.  Co.    (Vt.),  39;  32  Ail.  Rep.  G13;  Northern,  etc., 

35   Atl.    Rep.   75 ;    Phoenix   Ins.   Co.  Co.  v.  Crawford,  24  Tox.  Civ.  Ajtp. 

V.  Flemming,  65  Ark.  54;   44  S.  W.  574;   i59   S.   W.   Rep.  916. 

Rep.  464;   39  L.   R.  A.   7i89;   Maril  63  Smith  v.  German  Ins.  Co.,  107 

V.    Connecticut    Fire    Ins.    Co.,    95  Mich.  270;  65  N.  W.  Rep.  236;  Ack- 

Ga.  604;   23  S.  E.  Rep.  463;   Stout  ley    v.    Phoenix    Ins.    Co.,    25    Mont. 

V.    Commercial,    etc.,    Co.,    12    Fed.  272;   64  Pac.  Rep.  005. 

Rep.  554;    11   Biss.  3i09;    11   Ins.  L.  64  American,     etc.,     Ins.     Co.     v. 

J.   688.      See   Sperry   v.  Springfield,  Green,  16  Tex.  Civ.  App.  531;  41  S. 

etc.,  Ins.  Co.,  26  Fed.  Rep.  234;    15  W.    Rep.    74;    Snyder    v.    Dwelling 

Ins.  L.  J.  270;  and  Steinbach  v.  Re-  House    Ins.   Co.,   59   N.    J.    U    544; 

lief  Ins.  Co.,  77  N.  Y.  498,  affirmed  37   Atl.   Rep.   1022. 
13   Wall    183;    Steinbach    v.   Lafay- 
ette Ins.  Co.,  54  N.  Y.  90. 


812  Oli.    AM*    CiAS. 

to  the  <;eiioral  tenor  of  the  ])()li('y  when  njiplicd  to  the  arlieles 
insured.'"  Where  a  jKilicv  on  a  store  prohihited  the  use  of  any 
burning  Huid  or  chemical  oils,  and  a  subsequent  clause  permitted 
the  use  of  kerosene  oil  as  a  light  in  the  dwelling  part  of  the 
building,  the  use  of  kerosene  in  the  store  rendered  the  policy 
void,  although  the  owner  slept  in  the  store  with  his  clerk,  and 
kept  the  kerosene  lamps  burning  as  a  protection  against 
burglars.""  A  house  was  insured  and  thou  changed  into  a  gro- 
cery, in  wliich  articles  were  sold  which  were  denominated 
"  hazardous."      This  was  held  to  avoid  the  policy." 

§707.     "  Storing:."—"  Keeping." 

Fire  insurance  policies  usually  prohibit  the  storing  of  oils 
upon  the  premises  of  the  property  insured  ;  and  not  infrequently 
the  question  arises  what  is  a  "  storing  '■  of  oil.  Usually  the 
keeping  of  enough  oil  for  the  retail  trade,  as  retailers  are  in 
the  habit  of  doing,  will  not  avoid  a  policy  prohibiting  tlie  "  stor- 
ing "  of  oil.  Thus  a  grocer  may  keep  such  oils  in  reasonable 
quantities  as  grocers  usually  keep  and  which  is  incidental  to 
his  business,  although  there  be  a  clause  in  his  policy  suspending 
its  operations  if  oils  be  stored  in  the  building."^  Even  the 
keeping  of  gasoline  for  retail,  in  reasonable  quantities,  will  not 
avoid  the  policy,  although  it  be  denominated  extra  hazardous  as 
an  article  of  storage."^  Where  the  assured  is  prohibited  "  from 
using  the  premises  for  the  purpose  of  keeping  or  storing  therein 
any  goods  or  merchandise  of  the  kind  whicli  are  denominated 

65  It  is   different  if  fireworks  are  (N.  Y.)    226;   Maril  v.  Connecticut 

kept  in  the  dwelling  house.     Heron  Fire  Ins.  Co.,  95  Ga.  604 ;  23  S.  E. 

V.   Phoenix,   etc.,    Ins.    Co.,    180   Pa.  Rep.  463;  51  Am.  St.  Rep.  102;   30 

St.   257;    40  W.  N.    C.   55;    36   Atl.  L.   R.   A.    835. 

Rep.  740;  36  L.  R.  A.  517.  eo  Renshaw  v.  Missouri,  etc.,  Ins. 

esCerf  v.  Home  Ins.  Co.,  44  Cal.  Co.,    103    Mo.   595;    15   S.   W.   Rep. 

320;    13  Am.  Rep.   1G5.  945;   23  Am.  St.  Rep.  904;   Colum- 

67  Davern  v.  Jlerchants',  etc.,  Ins.  bia,  etc.,  Co.  v.  American  Fire  Ins. 

Co.,  7  La.  Ann.  344.  Co.,    59    Mo.    App.    204;    Ackley   v. 

OS  New    York,    etc.,    Ins.    Co.    v.  Phoenix  Ins.  Co.,  25  :Mont.  272;   64 

Langdon,  6  Wend.  623;   Langdon  v.  Pa.   Rep.    665. 
New    York,    etc.,    Ins.    Co.,    1    Hall 


INSIKANCK.  813 

lia/.ardous,"  the  koo})in<^  of  articles  in  ilic  stock  df  ijckmIs  insured 
which  are  of  a  hazardous  character,  hut  which  are  required  by 
tlie  ordinary  course  of  his  trade  will  not  avoid  the  policy,  for 
such  a  ])rovision  is  merely  a  protection  against  the  appropria- 
tion of  the  store  for  a  depository  of  such  goods,  as  a  sole  or 
principal  business.'^  In  such  an  instance  the  keeping  of  a  bar- 
rel of  oil  for  a  short  time  in  the  back  of  the  store,  with  bunches 
of  cotton  yarn  near  it,'  was  held  not  to  prevent  a  recovery  for 
loss  by  fire  of  the  goods  insured.'*  A  ])olicy  denoniinatctl  llax 
as  hazardous,  and  provided  that  the  building  should  not  Ik*  "  aj)- 
propriated,  applied  or  used  "  for  that  purpose.  The  building 
insured  had  been  used  for  flax  dressing  machinery,  but  before 
the  policy  was  issued  it  had  Ix^en  removed  and  a  cording  ma- 
chinery put  in.  A  small  (piantity  of  unbroken  flax  remained 
piled  up  in  a  corner  of  a  room  two  days,  during  which  the  build- 
ing was  burned.  It  was  held  that  these  facts  did  not  show  that 
the  building  was  "appropriated,  a])]ilic(l  oi-  used  "  for  storing 
or  keeping  flax."^"  A  policy  provided  that  if  the  premises  in- 
sured "  be  used  for  the  purpose  of  carrying  on  any  trade, 
business  or  vocation  denominated  hazardous,  or  extra  haz- 
ardous, or  specified  in  the  memorandum  of  s|x^cial  rates  in 
the  proposals  annexed  to  the  jwlicy,  or  conditions  denominated 
hazardous  or  extra  hazardous,  or  included  in  the  special  rates, 
that  the  policy,  while  the  premises  were  so  used,  should  be  of  no 
effect,"  and  in  the  conditions  oil  nnd  tur]K'nt  iiie  were  denomi- 
nated hazardous,  and  spirits  of  turpentine  extra  hazardous,  and 
houses,  buildings  or  repairing  were  included  within  the  memor- 
andum of  special  rates  of  premiums;  it  was  held  that  the  fact, 
when  the  house  was  burnt,  that  painters  were  employed  in 
repairing  the  house,  for  jiainting  the  inside,  and  for  that  pur- 
pose these  oils  were  kept  in  the  house,  while  the  work  was  going 
on,  such  a  quantity  of  paints,  oil  and  turj-entine  did  not  avoid 

70  Moore  v.  Protection  Jns.  Co.,  72  Uynds  v.  Schenectiuly,  etc.,  Ins. 
29  Me.  97;  48  Am.  Dec.  514;  Plioenix  Co.,  Hi  Barb.  119,  anirmed  11  X.  Y. 
Ins.  Co.  V.  Taylor,  5  Minn.  492.               554. 

71  Leggett   V.   Aetna  Ins.   Co.,    10 
Rich.  L.  202. 


Sl-i  OIL     AND    CiAS, 

the  poircv.'^  A  iiioro  ]>rivilot;;o  to  nso  n  c^ii.s  ;i]>p:ir;itus,  not 
actually  oxorcisod,  luir  iiitciidcd  to  1)C  oxcrcisod,  but  in  reality 
abandoned,  will  not  justify  the  insured  in  keej)iiii>;  and  storing 
gas<dine  in  a  plaee  and  manner  other  than  that  allowed  in  the 
policy.'*  Keeping  articles  to  be  exhil)ir('d  or  to  be  used  as 
means  and  instruments  of  the  exhibition  is  not  a  use  of  the 
building  "  for  the  purpose  of  storing  or  keeping  therein  "  such 
articles  within  a  clause  of  the  policy  relating  to  hazardous  ar- 
ticles.'°  In  a  Massachusetts  case  it  was  said  that  "  the  word 
'  kept/  as  used  in  tlic  policy,  imjilies  a  use  of  the  premises  as 
a  place  of  deposit  for  the  ])rohibited  articles  for  a  considerable 
]x^riod."  ^^  A  provision  in  a  policy  prohibiting  the  keeping  of 
any  article  considered  hazardous  was  modified  by  endorsement 
upon  as  follows:  "  Permission  given  to  keep  one  barrel  of  ben- 
zine or  turpentine  in  tin  cans  .  .  .  for  use  on  the  prem- 
ises." One  barrel  of  Ix^nzine  was  brought  into  the  building, 
and  exiiloded  while  being  emptied  into  a  large  tin  can,  causing 
the  building  to  be  destroyed  by  the  fire  the  explosion  started. 
It  was  held  that  the  temporary  bringing  in  of  the  barrel  of 
benzine  was  not  a  "  keejung  of  benzine  "  in  violation  of  the 
terms  of  the  policy.''^  It  may  be  laid  down  as  a  general 
proposition  that  the  usual  clauses  in  fire  insurance  policies 
prohibiting  the  storing  or  keeping  of  certain  hazardous  articles 
have  reference  to  a  storing  or  keeping  in  a  mercantile  sense  in 
considerable  (luantities,  with  a  view^  to  sales  or  traffic,  or  when 
storing  or  keeping  is  the  principal  object  of  the  deposit,  and 
not  w^here  the  keeping  is  incidental  and  only  for  the  purpose 
of  consumption."     To  merely  carry  gasoline  through  a  store 

73  0'Neil  V.  BufTalo  Fire  Ins.  Co.,  Williams  v.  Ins.  Co.,  31  Me.  219; 
3    N.    Y.  .  122.  O'Xeil    v.    Insurance    Co.,    3    N.    Y. 

74  Liverpool,  etc.,  Ins.  Co.  v.  Gun-  122;  Williams  v.  Insurance  Co.,  54 
ther,  116  U.  S.  113;  6  Sup.  Ct.  Rep.  N.  Y.  569;  13  Am.  Rep.  620;  Mears 
306.  V.    Insurance    Co.,    92    Pa.    St.    15; 

■^5  City  of  New  York  v.  Hamilton  Putnam      v.      Insurance      Co.,      18 

Fire  Ins.  Co.,  10  Bosw.  537.  Blatchf.   368;    4   Fed.   Rep.   753. 

7fi  First  Congregational  Church  v.  '"^laryland     Fire     Ins.     Co.     v. 

Holyoke,   etc.,    Ins.    Co.,    158    Mass.  Whitcford,  31  Md.  219. 

475;  33  N.  E.  Rep.  572;  35  Am.  St.  7s  wiHiams  v.  Fire  Ins.  Co.,  54  N. 

Rep.  '508;    19   L.   R.  A.   587,   citing  Y.   569;    13  Am.   Rep.   620. 


INSURANCE.  815 

to  deliver  it  at  once,  is  not  kt'cping  it  on  tlu'  premises/"  To 
keep  it  on  the  same  lot  Init  in  a  separate  huildinjj  is  not  keep- 
ing it  on  the  premises.''"  A  fire  policy  stipulated  that  it  should 
be  void  if  gasoline  was  kept,  used  or  allowed  on  the  premises, 
which  were  used  for  a  restaurant.  Gasoline  was  kept  on  the 
premises  for  use  in  carrying  on  tiie  business.  Sometimes  gaso- 
line was  delivered  at  the  restaurant  for  use  in  it  and  in  the 
business  of  insured  in  another  building ;  but  the  (juantity  used 
in  such  other  business  was  not  kept  in  the  restaurant,  but  was 
sent  to  such  other  building.  It  was  held  that  the  gasoline  so 
sent  out  was  not  "kept,  used,  or  allowed"  on  the  premises 
insured.^"* 


§  708.     Store. 

Litigation  over  what  is  prohibited  in  policies  placed  on  a 
"country  store"  has  been  sharp  and  severe.  These  risks  are 
considered  rather  hazardous.  A  policy  placed  on  such  a  store 
is  not  avoided  by  the  keeping  of  gunpowder  and  coal  oil  under 
a  provision  prohibiting  the  keeping  of  such  articles,  where  it  is 
shown  that  such  articles  are  usually  kept  in  such  a  store.**'  A 
policy  insured  a  building  occupied  as  a  store  and  the  merchan- 
dise permitted  to  be  kept  in  it,  was  such  as  was  "usually  kept 
in  a  country  store,"  except  as  was  otherAvise  provided  in  the 
policy.  The  clause  "usually  kept  in  a  country  store"  was 
written  in  ink.  In  the  policy  was  a  printed  clause  to  the  effect 
that  unless  otherwise  provided  by  agreement  indorsed  on  it,  it 
should  be  void  if  (any  usage  of  trade  to  the  contrary)  gasoline 
was  kept  on  the  premises.  The  court  held  that  if  gasoline  was 
an  article  usually  kept  in  a  country  store,  during  the  day  time, 
for  sale,  the  keeping  of  it  on  the  premises  for  that  purpose 
did  not  avoid  the  policy.'*^    A  policy  placed  on  a  stock  of  goods 

79  London,  etc.,  Tng.  Co.  v.  Fischer,  Chancey  (Tex.  Civ.  App.),  127  S.  W. 

92  Fed.  Rep.  .500.  Rep.  577. 

soFiioman's     Fund     Ins.     Co.    v.  si  American   Fire  Ins.  Co.   v.  Xu- 

Sheamian,  20  Tex.  Civ.  App.  343 ;  50  pent,  7  Ky.  ]ax\\  Rep.  507 :   Tx^ppett 

S.  W.  Rep.  598.     See  Rau  v.  Win-  v.    Aetna    Ins.    Co..    10    Kicli.    Law 

Chester  Fire  Ins.  Co.,  36  N.  Y.  App.  202. 

Div.  179;  55  X.  Y.  Supp.  459.  82  Yoch  v.  Home  Mutual    Ins.  Co., 

80a  American    Central   Ins.   Co.    v.  Ill  Cal.  503;   44  Pac.  Rep.  ISO;  34 


816  OIL    AND    GAS. 

in  a  country  store  contained  a  printed  stipulation,  that  benzine 
should  not  be  kept  without  the  consent  of  the  insurer,  but  a 
written  clause  provided  that  the  policy  covered  such  goods  "  as 
is  usually  kept  for  sale  in  country  stores."  It  was  held  that 
proof  was  admissible  to  show  that  the  prohibited  goods  came 
within  the  written  clause.^''  A  clause  in  a  ]X)licy  rendering  it 
void  if  gasoline  be  kept  on  the  premises  was  held  to  apply  to 
where  it  was  brought  to  the  store  to  be  used  in  a  gasoline  stove 
in  an  upstairs  room,  having  no  connection  with  the  store,  but 
reached  by  an  outside  stairway.^* 

§709.     Grocery. 

If  a  policy  placed  on  a  stock  of  groceries  kept  for  retail 
prohibit  the  use  of  the  building  insured  for  the  purpose  of  stor- 
ing goods  denominated  hazardous  or  extra  hazardous,  the  keep- 
ing of  oil  for  the  purpose  of  retail,  in  quantities  not  unusually 
large,  is  not  a  storing  of  oil  within  the  prohibitory  clause  of 
the  policy.^^  A  policy  provided  that  it  should  be  void  if  the 
premises  were  used  for  storing  or  keeping  on  the  premises  any 
article  mentioned  in  the  classes  of  hazards  annexed  to  it,  "  ex- 
cept as  herein  specially  provided  for,  or  hereafter  agreed  to  by 
the  insurer  in  writing  upon  this  policy."  The  court  found,  the 
goods  having  been  insured  as  "  groceries,"  that  the  term  "  gro- 
ceries "  included  a  certain  amount  of  such  hazardous  articles, 
and  held  that  they  were  so  es|wcially  provided  for  in  writing 
on  the  policy.®^  A  policy  on  a  stock  of  merchandise  prohibited 
the  keeping  of  petroleum  on  the  premises.  The  insured  kept 
a  barrel  of  petroleum  on  the  premises  for  sale;  and  the  insur- 

1..  R.   A.  857;    Barnard  v.  National  8-''>  I.anpdon     v.     New    York,     etc., 

Fire  Ins.  Co.,  27  Mo.  App.  26;  Me-  Ins.  Co.,  1  Hall    (N.  Y.)   226;  Ren- 

ohanics'.    etc..    Ins.     Co.     v.     Floyd,  shaw    v.    Missouri    State,    etc..    Ins. 

20  Ky.  L.  Rep.  1.5.38;  40  S.  W.  Rep.  Co.,    103   Mo.    595;    15    S.    W.    Rep. 

54.3.  045;    2.3    Am.    St.    Rep.    904;    New 

83  Tubb  V.  T>iverpool.  etc..  Ins.  York.  etc..  Ins.  Co.  v.  Lanjjdon,  6 
Co.,  106  Ala.  651;   17  So.  Rep.  615.  Wond.    62,3;    London,   etc..   Ins.   Co. 

84  Boyer    v.    Crand     Rapids    Fire  v.  Fisrher    92  Fed.  Rep.  500. 

Ins.   Co..   124  Mich.  455;    83  N.  W.  s^Niatrara    Fire    Ins.    Co.    v.    De 

Rep.  124.  Graff,  12  Mich.  124. 


INSURANCE.  817 

ancc  company  insisted  that  this  avoided  the  policy.  The  c(nirt 
instnictod  the  jury  that  "  niorchandiso  "  inchnhMl  whatever  it 
was  customary  to  keep  in  sncli  a  store,  and,  if  a  supply  of  ju'tm- 
leiim,  such  as  was  kept  on  the  i)remises,  was  a  part  of  the  usual 
stock  of  tlu'  store,  the  insured  could  recover.  This  was  held 
error,  for  tiie  reason  that  hy  the  express  contract  petrolemn  was 
to  he  excluded.*'^  Where,  after  a  ]iolicv  was  issued  on  a  dwell- 
ing house,  a  grocery  was  established  in  it,  in  which  articles  were 
sold  that  were  denominated  ''  hazardcuis  "  in  the  memorainlinu 
attached  to  the  ]x)licv,  it  was  held,  on  a  loss  by  fire,  that  the  in- 
sured was  not  entitled  to  recover.*"* 

§710.     Watchmaker. 

Where  a  jioliey  is  issued  on  "  watchmaker's  mat(>rials,"  it 
may  be  shown  by  parol  evidence  that  the  words  include  small 
amounts  of  benzine  and  kerosene,  althou<ih  the  policy  contains 
a  printed  stipulation  ]ireventing  the  kee]dno;  and  use  of  inflam- 
mable substances.'*'*  The  same  is  true  of  a  manufacturer  of 
brass  clock  works.**" 

§711.     Furniture  store. —  Wagonshop. 

The  keeping  of  benzine  for  necessary  use  in  a  repair  shoji  (Con- 
nected with  a  retail  furniture  store  will  not  avoid  a  policy  cover- 
ing the  store  and  shop  and  the  ''  furniture,  upholstery  goods, 
and  other  merchandise,  not  more  hazardous,  usual  to  a  retail 
furniture  store,"  although  benzine  is  expressly  prohibited  in 
the  printed  conditions  of  the  policy."^      So  where  a   ])aintshnp 

8T  Birmingham    Fira    Ins.    Co.    v.  oo  Bryant    v.    Pouprhkeepsie.    etc., 

Kroegher,    83    Pa.    St.    64;    24    Am.  Ins.  Co.,  17  N.  Y.  200.  airirniinir  21 

Rep.     147.      To    same    effect    Whit-  Baih.   1.54. 

march  v.  Charter  Oak  Fire  Ins.  Co.,  »i  Faust    v.    American,    etc..    Ins. 

2    Allen    581;    Cerf.    v.    Home    Ins.  Co..    91    Wis.    1.58;    64    N.    W.    Rep. 

Co.,   44   Cal.  320;    13  Am.   St.   Rep.  883;    30  L.  R.   A.   783. 

165.  A  policy  on  a  furniture  store  cov- 

88  Davern  v.  Merchants',  etc.,  Co.,  ers  paints  and   varrii^li   used   1o  (in- 

7  La.  Ann.  344.  ish  the  furniture,  if  nsnally  kept  by 

**9  Maril   v.   Connecticut   Fire   Ins.  dealers.     Haley  v.   Dorchester,  etc., 

Co..  95  Ga.  604;  23  S.  E.  Rep.  463;  Ins.  Co.,   12  Gray  545. 
30  L.  R.  A.  835;   51   Am.   St.  Rep. 
102. 


81S 


OIL    AND    GAS. 


was  kept  over  a  "wagonshoi>,  both  owned  bv  tlic  insured  and 
operated  together;  and  half  a  barrel  of  benzine  was  ko\)t  in  the 
shop,  it  was  held  that  the  printed  condition  prohibiting  the 
keeping  of  benzine  was  repugnant  to  the  written  clause  insur- 
ing them."" 

§712.     Factory. 

The  use  of  gasoline  in  a  factory,  in  llic  business  of  the  factory 
owner,  such  use  being  necessary,  where  only  enough  is  kept  as 
will  be  sufficient  for  a  short  time  —  as  for  a  day  —  will  not 
avoid  a  ]X)licy  prohibiting  the  use  of  gasoline  in  such  factory. 
Such  was  held  to  bo  the  case  where  the  policy  was  issued  to  a 
silver  plating  company  on  its  tools  and  macliinorv  in  the  fac- 
tory."^ Tn  the  case  of  a  rope  factory,  where  the  ])olicy  pro- 
vided that  no  oil  should  be  used  on  the  ])remises,  the  use  of  fish 
oil,  which  was  necessary  for  the  manufacture  of  a  particular 
kind  of  rope  manufactured  in  the  factory,  was  held  not  to  avoid 
the  policy.®*  A  manufacturer  of  brass  clock  works  may  keep 
all  articles  necessary  to  and  usually  employed  in  that  manu- 
facture, although  keeping  such  articles  is  set  forth  in  the  printed 
terms  of  the  policy  as  extra  hazardous."'"'  And  this  is  true  of 
any  factory  under  a  like  policy."*' 


§713.     Drug  Store. 

A  policy  issued  on  a  drug  store  insuring  "  articles  usually 
kept  for  retail  drug  stores  "  covers  gasoline,  benzine,  and  ether. 
The  keeping  of  such  articles  in  reasonable  quantities  on  the  in- 
sured premises  will  not  avoid  the  policy,  though  a  printed  con- 

92  Archer  v.  Mercliants',  etc.,  Co.,  »5  Bryant    v.    Pouehkeepsie,    etc., 
43  Mo.  434.  Ins.  Co..  17  N.  Y.  200,  affirming  21 

93  Fraim     v.    National     Fire    Ins.  Barb.     154;     Maril    v.     Connecticut 
Co.,   170  Pa.   St.    151;    32   Atl.   Rep.  Fire  Ins.  Co..  05  Ga.  604;   23  R.  E. 
613;     37    W.    N.    C.    39;    Mears    v.  Bop.   463;    30  L.  B.  A.  835. 
Humboldt  Fire  Ins.  Co..  92  Pn.  St.  or,  yirOe  v.   Oermnnia   Ins.  Co..  26 
15:   37  Am.  Ben.  647.  Towa    9;    96   Am.  Dec.   83. 

"+  Bn"Tn<Tardner  v.  Ins.  Co..   1  W. 
N.  C.  119. 


INSURANCE.  819 

(lition  in  it  declares  that  unless  otherwise  provided  by  agreement 
endorsed  on  or  added  to  it,  the  iK)li('v  shall  he  void  if  there  he 
kept  benzine,  ether,  or  gasoline,  notwithstanding  any  custom  or 
usage  of  trade  may  permit  them  to  be  kept,°^  Where  a  whole- 
sale and  retail  drug  store  was  ke])t  in  the  same  Imihling  sepa- 
rated only  by  a  thin  partition,  and  a  policy  was  issued  "  <tn 
their  wholesale  stock  of  drugs,  ]>aints,  oils,  dyestufFs,  and  dtlici" 
goods  on  hand  for  sale,  not  more  hazardous,  while  contained  in 
the  building,"  it  was  held  that  the  word  "  wholesale  "  was  sup- 
plemented, and  its  meaning  extended  to  "  other  goods  on  hand 
for  sale,"  not  simply  of  the  wholesale  stock,  but  all  otl>er  goods 
"  contained  in  the  building."  °^ 

§714.     Laundry. 

The  operation  of  a  laundry  is  not  a  trade  or  manufacture 
within  a  clause  in  a  policy  forbidding  the  use  of  gasoline,  not- 
withstanding any  custom  of  trade  or  manufacture,  so  as  to  pre- 
clude proof  of  a  custom  of  the  use  of  gasoline  by  the  residents 
of  the  community  at  the  time  the  policy  was  issued,  to  cx]>l;iii; 
or  avoid  such  prohibitory  clause.*® 

§715.     Patent  Leather  Factory. 

A  policy  placed  on  a  patent  leather  factory  allowed  benzole 
to  be  kept  in  a  shop  detached  from  the  building,  and,  as  needed, 
carried  into  the  factory.  Evidence  was  admitted  of  the  cus- 
tom in  other  cities  as  to  the  way  in  which  benzole  was  ordi- 
narily carried  into  the  factory,  there  being  no  evidence  of  a 
diflFerent  custom  employed  at  the  place  where  the  factory  was 
located.^"" 


"Ackley   v.   Phcenix   Ins.   Co.,  25  etc.,   Co.,   110  N.   C.   350;    14   S.    E. 

Mont.  272;  64  Pac.  Rep.  665;  Phoe-  Rep.    790. 

nix  Ins.   Co.   v.   Fleniming,  65  Ark.  o"  Northern,  etc.,  Co.  v.  Crawford. 

54;  44  S.  W.  Rep.  464;  39  L.  R.  A.  24    Tex.    Civ.    App.    574;    ."SO    S.    W. 

789.  Rop.  916. 

98  Wilson    Drug    Co.    v.    Phcenix,  lo"  Citizens'  Ins.  Co.  v.  McLaugh- 
lin,   53    Pa.    St.    485. 


820  OIL    AND    GAS. 

§716.     Painter. —  Paintshop  or  factory. 

A  ]X)licv  issued  to  a  paiiilcr,  kccpiiiii'  mitliiii*;  ('.\('0])t  his  pr<j- 
ductions,  or  liis  j)aints,  oils,  bnislies,  and  other  "  merchandise," 
covers  articles  of  necessity  and  convenience,  though  they  are 
not  kept  for  sale.'"^  A  written  rider  attached  to  a  policy  pro- 
vided that  the  insurance  was  against  loss  on  "  paints,  oils,  var- 
nishes," etc.,  ''and  sudi  dthcr  ai'tiides  as  are  usually  kc])t  in  a 
sign  ]minter's  and  carriage  jvainter's  and  trimmer's  shoj)."  A 
printed  clause  in  the  body  of  the  policy  provided  that  "'  this  en- 
tire policy,  unless  otherwise  provided  by  agreement  thereon,  or 
addcMl  heret<i,  shall  he  void  ...  if  (any  usage  or  custom 
of  trade  or  manufacture  to  the  contrary  notwithstanding)  there 
be  kept,  used,  or  allowed,  on  the  above  described  premises,  ben- 
zine," etc.  It  appeared  in  evidence  that  benzine  was  usually 
kept  in  ...  a  shop  such  as  the  one  insured.  Tt  was  held 
that  the  prohibition  with  respect  to  benzine  applied  only  when 
the  article  was  not  insured,  and  by  insuring  the  benzine  it  was 
"  otherw^ise  provided,  l)y  agreement  indorsed  on  the  policy  "  that 
benzine  might  be  kept  on  the  premises.^""  If  the  written  part  of 
a  ix)licy  on  a  paint  factory  provides  that  it  may  be  used  for 
"  hazardous  or  extra  hazardous  "  purposes,  it  will  control  the 
])rinted  ])art  jjroliibiting  the  keeping  of  benzine;  and  the  prem- 
ises may  be  used  as  a  paint  factory  in  which  benzine  is  used  to 
manufacture  paints. ^"^ 

^717.     Torch  to  remove  paint  from  house. 

A  policy  ])rovided  that  naphtha  should  not  be  used  on  the 
premises.  The  owner  of  the  house  employed  a  painter  to  paint 
the  house,  and  he,  with  the  consent  of  the  owner,  used  a  naphtha 
torch  to  remove  the  paint  on  the  house  preparatory  to  repainting 
it.  The  building  caught  fire  from  the  torch  and  was  consumed. 
Another  provision  in  the  policy  provided  that  the  circumst-mces 

1"!  Hartwell     v.     California     Firo  Mascott  v.   First,  etc..   Ins.   Co.,  60 

Ins.   Co.,   84  Me.   524;    24   Atl.   Rop.  Vt.  116;  .37  Atl.  Rep.  255. 

^54.  1"- Russell  v.  Manufacturers',  etc., 

K'^^rnscntt    V.    Cranite.    etc..    Tns.  Tns.   Co..    r^O   Minn.   409;    52   N.   W. 

Co.,   68    Vt.   25.3;    35   Atl.   Rep.   75;  Rep.  906. 


INSURANCE.  821 

affecting  the  risk  should  not  ho  so  altered  as  to  cause  an  increase 
of  such  risk.  It  was  held  that  then'  was  an  alteration  of  '*  the 
situation  or  cireunistanees  atl'eeting  the  risk  "  within  the  mean- 
ing of  the  condition  above  stated  ;  that  the  risk  had  been  in- 
creased;  that  although  no  naphtha  was  used  in  the  house,  it  was 
used  "on  the  i)reiiiis(>s  "  within  the  uieaning  of  the  ])rohihitory 
clause;  that  the  only  question  for  \\w  jurv  was  whether  the  use 
of  the  naphtha  and  the  change  in  conditions  atfecting  the  risk 
occurred  through  making  ordinary  repairs  in  a  ]iroper  and  rea- 
sonable manner,  since  such  a  provision  in  a  ]ioliev  is  not  in- 
tended to  ]irevent  the  making  of  such  rejiairs  hv  ])ro]ier  means; 
that  a  finding  of  the  jury  that  the  method  used  was  ''  the  method 
ordinarily  pursued  to  remove  paint  on  the  outside  of  a  building 
preparatory  to  scra]iing  it  off,  to  ]iaint  it,"  is  not  equivalent  to 
an  affirmative  finding  on  such  question,  for  it  assumes  that  the 
removal  of  the  old  paint  was  reasonably  necessary,  a!id  that  the 
particular  building,  as  to  the  danger  arising  from  moving  the 
flaming  torch  all  over  its  external  surface,  was  like  ordinary 
buildings;  that  the  insurance  company  could  show  by  an  expert 
that  the  rates  on  a  building  Avhere  ])aint  is  to  be  removed  from 
the  outside  by  the  use  of  a  torch  would  have  been  higher  than 
if  there  was  to  be  no  such  use ;  that  an  ex]iert  may  not  testify 
as  to  the  actual  effect  of  the  use  of  naphtha  in  reference  to 
danger  from  fire,  and  that  it  was  proper  to  admit  the  testimony 
of  an  expert  as  to  the  pro])er  and  usual  way  oi  removing  paint 
from  a  building.^"*  But  where  a  policy  provided  that  it  should 
be  void  if  gasoline  be  "  kept,  used,  or  allowed  "  on  the  prem- 
ises, it  was  held  that  keeping  it  in  the  building  to  be  us(>d  in 
filling  gasoline  torches  for  use  in  removing  paint  from  the  build- 
ing, in  order  to  rejiaint  it,  did  not  avoid  the  ])oliey.'"^ 

104  First    Congregational     Cluirch  los  Smith  v.  Cornian  Ins.  Co..  107 

V.  Holyoko.  etc..  Ins.  Co..  158  Mass.  Mich.  270;   G.")  N.  W.   Kop.  2:16 ;   30 

475 ;  .3.3  X.  E.  Rep.  572 ;  35  Am.  St.  L.  R.  A.  3G8. 
Rep.  508;   19  L.  R.  A.  587. 


822  OIL    AND    GAS. 

§718.     Cleaning  clothes. —  Destroying  vermin. 

A  policy  on  a  dwelliiii;-  Iidusc  prohibiting  the  use  of  gasoline 
does  not  jtrohihit  the  use  of  gasoline  in  small  cpiantities  by 
members  of  the  insured's  family  for  the  ])ur])ose  of  cleaning 
their  clothes,'""  or  destroying  vermin. '°^ 

§719.     Cleaning  or  lubricating  machinery. 

Temporarily  keeping  on  the  ]tr(>inises  small  quantities  of  ben- 
zine to  use  in  cleaning  machinery  and  needful  light  will  not 
avoid  a  policy  prohibiting  the  keeping  on  the  premises  ben- 
zine.'"** Where  oil  was  in  constant  use  in  the  shop  to  lubricate 
the  machinery,  according  to  the  common  usage,  and  the  insurer 
knew  that  practice,  it  was  held  that  the  insurer  must  have  con- 
tracted with  reference  to  the  practice,  and  that  it  was  bound 
even  though  oil  thereafter  was  used  for  that  purpose  and  the 
policy  expressly  prohibited  the  keeping  or  using  of  oil  on  the 
premises.'*'" 

§720.     Waiver  by  knowledge  or  acquiescence  in  use  of  building. 

The  knowledge  of  the  company  of  the  use  the  building  was 
being  put  to  at  the  time  the  policy  is  placed  upon  it  may  amount 
to  a  waiver  of  the  prohibitory  clause  inserted  in  the  ]X)licy ; 
for  in  such  an  instance  the  insurance  company  cannot  success- 
fully contend  that  the  policy  was  avoided  by  the  use  of  the 
building  in  the  manner  prohibited  in  the  policy.  To  do  so 
would  be  to  practically  deny,  often,  that  the  policy  was  ever  in 
force.  Thus  a  policy  placed  on  a  factory  prohibited  the  use 
of  petroleum.  At  the  time  it  was  written  the  agent  of  the 
company  knew  that  the  factory  was  to  be  run  at  night  and 
lighted  by  "  headlight  oil,"  a  product  of  ])etroleuni ;  and  it  was 
held  that  the  condition  should  be  deemed  to  have  been  waived 

106  Columbia,    etc.,    Co.    v.    Ameri-        92    Pa.    St.    15;    .37    Am.    Rep.    647. 
can  Fire  Tns.  Co.,  .59  Mo.  App.  204.        See  O'Neil  v.  Buffalo  Ins.  Co.,  3  N. 

107  La     Force    v.     Williams    City       Y.   122. 

Fire  Tns.  Co..  43  Mo.  App.   518.  ion  Carlin    v.    Western,    etc.,    Co., 

losMears   v.    Humboldt   Ins.    Co.,       57  Md.  515;  40  Am.  Rep.  440. 


INSURANCE.  82] 

by  the  company.^'"  If  the  a^eiit  knows  that  the  pn)lfcihited  ar- 
ticle is  kept  and  is  to  be  kejrt  on  tlie  premises,  the  jxjlicy  will 
not  be  avoided/"  A  ix)li('y  jn-ohihitcd  the  keeping  of  gun- 
powder in  the  building  insured,  without  a  written  permission, 
and  it  also  contained  a  clause  that  nothing  less  than  a  distinct 
agreement,  endorsed  on  the  ])olicy,  shoiihi  Ix'  construed  a  waiver 
of  any  condition  or  restriction.  At  the  time  of  tiie  loss  the 
assured  had  a  few  pounds  of  gun|K)wder,  which  was  kept  in  the 
insured  building  with  the  knowledge  and  express  consent  of  the 
insuring  company's  local  agent.  A  ji.ilicy  had  been  issued  by 
the  same  comjiany  on  the  same  building,  and  the  same  agent 
who  knew  gunjwwder  was  kept  in  the  building,  and  that  all 
premiums  had  been  paid  to  and  accepted  by  the  company,  ex- 
pressly permitted  the  kce])iiig  of  the  jxiwder  with<tnt  calling  the 
assured's  attention  to  the  prohibitory  clause.  Tt  was  held  that 
the  failure  of  the  assured  to  have  the  written  consent  of  the 
company  indorsed,  on  the  policy,  under  the  circumstances,  did 
not  render  it  void,  for  the  condition  had  been  waived.^'"  Where 
an  insurance  company  issued  a  ]iolicy  on  a  woollen  mill  and  its 
contents,  knowing  at  the  time  that  naphtha  was  used  and  was 
necessarily  used  in  the  business,  it  waived  a  ])rinted  ctmdition 
of  the  policy  that  it  should  be  void  if  the  assured  uses  naphtha ; 
and  after  a  loss  the  company  was  held  estopped  from  setting  up 
the  use  of  naphtha  to  defeat  a  recovery  on  the  jwliey.^'''  If 
the  application  shows  the  nature  of  the  business  earrie<l  on  {ti 
the  building  insured,  and  it  is  such  a  building  as  indicates  the 
character  and  the  natnre  of  the  article  to  be  kept  in  the  build- 
ing, so  that  the  nature  and  extent  of  the  risk  must  have  been 

110  Couch  V.  Rochester,  etc..  Ins.  Western,  etc..  Co,  v.  Rector.  S;!  Ky. 
Co.,  25  Hun  469;  Rivara  v.  Queen's  294;  3  S.  \V.  Rep.  4iri;  !)  Ky.  L. 
Ins.  Co.,  62  Miss.  720;  Farmers'.  Rep.  3;  Bartholomew  v.  Merchants' 
etc.  Ins.  Co.  v.  Ni.xon.  2  Colo.  App.  Ins.  Co.,  2.5  la.  .507;  96  .\m.  Dec. 
265;  30  Pac.  Rep.  42;  Kruper  v.  65;  Ameriean  Fire  Ins.  Co.  v.  Xu- 
Western.  etc..   Ins.  Co.,   72  Cal.  91;  ^rpnt.  7  Ky.  Law  Rep.  597. 

13  Pac.  Rep.   156.  112  Reaper  City  Ins.  Co.  v.  Jones. 

111  Peoria,   etc..    Ins.   Co.   v.   Hall.       62    111.   45S. 

12   Mich.    202;    Kenton    Ins.    Co.    v.  iit  Wheeler    v.    Traders'    Ins.    Co. 

Downs,  90  Ky.  236;    13  S.  W.  Rep.       (N.  H.),  1   Atl.  Rep.  293. 
882;    12  Ky.  L.  Rep.   115.     Contra, 


824  OIL    AND    GAS. 

known  to  the  insurers  to  embrace  articles  and  ])nrsuits  specified 
as  extra  liazardmis,  the  carrvini;'  on  of  a  business  in  the  building 
designated  as  extra  hazardous  will  not  avoid  the  policy."*  A 
policy  issued  by  a  foreign  insurance  company  prohibited  the 
storing  in  the  building  insured  petroleum  in  excess  of  five  gal- 
lons without  jierniission  first  endorsed  on  the  policy.  After  the 
policy  was  issued,  the  company's  local  agent  gave  the  insured 
verbal  permission  to  keep  on  the  premises  more  than  five  gal- 
lons. A  loss  f)ccurred  under  the  policy,  but  not  from  the  keep- 
ing of  the  petroleum.  In  a  suit  on  it  there  was  evidence  of  a 
mutual  mistake  of  the  insured  and  the  agent  as  to  the  pro- 
hibitory clause  in  the  policy ;  and  it  was  held  that  it  was  proper 
to  submit  the  case  to  the  jury  on  the  ground  of  estoppel  caused 
by  such  mistake,  as  the  agent  alone  could  act  in  the  State  where 
the  policy  was  issued.'''^ 

§721.     Waiver  by  knowledge  of  acquiescence  in  use  of  building 
continued. 

Notwithstanding  the  cases  cited  in  the  ])revious  section,  it 
cannot  be  said  that  knowledge  of  the  use  the  building  is  put  to, 
at  the  time  the  policy  is  issued,  will  always  prevent  its  for- 
feiture; nor  can  it  be  said  that  the  cases  are  harmonious  on  the 
question.  Thus  where  a  |X)licv  was  issued  on  a  country  store  in 
which  gunpowder  was  at  the  time  lialiitunlly  ke];t  and  intended 
to  be  kept,  to  the  insurance  agent's  knowledge,  who  also  repre- 
sented that  the  provisions  of  the  policy  did  not  prevent  the  in- 
sured keeping  it.  it  was  licld  tlint  the  policy  was  avoided  beeau.=e 
of  a  clause  in  it  prohibiting  the  keejiing  of  gunjiowder  and 
avoiding  it  if  powder  Avas  kept  in  the  building  covered  by  the 
policy.""  Where  a  policy  on  a  stock  of  hardware  and  stoves 
provided  that  no  gasoline  should  be  used  or  kept  on  the  prem- 

11*  City  of  New  York  v.  Brooklyn  Ky.  L.  T?ep.  .3.     Contra,  Peoria,  etc.^ 

Fire  Ins.  Co.,  41   Barb.  231.  Ins.   Co.  v.   Downs.  00  Ky.  2.36;    13 

115  Quee'^'s     Ins.     Co.     v.     Harris  S.    W.    Bop.    9,9,2;    12    Ky.    L.    Bep. 

(Pa.).  2  Wkly.  N.  C.  220.  II.t;    Birminfrliam   Fire   Ins.   Co.   v. 

lie  Western,   etc..    Co.    v.    Bector,  Kroetrlior.    83    Pa.    St.   64;    24    Am. 

85   Ky.  294;    3   S.   W.  Bep.  415;    9  Bep.  147. 


INSUR^VNCE.  825 

ises,  and  avoided  it  if  it  wcro  so  kept,  and  also  ])r<>vid('(i  tlnit 
no  representative  of  the  eoiupany  eimltl  waive  the  nse  of  its 
provisions,  except  in  eertain  eases  by  indorsement  on  the  policy, 
it  was  held  avoided  by  the  nse  of  small  qnantities  of  gasoline 
from  time  to  time  to  illnstrate  the  ojieration  of  tri'soline  stoves 
offered  for  sale,  altlioni;li  the  lo<'al  au'ent  takiiii:'  the  ai)]»lieation 
and  also  the  local  board  of  underwriters,  of  which  the  insurance 
company  or  its  aii'ents  were  meudiers,  knew  of  the  practice  of 
the  assured."'  The  consent  of  a  local  ajjcnt,  whose  authority 
is  limited  to  solieitinii'  insurance,  deliveriui;'  ]>oli('ies,  and  re- 
ceiving premiums,  to  change  the  use  of  a  building  and  use  it  for 
a  restaurant,  which  included  the  use  of  a  gasoline  stove,  will 
not  amount  to  a  waiver  of  the  terms  of  the  prohibitory  clause."'* 
The  fact  that  the  com];any  knew  there  were  no  gas  fixtures  in 
the  house  insured,  and  that  the  occupant  immediately  preceding 
the  issuance  of  the  |X)licy  used  a  spirit  lamp  for  lighting  such 
house,  was  held  not  to  constitute  a  waiver  of  the  clause  in  the 
policy  forbidiling  the  use  of  spirit  gas.""  Where  the  insured 
had  kept  fireworks  in  another  store,  knowledge  of  the  insurance 
agent  of  this  fact  at  the  time  the  policy  was  issued,  was  held  to 
be  no  waiver  of  a  clause  in  the  ]X)licy  prohibiting  tlie  keeping 
of  them  in  tlie  buildin<-;  insured.^""  If  there  is  nothing  in  the 
application  or  description  of  the  ]>r()]x^rty  which  necessai'ily  im- 
plies or  indicates  the  use  to  which  it  is  or  will  W  put,  the 
insurance  company  will  not  waive  a  condition  in  a  ])>dicv  ]>ro- 
hibiting  the  use  of  gasoline,  nor  consent  to  an  existing  use 
which  could  have  been  ascertained  by  reasonable  investigation.^"* 
The  fact  that  the  rate  charged  was  the  same  as  that  charged  for 
an  adjoininc;  building,  which  included  a  charge  for  the  use  of 
gasolin(\  will  not  esto])  the  insurance^  eoiujiany  from  claimirg 

iiT  pisohcr    V.    London,    etc.,    Ins.  I'f  Minzesliciincr     v.     Continental 
Co.,  83  Fed.  Rep.  807;   affirmed.  92  Ins.  Co.,  5  Jones  and  S.  (X.  Y.)  X\2. 
Fed.    Rep.    500;    Birmingham    Fire  'joOporsia  Home   Ins.  Co.  v.  Ja- 
ins.   Co.    V.    Kroegher,    83    Pa.    St.  cobs.  50  Tex.  300. 
04;  24  Am.  Rop.   147.  i-'i  McFarland    v.    St.    Panl.    etc., 

118  Ciarretson    v.    Aforchants',   etc..  Tns.    Co.,    40   Minn.   519;    49   N.   \V. 

Co..   81    Iowa   727;    45   X.   W.   Rep.  Rep-  253. 
1047. 


826  OIL    AND    GAS. 

a  forfeiture  for  a  breaeli  of  the  condition  against  the  use  of  gas- 
oline, on  the  ground  that  it  had  construetive  notice  of  such  use, 
the  insured  not  having  informed  it  of  the  use  of  the  gasoline.^'^^ 
A  broker  procuring  insurance  for  the  insured  is  not  tlie  com- 
pany's agent ;  and  his  faihire  to  inform  the  insured  that  the  use 
of  gasoline  will  avoid  the  jxilicy  will  not  estop  the  company;  ^'^ 
nor  will  his  knowledge  of  the  use  of  forbidden  articles  on  the 
insured  premises  be  a  waiver  of  the  forfeiture.^" 

§722.     Waiver  by  receiving  premium  with  knowledge  of  pro- 
hibited user. 

If  a  building  be  used  for  purposes  prohibited  by  the  policy, 
and,  with  full  knowledge  of  that  fact,  the  insurer  makes  and 
collects  assessments  on  a  premium  note  given  for  the  insurane?, 
he  will  thereby  waive  the  forfeiture.^''^  This  is  especially  true 
if  the  agents  of  the  company,  at  the  time  the  policy  was  issued, 
told  the  insured  that  an  article  prohibited  by  the  terms  of  the 
policy  might  be  used  ;  ^"*  or  the  company,  being  informed  of  the 
prohibited  use,  declines  to  fix  an  increase  rate  of  premiums,  and 
treats  the  contract  as  subsisting. ^"^  And  it  has  been  apparently 
held  that  a  failure  to  cancel  a  policy,  under  a  clause  allowing 
the  insurer  to  do  so,  after  he  has  notice  of  the  prohibited  use, 
will  amount  to  a  waiver  of  the  right  to  defend  because  of  such 
use.^'« 

§723.     Waiver  by  adjusting  loss  or  accepting  proof  without  ob- 
jection. 

If  there  has  been  a  forfeiture  by  the  use  or  keeping  of  a  pro- 
hibited article  on  the  premises,  but  the  adjusting  agent  objects 

122  Turiibull    V.    Honip    Fire    Tns.  126  Carriirnn     v.     T.yconiinjj     Fire 

Co.,   83  Md.   312;   34  Atl.   Rpp.  875.  Jns.  Co.,   53   Vt.   418;    38   Am.   Rep. 

i23Turnbull    v.    Home    Fire    Ins.  687. 

Co.,  83  Md.  312;   34  Atl.  Rep.  875.  127  Witte  v.  Western,  etc.,  Ins.  Co., 

124  Kings  County  Ins.  Co.  v.  Swi-  1  Mo.  App.  188. 

gevt,  11  111.  App.  500.  12s  Farmers',  etc..  Ins.  Co.  v.  Nix- 

125  Keenan  v.  Dubuque,  etc.,  Ins.  on,  2  Colo.  App.  265 ;  30  Pac.  Rep. 
\M.,  13  Iowa  375.  42. 


INSURANCE.  827 

to  the  proofs  received  solely  ujxm  the  grdinid  thiit  they  are  imt 
made  out  in  the  form  used  by  the  company,  and  the  proofs  arc 
then  made  out  on  blanks  furnished  by  him,  the  compiiny  will 
waive  its  right  tu  insist  up)!!  a  forfeiture.'""  So  if  the  com- 
pany require  proof  at  the  exjiense  of  the  insured,  without  claim- 
ing a  forfeiture,  there  will  l)e  a  waiver.'"'  Hut  wIk  re  the  p<di('y 
had  ceased  to  have  any  effect  by  reason  of  the  fact  that  the 
insured  had  kept  prohibited  articles,  it  was  held  that  a  promise 
made  by  an  agent,  having  authority  to  adjust  and  ])ay  losses, 
with  knowledge  that  the  prohibited  articles  had  been  kept  in  the 
house  at  the  time  of  the  fire,  was  not  a  waiver  that  bound  the 
company. '^^ 

§724.     Insurance  company's  right  of  action  to  recover  damages. 
Effect  of  insurance  on  right  of  action. 

If  a  company  has  insured  the  ]>roperty  destroyed  by  the  negli- 
gence of  a  gas  company,  and  it  has  paid  the  loss  and  become  sub- 
rogated to  the  rights  of  the  owner,  it  may  maintain  an  action  to 
recover  damages  to  the  extent  of  the  loss,  or  at  least  the  amount 
of  the  loss,  it  has  paid,  where  the  amount  paid  is  less  than  the 
loss  sustained.'^"  The  fact  that  the  property  destroyed  is  fully 
insured  and  the  loss  has  been  j)aid,  does  not  prevent  the  owner 
recovering  damages  from  the  gas  company. ^^^  From  a  reported 
case  it  would  seem  that  subrogation  is  allowed  where  an  insur- 
ance company  pays  the  loss,  even  though  the  policy  contain  no 
clause  of  subrogation."* 


129  Northwestern,  etc.,  Ins.  Co.  v.  Hgiit  Co.,  18  N.  Y.  App.  447;  4G 
Germania  Fire  Ins.  Co.,  40  Wis.  N.  Y.  Supp.  158;  Lindsay  v.  Bridge 
446.  Water  Gas  Co..  24  Pittsb.  L.  J.   ( N. 

130  Garrettson  v.  Merchants',  etc.,  S.)  270;  14  Pa.  Co.  Ct.  Rep.  181. 
Ins.  Co.,  81  Iowa  727;  45  N.  W.  134  German-.Anierican  Ins.  Co.  v. 
Rep.   1047.  Standard    Gaslight    Co..    .^4    X.    Y. 

iJi  Phoeni.v   Ins.    Co.   v.   Lawrence  Misc.    Rep.    594 ;    70    X.    Y.    Supp. 

4  Mete.   (Ky.)   9;   81  Am.  Dec.  521..  384;    67    N.   Y.    App.   Div.    f):?!);    73 

iss  Indiana,  etc.,  Gas  Co.  v.  New  N.   Y.   Supp.  973.     See  Commercial 

Hampshire,   etc..   Co..   23    Ind.    App.  Union    Fire    Ins.    Co,    v.    Lister,    23 

298;  53  X.  F.  Rep.  485.  Gas  J.  3G4. 

133  Armbruster    v.    Auburn    Gas- 


^28  OIL    AND    (JAS. 

§725.     Gas  company  causing  fire  liable  to  insurance  company. 

A  gas  or  oil  coinpany  iicgligiMitly  causing  a  loss  by  lire  is 
liable  to  an  insurance  c()nij)any  that  was  liable  to  pay  the  owner 
for  the  loss.  Tlic  riuht  nf  action  is  based  ujx)n  the  liability 
of  the  coni])any  to  the  owner  of  the  ])ro])erty  destroyed. ^"'^  The 
insurance  company  is  subrogated,  u]>nii  ])ayuient  of  the  loss,  to 
all  the  rights  <if  the  insured.''"'  if  the  insured  has  released  the 
gas  or  oil  conij^any  before  payment  is  made  l>y  the  insurance 
company,  then  the  latter  cannot  recover  from  the  gas  or  oil 
company  causing  the  damages.^"  ]f  the  insured  release  the 
wrong-doer  from  all  liability,  he  therein'  releases  the  insurance 
company;  and  if  the  release  is  in  ]>art,  he  releases  the  insurance 
company  to  that  extent. ^^*  If  the  loss  is  payable  to  a  mort- 
gagee of  the  property  destroyed ;  and  the  ]~)oHcy  provides  that  by 
no  act  of  the  owuer  of  the  property  shall  the  policy  be  forfeited, 
then  upon  payment  of  the  amount  due  under  the  policy,  not  to 
exceed  the  amount  due  on  the  mortgage,  the  insurance  company 
may  foreclose  the  mortgage  against  the  property,  if  the  policy 
as  to  such  owner  was  avoided  by  his  act.^^" 


135  Insurance  Co.  of  N.  A.  v.  Fi- 
delity, etc.,  Co..  125  Pa.  St.  523;  16 
All.  Rep.  791;  2  L.  R.  A.  586; 
Svea,  etc.,  Co.  v.  Packham,  92  Md. 
464;  48  All.  Rep.  359;  .52  L.  R.  A. 
95. 

130  Insurance  Co.  of  N.  A.  v.  Fi- 
delity, etc.,  Co.,  supra;  Niaj^ara 
Fire  Ins.  Co.  v.  Fidelity,  etc.,  Co., 
125  Pa.  St.  516;  16  All.  Rep.  791; 
Packham  v.  German  Fire  Ins.  Co., 
91  Md.  515;  46  Atl.  Ren.  1066;  50 
L.  R.  A.  828 ;  Norwich  Fire  Ins.  So- 
ciety V.  Standard  Oil  Co.,  59  Fed. 
Rep.  984;  8  C.  C.  A.  433;  19  U.  S. 
App.  460;  Hall  V.  Nashville,  etc., 
Ry.  13  Wall  367:  Sims  v.  Mutual, 
etc..  Ins.  Co..  101  Wis.  .586;  77  N. 
W.    Rep.    908;    Omaha    Ry.    Co.    v. 


Granite   Ins.    Co.,   63   Neb.    514;    73 
N.  VV.  Rep.  950. 

137  Phoenix  Ins.  Co.  v.  Erie,  etc., 
Co.,  117  U.  S.  312;'  6  Sup.  Ct.  Rep. 
750,  1176;  Packham  v.  German  Fire 
Ins.  Co.,  supra. 

138  Packham  v.  German  Fire  Ins. 
Co.,  supra;  Aetna  Ins.  Co.  v.  Hum- 
boldt, etc.,  Ry.  Co.,  3  Dill  2.  Con- 
tra, People's  Natural  Gas  Co.  v. 
Fidelity,  etc.,  Co.,  150  Pa.  St.  8; 
24  At!.  Rep.  339;  Insurance  Co.  of 
N.  A.  V.  Fidelity,  etc..  Co.,  123  Pa. 
St.  523;  16  Atl.  Rop.  791;  2  L.  R. 
A.    586. 

13!)  Badf!:er  v.  Platts,  68  N.  H. 
222;  44  Atl.  Rep.  296;  Traders' 
Ins.  Co.  V.  Race,  142  III.  338;  31 
N.  E.  Rep.  392. 


INSURANCE.  829 

§726.     Inhaling  gas,  accident  or  life  insurance  policy. 

Clauses  in  accick'iit  or  lite  insurance  policies  often  provide 
that  the  company  shall  not  l»e  liable  for  injuries  or  deaths  j»ro- 
duccd  bv  inhaling  gas.  In  such  a  case  if  the  inhaling  is  done 
while  asleep  or  unconscious,  it  is  considered  that  such  a  claiise 
is  not  violated,  and  a  recovery  is  allowed.'^"  In  the  case  just 
cited  tlu^  court  declari'd  that  "  in  expressing  its  intention  not 
to  be  liable  for  death  from  '  inhaling  of  gas,'  the  con>i)anv  can 
only  be  understood  to  mean  a  voluntary  and  intelligent  act  by 
the  insured,  and  not  an  involuntary  and  unconscious  act.  Rea<l 
in  that  sense,  and  in  the  light  of  the  context,  these  words  nuist 
be  interpreted  as  having  reference  to  medical  or  surgical  treat- 
ment, in  which  ex  vi  termini  would  be  included,  the  dentist's 
work;  or  to  a  suicidal  purpose."  '^'  Where  a  jirovision  of  an 
accident  policy  was  that  the  company  "  does  not  insure  against 
the  death  or  disability  .  .  .  arising  from  anything  acci- 
dentally taken,  administered,  inhaled,  contact  of  poisonous  sub- 
stances, inhaling  gas,  or  any  surgical  operation,"  it  was  held 
that  the  company  was  not  relieved  from  liability  for  a  death 
caused  by  inhaling  illuminating  gas  which  accidentally  escaj^ed 
into  an  hotel  room  where  the  insured  was  sleeping.  "  That  pro- 
vision in  the  policy,"  said  the  court,  "  clearly  implies  voluntary 
action  on  the  ])art  of  the  insured,  or  some  other  ]ierson.  The 
insured  must  take  or  inhale,  or  another  must  administer.  The 
manifest  provision  is  to  exempt  the  insurer  from  liability  where 
the  insured  has  voluntarily  and  consciously,  but  accidentally 
taken  or  inhaled,  or  something  has  been  voluntarily  admin- 
istered which  w'as  injurious  or  destructive  of  life.  We  think 
that  the  particular  accidents  intended  to  be  excepted  by  that 
provision  are  the  accidental  taking  or  inhaling  into  the  system 
of  some  injurious  (U-  destructive  agency  under  the  mistaken 
belief  that  it  was  beneficial,  or,  at  least,  harmless.  That  is 
more  apparent  by  that  portion  of  the  provision   which  relates 

140  Paul  V.  Travellers'  Ins.  Co.,  v.  l^.  S..  etc..  Co..  123  X.  Y.  .304; 
112  X.  Y.  472;  20  N.  E.  Rep.  347;  25  X.  E.  Rep.  .399:  9  T..  R.  A.  617; 
affirmin<r  4')  Hun  313.  reversing  3  X^.  Y.  Supp.  237. 

141  Affirmed  in  principle  in  Bacon 


830  OIL   AND    GAS. 

to  something  '  adiiiinistcrcMl/  as  it  cannot  1)0  reasonably  con- 
strued as  referring-  to  a  thing  iiivdluntarily  and  unconsciously 
administered.  Indeed,  it  is  quite  ditiicult  to  understand  how 
a  thing  could  be  involuntarily  and  unconsciously  administered. 
Coupled  together  as  these  provisions  are,  the  same  rule  of  con- 
struction must  be  applied  to  that  jMjrtion  whieli  relates  to  some- 
thing accidentally  inhaled  as  applies  to  the  portion  which  relates 
to  a  substance  accidentally  taken  or  accidentally  administered. 
All  cases  thus  provided  for  plainly  involve  voluntary  and  con- 
scious action  on  the  part  of  the  insured,  or  some  other  person. 
The  leading  and  controlling  idea  in  this  provision  is  the  jKM-form- 
ance  of  a  voluntary  act  which  accidentally  causes  the  death  or 
injnrv  of  the  insured.  That  a  pr(jj)er  construction  of  the  jxjlicy 
I'equircs  us  to  hold  that  it  applies  only  to  cases  where  something 
has  been  voluntarily  and  intentionally,  although  mistakenly 
taken,  administered,  or  inhaled,  there  can,  we  think,  be  but 
little  doubt.  As  thus  construed,  this  provision,  manifestly, 
did  not  exempt  the  defendant  from  liability  in  this  case,  as  it 
was  admitted  that  the  death  of  the  insured  was  occasioned  by 
accidental  means,  and  was  caused  by  involuntary  and  accident- 
ally breathing  illiimiiiating  gas  which  had  escaped  into  the 
room  where  he  was  sleeping  at  the  time  of  his  death.  The 
argument  that  the  provision  as  to  inhaling  gas  has  been  given 
the  same  effect  as  is  now  given  to  the  other  and  more  general 
one,  and  that  such  could  not  have  been  their  purpose,  has  little 
force.  The  inhaling  of  gas  having  been  specifically  provided 
for  when  taken  for  surgical  and  like  purposes,  it  is  only  when 
it  is  inhaled  for  some  other  purpose,  or  under  other  circum- 
stances, that  the  general  provision  applies.  The  special  provi- 
sion is  applicable  when  gas  is  inhaled  for  surgical  and  like 
purposes.  The  general  provision  applies  when  it  is  inhaled 
for  other  purposes."^*-     But  where  the  policy  provides  that 

i^s  Menneilloy  v.  Employers',  etc.,  infj    59    111.    App.    297;    Pickett   v. 

Corp..  148  N.  Y.  596;  43  N.  E.  Rep.  Pacific,   etc.,   Ins.   Co.,    144   Pa.    St. 

54;   .31   L.   R.   A.   680;   affirming  25  79;    22    Ail.    Rep.    871;    Travellers' 

N.  Y.  Supp.  230;  Fidelity,  etc..  Co.  Ins.  Co.  v.  Dunlap,  160  III.  642;  43 

V.    Waterman.    161    111.    6.32;    44    N.  N.    E.    Rep.    765.    affinnincr    59    111. 

E.  Rep.  283;  32  L.  R.  A.  654,  affirm-  App.  515   (unknowingly  taking  pois- 


INSITRANCE.  831 

the  insurance  company  shall  not  be  liable  for  a  deatii  causetl 
by  the  "voluntary  or  involuntary  inhalation  of  any  gas,"  or 
"resultinpr  from  any  poison  or  infection  accidentally  or  other- 
wise taken,  administered,  absorbed,  or  inhaled,"  there  can  ])e 
no  recoverj'^  if  the  death  resulted  from  an  unconscious  inhala- 
tion of  gas.'^-" 

Death  caused  bv  inhaling  gas  in  tiie  atmosphere  is  regarded 
as  death  produced  by  a  violent  external  agency  within  the 
meaning  of  a  provision  of  a  policy  requiring  the  death  to  be 
caused  by  external  and  violent  means. ^*^  And  where  the  in- 
surance company  admitted  that  the  death  was  caused  by  invol- 
untary and  accidental  breathing  of  illuminating  gas  which  had 
accidentally  escajx?d  into  tlic  deceased's  room ;  that  there  were 
no  visible  marks  of  the  accident  upon  the  body,  but  when 
artificial  respiration  was  produced,  illuminating  gas  emanated 
therefrom  to  the  perception  of  the  persons  producing  such 
respiration ;  and  that  on  entering  the  room  it  was  jx>rceived 
to  be  full  of  gas,  and  gas  was  still  escaping,  and  that  an  inspec- 
tion of  the  lx)dy  showed  life  to  be  extinct,  this  was  held  to 
authorize  a  recovery  on  the  policy.^** 

on);    Healey   v.   Mutual,    etc.,    Co.,  etc.,    Co.,    99    Wis.    73;    74    N.    W. 

133  III.  55C;  25  X.  E.  Rep.  ry2   (un-  Rep.  534;   40  L.  R.  A.  651. 

knowingly    taking    poison);    Metro-  i42a  Porter  v.  Preferred,  etc.,  Ins. 

politan,  etc.,  Assn.  v.  Froiland,   IGl  Co.,   18i6  N.  Y.  599;   79  N.  E.  Rep. 

111.  30;   43   N.   E.   Rep.   70G,  afrirm-  1114,  affirming  109  N.  Y.  App.  Div. 

ing  59  111.  App.  522;   Picket  v.  Pa-  103;    95   N.   Y.   Supp.   682;    Travel- 

eific,  etc.,  Ins.  Co.,   144  Pa.  St.  79;  ers'  Ins.  Co.  v.  Ayers,  217  111.  390; 

22  Atl.  Rep.  871;   Omberg  v.  U.  S.,  79    N.    E.   Rep.    506;    affirming    110 

etc.,   Association,    111    Ky.    303;    40  111.  App.  402. 

S.  W.   Rep.  909;   Lowenstein  v.  Fi-  143  Paul     v.    Travelers'    Ins.    Co., 

delity    and    Casualty    Co.,    88    Fed.  supra;   United    States,   etc.,    Co.    v. 

Rep.  474;  affirmed  97  Fed.  Rep.  17;  Newman,  84  Va.  52;   3  S.  E.  Rep. 

Healey  v.  Mutual,  etc.,  Co.,  133  111.  805. 

556;    25    X.    E.    Rep.    52.      Contra,  n*  Menneilley  v.  Employers',  etc., 

Richardson  v.  Ins.  Co.,  46  Fed.  Rep.  Corp.,  supra. 
843 ;    and    see  Kasten   v.   Interstate, 


CHAPTER  XXXII. 

TAXATION. 

§727.  Scope  of  chapter. 

§728.  Wlicn  corporate  stock  taxed,   property   of  company  exempt. 

§729.  Exempt  as  a  manufacturing  company. 

§730.  Gas  mains  of  city  plant  taxed  as  personal  property. 

§731.  Assessing  franchise  or  gross  receipts. 

§732.  Valuation  of  stock. — Certificates  as   to  surplus. 

§733.  Exemption  of  municipalities  from  taxation. 

§734.  Rates  charged  consumers  not  taxes. 

§735.  'Cost  of  inspection  of  meters. 

§730.  Object  of  tax. — Ohio  Statute  unconstitutional. 

§737.  United  States  revenue. 

§738.  Set  off. 

§739.  Product  in  pipe  line. — Interstate  commerce. 

§740.  Exemption  from  taxation. 

§741.  Taxes   on    leases    and    minerals. 

§741a.  License  on  inspection  tax. 

§727.     Scope  of  chapter. 

Xcecs.sarily  this  chapter  must  be  limited  to  those  cases  in 
wliich  the  subject  of  taxes,  or  rating,  as  it  is  called  in  England, 
is  ]X3cnliar  to  gas  companies,  gas  and  oil  leases,  or  interests  in 
land,  gas  fixtures,  pipes  and  works,  and  oil  or  gas  when  held 
in  pipes,  tanks  and  reservoirs.  Tt  is  manifest  at  a  glance  that 
the  power  to  impose  taxes  and  the  liability  for  them  must 
depend  upon  statutes  in  force  at  the  place  of  taxation  :  and 
that  a  decision  construing  one  statute  can  aiford  little  light  in 
■construing  another. 

§728.     When  corporate  stock  taxed,  property  of  company  exempt. 

The  value  of  stock  of  a  corporation  is  determined  by  the 
value  of  property  it  represents.  To  tax  both  the  stock  and 
the  property  would  be  double  taxation,  a  thing  that  it  cannot  be 

832 


TAXATION. 


833 


supposed  the  legislature  intended.  Where,  therefore,  the  st  <'k 
(f  a  gas  company  is  taxed,  the  property  it  represents  is  not 
taxable,  and  iisnallv  the  property  is  such  ])roperty  as  is  neces- 
sary to  enable  tbc  corporation  to  execute  the  object  and  fultill 
the  purposes  for  which  it  was  chartered.^  Dwelling  houses, 
however,  that  were  not  necessary  for  the  performance  of  a  com- 
pany's projier  work  and  which  had  been  built  for  tlie  accommo- 
dation of  its  workingmen,  has  been  held  liable  to  taxation." 

§729.     Exempt  as  a  manufacturing  company. 

Under  a  statute  "''  cxeniiiting  from  taxation  "  manufacturing 
companies  carrying  on  manufactures  within  "  the  State,  an 
artificial  gas  company  organized,  even  before  the  statute  was 
enacted,  is  excm]>t  from  taxation ;  and  so  is  a  foreign  gas  cor- 
poration doing  business  within  the  State.* 

§730.     Gas  mains  of  city  plant  taxed  as  personal  property. 

The  general  rule  is  that  gas  mains  of  a  city  ])lant,  laid  in 
the  public  streets  do  not  l)ocome  part  of  the  real  estate  but 
are  personal  property,  and  taxable  as  such.  They  arc  jiersonal 
property  and  belong  to  the  gas  company,  and  are  a  part  of  the 
usual  and  necessary  appliances  of  such  an  e94;ablishment,  with- 
out which  the  gas  manufactured  could  not  be  received  or 
delivered  to  the  consumer.^  On  the  contrary  it  has  l)een  held 
that  reservoirs,  hydrants  and  pipes  of  a  water  company  are 
real  and  not  personal  property,  and  are  taxable  in  the  town 
in    which    they    are    situated.''      In    Iowa    the    entire    ])huit    is 

1  Coatsville  Gas  Co.  v.  County  of  IjowoH  Caslight  Co.,  12  Allen  75; 
Chester,  97  Pa.  St.  476.  Coviiif^ton   (Jasliglit   Co.    v.   City   of 

2  West  Chester  Gas  Co.  v.  County  Covington,  84  Ky.  !)4;  Shelbyville 
of  Chester,  30  Pa.  St.  2.32.               *  Water  Co.   v.   People,    140   111.* 545; 

3N.    Y.    Act.       1880,    Chap.    542,  30  N.  E.  Rep.  678;   Iti  L.  R.  A.  505; 

Sec.  3.  Kittanning  v.  Consolidated  Natural 

4Na.ssau,    etc.,    Co.    v.    Brooklyn,  Gas  Co.,  211)  Pa.  i;30;   OS  Atl.   Hep. 

25  Hun  567.     See  also  Pittsburg  v.  728     (taxable    by     the    borough     in 

Consolidated  Gas  Co.,  34  Pa.  Super.  which    laid)  ;    People    v.    Wells,    42 

Ct.  234.  N.    Y.    Misc.    Rep.    606;    87    X.    Y. 

5  Memphis   Gaslight   Co.   v.   State,  Supp.  595    (not  taxable  by  the  city 

6    Coldw.    310;    98    Am.    Dec.    452;  wherein  laid). 

People,  ex  rel.  Citizens',  etc.,  Co.  v.  o  Dover  v.  Main  Water  Co..  90 
Assessors  of  Brooklyn,  6  N.  Y.  ile.  180;  38  Atl.  Rep.  101;  Con- 
Trans.  App.   116;   Commonwealth  v.  sumers'    Gas    Co.    v.    Toronto,    27 


834 


OIL   AND   GAS, 


assessed  as  a  whole,  including  the  pipes,  in  the  city  or  township 
wheie  the  main  works  are  located."  In  England  gas-piuniwrs, 
gas  retorts,  pumps  and  exhausters  are  taxed  as  fixtures,  but 
meters  are  personal  property.^  In  England  where  the  tax  is 
levied  on  the  income  after  allowing  certain  deductions,  where 
the  gas  works  were  situated  in  one  township  and  the  pipes 
extended  into  four  other  townships,  it  was  held  "  that  the  ratable 
value  of  the  mains  and  i)iix^s,  which  would  be  the  residue,  after 
deducting  the  net  ratable  value  of  the  stations,  works,  buildings 
and  lands  within  the  township  where  situated  from  the  value  of 
the  whole  ratable  projwrty  of  the  company,  must  be  apportioned 
among  the  different  townships,  not  simply  according  to  the 
extent  of  the  mains  contained  in  each,  but  keeping  in  view  also 
the  fact  that  part  of  them  contributed  directly,  and  part  only 
indirectly,  to  the  profits."  "     If  the  pipes  are  to  be  assessed 


Can.  S.  C.  453;  affirmed  23  Ont. 
App.  Rep.  551.  (This  Canadian  de- 
cision is  controlled  by  a  statute  de- 
claring that  "land  shall  include 
all  machinery  or  other  things  so 
fixed  to  any  outbuilding  as  to  form 
in  law  part  of  the  realty."  Con- 
sumers' Gas  Co.  V.  Toronto,  2G  On- 
tario Rep.  722.)  Providence  Gas  Co. 
V.  Thurber,  2  R.  I.  15;  Riverton,  etc., 
Co.  V.  Haig,  58  N.  J.  L.  295;  33 
Atl.  Rep.  215;  Paris  v.  Norway 
Water  Co.,  85  Me.  330;  27  Atl.  Rep. 
143  (taxable  as  real  estate  in  the 
town  where  laid,  although  the  com- 
pany's works  are  situated  in  an- 
other town)  ;  People  V.  Martin,  48 
Hun  193;  Tidewater  Pipe  Line  Co. 
V.  Berry,  53  X.  J.  L.  212;  21  Atl. 
Rep.  490. 

''  Oskaloosa  Water  Co.  v.  Board, 
84  Iowa  407;   51  X.  W.  Rep.   18. 

As  a  rule  a  gas  company  cannot 
be  assessed  with  any  part  of  the 
cost  of  the  improvement  of  the 
street  wherein  its  pipes  are  laid. 
Spring  Creek,  etc..  District  v.  Elgin, 
etc.,  Co.,  249  111.  2G0;  94  X.  E. 
529. 


After  the  common  council  has 
given  a  gas  company  permission  to 
lay  its  pipes  in  a  street,  the  city's 
improvement  board  cannot  impose 
additional  terms  as  a  condition  to 
the  company's  right  to  open  the 
paved  streets  to  lay  a  larger  supply 
pipe.  PulasKi  Gaslight  Co.  v.  Rem- 
mel    (Ark.),   133   S.   W.    1117. 

An  ordinance  imposing  an  occu- 
pation tax  bond  on  the  gross  earn- 
ings of  a  gas  company,  and  not  on 
an  electric  lighting  company,  is  vom, 
because  the  tax  is  not  upon  both 
companies.  Lincoln  Gels  &  El.  Co. 
V.   Lincoln,    182    Fed.   926. 

8  Regina  v.  Lee,  L.  R.  1  Q.  B. 
241;  35  L.  J.  M.  C.  10-5;  12  Jur. 
(X.  S.)  225;  13  L.  T.  (X.  S.)  704; 
14  W.  R.  311. 

9  Michael  and  Will  on  Gas  and 
Water  (5  ed. ),  53.  See  Regina  v. 
Mile  End  Old  Town,  10  Q.  B.  208; 
3  Xew  Sess.  Cas.  13;  16  L.  J.  M.  C. 
184;  11  Jur.  985;  Regina  v.  West 
Middlesex  Waterworks  Co.,  1  E.  and 
E.  716;  28  L.  J.  M.  C.  135;  5  Jur. 
(X.  S.)  1159;  Regina  v.  Sheffield 
Consolidated  Gaslight  Co.,  32  L.  J. 


TAXATION. 


834a 


as  real  estate,  the  sale  of  the  real  estate  of  the  company,  other 
than  the  pipes,  to  pay  the  tax  upon  them,  is  erroneous.'" 

§  731.     Assessing  franchise  or  gross  receipts. 

In  New  York  a  foreign  gas  company  selling  and  distrihuling 
gas  to  consumers  under  authority  from  a  municipality,  natural 
gas  furnished  by  another  company,  whose  property  consists  of 
pipes  and  mains  located  beneath  the  surface  of  the  street  and 
reservoirs  built  on  a  lot,  must  be  assessed  on  its  property  as 
real  estate  "at  its  full  and  true  value";  '^  and  in  determining 
the  value  of  the  franchise  granted  by  the  municipality,  and  the 
value  of  the  contract  with  the  company  for  supplying  the  city 
with  gas,  cannot  be  considered.^-     Where  a  statute  imposed  a 


M.  C.  169;  4  B.  and  S.  135;  9  Jur. 
(N.  S.)  623;  8  L.  T.  (N.  S.)  692; 
11  W.  R.  1064;  Sculcoates  Union  v. 
Hull  Dock  Co.  [1085],  App.  Cas. 
137;  64  L.  J.  M.  C.  49;  71  L.  T.  642; 
43  W.  E.  623;  59  J.  P.  612;  11 
R.  74.  See  also  Riverton,  etc.,  Co. 
V.  Haig,  58  N.  J.  L.  295;  23  All. 
Rep.  215,  where  the  court  refused 
to  class  the  plant  of  a  water  com- 
pany as  a  "farm"  or  "lot"  so  it 
could  be  assessed  in  one  district. 
"The  idea  that  they  [the  pipes] 
may  be  considered  appurtenances  to 
the  place  of  supply  and  taxable 
there  is  untenable.  Tliere  is  no 
principle  upon  which  it  can  rest." 
Paris  V.  Norway  Water  Co.,  supra. 
Contra,  In  re  Des  Moines  Water 
Co.,  48  la.  324;  Fall  River  v.  Bris- 
tol Co.,  125  Mass.  567;  Oskaloosa 
Water  Co.  v.  Board,  84  la.  407;  51 
N.  W.  Rep.  i8;  15  L.  R.  A.  296;  San 
Jose  V.  January,  57  Cal.  614;  Fond 
Du  Lac  Water  Co.  v.  Fond  Du  Lac, 
82  Wis.  322;  52  X.  W.  Rep.  439; 
16  L.  R.  A.  581;  Yellow  River,  etc., 
Co.  V.  Wood  County,  81  Wis.  554; 
51  N.  W.  Rep.   1004. 


10  Capitol  City  Gaslight  Co.  v. 
Cliarter  Oak  Ins.  Co.,  supra.  See 
also  Kittanning  v.  Consolidated  Nat- 
ural Gas  Co.,  26  Pa.  Super.  Ct. 
355. 

For  a  short  discussion  of  gas  and 
water  pipes  laid  in  a  public  street, 
see  article  by  J.  H.  Beale  in  4 
Harvard   Law   Review    83. 

11  Laws  1881,  Chap.  293.  Tn  this 
State  a  foreign  company,  engaged 
in  transporting  natural  gas,  which 
has  acquired  the  privilege  to  do 
business  therein,  with  the  same 
right  as  a  domestic  company,  by 
complying  with  the  general  corpora- 
tion law,  and  by  acquiring  consent 
of  the  highway  authorities  to  lay 
its  pipes  in  the  highway,  acquires 
a  special  franchise,  which  is  taxable 
as  such.  People  v.  Priest,  126  N.  Y. 
Supp.  472. 

12  People  V.  Martin,  48  Hun   103. 
The    New    York    Laws    of    1855, 

Chap.  37,  assessing  the  property  of  a 
foreign  corporation,  has  no  applica- 
tion to  such  a  case  as  is  alx>ve 
stated,  as  that  statute  applies  only 
to  personalty.     Ibid. 


83-lb 


OIL   AND    GAS. 


franchise  tax  on  every  railroad  company,  press  dispatch,  tele- 
phone, turnpike,  palace-car,  sleeping-car,  and  "every  other  like 
company"  having  or  exercising  any  exclusive  privilege  to  nat- 
ural persons  or  for  performing  any  public  franchise,  it  was 
held  to  impose  a  franchise  tax  on  a  corporation  manufacturing 
cottonseed  oil  and  owning  tank  cars  for  shipping  its  products 
to  its  customers  over  railroads  on  a  mileage  l)asis.^-* 

§  732.     Valuation  of  stock. — Certificates  as  to  surplus. 

The  value  of  the  physical  property  of  a  gas  company  does 
not  necessarily  determine  the  value  of  its  stock ;  nor  does  the 
amount  the  stockholders  would  receive  upon  a  dissolution  of 
the  corporation.  The  privileges,  rights,  patents  and  franchise 
of  the  company  must  also  be  considered  in  determining  the 
value  of  the  stock.^^  Certificates  of  a  stockholder's  interest  in 
the  surplus  revenue  of  the  company,  reserving  to  the  gas 
company  the  right  to  redeem  them  upon  notice  of  their  face 
value,  or  by  the  issue  of  ordinary  stock,  are  not  taxable,  since 
such  surplus  is  taxable  to  the  company.^* 


Tax  on  franchise.  Owensboro 
Waterworks  Co.  v.  Owensboro 
(Ky.),  74  S.  W.  Rep.  685;  24  Ky.  L. 
Eep.  2530,  rehearing  denied.  75  S. 
W.  Rep.  268 ;  25  Ky.  L.  Rep.  434. 

Tax  on  gross  receipts.  Pater  son, 
etc.,  Co.  V.  State  Boardj  69  N.  J.  L. 
116;  54  Au.  Rep.  246;  Scranton 
V.  Scranton,  etc.,  Co.,  33  Pa.  Super. 
Ct.  431. 

As  a  condition  to  the  laying  of  its 
mains  in  the  streets  a  city  may  re- 
quire a  gas  company  to  pay  an  an- 
nual sum  to  it  or  a  certain  per- 
centage on  its  gross  receipts,  and 
such  a  provision  is  not  void  on  the 
ground  that  it  imposes  an  additional 
tax  on  the  gas  company  not  au- 
thorized by  law.  Columbus  v.  Co- 
lumbus Gas  Co.,  7G  Ohio  St.  309; 
81  N.  E.  Rep.  44. 


Tax  on  bonus  given  to  gas  com- 
pany to  locate  its  plant  in  a  city. 
Parsons  Nat.  Gas  Co.  v.  Rockhold, 
79  Kan.  661;    100  Pac.  Rep.  639. 

The  actual  occupancy  of  a  street 
in  a  city  bj'  a  company  for  its  mains 
constitutes  an  easement,  and  not  a 
mere  franchise,  and  is  therefore  tax- 
able to  the  corporation  as  real 
estate.  Consolidated  Gas  Co.  v.  Bal- 
timore (Md.),  61  Atl.  Rep.  532; 
Stockton  Gas  &  El.  Co.  v.  San 
Joaquin  County,  148  Cal.  313;  83 
Pac.   Rep.   54. 

12a  James  v.  Kentucky  Refining 
Co.    (Ky.),    113    S.    W.    Rep.    468; 

13  People  ex  rel.  Buffalo,  etc.,  Co. 
V.  Steele,  56  X.  Y.  664;  1  Sheldon 
345. 

i*  People  ex  rel.  Williamsburg  Gas 
Co.  V.  Assessors  of  Brooklyn,  76  N. 
Y.  202;   16  Ilun  196. 


TAXAIION.  8o5 

§733.     Exemption  of  municipalities  from  taxation. 

The  ]iro]x>rt_v  of  a  iminiciiiality  used  in  funiisliiiiir  natural 
gas  to  it  and  its  citizens  is  exeiujit  fnun  taxation  under  a  statute 
exempting  the  ]iroperty  of  a  nmnicipality  from  taxes.'*  But, 
where  the  coiistitutinn  of  a  State  j)rovi(led  tliat  ''  tlicre  shall 
be  exempt  from  taxation  public  pro])erty  used  for  jmblic  ])ur- 
poses,"  it  was  held  that  a  city's  water  or  pis  ])lant  may  be 
taxed  by  the  State,  the  same  as  it  nuiy  tax  any  ])i'ivate  corpora- 
tion.'" A  statute  exemptinc;  from  taxation  property  of  a  city 
used  by  it  in  furnisbinii'  its  citizens  with  j2;as  or  water  does 
not  apply  to  an  indeyiendent  company  furnishing  such  inhab- 
itants with  gas  or  water. '^ 

§734.     Rates  charged  consumers  not  taxes. 

Rates  or  rents  established  by  a  muiiici]ial  corj^ration  to  be 
charged  for  the  use  of  water  furnished  by  it  are  not  taxes 
which  may  be  collected  by  the  tax  collector,  even  though  the 
water  works  are  operated  at  a  profit. 

§735.     Cost  of  inspection  of  meters. 

A  statute  creating  the  office  of  a  gas  meter  inspector,  and 
providing  that  his  salary  shall  be  paid  by  assessment  upon  the 
various  gas  companies  of  the  State,  is  valid,  and  does  not  violate 
a  constitutional  provision  providing  that  all  taxes  shall  be 
assessed  upon  property  by  a  unifonn  rule.  Such  an  assessment 
is  not  a  tax  for  general  revenue.      It  is  a  charge  for  a  special 


15  Toledo  V.  Hosier.  'A  Ohio  St.  21  Ky.  L.  T.ep.  42;  .'>0  S.  \V.  Rep. 
418;  4.3  N.  E.  Rep.  583;  35  Oliio  845;  51  S.  W.  Rep.  343;  45  1.. 
L.   J.    215.  R.  A.  518.    See  also  Wagner  v.  Roek 

16  Neeley  v.  City  of  Henderson  Island,  146  III.  130;  34  N.  Iv  Kcp. 
(Ky.).  .55  S.  \V.  Rep.  5.54.  See  545;  21  L.  R.  A.  510. 
Commonwealtli  v.  McKihbon.  00  Ky.  i^  Anstin  v.  Austin  Gaslifjlit  Co., 
384;  14  S.  W.  Rep.  .3J2 :  Covington  00  Tex.  180;  7  S.  W.  Rep.  200;  New- 
V.  Commonwealth.  10  Ky.  L.  Rep.  port  Li^lit  Co.  v.  City  of  Xewport, 
!05;  30  S.  W.  Rep.  830;  173  U.  S.  14  Ky.  L.  Rep.  404;  20  S.  \V.  Rep. 
231;     Newport     v.     Commonwealth,  434. 


83G  on.    AND    GAS, 

purpose  growing-  out  <tf  tlio  su}K'rvisory  power  of  the  State  over 
the  gas  companies'  business/^ 

§736.     Object  of  tax. —  Ohio  statute  unconstitutional. 

The  constitution  of  Ohio  contains  a  provision  deckring  that 
every  statute  imposing  a  tax  shall  state  distinctly  the  object  of 
i;uch  tax.^"  A  statute  of  tiuit  State  provided  that  in  counties 
of  a  certain  ])o])ulation  moneys  arising  from  the  tax  on  oil  wells 
should  be  returned  to  the  township  treasurer,  not  to  exceed  a 
specified  amount,  for  the  exclusive  purpose  of  repairing  high- 
ways. This  statute  was  held  to  violate  the  provision  of  the 
constitution  referred  to,  for  the  reason  that  the  tax  on  the  oil 
wells  was  raised  for  another  S|3€cific  purpose.'" 

§737.     United  States  revenue. 

An  Internal  Revenue  Act  of  the  United  States  "  levied  a 
tax  upon  gas,  but  allowed  the  manufacturer  of  it  to  add  the 
tax  to  the  cost  charged  the  consumer.  The  City  of  Pittsburg 
surrendered  to  a  gas  company  certain  shares  of  stock  it  held 
in  the  company,  in  consideration  of  wliicli  the  company  agreed 
to  furnish  it  with  gas  "  free  from  charge."  Under  this  agree- 
ment a  large  amount  of  gas  was  furnished  on  which  the  gas 
company  paid  the  tax,  and  then  brought  suit  to  recover  the 
imiount  from  tlio  city.  But  they  were  defeated,  the  court 
holding  that  the  city  was  not  liable.''  This  statute  provided 
that  the  gas  made  by  the  manufacturer  "  for  his  own  use  " 
should  not  be  taxable.  While  it  was  in  force  the  Pliiladol)ihia 
gas  works  was  held  and  operated  by  trustees,  appointed  by  the 
city,  under  a  trust  agreement.      Wliile  the  city  had  apparently 

IS  Cincinnati  Gaslight  Co.  v.  State,  Barre  v.  Crystal  Spring  Water  Co., 

18  Ohio  St.  237.     Sec  Kittanning  v,  7   Kiilp.    (Pa.)    .31. 
Kittanning,  etc.,  Co.,  2G  Pa.  Super.  loQhio  Const..   Art.   12,  See.  .'>. 

Ct.  355.  20  State    v.    Fangboner,    14    Ohio 

Under  its  general  "welfare  Cir.  Ct.  Vyop.  104;  7  Ohio  Dee.  334. 
clause"  a    city    cannot    provide    by  21  1.3   u.   S.  ^tat,   at  L.  264,   Sec. 

ordinance    that    a    water    company  94. 

shall   be  annually  licensed  and  reg-  22  Gas  Company  v.  Pittsburg,  101 

istered,   and    pay  a   certain   sum   to  U.  S.  219. 
the  city  for  police  purposes.   Wilkes- 


TAXATION'.  So7 

tl)C  ultimate  ownerslii[)  of  the  gas  works  under  this  agreement, 
until  certain  debts  due  from  the  city,  contracted  to  build  and 
enlarge  the  works,  were  paid,  they  were  to  be  held  and  managed 
exclusively  by  these  trustees,  who  were  to  sell  gas  to  the  city 
at  a  certain  price,  and  set  aside  all  clear  profits  to  provide  a 
sinking  fund  for  the  payment  of  the  ])rineipal  due  the  creditors. 
It  was  held  that  gas  furnished  the  city  under  this  agreement 
was  "  made  "  and  sold  within  the  meaning  (tf  the  statute  so 
as  to  render  it  liable  te  taxation.'^ 


§738.     Set  off. 

A  city,  when  sued  for  the  amount  it  owes  a  gas  eoni])any  for 
gas  furnished  it,  cannot  set  off,  when  a  statute  provides  that 
a  set  off  ''  can  only  be  jdeaded  in  an  action  founded  on  c(ui- 
tract,  or  ascertained  by  the  decision  of  the  court,"  against  such 
amount  the  delinquent  taxes  due  it  from  such  eom])any;  for 
the  reason  that  taxes  "  neither  arise  upon  contract,  either  ex- 
pressed or  implied,  nor  is  the  amount  thereof  determinable  by 
the  judguient  of  a  court."  '* 

§739.     Product  in  pipeline.     Inter-state  commerce. 

A  pipe  line  company  transporting  oil  through  its  ])i]>es  from 
one  State  to  another,  may  be  taxed  in  the  latter  State  for  the 
privilege  of  doing  business  in  that  State;  and  the  tax  may  be 
a  certain  percentage  of  the  receipts  from  the  transiKtrtation 
of  the  oil,  such  a  tax  not  being  an  interference  with  inter- 
State  commerce.  ^° 


23  City  of  Philadelphia   v.  Colloc-  2*  Xchraska  City  v.  Nebraska,  etc., 

tor,  5  VVall  720.     See  (iiasgow  (ias  Co.,    !)    Neb.    33!^;     2    N.     W .     Hep. 

Comrs.   V.    Solicitor,   at  3   Court   01  870. 

Sessions  Rep.    (4  Series)    857.  25  State  v.  State  Board,  57   X.  J. 

Tax  on  gross  receipts  under  Sec.  ]j.  51(i;  31  Atl.  Rep.  220;  27  L.  R. 
27  of  the  War  Revenue  Act  of  June  A.  ()84.  For  analogous  ca,-es,  see 
1,  1898  (30  U.  S.  Stat,  at  L.  464;  Maine  v.  Grand  Trunk  Ry..  142  L. 
U.  S.  Comp.  St.  1901,  p.  23061),  S.  217;  12  Sup.  Ct.  Rep.  121.  14i3; 
United  States  v.  Northwestern  Ohio  C.  C.  T.  Railroad  Tax  Cases,  92 
Nat.  Gas  Co.,  141  Fed.  Rep.  198;  U.  S.  575;  Western  Union  Tele- 
United  States  V.  Consumers'  Gas  graph  Co.  v.  Massachusetts,  125  U. 
Trust  Co.,  142  Fed.  Rep.  134;  73  S.  530;  Cleveland,  etc..  Co.  v. 
C.  C.  A.  352.  Backus,  1.33  Ind.  513;  33  \.  E.  Rep. 

421;    18  L.   R.  A.  729;   anirnied    154 
U.  S.  439;   14  Sup.  Ct.  Rep.  1122. 


838  OIL    AND    GAS. 

§740.     Exemption  from  taxation. 

Ill  IV'imsylvania  boilers,  engines  and  derricks  used  for  the 
transportation  of  oil  and  to  aid  in  its  production  are  exempt 
from  taxation  In-  statute.""  And  so  of  companies  transjx)rtiii<» 
natural  gas  to  the  public  are  exempt  as  to  local  taxes,  being  a 
public  corporation.-"  Pipes  of  natural  gas  company  laid  in  tlie 
streets  are  exemi)t  in  this  State.^**  And  the  buildings  of  a  gas 
company  are  also  exem]it  from  local  taxation,  if  it  pays  taxes 
to  the  State.-"  In  Ohio  gas  wells,  pipe  lines,  pumping  stations 
and  machinery  owned  and  used  by  a  city  for  the  conveyance  of 
gas  to  be  consumed  by  it  and  its  citizens  generally  are  exempt 
by  statute  "'"  exempting  all  works,  machinery,  pi]Xi  lines  and 
fixtures  belonging  to  any  town  or  city  and  used  exclusively  for 
testing  and  lighting  such  town  or  city.^^  In  California  inas- 
much as  the  franchise  of  a  gas  company  is  assessed  as  a  whole,'" 
pipe  lines  running  through  a  county  to  supply  people  of  another 
county  are  not  subject  to  local  taxation,  for  the  reason  that  such 
pipe  line  is  not  a  franchise,  being  only  a  mere  right  of  way.'^ 
Property  not  used  for  a  public  purpose,  as  a  house  for  a  tenant, 


26  Mellon  V.  Alleghany  Co.,  3  Pa. 
Dist.  Ct.  Rep.  422. 

2-  St.  Marys  Gas  Co.  v.  Elk  Co., 
191  Pa.  St.  458;  43  All.  Rep.  321; 
Ridgeway  Light,  etc.,  Co.  v.  Elk 
Co.,  191  Pa.  St.  465;  43  Atl.  Rep. 
323;  Mellon  v.  Alleghany  Co.,  3 
Pa.  Dist.   Rop.  422. 

28  Pittsbiiigh's  Appeal,  123  Pa. 
St.  374;  IG  Atl.  Rep.  621;  Coots- 
ville  Gas  Co.  v.  West  Chester  Co., 
97  Pa.  St.  476. 

29  Schuylkill  Co.  v.  Citizens'  Gas 
Co.,  148  Pa.  St.  162;  23  Atl.  Rep. 
1055;  West,  etc.,  Co.  v.  Philadel- 
phia, 3  Pa.  Dist.  Rep.  52;  Spring 
Brook,  etc.,  Co.  v.  Schadt.  Co.,  3 
Lack  L.  News  170.  (In  this  case 
it  was  held  that  the  rule  which 
measures  the  extent  to  which 
property  used  by  a  water  company 


for  the  purpose  of  furnishing  prop- 
er water  to  the  publi(,'  shall  be  ex- 
empted from  local  taxation  will  be 
liberally  construed  in  favor  of  the 
company.)  Brush  Electric  Light 
Co.  V.  Philadelphia,  8  Pa.  Dist.  Rep. 
231;Pittsburg  v.  Consolidated  Gas 
Co.,  34  Pa.   Super.  Ct.   234. 

The  same  rule  prevails  in  Now 
York  as  to  taxing  locally  the  value 
of  the  franchise.  People  v.  Brook- 
lyn Assessors,  19  N.  Y.  App.  Div. 
599;    46  N.  Y.  Supp.  388. 

30  Rev.  Stat.,  Sec.  2732. 

31  Toledo  V.  Hosier,  54  Ohio  St. 
418;  35  Ohio  L.  J.  215;  43  K  E. 
Rep.   583. 

32  San  Jose  v.  January,  57  Cal. 
614. 

33  Spring  Valley  W^atcrworks  Co., 
v.  Barber,  99  Cal.  36;  33  Pac.  Rep. 
735;  21  L.  R.  A.  416. 


TAXA  riON. 


839 


is  not  excm])t  from  taxation  in  Pennsylvania;^*  even  houses 
of  the  workingnicn  of  the  company  owned  hy  it  are  not  ex- 
empt.'"* 

^741.     Taxes  on  leases  and  minerals. 

If  there  is  no  eovcnant  on  the  part  of  tlie  lesser  to  pay  the 
taxes  on  the  landowner's  interest  in  the  ]>remises,  he  is  not 
bound  to  do  so,"'"  unless  same  statute  es}x^cially  fixes  that  burden 
upon  him.V  The  lessor  pays  the  value  of  his  own  interest  in 
the  land  ;  and  the  lessee  the  value  of  his  interest  in  them  under 
the  lease,  which  includes  the  iiiijirovenients  hv  has  put  upon 
the  land  premises  in  the  operation  of  them  under  the  lease.^" 
In  no  event  can  the  land  be  assessed  higher  by  reason  of  the 
two  interests  being  owned  by  two  persons  than  if  they  were 
owned  by  one  of  them.^"  When  the  entire  premises  is  owned  by 
one  person  the  value  of  the  mineral  uiulerneath  the  surface 
cannot  he  assessed  separate  and  apart  from  the  landowner's 
remaining  inter(>st  in  the  land.'"'  But  the  lease  may  ]>rovide 
that  the  lessee  shall  pay  all  the  taxes  assessed  against  the  entire 
premises.  Thus  where  a  lease  of  coal  land  which  created  a 
divided  ownership  of  the  coal  and  surface  provided  that  the 
lessor  should  pay  all  taxes  on  the  leased  land,  it  was  ludil  that 
the  lessee  was  liable  for  the  taxes  assessed  upon  the  lands  while 
in  possession  and  exploring  them,  though  no  ore  was  found  and 
the  lease  was  subsequently  declared  forfeited.**  A  covenant 
by  the  lessee  to  pay  taxes  does  not  cover  a  local  municipal  assess- 

34  Schuylkill    County   v.    Cftizens'  St.   623:    21    Atl.   Rop.   427;    Wood- 

Oas   Co.,    148   Pa.   St."lG2;    23   Atl.  ward  v.  Delaware,  etc.,  Co.,' 121  Pa. 

Rep.    105.J.  St.    344;    15    Atl.    Rep.    G22:    State 

3^  West  Chester  Gas  Co.  v.   Ches-  v.  ]\roore,  12  Cal.  5G;  People  v.  Bell, 

ter   Co..   30   Pa.   St.   232;    Ridgeway  237  111.  332;   80  N.  E.  Rep.  593. 

I.isrht    and    Heat    Co.    v.    Elk    Co.,  so  Ixjgan    v.    Washington    Co..    29 

supra.  Pa.    St.    373;    City    of    Scranton    v. 

30  Sanderson  v.  City  of  Scranton,  Gilbert,  IG  W.  N.  "c.   (Pa.)   28. 

105  Pa.  St.  4G0:  Delaware,  etc.,  Co.  ^o  City  of  Scranton  v.  Gilbert.   16 

V.  Sanderson,  109  Pa.  St.  583.  W.   X.   C.    (Pa.)    28;    Kiser   v.   Mc- 

37  Chevington  &  Bum  Co.  v.  Lewis,  Lean,  G7  W.  Va.  294 ;  G7  S.  E.  Rep. 
10   W.    X.    C.    (Pa.)     19G.  725:  :Mound  Cilv  Prick  &  Gas  Co.  V. 

38  Hecksher  v.  Sheafer,  17  W.  N.  f^oodspcod  Gas  '&  Oil  Co..  83  Kan. 
C.     (Pa.)     323;    Hale,    etc.,    Co.    v.  13G;    109    Pac.    Rep.    1002. 

Storey    County,    1    Xev.    105;    Flory  -ii  Gribl)ens  v.  Atkinson,  (i  I    Midi. 

V.   Heller.   1   Monaghan    (Pa.)    478;       351;   31   N.  W.   llop.  570. 
Miles  V.  Delaware,  etc.,  Co.,  140  Pa. 


840  on.    AND    GAS. 

mcnt  to  defray  the  cost  of  sower,  or  the  payment  for  the  cost  of 
grading  a  street.''"  Where  a  jiarty  was  seized  of  what  is  called 
in  Pennsylvania  unseated  land  subject  to  a  mineral  reservation 
of  oil  and  mineral  rights,  it  was  held  that  there  was  no  such 
a  personal  obligation  of  the  owner  to  pay  taxes  as  rendered  him 
lial)le  to  the  owners  of  the  oil  or  minoral  rights  for  taxes  ])aid 
by  him  to  prevent  a  sale,  there  being  no  such  a  community  of 
interest  between  them  as  implied  a  promise  to  pay.*^  After 
mineral  has  been  severed  from  the  soil  it  becomes  the  personal 
property  of  the  lessee,  and  is  taxable  to  him.'**  Where  a  statute 
provided  that  the  j)erson  in  possession  of  real  estate,  whether  he 
held  its  fee  simple  or  as  a  life  estate,  should  be  deemed  the  own- 
er for  the  purpose  of  taxation,  it  was  held  that  a  conveyance  by 
the  owners  of  land  of  the  oil  and  gas  to  a  third  jx^rson,  upon  con- 
dition that  the  grantee  pay  a  certain  amount  of  money  to  the 
grantors  within  a  specified  time  after  the  completion  of  the 
well  on  the  land,  and  ]>roviding  that  if  the  money  was  not  paid 
within  that  time  the  grant  should  be  void,  that  the  right  thus 
given  was  taxable  to  the  grantee  as  real  estate.*^  In  such  an 
instance  an  assessment  of  the  lessee's  or  grantee's  interest  as 
personal  property  is  void.***  But  where  a  statute  provides  for 
the  taxation  of  mineral  in  place  the  same  as  land,  oil  and  gas 
in  the  ground  cannot  be  taxed  to  the  person  who  has  acquired 
the  right  to  drill  for  them  for  a  certain  time,  and  who  is  to 
pay  a  specified  amount  of  them  as  royalty.*^  A  tax  law  provid- 
ing that  the  words  personal  property  shall  include  all  fixtures 
attached  to  land,  not  included  in  the  valuation  of  such  land  as 
entered  upon  the  proper  tax  duplicate,  all  appliances  used  in 
producing   oil,   such    as    i)ump,   tanks,   boilers,   are   taxable   as. 

42  Pettibone  v.  Smith,  150  Pa.  St.  assessable  as  such.    Moore's  Appeal, 

118;    24   All.    Rep.    G93;    Delaware,  4    Pa.   Dist.   Rep.   703. 

etc.,  Co.  V.  Von  Storch,   106  Pa.  St.  4 r,  state  v.  Low,  46  W.  Va.  451; 

102;   46  Atl.  Rep.   375.  33  S.  E.  Rep.  271.     See  Graciosa  Oil 

43Xeill  V.  Lacy,  110  Pa.  St.  294;  Co.   v.   Santa   Barbara  County,    155 

1  Ail.  Rep.  325;'  Powell  v.  Lantzy,  Cal.   140;    99   Pac.   Rep.  483. 

173  Pa.  St.  543 ;   34  Atl.  Rep.  450.  *«  Carter  v.  County  Court,  45  W. 

44  Forbes  V.  Gracey,  94  U.  S.  702.  Ya.  806;   32  S.  E.  Rep.  216;   43  L. 

In  Pennsylvania  it  has  l>een  held  R.  A.  725. 

that  a  lessee's  estate  is  not  assess-  47  Jones  v.  Wood,  2  Ohio  Dec.  75; 

able  as  land  conveyed  to  a  grantee;  9   Ohio  Cir.   Rep.   560;    6   Ohio  Cir. 

but  where  the  lessee  is  in  fact  the  Dec.    538,    reversing    1    Ohio   N.    P. 

grantee   of  an  interest  in   the   coal,  155;    Moore's    Appeal,    4    Pa.    Dist. 

oil   or   gas   underlying   a    tract,    he  Rep.   703. 
takes  an  estate  in  the  land  that  is 


TAXATION.  840a 

produeiiiij:  oil,  sucli  as  ])uiii]>,  tanks,  boilers,  arc  taxaf)lp  as 
|)orsonal  jvroporty.'*''  ("oal  in  ]>laco  iM-ldiii^iiiij:  to  (Hic  not  owiiinj^ 
the  surface  under  which  it  lies  nniy  he  assessed  as  land  ai>art 
from  the  surface/"  And  the  word  ''  held  "  in  a  statute  pro- 
viding that  when  coal  or  gas  privileges  are  "  held  by  a  party  or 
parties,  company  or  association,  exclusive  of  the  surface,  tlie 
same  shall  he  assessed  separately  to  such  "  ])ai-ty  or  association,"" 
must  he  construed  as  "owned,"  and  such  privileges  or  interest 
cannot  be  assessed  to  a  mere  lessee."^ 

§  741a.     License  or  inspection  tax. 

An  ordinance  imposed  on  gas  companies  a  license  tax  of  one 
hundred  dollars  per  month.  The  city's  charter  provided  that 
in  imposing  such  taxes  no  discrimination  should  be  made  be- 
tween persons  engaged  in  the  same  business  otherwise  than 
by  proportioning  the  tax  upon  any  business  to  the  amount  of 
business  done.  This  ordinance  was  held  valid,  though  the 
burden  fell  much  more  heavily  on  a  small  than  on  a  large  com- 
pany, the  charter  not  forbidding  the  imposition  of  a  uniform 
license  tax  upon  all  engaging  in  a  particular  calling ;  and  it 
was  not  necessary  to  take  into  consideration  the  several  earn- 
ings of  the  companies.  Such  a  license  tax  is  the  exercise  of  the 
taxing,  and  not  the  police  power ;  and  hence  the  rule  that 
fees  or  penalties  exacted  for  permits  issued  under  police  reg- 
ulations must  bear  some  reasonable  proportion  to  the  expenses 
of  regulating  the  business  is  inapplicable.  A  tax  of  that 
amount  upon  a  company  having  only  one  hundred  thousand 
dollars  worth  of  property  and  an  income  of  fifteen  hundred 
dollars  per  month  is  not  invalid  as  prohibitory  or  unduly 
oppressive."'-    Where  a  statute  re<iuia*e(l  property  to  be  assessed 

48  Carter  v.  County  Court,  supra.  royalty.       Cherokee    Const.     Co.    v. 

A  mining   lease   required   tlie    les-  Bishop,  86  Ark.  489;   112  S.  W.  180. 

sees   to   pay   taxes  on   the   improve-  *'■>  Consfiiidated  Coal  Co.  v.  Baker, 

ments  whicii  were  nf)t  to  he  removed  135   111.   545;    2G  N.   E.   Rep.   (551. 

until  full  royalty  had  heen  paid,  the  •'•<)  Acts  of  W.  Va.,  1891,  Chap.  .30, 

lessors  heinj;  given  a  first  lien  on  all  Sec.  4. 

such    improvements    and    machinery  •'■!  I'nited  States  Coal,  etc.,  Co.  v. 

to    secure    the    royalty,    and    further  Randolph  County  Court,  .38   W.  Va. 

provided    that   tlie    lessee    might    re-  201;    18    S.    E.    Rep.   56(i;    Kis<'r    v. 

move   the  huilding,  machinery,   etc.,  McLean,  67   W.   Va.   294;    67   S.   E. 

subject  to  the  conditions  of  the  lease.  Rep.  725;   Mound  City  Brick  &  Gas 

It   was    held    that    such    machinery,  Co.    v.    Ooodspeed    Oas    &    Oil    Co., 

buildings,    etc.,    were    not     fixtures,  83   Kan.    1.36:    169    Pac.    Rep.    1002. 

and    that    the   only    interest    of    the  •''-  T.os  Angeles  v.  l>»s  .Angeles  In- 

lessors  therein  was  a  lien  for  uiijjaid  dependent    fJas    Co.,    155    Cal.    140; 

03  Pac.  Rep.   1006. 


840b  OIL   AND   GAS. 

at  its  fair  cash  value  and  to  be  taxed  in  proportion  to  that 
value,  it  was  held  that  a  tax  of  ten  dollars  on  oil  depots  where 
petroleum  or  oils  were  stored  in  bulk  or  tank,  was  in- 
valid if  the  subject  of  the  license  Avas  construed  to  be  the 
oil  depot  or  building,  but  construed  a  police  regulation  it  was 
valid. '^  And  a  fee  of  five  dollars  per  year  imposed  upon  the 
owner  of  oil  selling  it  from  a  tank  or  wagon  to  retail  dealers 
for  resale  was  held  legal.'''  In  fixing  the  amount  of  the  license 
fees  there  must  be  uniformity'' ;  greater  burdens  must  not  be 
laid  upon  one  person  than  is  laid  upon  other  persons  in  the 
same  calling  or  condition ;  the  tax  imposed  must  be  the  same 
on  all  those  in  the  same  business.  If  a  municipality  is  laying 
the  tax,  it  must  not  discriminate  between  residents  and  non- 
residents, unless  especially  authorized  so  to  do  by  statute.^' 
An  ordinance  which  imposes  one  license  tax  upon  corporations 
transporting  oil  to  the  state  in  bulk,  in  tank  cars,  or  through 
pipes  for  the  purpose  of  distributing  it  in  the  city,  and  im- 
poses a  much  smaller  tax  upon  persons  who  sell  oil  which 
has  been  transported  to  the  city  for  distribution  in  barrels 
only,  is  void,  because  its  discrimination  between  corporations 
and  persons  engaged  in  the  same  business,  and  because  it  is 
not  uniform.  But  an  ordinance  which  imposes  a  license  tax 
on  any  person  selling  oil  to  merchants  in  the  city,  but  pro- 
vides that  it  shall  only  apply  to  a  person  or  corporation  pro- 
ducing or  manufacturing  the  oil  which  it  sells,  or  to  a  person 
or  corporation  who  stores  oil  in  stationary  tanks  and  transports 
the  same  by  tank  wagons  or  in  barrels  through  the  streets  of 
the  city  for  the  purpose  of  distribution  or  delivery  to  pur- 
chasers, is  reasonable  in  its  classification  of  the  persons  and 
corporations  taxable  thereunder,  and  does  not  violate  the  con- 
stitutional requirements  of  uniformity  and  against  discrimina- 
tion.'" If  a  municipality  be  empowered  to  provide  by  ordi- 
nance for  police  supervision  and  inspection  by  its  officers  and 

53  standard    Oil    Co.    v.    Common-  217    U.    S.    114;    30    Sup.    Ct.    Rep. 

wealth,    119  Kv.  75;    82  S.  W.  Rep.  496;    54    L.    Ed.   — ;    allirming    100 

557,    1020;    2(i"K.v.   L.    Rep.   !)S5.  Tex.    647;    103    S.    W.    Rep.    489. 

n-t  Standard  Oil  Co.  v.  Common-  50  Standard  Oil  Co.  v.  Fredericks- 
wealth,  119  Ky.  1;  83  S.  W.  Rop.  Inn^',  1(^5  Va.  82;  52  S.  B.  Rep.  817. 
557;  26  Ky.  l!  Rep.  1187,  aflirming  In  tliis  case  it  was  held  that  an 
82  S.  W.  Rep.  970;  26  Ky.  L.  Rep.  oil  company  engaged  in  tlio  business 
927.  of  refining  and  distributing  oil  and 

s--.  Standard  Oil  Co.  v.  Fredericks-  selling  it  lo  local  dealers  from  tank 

bur'',    105    Va.    82;    52    S.    E.    Rep.  wagons,  and  not  from  a  fi.ved  place 

Snf  Norfolk,   etc.,   N.    Co.    v.   Nor-  of    business,    is    7iot    a    merchant    as 

folk,    105    Va.    139;    52    S.    E.    Rep.  that    term    is   generally   understood, 

851;'  Southwestern  Oil  Co.  v.  Texa«^  and   cannot,   by   voluntarily   paying 


TAXATION.  841 

servants  of  pipes  laid  under  its  streets  by  gas  conii)anies,  it 
may,  as  a  part  of  an  incident  to  such  provision,  ordain  the 
payment  by  them  of  a  reasonable  lieense  fee  or  tax.  Sucli  a 
power  is  sustained  and  governed  by  the  same  general  prin- 
ciples as  its  power  to  enact  similar  ordinances  relative  to  the 
police  supervision  and  inspection  of  poles  and  wires  of  tele- 
graph, telephone  and  electric  light  companies;  and  the  fact 
that  the  wires  are  maintained  upon  the  surface  of  the  streets 
and  the  pipes  laid  underneath  the  surface  does  not  prevent 
the  application  of  these  principles."  In  an  application  to 
enforce  such  a  tax  the  municipality  is  not  bound  to  ])rove  the 
amount  of  the  tax  is  reasonable;  for  the  burden  is  on  the  gas 
company  to  prove  it  is  unreasonable;  and  the  court  will  not 
say  it  is  a  revenue  measure  under  the  guise  of  a  police  regu- 
lation, or  that  the  license  fee  is  grossly  in  excess  of  what  is 
necessary  to  cover  the  reasonably  to  be  anticipated  expenses 
of  proper  police  supervision,  unless  it  is  able  to  say  from  the 
facts  of  which  it  may  take  judicial  cognizance,  or  from  the 
undisputed  or  admitted  facts,  or,  if  there  be  a  conflict  of 
evidence,  then  from  the  duly  ascertained  facts,  that  such  is  the 
fact.^^  The  facts  that  the  pipes  and  mains  are  part  of  the 
gas  company's  natural  system  where  it  runs  through  a  mu- 
nicipality, that  they  are  necessary  to  carry  out  its  corporate 
purposes,  that  they  are  included  in  its  capital  stock  and  are 
taxed  by  the  State  will  not  render  it  immune  from  liability 
for  a  license  fee  imposed  by  the  municipality.  Imposing  the 
licecse  fee  is  not  double  taxation,  although  the  fee  is  paid  into 
the  municipal  treasury,  and  used  indiscriminatelj'  with  money 
derived  from  other  sources.'"'^  The  license  fee  can  be  made 
large  enough  to  cover  any  reasonably  anticipated  expense ;  and 
its  payment  cannot  be  avoided  because  it  may  subsecpiently 
appear  that  it  was  somewhat  in  excess  of  the  actual  expense 
of  supervision.*'" 

a  state  license  as  a  merchant,  pre-  of  a  gas  company  exercising  munic- 

vent  the  assessment  of  a  specific  tax  ipal  francliises,  anil  a  cimipany  \»:'m 

agiinst  its  husincss.  formed  by  tlic  consolidation  of  ciglit 

■'■''  Kittanning  v.   Kittanning,  etc.,  companies,  only  some  of  wliicli  were 

Gas  Co.,  26   Pa.  Suiier.   Ct.  355.  exercising    municii)al    franchises,    it 

■''8  Kittanning  v.   Kittanning,  etc.,  was  held  ttiat  the  eonscdidated  eom- 

Gas  Co.,  26  Pa.  Super.  Ct.  3.55.  ]r,\ny  was  liable  to  a  tax  of  two  per 

fio  Kittanning  V.  Garretts  Run  Gas  cent,    of    its    gross    actual     receipts 

Co.,    35    Pa.    Super.    Ct.    167.  cirned    as    a    oonsolidatfd    company. 

00  Kittannintr  V.  Armstrong  Water  Paterson,   etc.,   Co.    v.    State    Hoard, 

Co.,  35  Pa.  Super.  €t.  174.  ""Tn  this  70    X.    J.     L.     825;     5!t     All.     Kep. 

case  the  license  tax  was  $30  a  mile  1118;    aflirming    69    X.    J.    L.    110; 

on  six  miles  of  pipe.  54  Atl.  Rep.  246. 

Where  n    statute  imposed  two  per 
cent,    on    the    gross    actual    receipts 


CHAPTER  XXXIII. 

MISCELLANHOUS. 

§742.  Artificial  gas  statutes  do  not  relate   to   natural   gas. 

§743.  Larceny   of  gas. 

§744.  "Slmt  oJT  gas,"  meaning. 

§745.  Contract  for  purchase  of  oil. 

§746.  Term    "fire    proof   oil"   as   a   trademark. 

§747.  Gas  company's  liability  for   supplies. 

§748.  Gas  not  a  necessary  of  life. 

§749.  Bankruptcy  of  oil  company. 

§750.  Stock    in   gas  companies. 

§751.  Sale   of   adulterated   cooking  oil. 

§752.  One  gas  company  purchasing  gas    of    another    company. 

§753.  Dissolution  of  company. — Stock  extinguished. 

§754.  Cost  of  pumping  oil. 

§755.  Trust. — Suppression  of  competition. 

§  742.     Artificial  gas  statutes  do  not  relate  to  natural  gas. 

Statutes  relating  to  the  manufacture  and  supply  of  gas  en- 
acted before  natural  gas  was  discovered  in  this  country,  as  a 
rule,  do  not  apply  to  natural  gas  companies.  In  New  York 
it  has  been  held  that  a  statute  enacted  in  1890,  authorizing 
the  formation  of  corporations  for  manufacturing  and  supply- 
ing gas  for  lighting  streets  and  for  buildings,  and  providing  a 
penalty  if  they  refused  to  supply  gas  to  consumers  on  appli- 
cation, did  not  apply  to  natural  gas  companies  incorporated 
under  the  "business  corporations  law"  of  1875.*^  And  a  con- 
tract between  a  city  and  an  artificial  gas  company,  giving  it  an 
exclusive  franchise  throughout  the  city,  does  not  prevent  the 
city  from  granting  a  natural  gas  company  the  right  to  fur- 

*i  Wilson    V.    Tennent,    G5    N.    Y.  Under   Laws   1890,   Ch.   566,   Art. 

Supp.    852;    affirmed    01    App.    Div.  6,  Sec.  60,  of  New  York,  a  company 

100;   70  X.  Y.  St.   Rep.  2;   affirmed  may    be    organized    to    supply    both 

179  N.  Y.  546;   71  N.  E.  Rep.   1142.  gas  and  electricity;  and  under  Laws 

A  corporation  organized  under  the  1892,   Ch.   688,   Sec.   32,   a  gas   com- 

general  corporation  law  of  New  .Ter-  pany  may  enlarge   its  powers  so  as 

.sey    cannot    conduct    business    as    a  to    manufacture    and    supply    elec- 

gas    company.      Richards    v.    Dover  tricity.      People  v.    Rice,   33    N.   B. 

(N.  J.  Lu),  39  Atl.  Rep.  705.  Rep.  "846;    138  N.   Y.    151. 

842 


MISCELIx:VNEOUS.  843 

nish  light/"  A  company  organizetl  to  fiiruisli  natural  gas 
cannot,  after  the  sui)i)ly  of  natural  gas  is  exhausted,  supply 
artificial  gas."'  So  a  charter  granted  to  a  city  at  a  time  when 
natural  gas  was  not  known  in  the  State,  cannot  be  construed 
to  give  it  the  power  to  drill  or  purchase  gas  wells  at  a  dis- 
tance, and  to  construct  or  purchase  pumping  stations  and  pipe 
lines  to  bring  the  natural  gas  within  its  limits  for  consumption 
and  sale  to  its  inhabitants.""  But  where  a  certain  section  of  a 
statute  empowered  a  city  to  regulate  from  time  to  time  the 
price  of  electric  and  gas  lighting ;  and  another  section  pro- 
vided that  after  the  council  had  fixed  the  minimum  price  at 
which  it  would  recjuire  a  company  to  furnish  "gas"  or  electric 
light  for  a  period  not  exceeding  ten  years,  it  should  not  be 
lawful  for  the  council  to  re(iuire  the  company  to  furnish  gas 
at  a  less  price  during  such  period ;  and  the  first  section  was  after- 
wards amended  so  as  not  only  to  be  applicable  to  the  fixing 
of  the  price  of  electricity,  but  also  of  "natural  and  artificial 
gas,"  it  was  held  that  the  word  "gas"  as  used  in  the  second 
section  was  broad  enough  to  embrace  both  artificial  and  nat- 
ural gas,  though  at  the  time  it  was  enacted  the  use  of  natural 
gas  was  unknown.^*^  And  under  this  statute  an  ordinance  re- 
quiring "any  gas  company"  to  furnish  annual  reports  stating 
the  cost  of  gas  manufactured  during  the  year,  the  number  of 
feet  manufactured,  total  expenses  and  receipts  during  the  year, 
and  similar  information,  it  was  held  that  the  phrase  "any 
gas  company"  applied  to  natural  gas  companies.'*"  So  a  statute 
authorizing  the  formation  of  corporations  for  the  manufacture 
and  supply  of  gas  or  the  supply  of  light  or  heat  to  the  public 
by  any  other  means,  is  broad  enough  to  authorize  the  creation 
of  corporations  to  supply  natural  gas  to  the  public.^' 

§  743.     Larceny  of  gas. 

To  take  artificial  gas  from  a  gas  company  with  a  felonious 
intent  is  larceny,  even  though  the  taker  take  it  on  his  own 

la  Circleville  L.  &  P.  Co.  v.  Buck-  i^Clinp  v.   Springfield,  7   Ohio  N. 

eye   Ga«   Co.,   69   Ohio  St.   259;    69  P.    626;    10    Ohio    S.    &.   C.    P.   Dec. 

N.  E.  Rep.  436.  389. 

lb  Consumers'    Gas    Trust    Co.    v.  if  Compton    v.    People's    Gas    Co., 

Quimby,   137   P>d.   Kep.  8S2.  75  Kan.  572;  89  Pac.  Rep.  1039;    10 

icQuimby     v.      Consumers'      Gas  L.  R.  A.   (N.  S.)   787. 

Trust  Co.,   140  Fed.   Rep.  362.  In  Canada  an   artificial   gas  com- 

id  Chillicothe  V.  Ijogan  Natural  Gas  ]>any    cannot    supply    natural    gas. 

&   Fuel   Co.,   8   Ohio   X.   P,   88;    11  Harmer   v.    Brantford    Gas    Co.,    13 

Ohio  S.  &  C.  P.  Dec.  24.  Ont.  W.  Rep.  873. 


844 


OIL    AND    GAS. 


land  by  secretly  oj)eniiig  the  gas  company's  service  pipe  laid 
therein  for  the  ])nrpose  of  su]>plyiiig  his  house  with  gas.  Thus 
to  insert  a  jjijic  in  the  service  pijie  through  which  tlie  gas  flows 
to  the  burner  direct  and  not  tJirough  the  meter,  with  the  felon- 
ious intent  to  take  it,  and  not  pay  for  the  same,  is  a  larceny, 
there  being  a  sufficient  severance  of  the  gas  at  the  point  of  junc- 
tion of  the  connecting  pijx^  with  the  entrance  ]yi\>e  to  constitute 
an  asportation.  It  is  imniatorial  whether  the  service  ]n]>e  is  the 
property  of  tlie  taker  or  of  the  company.'  If  the  pijx?  be  kept  full 
all  the  time,  nltlidiigh  the  gas  is  rc|>eatedly  cut  off  at  the  point  of 
consumption,  there  is  a  coiitinudus  taking,  and  not  a  series  of 
separate  takings;  and  there  will  be  a  continuous  taking,  even 
though  the  pipe  has  not  been  kept  full,  for  it  is  usually  substan- 
tially all   (ine  transaction.^ 

§744.     "  Shut  off  gas,"  meaning. 

The  printed  regidations  of  a  gas  company  provided  that  "  the 
person  sent  to  attend  [to  examine  for  leaking  gas]  is  authorized 
to  shut  oft'  the  gas."  In  an  action  for  jx^rsonal  injuries  brought 
against  a  gas  company,  caused  by  an  explosion  of  leaking  gas, 
it  was  held  that  the  gas  company  could  show  by  parol  evidence 


2  Regina  v.  White,  20  E.  L.  and 
Eq.  585;  17  Jur.  536;  3  Car.  and  K. 
363;  6  Cox  Cr.  Cas.  213;  Dears.  C. 
C.  203;  22  L.  J.  (N.  S.)  123;  Beale's 
Cas.  506;  Commonwealth  v.  Shaw, 
4  Allen  308;  81  Am.  Dec.  TO'G; 
Beale's  Cas.  506;  Regina  v.  :Mitchell, 
22  Gas  J,  137;  Regina  v.  Jenkins,  5 
Gas  J.  214;  State  v.  Wellman,  34 
Llinn.  221.  See  also  Phoenix  Gas- 
light, etc.,  Co.  V.  Shillits,  19  Gas 
J.  848;  Commonwealth  v.  Dingman, 
26  Pa.  Super.  Ct.  615  (theft  of  oil 
from  an  oil  pipe) . 

3  Queen  v.  Firth,  L.  R.  1  Crown 
Cas.  Res.  172;  People  v.  Wilbcr,  4 
Park.   Cr.   Rep.    10. 

So  far  as  the  writer  knows,  there 
are  no  decisions  concerning  the  lar- 


ceny of  natural  gas;  but  inasmuch 
as  natural  gas  confined  in  pipes 
is  subject  to  private  ownership, 
there  is  no  reason  why  the  felonious 
taking  of  it  from  the  pipe  should 
not  be  a  larceny,  even  a  taking  from 
the  pipe  in  the  well  should  be  so 
considered.  But  a  taking  from  the 
earth,  by  drilling  a  well  would  be 
a  mere  trespass.  For  larceny  of 
water  see,  see  Ferens  v.  O'Brien,  11 
Q.  B.  Div.  21;  15  Cox.  C.  C.  332. 
As  to  such  a  concealment  of  a 
fraudulent  taking  of  gas  as  will 
jjrevent  the  Statute  of  Limitations 
running,  see  Imperial  Gaslight  and 
Coke  Co.  v.  London  Gaslight  and 
Coke  Co.,  10  Exch.  39;  26  Eng.  L. 
and   Eq.   .^25;    3   Gas  J.   483. 


MISCELLuVNEOUS.  845 

that  the  direction  to  "shut  olT  the  gas"  applied,  in  this  con- 
nection, only  to  shutting  off  gas  from  houses  and  not  from 
streets.* 

§  745.     Contract  for  purchase   of  oil. 

A  refiner  of  oil,  wlio  i)urchases  of  a  dealer,  at  current  prices, 
all  the  crude  oil  he  may  need  during  a  particular  year,  he 
agreeing  to  order  more  than  a  certain  amount  per  month,  does 
not  prohibit  him  from  ordering,  at  any  time  during  the  year, 
subject  to  the  monthly  limitations,  such  an  amount  of  oil  as 
he  may  need,  for  the  entire  year.  He  is  bound  to  withhold  his 
orders  until  he  actually  needs  the  oil ;  and  if  the  vendor  re- 
fuses to  fill  such  orders,  to  the  extent  of  the  amount  of  oil 
proved  to  be  needed,  he  is  liable."'  A  contract  for  the  sale  and 
purchase  of  from  60,000  to  108,000  l)arrels  of  oil,  to  be  deliv- 
ered as  ordered  by  the  buyer,  provided  that  not  less  than 
5,000  nor  more  than  9,000  barrels  shall  be  delivered  in  any 
month,  reciuires  the  buyer  to  take  a  minimum  of  5,000  barrels 
each  month,  and  the  buyer,  ordering  the  maximum  quantity 
during  certain  months,  is  not  relieved  from  the  necessity  of 
purchasing  the  minimum  quantity  in  succeeding  months.'^" 

4Bartlett  v.  Boston  Gaslight  Co.,  Pa.  St.  245;  28  Pittsb.  L.  J.  (N.  S.) 

117  Mass.  533.  351;  39  Atl.  Rep.  77. 

Under  a  statute  declaring  it  un-  'a  Central  Oil  Co.  v.  Southern  Re- 
lawful  for  any  person  to  turn  oil'  fining  Co.,  154  Cal.  165;  97  Pac. 
any  valve  belonging  to  any  person  Rep.  177.  See  also  Los  Angeles  G. 
furnishing  gas  to  consumers  with-  &  El.  Co.  v.  Amalgamated  Oil  Co. 
out  permission  of  the  owner,  the  (Cal.),  lOG  Pac.  Rep.  55. 
doing  of  the  act,  without  consent,  Such  a  contract  is  an  agreenu-nt 
is  unlawful,  without  any  reference  to  soil  and  deliver  in  tlic  future,  and 
to  the  intent  of  the  doer.  State  v.  is  autliorized  by  a  statute  providing 
Moore,  27  Ind.  App.  83;  60  N.  E.  tliat  any  property  wliicli,  if  in  exist- 
Rep.  955.  In  this  case  the  lessee  ence,  may  be  the  subject  of  sale, 
was  taking  ofl"  gas  from  the  leased  may  be  the  subject  of  an  agreement 
premises  in  violation  of  the  terms  of  sale  whether  in  existence  or  not, 
of  the  case;  and  it  was  held  that  and  is  not  void  under  a  statute  do- 
the  les.sor  could  not  shut  off  the  daring  tliat  tlic  .subject  of  sale  must 
gas,  but,  to  secure  relief,  must  re-  be  property,  the  title  to  which  can 
sort   to   his   legal    remedy.  be  immediately  transferred.     Central 

6Willock  v.  Crescent  Oil  Co.,  184  Oil    Co.    v.    Southern    Refining    Co., 

supra. 


84(i  OIL   AND   GAS. 

§746.     Term  "fire  proof  oil"  as  a  trademark. 

The  term  "Fire  Proof  Oil"  cannot  be  claimed  successfully 
as  a  trademark  for  an  illuminating  oil.  The  reason  is  that  such 
words  are  descriptive  of  oil,  which  is  not  inflammable,  although 
it  is  not  literally  proof  against  fires." 

§747.     Gas  company's  liability  for  supplies. 

A  corporation  organized  to  manufacture  and  supply  illum- 
inating and  heating  gas  may  purchase  the  right  to  use  and 
deal  in  steam-heaters,  radiating  mantels,  and  gas  consuming 
appliances,  if  such  purchases  are  advantageous  to  its  business 
as  a  manufacturer  and  distributor  of  gas.^  If  it  purchase  gas 
pipes,  to  be  of  <>-()od  material  and  workmanship  and  they  are 
defective  and  with  flaws  so  gas  escapes,  and  it  lay  such  pipes 
in  the  soil  without  knowledge  of  the  defects  and  flaws,  it 
may  recover  damages  from  the  vendor,  or  recoup  them  when 
sued  for  the  price  of  the  ]>ipes,  which  will  cover  the  cost  of 
taking  out  the  pipes  to  re})lace  them  with  others,  including  the 
relaying  of  new  pipcs.'^ 

§748.     Gas  not  a  necessary  of  life. 

Where  a  husband  left  his  wife,  and  she  continued  to  use  gas 
in  the  house  as  usual,  it  was  held  that  he  was  not  liable  for 
the  gas  thus  used.^ 

§  749.     Bankruptcy  of  oil  company. 

A  gas  company,  which  makes,  transports  through  pipes,  and 
sells  to  special  customers,  within  a  limited  area,  is  not  prin- 
cipally engaged  in  either  manufacturing,  trading,  or  mer- 
cantile pursuits,  within  the  meaning  of  the  bankruptcy  Act  of 
July  1,  1898.  Such  is  the  case  of  a  gas  company  having  a 
franchise  to  maintain  pipes  in   the  streets  of  a  municipality 

6  Scott  V.  Standard  Oil  Co.,  IOC  14  I^nc.  L.  Rev.  321:  15  Nat.  Corp. 
Ala.  475;    19  So.  Rop.  71;   31  L.  R.       Rep.    98;    37    All.    Rep.    932. 

A.  374.  8  Smith    v.    Citizens',   etc.,    Co.,    5 

7  Malone    v.    Lancaster,   etc.,    Co.,       W.  N.  C.  97. 

182  Pa.  St.  309;   40'  W.  N.  C.  434;  9  Kettening  Gas  Co.  v.  Leacli,  24 

Gas   J.   503. 


MISCELLANEOUS  847 

or  contract  for  lighting  its  streets,  wliicli  manufactures  gas 
and  transmits  and  sells  it  to  its  customers.  Tiie  same  is  true 
of  a  company  which  has  such  a  contract  for  the  furnishing  of 
electricity.'"  The  -word  "manufacturing"  as  applied  to  cor- 
porations in  that  act  embraces  only  such  corporations  as  are 
engaged  in  manufacturing  as  a  ])usiness  and  selling  their  Avares 
on  the  market,  doing  those  things  usually  done  by  those  who 
not  only  manufacture  their  wares  and  goods,  hut  place  them 
on  the  market  for  sale,  either  by  wholesale  or  retail.'^ 

§  750.     Stock  in  gas  companies. 

A  State  legislature  has  the  right  to  authorize  a  State  com- 
mission to  prohibit  the  issue  of  stock  and  bonds  until  it  has 
approved  of  the  issue  as  being  within  the  reasonable  recjuire- 
ments  of  the  company.^-  By  a  New  York  statute  it  was  pi-o- 
vided  that  no  corporation  should  issue  stocks  or  bonds  except 
for  money  paid  and  labor  done,  or  property  actually  received 
for  lawful  corporate  purposes;  and  tiiat  it  might  increase  or 
reduce  its  capital  stock  in  the  manner  therein  provided,  but  not 
beyond  any  maximum  or  minimum  prescribed  by  the  general 
law.  A  statute  relating  to  gas  companies  provided  that  stocks 
and  bonds  should  not  be  issued  by  a  gas  company  until  the 
State  commission  certified  that  they  were  reasonablj^  rcipiired 
for  corporate  purposes.  A  gas  company  purchased  its  plant, 
and  thereafter  made  large  expenditures  in  enlarging  and  re- 
moving its  plant  to  another  location,  and,  a  part  of  the  old 
plant  was  necessarily  dismantled  and  rendered  useless  in 
changing  the  location.  It  was  held  that  the  company  was 
bound  to  give  the  public  reasonable  service,  and,  if  the  growth 
of  its  business  required  increased  facilities  and  there  was  a 
fair  prospect  of  enlarging  its  business,  it  was  not  required  to 
continue  the  use  of  the  old  plant,  and  could  issue  stock  and 
bonds  necessary  to  erect  a  new  plant  commensurate  with  its 
needs,  even  though  a  part  of  such  indebtedness  resulted  from 
dismantling  the  old  plant.  In  this  instance,  when  the  gas 
company  purchased   its  plant,  there  was  an  indebtedness  on 

10 />t  re  Ihidson  River  Electric  v.  ^forcliant  &  Evans,  173  K(ul.  Rep. 
Power,   173  Fed.  Rep.  934.  771. 

11  Walker  Roofing  &  Heating  Co.  "i- In  re  Watortown   Gaslight  Co. 

(N.    Y.),    Ill   N.   Y.   Supp.   486. 


848  OIL   AND    GAS. 

it  of  fifty  tliousand  dollars,  which  was  afterwards  j)aid  from 
the  surplus  earnings  of  the  company,  no  dividends  iiaving 
been  paid  in  order  to  pay  off  this  indebtedness.  It  was  beld 
that  as  the  surplus  earnings  belonged  to  the  stockholders, 
from  which  they  had  a  right  to  receive  dividends,  they  having 
discharged  the  corporate  indebtedness  with  such  earnings, 
they  were  then  entitled  to  issue  new  stock  of  the  company  for 
the  debts  so  paid.' '  In  New  Jersey  a  statute  authorized  gas 
companies  to  issue  stock  for  property  purchased  to  tlie  amount 
of  the  value  of  the  proi)erty  so  received,  and  it  was  held  that 
the  value  received  by  the  company  should  be  equal  to  tlie 
amount  of  the  stock  issued  for  it,  and  that  a  court  of  e(iuity 
Avould  entertain  a  proceeding  by  the  state  to  set  aside  an 
issue  of  a  gas  company  of  stock  for  property  purchased  in 
excess  of  the  value  of  the  property." 

§  751.     Sale  of  adulterated  cooking  oil. 

A  manufacturer  or  dealer  who  sells  adulterated  or  poison- 
ous cooking  oil  to  a  retail  merchant  is  liable  to  his  vendee  for 
loss  of  business  in  selling  the  oil  to  his  customers.  A  company 
advertising  itself  as  a  manufacturer  and  seller  of  pure  looking 
oil,  is  deemed  to  have  knowledge  of  its  properties,  and  it  must 
be  so  held.  The  sale  of  adulterated  cooking  oil  by  a  wholesale 
dealer  even  is  prima  facie  evidence  of  negligence,  though  the 
package  was  properly  labeled  cottonseed  oil.  But  where  the 
plaintiff,  a  retail  merchant  purchased  adulterated  oil  from 
the  defendant,  a  wholesaler,  it  was  held  that  the  duty  resting 
on  the  plaintiff  concerning  the  sale  of  the  oil  was  substan- 
tially the  same  as  that  on  the  defendant,  and  if,  by  reason 
of  his  opportunity  to  examine  the  oil,  the  plaintiff  had  cause 

13 /n,  re  Watertown   Gas  Co.    (N.  fact  that  the  stock  sold  for  a  prem- 

Y.),   Ill  N.  Y.  Supp.  48G.     In  this  ium  of  $87,500  did   not,   under   the 

case  it  appeared  that  when  the  prcs-  circumstances,  justify  the  capitaliza- 

ent  owners   purchased  the   plant  of  tion  of  that  sum  or  the  issue  of  new 

the  gas  company,  the  company  had  a  stock  or   bonds  against  it. 

capital  stock  of  $100,000;  the  pros-  i*  McCarter   v.   Pitman,   etc.,   Gas 

ent   owners    paid    $187,500    for    the  Co.,  74  N.  J.  Eq.  2^o■,   GO  Atl.  Rep. 

stock,  or  $87,500  over  its  par  value;  211. 

but  it  did  not  appear  what  surplus,  As  to  power  to  increase  its  bonded 

if    any,    t!ie    company    then    had    or  indebtedness,    see    Tliatcher    v.    Con- 

what  dividends  it  had  paid  prior  to  sumers'   Gas   &    Fuel   Co.,   72   N.   J. 

the  purchase.     It  was  held  that  the  Eq.  825;   GO  Atl.  Rep.  934. 


MISCELL^VNEOUS.  81.) 

to  belicvo  it  was  not  a  pure  article  of  food,  tlu-n  lie  would  he 
guilty  of  bringing  about  llie  loss  of  trade  resulting  from  the 
sale  of  the  oil,  for  which  he  sought  to  recover  from  the  de- 
fendant, and  the  latter  would  not  l)e  liable.'' 

§  752.     One  gas  company  purchasing  gas  of  another  company. 

Where  two  gas  companies  were  authorized  to  make  an 
agreement  by  which  the  older  company  was  to  purchase  gas 
from  the  new  company,  which  it  was  able  to  do  at  a  saving 
of  over  twenty  thousand  dollars  a  year,  and  the  new  gas  com- 
pany did  not  sell  gas  to  consumers,  and  was  willing  to  supply 
the  old  company  with  all  the  gas  necessary  during  the  exist- 
ence of  the  old  compan^y's  franchise,  it  was  held  Ihat  the 
contract  was  not  objectionable  as  operating  to  stunt  the  busi- 
ness and  prospects  of  the  old  company',  and  build  up  tlial  of 
the  ncAV  company  to  the  detriment  of  the  old  one.'"  Where 
negotiations  leading  up  to  a  contract  of  a  natural  gas  com- 
pany to  sell  its  gas  to  another  company  were  known  to  the 
directors,  and  the  other  company  made  large  expenditures 
to  convey  the  gas  to  its  mains  and  secured  rights  of  way,  and 
both  companies  had  treated  the  agreement  as  valid,  it  was 
held  that  the  natural  gas  company  was  estopped  to  allege 
that  the  contract  was  invalid,  because  it  had  not  been  ap- 
proved at  a  directors'  meeting  when  a  quorum  was  present.'" 

§  753.     Dissolution  of  company. — Stock  extinguished. 

Where  a  business  corporation  was  organized  to  mine  and 
sell  natural  gas  to  the  residents  of  a  city,  the  fact  that  the 
stock  subscription  contracts  required  repayment  of  amounts 
paid  by  subscribers,  with  interest  and  that  after  such  payment 
the  corporation  should  reduce  the  price  of  gas  to  consumers 
to  cost,  without  further  dividends  to  shareholders,  and  that 
the  entire  capital  stock  was  under  the  voting  power  and  con- 
trol of  five  trustees,  selected  from  tlie  stockholders,  did  not 
deprive  the  latter  of  their  character  and  rights  as  such    on 

isNeiman  v.  Clannellene  Oil  Mfp.       Co.,    40    Wa.sli.    477;    0.)    V-.ic.    Rrp. 
Co.,   112  ]Minn.   11;    127  X.  W.  Rep.       1074. 
394.  1"  Greensboro  Has  Co.  v.  Home  Oil 

lOTheis  v.  Spokane  Falls  Casliplit       &  Ca.s  Co.,  222  Pa.  4;    7n  Atl.   Rep. 

940. 


850  OIL   AND    GAS. 

payment  of  their  subscriptions,  with  interest,  and  hence,  on 
the  termination  of  the  corporation's  business  by  the  supply 
of  natural  gas  becoming  exhausted,  they  were  entitled  to  have 
the  corporation  dissolved  and  its  assets  distributed  to  them.'* 

§  754.     Cost  of  pumping  well. 

A  lessee  in  an  oil  lease  agreed  to  pay  one-half  of  the  cost  of 
pumping  oil,  but  if  not  satisfied  with  the  charge  the  lessor 
himself  could  assume  the  pumping.  It  was  held  that  the  lessor 
was  liable  for  one-half  the  actual  cost  reasonably  incurred  in 
pumping,  though  he  might  possibly  have  secured  some  one 
else  who  would  have  done  the  work  for  less  money.^" 

§  755.     Trust. — Suppression  of  competitor. 

The  Standard  Oil  Company  of  Indiana  and  the  Waters- 
Pierce  Company  by  agreement  divided  the  State  into  two  dis- 
tricts, apportioning  one  district  to  each,  agreeing  not  to  sell 
in  each  other's  territory.  The  Indiana  company  was  both 
a  dealer  and  manufacturer  of  the  products  of  petroleum, 
and  in  its  capacity  as  a  manufacturer  agreed  not  to 
sell  to  any  other  dealer,  except  the  Waters-Pierce  Company, 
in  its  territory ;  it  agreeing  in  return  not  to  purchase  from  any 
other  refiner,  and  both  agreeing  not  to  sell  to  any  other  dealer, 
except  at  retail  prices.  Shortly  thereafter  the  Standard  Oil 
Company  of  New  Jersey  which  controlled  both  the  Indiana 
and  the  Waters-Pierce  Companies,  took  over  their  largest  and 
sharpest  competitor  in  Missouri,  after  which  no  competition 
existed  between  the  Indiana  Company  and  the  Waters-Pierce 
Company.  It  was  held  that  such  agreement  constituted  an 
illegal  combination  in  restraint  of  trade.^"  A  statute  which 
prohibits  combination  and  agreements  to  fix  and  maintain 
prices  and  limit  trade,  is  violated  by  an  agreement  to  give 
rebates  to  customers  which  in  effect  is  in  restraint  of  trade  to 
fix  prices  of  a  commodity ;  and  it  makes  no  difference  between 
luxuries  and  necessities.-' 

18  Consumers'  Gaa  Trust  Co.  v.  Bros.,  143  Cal.  30C;  77  Pac.  Rep. 
Quimby,    137    Fed.    Rep.    882.      See       fil. 

also     Quimby     v.     Consumers'     Gas  20  State     v.      Standard     Oil      Co. 

Trust  Co.,  140  Fed.  Rep.  3G2.  (Mo.),  116  S.  W.  Rep.  902. 

19  Far    West    Oil    Co.    v.    Witmer  21  state     v.      Standard      Oil     Co. 

(Mo.),    116    S.   W.    Rep.   902. 


LESSOR'S  AND  LESSEE'S  REMEDIES. 


850a 


CHAPTER  XXXIV. 

LESSOR'S  REMEDY. 

§750.  Want  of  consideration. 

§757.  Failure   to  explore  premises. 

§758.  Failure  of  lessee  to  begin  operations. 

§750.  Reservation  for  farming  purposes. 

§7G0.  Removal  of  fixtures. 

§701.  Cutting  oil  supi)Iy  of  gas. 

§7C2.  Reservation  around  buildings. 

§703.  Rentals  for  gas  developed. 

§704.  Lessor's  option  where  there  be  forfeiture  and  rental  clauses  in  lease. 

§705.  Lessee's  option  to  prevent  a  forfeiture  or   pay  rent. 

§700.  Surrender  clause  in  lease. 

§707.  Liability  of  assignee. 

§708.  Breach  of  implied  covenants. 

§709.  Ten    acres    for    each    well. — Failure    to    develop    after    drilling    first 

paying  well. 

§770.  Pleasure    of    damages    for    breach    of    implied    covenant    to    develop 

or  operate. 

§771.  Declaration  of  forfeiture  after  waiver  has  been  made. 

§772.  Paying   gratuities. 

§773.  Forfeiture  by   abandonment. 

§774.  Landowner's  remedy  for  unlawful  extraction  of  oil  and  gas. 

§775.  Trespass. — Void   lease. — Receiver. 

§770.  Want  of  mutuality. 

§777.  Tenant  in  common  or  joint  tenant. 

§778.  When  dry  hole  developed. 

§779.  Payment  of  rental   in  bank. 

§780.  Life  tenant's  remedy. 

§781.  Remainderman's  remedy. 

§782.  Failure  of  lessee  to  begin  operations. 

§783.  Drainage   of   premises. 

§784.  I^indowner's    liability    for    injuries    caused   by    drilling   weU    on    lii« 

land. 

§785.  Enjoining  well  as  a  nuisance. 

§780.  ilalicious  or  negligent  waste  of  gas. 

§787.  Reservation  of  oil  or  gas. 

§788.  Several  tracts  under  one  lease. 

§789.  Enforcing  a  forfeiture. — Court  of  equitv  powerless. 

851 


852  OIL  AND   GAS. 

§  756.     Want  of  consideration. 

If  a  landowner  execute  a  lease  for  which  there  is  no  con- 
sideration, and  he  decides  to  avoid  it,  he  should  promptly 
declare  a  forfeiture  in  some  way  so  as  to  inform  the  lessee 
of  his  declaration;  and  if  the  lessee  thereafter  attempt  to 
operate  upon  the  leased  premises  he  may  be  enjoined,  and  in 
the  same  action  the  bill  may  contain  a  prayer  that  the  lease  be 
cancelled  as  a  cloud  upon  the  lessor's  title.^ 

§  757.     Failure  to  explore  premises. 

If  the  lessee  abandon  the  object  for  which  the  lease  was 
granted, — as  where  he  fails  to  explore  for  gas  or  oil,  as  the 
lease  grants  him  permission  to  do,  the  lessor  may  bring  an 
action  to  cancel  the  lease,  as  a  cloud  upon  his  title.-  Such 
is  an  instance  where  the  lessee  has  entered  on  the  premises 
and  drilled  one  or  more  unproductive  wells,  and  then  abandons 
the  lease  by  ceasing  for  an  unreasonable  time  to  explore  the 
premises  or  operate  the  wells.  In  such  an  instance  equity 
will  cancel  the  lease.^  And  the  fact  that  the  lessee  has  erected 
residences  and  conveniences  upon  and  is  cultivating  part  of 
the  demised  premises  will  not  prevent  the  lessor  recovering 
possession  of  all  the  premises  not  actually  necessary  for  pro- 
ducing and  marketing  oil.*  But  equity  will  not  cancel  a 
lease  before   the   expiration   of  the   term   for  mere   delay  in 

1  §  71.     Eclipse   Oil   Co.   v.   South  423;   Starn  v.  Hufrman,  62  W.  Va. 

Penn.    Oil    Co.,   47    W.    Va.    84;    34  422;  59  S.  E.  179. 

5.  E.  933 ;  Elk  Fork  Oil  &  Gas  Co.  a  §  140.  Parish  Fork  Oil  Co.  v. 
V.  Jennings,  84  Fed.  830;  Trees  v.  Bridgewater  Gas  Co.,  51  W.  Va. 
Eclipse  Oil  Co.,  47  W.  Va.  107;   34  583;  42  S.  E.  G5I5;   Lovvthcr  Oil  Co. 

6.  E.  933;  Crawford  v.  Ritchie,  43  v.  Miller-Siblcy  Co.,  53  W.  Va.  501; 
W.  Va.  252;  27  S.  E.  220;  Bettman  44  S.  E.  433;  Steelsmitli  v.  Gartlan, 
V.  Harness,  42  W.  Va.  433 ;  20  S.  E.  45  W.  Va.  27 ;  29  S.  E.  978 ;  Raw- 
271;  Steelsmith  v.  Gartlan,  45  W.  lings  v.  Armel,  70  Kan.  778;  79 
Va.    27;     29    S.     E.    978.  Pac.  683;   Munroe  v.  Armstrong,  96 

2§§  138,   186.     Huggins  v.  Daley,  Pa.  307;  Florence  Oil  Co.  v.  Orman, 

99    Fed.   606;    44   C.   C.   A.    12;    48  19    Colo.    App.    79;    73    Pac.    628; 

L.  R.  A.  320;   Crawford  v.   Ritchie,  Venture  Oil   Co.  v.   Fretts,   152  Pa. 

43  W.  Va.  252;   37  S.  E.  220;   New  451;    25  Atl.  732;   Brewster  v.  Lan- 

American    Oil    Co.    v.    Troyer,    166  yon  Zinc  Co.,   140   Fed.   801;    72   C. 

Ind.  402;   76  N.  E.  253;   Carney  v.  C.  A.  213. 
Barnes,    56   W.   Va.   581;    49   S.   E. 


lessor's  remedy. 


853 


paying  rent  or  commutation  money,  aiul  failure  to  commence 
operations  at  the  time  stipulated,  it"  it  appears  that  the  lessee 
is  ready  and  willing  to  pay  the  rent  and  perform  the  eoveiiant 
to  open  and  operate  the  land.'* 

§  758.     Failure  of  lessee  to  begin  operations. 

A  failure  of  the  lessee  to  begin  operations  within  the  time 
specifically  specified  in  the  lease,  or  if  no  time  be  actually 
specified,  witliin  a  reasonable  time  after  its  execution,  then 
the  lessor  may  bring  an  action  to  cancel  the  lease  as  a  cloud 
upon  his  title.  Of  course,  the  remedy  is  in  equity,  unless  a 
code  provide  a  statutory  reniedy."  If  the  lease  is  for  a  defi- 
nite or  stated  term,  but  is  qualified  by  the  words  "and  as 
much  longer  as  oil  or  gas  is  produced  in  paying  quantities," 
and  oil  or  gas  has  been  produced  by  the  lessee  on  the  i)rem- 
ises,  then  whether  or  not  it  is  being  produced  in  "paying 
quantities"  is  a  question  of  fact;  but  the  lessee  is  the  judge 
as  to  what  amount  of  oil  or  gas  constitutes  "paying  (|uan- 
tities"  if  he  exercise  his  judgment  in  good  faith."     Thus  in 


^Fowler    v.    Delaplain,     79    Ohio 
279;    87  X.   E.   2G1. 

6  Pheasant  v.   Hann?     63   W.   Va. 
613;  60  S.  E.  618. 

8  §  186.  Western  Pennsylvania 
Gas  Co.  V.  George,  161  Pa.  47;  28 
Atl.  1004;  Rudde  v.  Mellon,  147  Pa. 
30;  23  Atl.  241;  Bettman  v.  Har- 
ness, 42  W.  Va.  433;  26  S.  E.  271; 
Hazelgreen  Oil  Co.  v.  Collins  (Ky.), 
110  S.  W.  343;  33  Ky.  L.  Rep.  601  ; 
Thomas  v.  Hukill,  34  Va.  385;  12 
S.  E.  522 ;  Murdock-West  Co.  v.  Lo- 
gan, 69  Ohio  St.  514;  69  N.  E.  984; 
Pyle  V.  Henderson,  65. W.  Va.  39; 
63  S.  E.  620;  Northwestern  Oliio 
Nat.  Gas  Co,  v.  Tiffin,  59  Ohio  St. 
420;  54  N.  E.  77;  Central  Ohio 
Fuel  Co.  V.  Eckert,  70  Ohio  127 ; 
71  N.  E.  281;  Huggins  v.  Daley,  99 
Fed.  606;  40  C.  C.  A.  12;  48  L.  R. 
A,  320;  Brewster  v.  Lanyon  Zinc 
Co.,  140  Fed.  801;  72  C.  C.  A.  213; 
Cheney   v.    Ohio,   etc.,    Gas   Co.,   32 


Ind.  App.  193;  69  N.  E.  477; 
American  Window  Glass  Co.  v.  Wil- 
liams, 30  Ind.  App.  68;  66  N.  E, 
912;  Lowther  Oil  Co.  v.  Miller-Sib- 
ley Co.,  53  W.  Va.  501;  44  S.  E. 
433;  97  Am.  St.  1027;  Eaton  v. 
Allegheny  Gas  Co.,  122  N.  Y.  416; 
25  N.  E.  981;  Cassell  v.  Crothers, 
193  Pa.  359;  44  Atl.  446;  Brown 
V.  Fowler,  65  Oiiio  507;  63  N.  E. 
76. 

7  §  134.  Lowther  Oil  Co.  v.  Miller- 
Sibley  Co.,  53  V\.  Va.  501;  44  S.  E. 
433;  97  Am.  St.  1027;  Young  v. 
Forest  Oil  Co.,  194  Pa.  243;  45  Atl. 
1021;  Summerville  v.  Apollo  (Jus 
Co.,  207  Pa.  334;  5(i  Atl.  876; 
McGraw  Oil,  etc.,  Co.  v.  Kennedy, 
65  W.  Va.  595;  64  S.  E.  1027; 
Double  V.  Union  Heat.,  etc.,  Co., 
172  Pa.  388;  33  Atl.  694;  Murdock- 
West  Co.  V.  Logan,  69  Ohio  St.  514; 
69  X.  E.  984;  Cassell  v.  Crotiiers, 
193  Pa.  359;  44  Atl.  446;  Bay  State 


854  OIL    AND    GAS. 

one  case  it  was  said:  "And  whether  or  not  oil  is  found  in 
paying  quantities  is,  furthermore,  to  be  determined  exclu- 
sively by  the  operator,  acting  in  good  faith  and  upon  his 
honest  judgment.  ^Ve  do  not  mean  an  arbitrary  judgment,  or 
one  springing  from  an  ulterior  purpose  to  get  some  unfair  or 
dishonest  advantage  of  tiie  landowner,  but  a  judgment  ar- 
rived at  by  acting  in  good  faith  upon  sound  business  prin- 
ciples. But,  as  in  other  cases,  fraud  will  not  be  presumed, 
and  becomes  provable  only  under  proper  averments.  There- 
fore, under  the  pleadings  and  proof  of  this  case,  it  was  error 
in  the  court  to  sul)mit  to  the  jury  the  question  whether  oil 
was  found  in  paying  quantities.  Any  (juantity  would  pay 
the  landowner,  for  it  would  have  cost  him  nothing.  Under 
such  a  contract  it  is  he  Avho  puts  up  the  stake,  and  has  to 
reckon  with  profit  and  loss,  that  shall  decide,  and  not  he  who 
takes  no  risk,  but  receives  a  chance  to  be  enriched  at  the 
expense  and  enterprise  of  another. ' '  When  there  is  not  a  fair 
profit  to  the  lessee  over  the  actual  expenses  incident  to  the 
question  of  the  leased  premises,  the  lessor  may  show,  by 
proper  allegations  in  the  pleading  in  a  case  for  the  cancellation 
of  the  lease,  that  oil  or  gas  is  not  being  produced  in  paying 
quantities,  and  that  there  is  not  a  fair  profit  to  the  lessee 
in  their  production.  Inasmuch  as  the  lessee  is  in  possession 
and  operating  the  leased  premises,  the  burden  is  on  the  lessor 
to  show  that  he,  himself,  is  producing  oil  or  gas  in  paying 
quantities.® 

§  759.     Reservation  for  Fanning  Purposes. 

The  lessee  has  only  possession  of  the  leased  lands  for  min- 
ing purposes,  and   is  only  entitled   to  possession  of  so  much 

Petroleum  Co.  v.  Penn.  Lubricating  Amnions    v.    South    Penn.    Oil    Co., 

Co.,  27  Ky.  L.  Rep.  1133;   87  S.  W.  47    W.    Va.    GIO;     35    S.    E.    1004; 

1102;    121    Ky.    637;    Barnsdall   v.  McGraw  Oil  &  Gas  Co.  v.  Kennedy, 

Boley,  119  Fed.  191;  Dickey  v.  Cof-  Go    W.    Va.    595;    64    S.    E.    1027; 

feyville,  etc.,  Co.,  69   Kan.    106;   76  Dickey    v.    CofTeyville,   etc.,    Co.,   69 

Pa.  398.  Kan.   106;   76  Pac.  308. 

8  §  135.     :Manliattan     Oil     Co.     v.  »  §  136.     Barn-^dall    v.   Boley,    119 

Carrell,    164    Ind.    526;    73    N.    E.  Fed.  191 ;  Lowtiier  Oil  Co.  v.  Miller- 

1084,  quoting  from  Young  v.  Forest  Sibley  Oil   Co.,  53  W.  Va.  501;   44 

Oil   Co.,   194  Pa.  243;   45  Atl.   121;  S.  E.  435;  97  Am.  St.  1027;   Young 

Colgan   V.   Forest   Oil   Co.,    194   Pa.  v.    Forest    Oil    Co.,    194    Pa.    243; 

234;    46  Atl.   119;   75  Am.  St.  695;  45   Atl.    121. 


lessor's  remedy.  855 

of  the  surface  as  will  enahlr  him  to  ilcvt-lop  the  leased  prem- 
ises. If  he,  therefore,  occupy  uu)r('  land  thus  leased  than  is 
reasonahly  necessary  for  that  purpose,  as  for  cultivation  or 
residence  or  conveniences  for  his  employees,  the  lessor  nuiy 
recover  possession  of  so  much  of  the  premises  as  is  not  actually 
necessary  for  mining  and  producing  purposes.^** 

§  760.    Removal  of  Fixtures. 

Where  the  lessee  has  placed  fixtures  upon  the  leased 
premises  he  must  remove  them  during  the  term,  or  at  least 
within  a  reasonable  time  thereafter.  If  he  do  not,  they 
become  the  property  of  the  lessor,  and  he  may  enjoin  their 
removal,  or  if  severed  from  the  freehold  and  then  removed 
without  his  consent,  he  may  replevin  them  or  recover  their 
value  in  an  action  for  damages.  This  is  true  where  the  lessee 
expressly  reserves  the  right  to  remove  them.^^ 

§  761.    Cutting  off  Supply  of  Gas. 

If  the  lessee  has  agreed  to  furnish  the  lessor  gas  from  the 
wells  developed,  an  injunction  will  lie  to  restrain  him  from 
cutting  it  off  after  the  supplying  has  commenced,  upon  show- 
ing that  great  injury  would  result  from  the  cutting  of  the 
gas  off  and  there  is  no  adequate  remedy  at  law.^- 

§  762.    Reservation  around  Buildings. 

A  reservation  by  the  lessor  of  lands  around  his  buildings 
is  a  retention  of  the  right  to  occupy  the  space  there  reserved 
to  the  entire  exclusion  of  the  lessee  as  much  so  as  if  he  was 
an  entire  stranger  to  the  lease.  The  lessee  may  exhaust  oil 
or  gas  thereunder,  if  he  can  do  so  by  the  sinking  of  wells  upon 
that  part  of  the  leased  premises  next  to  the  land  reserved, 
but  not  otherwise.^''     If  the  lessee  invade  these  premises  the 

10  Fowler  v.  Delaplain,  7!)  Ohio  'i  Allison's  Appeal,  77  Pa.  221; 
St.  279;    87   N.   E.   2(il.  Westmoreland,  etc.,   Cas   Co.   v.  I)e- 

11  §  ini.  Shellar  v.  Shivers,  171  Witt,  130  Pa.  2,3.');  18  Atl.  724; 
Pa.  5(j9;   33  Atl.  95.  Brown   v.   Spillraan,    155  U.  S.  CG5; 

12  Simpson  v.  Pittsburg  Plate  15  Sup.  Ct.  245;  Consumers'  Cas 
Glass  Co.,  28  Ind.  App.  343;  02  Trust  Co.  v.  American  Plate  Glass 
N.  B.  753.  Co.,  162  Ind.  392;  «8  N.  E.   1020; 


856  OIL    AND    GAS. 

lessor  has  the  same  remedy  af^ainst  him  as  if  the  lease  had 
never  been  granted  him  or  as  he  would  have  against  any 
stranger. 

§  763.     Rentals  for  Gas  Developed. 

Gas  developed  by  the  lessee  does  not  in  whole  or  in  part 
belong  to  the  lessor;  so  much  of  it  as  the  lessee  has  secured 
in  the  well  or  pipes  is  his,  the  lessee's.  But  the  lease  usually 
provides  t*hat  if  the  gas  is  discovered  in  paying  quantities 
the  lessee  shall  pay  as  a  consideration  therefor  an  annual  cash 
rental  for  each  well;  and  also  usually  further  provides  that 
the  lessee  shall  pay  this  rental  when  the  gas  is  sold  on  and 
off  the  premises.  Upon  discovering  gas  in  paying  quantities 
the  lessee  becomes  liable  for  the  rental,  even  tliough  he  does 
not  use  it  off  the  premises;  for  he  cannot  take  advantage  of 
his  own  neglect.^*  If  the  lease  be  a  mere  license  before  gas 
is  discovered,  upon  developing  the  gas  the  lessee's  interest  in 
the  premises  becomes  a  vested  one,  but  he  cannot  shut  the 
well  in,  claim  a  vested  right,  hold  the  lease,  and  refuse  to 
pay  gas  rental.  If  he  does  the  lessor  may  declare  a  forfeiture 
of  the  lease  and  bring  an  action  in  equity  to  cancel  it.^°  But 
the  lessor,  regardless  whether  the  lease  before  the  discovery 
of  gas  is  a  license  or  not,  may  recover  the  rental  under  the 
terms  of  the  lease,  even  though  the  lessee  has  not  marketed  it, 
in  an  action  of  assumpsit.^"  Yet,  if  a  lease  be  so  construed  as 
a  grant  of  the  oil  and  gas  in  place  to  the  lessee,  with  a  stipula- 
tion that  gas  only  be  found  the  lessee  shall  pay  a  fixed  sum 
annually  for  such  well  while  the  gas  from  it  is  used  off  the 
premises,  the  lessor  cannot  recover  of  the  lessee  the  stipulated 
rental  covering  the  period  during  which  the  lessee  might  have 

Lynch    v.     Burford,    201    Pa.    52;  Pa.  72;   45  Atl.  54;  McGraw  Oil  & 

fiO  Atl.  228;  Duffield  v.  Rosenzweig.  Gas  Co.  v.  Kennedy,  65  W.  Va.  5fl5; 

150  Pa.  543;   24  Atl.  705;   Duffield  64   S.  E.    1027;    Eastern  Oil   Co.  v. 

V.  Rosenzweig,  144  Pa.  520;  23  Atl.  Coulehan,  65  W.  Va.  531;  64  S.  E. 

4;    Duffield    V.    Hue,    130    Pa.    (i02;  836;  Summerville  v.  Apollo  Gas  Co., 

20   Atl.   520.  207  Pa.   334;    56  Atl.  870. 

14  §  233.     Summerville     v.   Apollo  is  lams  v.  Carnegie  Nat.  Gas  Co., 
Gas  Co.,  207  Pa.  334;   50  Atl.  876.  194  Pa.  72;  45  Atl.  54;  Indianapolis 

15  Gadberry  v.  Ohio,  etc.,  Nat.  Gas  Nat.   Gas  Co.   v.   Wilhelm,   44   Ind. 
Co.,    162    Ind.    9;    57    N.    E.    259;  App.  100;  86  N.  E.  86. 

lams  V.  Carnegie  Nat.  Gas  Co.,  194 


lessor's  remedy.  857 

marketed  the  gas,  even  if  he  couKl  have  marketed  it  without 
financial    loss   upon    its    develojunent    in    paying    (juantities.'^ 
If  a  lease  does  not  expressly  provide  for  a  forfeiture  for  non- 
payment of  gas  rental,  the  lessor  cannot  declare  a  forfeiture 
for  its  non-payment.     His  remedy  is  an  action  to  recover  the 
rentals.^*      If  the   lessee   has   drilled   one   well    on    the   leased 
premises  thereby  developing  gas,  the  lessor  cannot  maintain 
an  action  to  recover  damages  because  the  lessee  has  not  further 
developed  the  premises;  for  the  drilling  of  a  secoml  or  other 
wells  upon  the  leased  premises  might  reduce  tiie  pressure  of 
the  gas  in  the  well  already  developed  to  such  an  extent  as  to 
destroy  it.     In  this  respect  the  rule  is  different  in  the  case 
of  oil  wells.'"     If  the  lessee  has  developed  gas,  but  he  can- 
not find  a  market  for  it,  then  he  may  hold  the  premises  by 
paying  the  lessor  the  gas  rental  beyond  the   term  named  in 
the  lease.     In   such   an   instance    the   lessor   cannot   secure    a 
cancellation  of  the  lease,  either  upon  the  ground  of  abandon- 
ment or  for  failure  to  further  develop  the  leased  premises.-" 
If  the   lessee   at   his   option,   by  the   payment    of  an   annual 
rental,  may  delay  developments  from  year  to  year,  before  he 
can  declare  a  forfeiture  the  lessor  must  give  the  lessee  notice 
of  his  intention  so  to  do.    This  notice  must  specify  a  time  when 
a  forfeiture  will  be  declared  sufficiently  far  ahead  to  enable 
the  lessee,  with  reasonable  diligence,  to  develop  the  premises 
if  he  desires.     If  he  do  not  develop  the  premises  within  the 
time  thus  fixed,  the  lessor  may  then  declare  a  forfeiture  and 
bring  an  action  to  cancel  the  lease,  or  in  states  where  a  stat- 
utory right  of  action  is  given  in  such  instances,  for  posses- 
sion,^^ 

17  §  233.  Onio  Oil  Co.  v.  Lane,  21  Consumers'  Gas  Trust  Co.  v. 
59  Ohio  St.  307;   52  N.  E.   791.  Littler,  162  Ind.  320;  70  N.  E.  3G3; 

18  Davis  V.  Chautauqua  Oil  &  Gas  Indiana  Xat.  Gas  &  Oil  Co.  v.  I./ear, 
Co.,  78  Kan.  97;   96  Pac.  47.  34    Ind.    App.    61;     72    N.    B.    2S3 ; 

19  McKnight  v.  Manufacturers'  Consumers'  Gas  Trust  Co.  v.  Ink, 
Nat.  Gas  Co.,  140  Pa.  185;  23  At!.  1G3  Ind.  174;  71  N.  E.  477;  Con- 
164.  sumers'    Gas    Trust    Co.    v.    Worth, 

20McGraw  Oil  &  Gas  Co.  v.  Ken-  163   Ind.   141;    71   N.  E.  489;    Con- 

nedy,  65  W.  Va.  595 ;  64  S.  E.  1027 ;  sumers'   Gas  Trust  Co.   v.  Chrystal 

Summerville  v.  Apollo  Gas  Co.,  207  Window   Glass    Co.,    103    Ind.    190; 

Pa.   334;    50   Atl.   876.  70  N.  E.  366. 


858  OIL    AND    GAS. 

§764.     Lessor's  option  where  there  be  forfeiture  and  rental 
clauses  in  lease. 

If  the  lease  specify  a  definite  term,  a  rental  period,  and 
contain  a  clause  empowering  tlie  lessor  to  terminate  the  lease 
for  failure  to  develop  the  premises  or  pay  the  rent  stipulated 
for  delay  when  paj-^able,  a  failure  on  the  lessee's  part  to 
explore  or  paj'  the  rent  within  the  period  and  at  the  time 
provided  authorizes  the  lessor  to  declare  a  forfeiture.  When 
such  a  declaration  is  made  the  lease  is  at  an  end.-^  But  the 
lessor  may  waive  the  forfeiture  and  bring  an  action  to  recover 
the  rental  for  the  time  the  lessee  held  the  exclusive  right  to 
operate ;  and  the  lessee  cannot  set  up  as  a  defense  that  the 
lease  has  been  forfeited.-^  After  a  declaration  of  forfeiture 
the  lessee  is  not  liable  for  rentals  that  would  otherwise  have 
accrued  after  that  date.  If  the  lessor  accept  rental  for  a 
period  after  that  date  he  thereby  waives  his  declaration  of 
forfeiture  and  continues  the  lease  in  force  for  the  period  for 
w^hich  the  rent  was  paid.-*  If  there  has  been  actual  forfeiture, 
although  no  actual  declaration  to  that  effect  has  been  made 
by  the  lessor,  yet  he  may  lease  the  premises  to  a  second  lessee 
w^ho  will  acfiuire  rights  superior  to  those  of  the  first  lessee; 
for  the  execution  of  the  second  lease  is  a  declaration  in  law  of 

22  §§  129,  151.  Brown  v.  Vandpr-  Oil  &  Gas  Co.  v.  Gaffney  Oil  Co. 
grift,  80  Pa.  142;  Logansport,  etc.,  (Ky.),  121  S.  W.  699;  34  Ky.  L. 
Gas  Co.  V.  Null,  36  Ind.  App.  503;  Rep.  — ;  Galey  v.  Kellerman,  123  Pa. 
76  N.  E.  125;  Munroe  V.  Armstrong,  491;  16  Atl.  474;  Roberts  v.  Bett- 
96  Pa.  307;  Galey  v.  Kellerman,  123  man,  45  W.  Va.  143;  30  S.  E.  95; 
Pa.  491;  16  Atl.  474;  Paxton  Oil  Hancock  v.  Diamond  Plate  Glass 
Co.  V.  afyers,  39  Ind.  App.  095;  Co.,  102  Ind.  146;  70  N.  E.  149; 
80  N.  E.  851;  Wolf  V.  Guffey,  161  Cochran  v.  Pew,  159  Pa.  184;  28 
Pa.  270;  28  Atl.  1117;  Kennedy  v.  Atl.  219;  Scott  v.  Lafayette  Gas  Co., 
Crawford,   138  Pa.  561;   21   Atl.   19.  42    Ind.   App.    614;    86   N.   E.   495; 

23  §  238.  Conger  v.  National  Liggitt  v.  Sliira,  159  Pa.  350;  28 
Transportation  Co.,  105  Pa.  561;  Atl.  218;  Matthews  v.  People's  Nat. 
30  Atl.  1038;  Ray  v.  West,  etc..  Gas  Co.,  179  Pa.  165;  36  Atl.  216; 
Gas  Co.,  138  Pa.  576;  20  Atl.  1065;  Jones  v.  West  Penna.  Nat.  Gas  Co., 
Gibson  v.  Oliver,  158  Pa.  277;  27  146  Pa.  204;  23  Atl.  386;  Phil- 
Atl.  901;  Springer  v.  Citizens'  Nat.  lips  v.  Vandergrift,  146  Pa.  357;  23 
Gas  Co.,  145  Pa.  430;  22  Atl.  980;  Atl.  347;  Ogden  v.  Hatry,  145  Pa. 
IVIcMillan  v.  Philadelphia  Co.,  159  640;  23  Atl.  324;  Jackson  v.  O'Hara, 
Pa.  142;  28  Atl.  220;  Wills  v.  Man-  183  Pa.  233;  38  Atl.  624. 
ufacturers'  Nat.  Gas  Co.,  130  Pa.  24  §§  159,  100.  Wolf  v.  Guffey, 
222;    18    Atl.    731;    New   Dominion  161   Pa.  276;   28  Atl.   1117. 


lessor's  kkmedy.  859 

a  forfeiture  of  the  first  lease."'  To  work  a  forfeiture  of  the 
first  lease  by  the  exeeutiou  of  a  seeoud,  the  exceuliou  must 
be  a  clear  and  uiie(iuivoeal  declaration  by  the  hmdowncr  of 
the  forfeiture.  The  right  to  declare  a  forfeiture  must  have 
existed  at  the  time  of  the  execution  of  tlu^  second  lease.*" 
If  the  lessee  has  incui-i-ed  a  forfeiture  or  has  aban(h)m'd  the 
premises,  and  the  lessee  executes  a  second  lease,  j)roviding  in 
it  or  in  a  contemporaneous  writing,  that  the  lease  is  nuide 
subject  to  the  first  one,  the  effect  is  to  incorporate  into  the 
contract  the  fact  that  he  had  advised  the  second  lessee  that 
the  land  had  been  theretofore  leased,  and  that  he  was  to  take 
his  lease  subject  to  the  first  one  with  the  understanding  that 
if  the  latter  was  valid  he  should  take  nothing  by  tlie  contract, 
but  if  invalid  the  second  lease  should  then  stand  as  a  binding 
contract  between  them.-"  A  statement  in  the  lease  that  if  the 
premises  be  not  developed  or  the  rental  paid  on  time  that 
it  should  become  "null  and  void"  is  not  strengthened  by  a 
clause  that  it  shall  thereafter  "be  of  no  effect  between  the 
parties"  or  "can  only  be  removed  liy  mutual  consent,"  for 
these  are  merely  cumulative  phrases  with  the  same  meaning, 
and  the  lessor  may  declare  a  forfeiture  or  collect  the  rentals 
subject  to  the  right  of  surrender,  if  reserved.-**  Delay  on  the 
part  of  the  lessor  to  enforce  or  declare  a  forfeiture  when  one 
has  occurred  may  amount  to  a  waiver  of  the  right  to  enforce 
it,  as  where  the  lessee  is  permitted  to  expend  a  considerable 
amount  of  money  in  developing  the  leased  premises  after  the 
right  to  declare  a  forfeiture  has  accrued  without  any  w'arning 

zsGuffey  V.  Hukill,  34  W.  Va.  49;  Penn.   Oil   Co.,   52   W.   Va.    102;    43 

11   S.   E.   754;    Wolf  V.   Guffey,    IGl  S.  E.  147. 

Pa.  276;    28  Atl.   1117;   Eclipse  Oil  2t  §  88.     Eik  Fork  Oil  &  Gas  Co. 

Co.    V.    South    Penn.    Oil    Co.,     -17  v.  Jennings,   84  Fed.  839;   Stone  v. 

W.  Va.  84;    34  S.   E.  923.  :MarshaU   Ou   Co.,   188  Pa.   092;    41 

26  §159.     Schaupp    v.    Hukill,    :iA  Atl.  748,   1119;    Foster  v.  Elk    Fork 

W.   Va.   375;    12    S.   E.    501;    Bart-  Oil    &    Gas    Co.,    90    Fed.    178;    32 

ley    V.    Phillips,    179    Pa.    175;    30  C.    C.   A.   500;    Eaton   v.   Allopheny 

Atl.   217;    Hukill   v.   Myers,   36   W.  Gaa  Co.,   122  N.   Y.  410;   25   N.   E. 

Va.  639;    15   S.   E.   151;    Bartley  v.  981. 

Phillips,   165  Pa.  325;   30  Atl.  842;  =«  §  151.     Jones  v.  Western  IVnna. 

Lowther    Oil   Co.   v.   Guffey,   52    W.  Xat.  Gas  Co.,  140  Pa.  204;   23  Atl. 

Va.    88;     43    S.    E.     101;     Stone    v.  380;     Phillips    v.    Vandergrift,     140 

Marshall   Oil   Co.,   188   Pa.   002;    41  Pa.    357;    23    Atl.    347;     Ogdon    v. 

Atl.     748,     1119;     Henne    v.    South  Ilatry,    145    Pa.    040;    23   Atl.   334. 


860  OIL   AND    GAS. 

from  the  lessor  that  he  has  forfeited  his  rights.  Usually  the 
lessor  must  act  promptly.  If  the  lessor  consent  that  the  rent 
need  not  be  paid  when  due,  and  indulges  or  acquiesces  in  his 
failure  to  pay  on  time,  there  is  no  forfeiture  or  a  waiver  of 
the  right  to  declare  it.  Before  a  forfeiture  can,  in  such  an 
instance,  be  declared,  a  demand  for  payment  must  be  first 
made,  and  a  reasonable  time  given  for  development.-^  The 
drilling  of  a  dry  hole  will  not  enable  the  lessor  to  declare  a 
forfeiture,  unless  the  lessee  abandons  the  premises  or  fails  to 
make  further  explorations  within  reasonable  time  after  drill- 
ing such  dry  hole.'^°  If  the  contract  between  the  so-called 
lessor  and  the  so-called  lessee  is  nothing  more  than  an  option, 
not  binding  the  lessee  to  perform  any  obligation  therein,  then 
the  former  may  terminate  it  at  any  time  before  the  latter  has 
done  any  act  by  which  he  binds  himself  to  exercise  his  option. 
The  lessor  may  notify  the  lessee  of  his  election  to  revoke  the 
lease,  or  he  may  execute  a  new  lease  to  another  person,  and 
such  notice  or  new  lease  will  be  a  revocation  of  the  contract 
or  old  lease,  unlass  the  first  lessee  has  performed  some  act 
binding  himself  to  exercise  his  option.  So  the  death  of  the 
lessor,  during  the  time  the  lease  or  contract  remains  execu- 
tory is  a  complete  revocation  of  it.''^  If  there  has  been  such 
delay  as  to  work  a  forfeiture  of  the  lease,  or  it  has  been 
abandoned,  a  court  of  equity  has  jurisdiction  to  enter  a  decree 
cancelling  tlie  lease. ^- 

29  §  159.     ITukill  V.  Myers,  36  W.  3i  §  71.     Cortelyou    v.    Barnsdall, 

Va.    (i39;     15    S.    E.     151;     Puritan  230   111.    138;    86   N.   E.   200;    Trees 

Oil  Co.  V.  :Myers,  39  Ind.  Ajip.  G95;  v.  Eclipse  Oil  Cki.,  47  VV.  Va.   107; 

80  N.  E.  851;   Hancock  v.  Diamond  34    S.    E.    933;    Eclipse    Oil    Co.    v. 

Plate   Glass  Co.,    162   Ind.    146;    70  South    Penn.    Oil    Co.,    47    W.    Va. 

N.   E.    149;    Pyle   v.   Henderson,   65  84;    34   S.  E.  293;    Federal   Oil  Co. 

W.    Va.-  39;    63    S.    E.    762;    Con-  v.  Western   Oil   Co.,    112   Fed.   674; 

sumers'    Gas    Trust    Co.    v.    Littler,  57    C.    C.    A.    428;    Martel    v.    Jcn- 

162  Ind.  320;   70  N.  E.  363;  Camp-  nings-Heywood    Oil    Syndicate,    114 

bell  V.   Rock  Oil  Co.,   151   Fed.   191;  I^.    903;     38    So.    253;     Waterford 

80  C.  C.  A.  467.  Oil    &    Gas    Co.    v.    Sliipman,    233 

.30  Aye    V.    Philadelphia    Co.,     193  Iil.  9;   84  N.  E.  53. 

Pa.   451;    44   Atl.  655;    74   Am.   St.  32  §  186.      Smith    v.    Root,    06   W. 

696;    Steelsmith  v.   Gartlan,   45   W.  Va.  633;   66  S.  E.   1005;   Tennessee 

Va.  27;  29  S.  E.  978;   Florence  Oil,  Oil,  etc.,  Co.  v.  Brown,  65  C.  C.  A. 

etc.,   Co.    V.    Orman,    19    Colo.   App.  524;     131    Fed.    696;     Mcintosh    v. 

79;   73  Pac.  628.  Robb,    4    Cal.    App.    484;    88    Pac. 


lessor's  rrmedy.  861 

§765.     Lessee's  option  to  permit  a  forfeiture  or  pay  rent. 

If  the  lease  provide  that  the  les.si-e  may  i)ay  the  lessor  rent 
or  commutation  money,  and  contains  no  express  covenant 
binding  him  either  to  explore  or  pay  the  rent,  yet  provides 
that  unless  he  make  explorations  within  a  certain  time,  or  pay 
rental  for  delay,  in  the  absence  of  fraud  the  lessor  cannot 
refuse  payment  and  declare  a  forfeiture  at  the  expiration  of 
such  specified  time,  and  thus  terminate  the  lease.  But  if  the 
lessee  fail  to  pay  the  rental  for  delay  he  may  declare  a  for- 
feiture and  thus  terminate  the  lease.^^  But  if  the  lessee 
unreasonably  delays  explorations  and  the  delay  may  result  in 
irreparal)le  loss  to  the  lessor  by  drainage  of  his  premises  of 
its  oil  or  gas,  or  may  prevent  him  from  obtaining  develop- 
ment of  his  property  contemporaneously  with  development  in 
the  vicinity,  he  may  notify  the  lessee  of  his  desire  to  have  the 
property  explored,  and  upon  such  lessee's  failure  for  an 
unreasonable  time,  or  his  refusal  to  do  so,  he  may  refuse  to 
accept  payment  of  rentals  for  further  delay,  declare  a  for- 
feiture and  obtain  a  cancellation  of  the  lease.^* 

§  766.     Surrender  clause  in  lease. 

If  no  consideration  be  paid  for  a  lease,  and  a  clause  in  it 
provides  for  its  surrender  at  any  time  witiiout  payment  of 
rent  or  the  fulfillment  of  any  of  its  covenants  by  the  lessee, 
it  is  no  more  than  a  right  to  enter  at  will  on  the  part  of  the 
lessee,  and  the  lessor  may  terminate  it  at  any  time  before  the 

517;   Mills  v.  Hartz,  77   Kan.  218;  S.  W.  57;  Snodgrass  v.  South  Pcnn. 

94   Pac.    142;    IMurray    v.    Graham,  Oil   Co.,   47   W.   Va.   509;    35   S.   E. 

117  La.   1023;   42  So.  489;   Logans-  820;    Glasgow   v.    Chartier   Oil   Co., 

port,   etc.,    Gas   Co.   v.    Seegar,    KU)  152  Pa.  48;   25  Atl.  232. 

Ind.  1;   74  N.  E.  500;   Florence  Oil,  34  Low-ther   Oil   Co.   v.   GufTcy,   52 

etc.,  Co.  V.  McCumber,  38  Colo.  366;  W.    Va.    88;    43    S.    E.    101;    Con- 

88  Pac.  265.  sumers'    Gas    Trust    Co.    v.    Worth, 

33  §73.     Smith     v.     South     Penn.  163    Ind.    141;    71   N.    E.   489;    Dill 

Oil    Co.,   59   W.   Va.    204;    53    S.    E.  v.    Fray*,    165    Ind.    .53;    75    X.    E. 

152;    Jcnnings-Heywood    Oil    Syndi-  071;    Consumers'  Gas   Trust   Co.   v. 

cate  V.  Housierre-Ijattreille  Oil  Co.,  Chrystal  Window  Glass  Co.,  103  Ind. 

119  La.  864;  44  So.  481;  Van  Etten  190;   71  N.  E.  489;   Consumers'  Gas 

V.  Kelly,  66  Ohio  St.  605;   64  N.  E.  Trust  Co.  v.   Littler,   162  Ind.  320; 

560;   Great  Western  Oil  Co.  v.  Car-  70  N.  B.  363. 
penter.   43   Tex.   Civ.   App.   229;    95 


862  OIL    AND    GAS. 

rent  be  paid  or  tlie  obligation  of  the  lease  be  performed ;  and 
the  execution  of  a  second  lease,  the  sale  of  the  property,  or 
the  death  of  the  lessor  will  terminate  it.^"  But  if  the  lease 
contains  an  express  covenant  to  pay  the  rent  for  delay  in 
drilling,  and  also  contains  a  clause  authorizing  the  lessee  to 
surrender  the  lease  at  any  time  and  be  relieved  of  all  obliga- 
tions thereafter  accruing,  the  lessor  may  recover  from  the 
lessee  all  rentals  accrued  at  the  time  of  actual  surrender  of 
the  lease.^°  If  the  lease  has  been  part  of  public  record,  then 
the  lessor  is  entitled  to  have  the  surrender  of  the  lease  properly 
executed  and  recorded  by  the  lessee.  If  the  lease  has  not 
been  recorded,  the  lessor  is  entitled  to  its  actual  surrender 
by  the  lessee.^^ 

§  767.     Liability  of  assignee. 

An  assignee  is  liable  to  the  lessor  for  damages  occasioned 
during  the  time  he  holds  title  to  the  leased  premises  under  his 
assignment ;  ^*  and  the  lessor  may  recover  for  breaches  of  the 
covenants  in  the  lease  from  each  successive  assignee,  but  each 
assignee  is  only  liable  for  the  breaches  which  occurred  during 
the  time  he  held  title  to  the  lease. ^^*  The  burden  is  on  the 
lessor  to  prove  the  assignment.^''  During  the  time  he  holds 
title  to  the  lease  the  assignee  is  liable  for  the  rentals  to  the 
lessor.*'' 

33  §66.     Eclipse  Oil  Co.  v.   South  Co.    v.    Hinton,    159    Ind.    398;    64 

Penn.    Oil    Co.,    47    \V.   Va.    84;    34  N.    E.    224;    Washington    Nat.    Gaa 

S.  E.  293;  Roberts  v.  McFadden,  32  Co.    v.    Johnson,    123    Pa.    576;     16 

Tex.   Civ.   App.   47;    7*   S.  W.    105;  Atl.  799;  Bradford  Oil  Co.  v.  Blair, 

Trees  v..  Eclipse  Oil  Co.,  47  W.  Va.  113  Pa.  83;   4  Atl.  218. 

107 ;  34  S.  E.  933.  38*  §  204.      Washington   Nat.   Gas 

36  §  240.  Roberts  v.  Bettman,  45  Co.  v.  Johnson,  123  Pa.  576;  16  Atl. 
W.    Va.    143;    30    S.    E.    95;    Ward  799. 

V.    Tripple    State,    etc.,    Co.     (Ky.),  so  Heller   v.  Dailey,   28   Ind.  App. 

115  S.  W.  819;   34  Ky.  L.  Rep.  — ;  555;    63   N.   B.   490. 

Bettman    v.    Shadle,    22    Ind.    Ai)p.  4o  Washington    Nat.    Gas    Co.    v. 

542;  53  N.  E.  662.  Johnson,   123  Pa.  576;    16  Atl.  799; 

37  Ward  V.  Tripple  State  Nat.  Gas  Jackson  v.  O'Hara,  183  Pa.  233;  38 
&  Oil  Co.  (Ky.),  115  S.  W.  819;  Atl.  624;  Burton  v.  Forest  Oil  Co., 
34  Ky.  L.  Rep.  — .  204  Pa.  349;  54  Atl.  266;   Brecken- 

38  §§203,  206.  Fennel  v.  Guffey,  ridge  v.  Parrott,  15  Ind.  App.  417; 
139  Pa.  341;  20  Atl.  1048;  Dailey  44  N.  E.  66;  Woodland  Oil  Co.  v. 
V.  Heller,  41  Ind.  App.  379;  81  Crawford,  55  Ohio  St.  161 ;  44  N.  E. 
N.  E.  219;    Indiana  Nat.  Gas,  etc.,  1093. 


lessor's  remedy.  8G3 

§  768.     Breach  of  implied  covenants. 

Ill  an  instance  of  a  breach  of  implied  covenants  the  remedy 
of  the  lessor  is  by  a  declaration  of  forfeiture  and  a  suit  in 
equity  to  cancel  the  lease.  Sueli  an  instance  is  wlicre  tiie 
lease  contains  an  express  covenant  for  the  jiayment  of  rental 
commutation  money  as  indemnity  for  delay  in  development, 
but  contains  no  clause  providing  for  a  forfeiture  of  the  lease 
for  failure  to  pay  the  rental  or  commutation  money,  or  for 
failure  to  develop  the  premises.  In  such  an  instance  the  lessee 
cannot  refuse  to  make  the  explorations  and  hold  the  lease  for 
speculative  purposes,  but  must  develop  them  within  a  reason- 
able time,  or  pay  the  rental  or  eoiuuiutation  money. ^'  This 
cancellation  is  placed  upon  the  grounds  of  abandonment.  And 
if  the  lessee  develop  the  premises  by  finding  gas  in  paying 
quantities,  and  then  close  up  the  well  and  refuse  to  market 
it  and  pay  gas  rental  or  rental  for  the  right  to  develop  the 
land,  and  the  delay  is  for  an  unreasonable  time,  the  lease  will 
be  cancelled  by  a  court  of  efjuity  on  the  ground  of  abandon- 
ment.'*- Even  though  the  lessee  has  the  right  under  the  lease 
to  delay  development  of  the  premises,  yet,  if  there  be  wells 
on  adjoining  territory  producing  oil  or  gas  in  such  close 
proximity  as  to  produce  a  drainage  of  the  premises,  the  lessor 
may,  after  demand  and  notice  to  the  lessee  of  his  intention 
so  to  do,  refuse  to  accept  the  rent  and  apply  to  a  court  of 
equity  for  relief  by  specific  performance  or  cancellation  of 
the  lease,  and  relief  will  be  given  in  the  alternative ;  and  in 
extreme  cases  it  will  appoint  a  receiver  to  protect  the  premises 
by  making  the  necessary  developments."    If  the  necessity  for 

41  Guffey  V.  Hukill,  34  W.  Va.  49 ;  Venture  Oil  Co.  v.  Fretts,  152  Ta. 
11  S.  E.  5G7;  Allegheny  Oil  Co.  v.  451;  25  Atl.  732;  Smith  v.  Root,  66 
Snyder,  100  Fed.  704;  45  C.  C.  A.  W.  Va.  633;  00  S.  E.  1005. 
€04;  Bluestone  Coal  Co.  v.  Bell,  38  ^i  §  151.  Eastern  Oil  Co.  v.  Con- 
W.  Va.  297;  18  S.  E.  493;  Federal  lehan,  05  W.  Va.  531;  04  S.  E.  830; 
Oil  Co.  V.  Western  Oil  Co.,  112  Fed.  Oadberry  v.  Ohio,  etc.,  Gas  Co.,  102 
373;  Steelsniith  v.  Gartlan,  45  W.  Ind.  9;  67  N.  E.  257. 
Va.  27;  29  S.  E.  978;  Huggins  v.  '•3  Suit  v.  Hochstetter  Oil  Co.,  63 
Daley,  99  Fed.  606;  40  C.  C.  A.  W.  Va.  317;  61,  S.  E.  307;  Con- 
12;  Allegheny  Oil  Co.  v.  Snyder,  sumers'  Gas  Trust  Co.  v.  Worth, 
106  Fed.  704;  45  C.  C.  A.  GO;  Parish  103  Ind.  141;  71  N.  E.  489;  Con- 
Fork  Oil  Co.  V.  Bridgewater  (ias  sumers'  (las  Trust  Co.  v.  Chrystal 
Co.,  51   W.  Va.  583;   42  S.  E.  655;  Window    Glass    Co.,    163    Ind.    190; 


8G4 


OIL    AND    GAS. 


the  protection  of  the  premises  exist  l)y  their  development, 
or  by  further  development,  and  their  necessity  is  shown  by 
clear  proof,  this  riglit  of  the  lessor  to  have  further  develop- 
ment or  protection  of  his  lines  not  depending  upon  mere 
difference  of  opinion  between  him  and  the  lessee,  or  upon 
expert  evidence  as  to  the  necessity  for  protection  or  the 
development  of  the  land,  a  court  of  equity  will  assume  juris- 
diction to  enforce  specifically  the  implied  covenants  of  the 
lease  for  such  development  and  protection  of  the  lines,  and 
will  decree  a  cancellation  of  the  lease,  unless  within  a  given 
time  the  lessee  further  develops  or  protects  the  lines,  as  the 
case  may  be."     In   the  states  of  Ohio,*'^  Illinois,**'  Kansas,*^ 


70  N.  E.  306;  Indiana  Nat.  Gas  Co. 
V.  Leer,  34  Ind.  App.  61;  72  N.  E. 
283;  Elk  Fork  Oil  &  Gas  Co.  v. 
Foster,  99  Fed.  495;  39  C.  C.  A. 
615. 

44  Kleppner  v.  I^mon,  176  Pa. 
502;  35  Atl.  109;  Cofiinberry  v.  Sun 
Oil  Co.,  68  Ohio  St.  488;  67  N.  E. 
1069;  Kleppner  v.  Lemon,  197  Pa. 
430;  47  Atl.  353;  Monaghan  v. 
Mount,  36  Ind.  App.  188;  74  N.  E. 
579;  Kleppner  v.  Lemon,  198  Pa. 
581;  48  Atl.  483;  Jones  v.  Mount, 
166  Ind.  570;  77  X.  E.  1089;  Acme 
Oil  Co.  V.  Williams,  140  Cal.  681; 
74  Pac.  390;  Buffalo  Valley,  etc., 
Co.  V.  Jones,  75  Kan.  18;  88  Pac. 
537;  J.  M.  Guffey  Petroleum  Co.  v. 
Oliver  (Tex.),  79  S.  W.  884;  Powers 
V.  Bridgeport  Oil  Co.,  238  111.  397; 
87  X.  E.  381;  Brewster  v.  Lanyon 
Zinc  Co.,  140  Fed.  801;  72  C.  C.  A. 
213. 

This  rule,  howe^'cr,  is  no  longer 
followed  in  Pennsylvania,  where  it 
is  now  held  that  the  lessor  must 
allege  and  prove  that  the  lessee  was 
fraudulently  evading  the  implied 
covenants  of  his  lease.  Colgan  v. 
Forest  Oil  Co.,  194  Pa.  234;  45 
AU.  119;   75  Amer.  St.  695;  Young 


V.  Forest  Oil  Co.,  194  Pa.  243;  45 
Atl.  121 ;  and  the  same  rule  has  been 
adopted  in  West  Virginia.  Am- 
mons  V.  South  Penn.  Oil  Co.,  47  W 
Va.  610;  35  S.  E.  1004,  and  Har 
ness  V.  Eastern  Oil  Co.,  49  W.  Va, 
232;  38  S.  E.  662,  though  the  Su 
preme  Court  of  that  State  has  ex 
pressed  dissatisfaction  with  it.  Mc 
Graw  Oil  &  Gas  Co.  v.  Kennedy 
65   W.  Va.   595;    64   S.   E.    1027. 

The  case  of  Kleppner  v.  Lemon, 
176  Pa.  502;  35  Atl.  109,  Avas  prac- 
tically overruled  in  Colgan  v.  Forest 
Oil  Co.,  194  Pa.  234;  45  Atl.  119; 
75  Am.  St.  695,  and  in  Young  v. 
Forest  Oil  Co.,  194  Pa.  243;  45 
Atl.  121;  but  the  rule  announced 
at  first  was  followed  in  subsequent 
appeals  of  the  same  case.  Kleppner 
V.  T^mon,  197  Pa.  430;  47  Atl.  353; 
and  Kleppner  v.  Lemon,  198  Pa. 
581;  48  Atl.  483.  In  those  cases 
the  remedy  is  ordinarily  an  action 
for    damages. 

«  Cofiinberry  v.  Sun  Oil  Co.,  68 
Ohio  St.  488;  67  N.  E.  1069. 

-*o  Powers  v.  Bridgeport  Oil  Co., 
238  111.  397;   87  X.  E.  381. 

*-  Buffalo  Valley  Oil,  etc.,  Co.  v. 
Jones,  75  Kan.  18;  88  Pac.  537. 


LESSOR  S   KLMEDY, 


865 


Texas,*'*  aiul  iii  the  United  States  Circuit  Court  of  Appeals,*" 
it  is  held  that  a  court  of  ecjuity  will  enforce  both  implied  and 
express  covenants  of  the  lease  for  its  protection  and  develop- 
ment, or  Avill  cancel  the  lease  so  far  as  it  relates  to  the  luipro- 
tected  part  of  the  premises.  In  an  earlier  case,*"  the  Supreme 
Court  of  Ohio  held  the  remedy  for  a  breach  of  an  implied 
covenant  is  not  by  way  of  forfeiture  of  the  lease,  in  whole 
or  in  part,  but  by  an  action  for  damages  caused  by  its  breach. 
This  is  the  general  rule.^"  If  the  lease  provide  for  a  forfeiture 
for  a  failure  to  develop  it,  or  to  pay  a  cash  consideration  for 
delay,  upon  certain  stated  times,  this  will  not  authorize  a 
forfeiture  for  failure  to  operate  after  development ;  and  ' '  the 
remedy  is  for  a  breach  of  the  implied  covenants  to  reasonably 
operate  the  premises.  "°^    Where  the  lessee  agreed  to  develop 


*''*  J.  !^L  Guffey  Petroleum  Co.  v. 
Oliver    (Tex.),   79   S.   W.   884. 

48  Brewster  v.  I^inyon  Zinc  Co., 
140  Fed.  801;  72  C.  C.  A.  213. 
See  also  Kellar  t.  Craig,  126  Fed. 
630:  61  C.  C.  A.  366;  Doddridge 
County  Oil  &  Gas  Co.  v.  Smith, 
154  Fed.  970. 

<9  Harris  v.  Ohio  Oil  Co.,  57  Oliio 
St.    118;    48  X.  E.  502. 

50  Bradford  Oil  Co.  v.  Blair,  113 
Pa.  83;  4  Atl.  502;  Duffield  v. 
Rosenzweig,  150  Fa.  543;  24  Atl. 
705;  Blair  v.  Peck,  1  Penny  247; 
Harness  v.  Eastern  Oil  Co.,  48  W. 
Va.  232;  38  S.  E.  6G2;  Ammons 
V.  South  Penn.  Oil  Co.,  47  W.  Va. 
610;  35  S.  E.  1004;  Core  v.  New 
York  Petroleum  Co.,  52  W.  Va.  276 ; 
43  S.  E.  128;  McGraw  Oil  Co.  v. 
Kennedy,  65  W.  Va.  595;  64  S.  E. 
1029;  Kellar  v.  Craig,  120  Fed. 
630;  01  C.  C.  A.  300;  Doddridge 
Oil  Co.  V.  Smith,  154  Fed.  970; 
Allegheny  Oil  Co.  v.  Snyder,  100 
Fed.  764;  45  C.  C.  A.  60;  J.  M. 
Guffey  Petroleum  Co.  v.  Chaison 
Town  Site  (Tex.  Civ.  App.),  107 
S.  \V.  609. 


Bi  Harris  v.  Ohio  Oil  Co.,  57  Ohio 
St.  118;  48  X.  E.  502;  Core  v.  Xew 
York  Petroleum  Co.,  52  \\'.  Va, 
270;  43  S.  E.  128.  "We  have  fre- 
quently held  that,  where  there  is  no 
express  condition  roquirin:  addi- 
tional wells,  but  only  an  implied 
one,  this  wiii  not  forfeit.  I  have 
never  been  reconciled  to  the  doctrine 
that  for  failure  to  drill  additional 
wells  the  lessor  must  sue  at  law  for 
damages,  and  equity  will  not  cancel, 
unless  for  drawing  from  nearby  ter- 
ritory and  thus  exliaust  oil  in  the 
leasehold  involved.  I  have  asked: 
How  many  actions  must  the  land- 
owners bring?  How  can  damages  be 
measured?  How  can  we  see  into  the 
depths  of  the  earth?  But  it  has 
been  so  held,  the  reason  is  that 
equity  will  not,  as  a  rule,  enforce 
a  forfeiture  of  an  estate.  It  will 
not  especially  insert  such  a  clause 
when  the  parties  have  not  inserted 
it,  especially  when  they  did  insert 
forfeiture  for  failure  to  drill  or  pay 
commutation,  but  did  not  insert  for- 
feiture for  failure  to  drill  additional 
wells."  Judge  Brennan  in  ^^cGraw 
Oil  &  Gas  Co.  V.  Kennedy,  supra. 


866  OIL    AND   GAS. 

the  land  and  agreed  to  give  tlie  lessor  a  specified  royalty,  and 
subsequently  a  new  agreement  was  entered  into  between  the 
lessor  and  lessee  providing  for  the  operation  of  the  only  well 
on  the  property  and  limiting  it  to  one-sixth  of  the  output  of 
the  well's  capacity  on  account  of  the  low  basis  and  inadequate 
storage  facilities,  it  was  held  that  though  the  instrument 
referred  to  the  one  well,  it  was  intended  to  limit  production 
upon  the  whole  of  the  leased  premises  and  the  lessor  had 
waived  his  right  to  require  the  lessee  to  produce  larger  amounts 
therefrom  in  the  absence  of  conditions  rendering  it  necessary 
for  the  production  of  the  lease  from  drainage  by  wells  on 
adjoining  territory;  but  the  conditions  existing  which  required 
the  land  to  be  protected  by  putting  down  other  wells,  there 
was  an  implied  obligation  upon  the  lessee  to  use  reasonable 
diligence  to  protect  the  property,  which  bound  him  to  sink 
as  many  wells  as  the  exercise  of  due  diligence  and  care  should 
suggest  to  an  ordinarily  prudent  person  engaged  in  the  same 
undertaking  under  the  same  circumstances.^^ 

§  769.     Ten   acres   for   each   well — Failure  to   develop    after 
drilling  first  paying  well. 

A  contract  or  lease  gave  the  lessee  the  privilege  "^  to  take 
the  oil  and  gas  in  an  one  hundred  tract  of  land  with  a  cove- 
nant on  the  part  of  the  lessee,  to  put  down  a  well  every  ninety 
days  from  completion  of  the  first  one,  or  to  surrender  his 
rights,  on  all  the  land  "except  ten  acres  for  each  paying  well." 
He  drilled  five  paying  wells,  and  then  neglected  and  refused 
for  an  unreasonable  length  of  time  to  further  develop  the 
premises.     The  lessor  brought  an  action  to  quiet  his  title  to 

52  J.  M.   GufTey  Petroleum   Co.  v.  against   the   efTct  of   operations  on 

Chaison  Town  Site  (Tex.  Civ.  App. ),  adjoining     land,     it    was    error    to 

107  S.  W.  609.     A  recovery  was  al-  charge  that  a  failure  to  drill   such 

lowed   for   the    actual    damages    sus-  well    was    a    breach    of    an    implied 

taincd  by  the  failure  to  drill  other  covenant     imposing     a     liability     in 

wells  for  the  protection  of  the  prop-  damages,    in    the    absence   of   a   rea- 

erty.  sonable  excuse  therefor.     McKnight 

In  Pennsylv^ania  it  was  held  that,  v.  Manufacturers'  Nat.  Gas  Co.,  146 

in  an   action   against   a   lessee  who  Pa.    185:    23   Atl.    1G4;    28   Am.   St. 

had    drilled    one    paying   well    upon  790. 

the  premises,  for  not  putting  down  ■'■•^  The  court  said  it  was  an  "in- 
other  wells  to  protect  the  territory  corporeal    hereditament." 


lessor's  remedy.  8G7 

all  the  tract  except  fifty  acres,  but  the  court  held  lie  could 
not  maintain  such  an  action.  The  court  held  that  the  action 
did  not  lie  because,  as  the  grant  was  an  incorporeal  heredita- 
ment, there  was  no  re-entry  by  him  upon  the  unoccupied 
premises  and  he  remained  in  possession  tiiereof.  The  position 
of  the  landowner  was  stated  as  follows:  "lie  seeks  to  have 
restored  to  him  what,  by  the  instrument  in  (juestion,  lie 
granted  to  the  appellees  [the  lessees] — the  ownership  and 
right  to  take  the  oil  and  gas  under  the  land,  not  as  to  the 
entire  tract,  but  as  to  certain  parcels  thereof  described  in 
the  complaint,  on  which  it  is  alleged  the  appellees  have  failed 
to  drill  wells  as  required  by  the  contract.  It  is  not  sought 
to  cancel  the  entire  contract,  or  to  forfeit  the  entire  estate  or 
interest  created  thereby,  or  to  enforce  a  surrender  of  such 
entire  estate  or  interest.  A  suit  will  lie  to  quiet  the  title  of  an 
owner  of  land  as  against  a  claim  under  a  contract  purporting 
to  grant  the  oil  and  gas  under  its  surface,  with  the  right  to 
enter  for  the  purpose  of  seeking  and  taking  the  oil  and  gas, 
where  such  claim  is  unfounded  because  of  the  original  insuffi- 
ciency of  the  contract,  or  because  of  the  termination  ol"  the 
rights  and  interests  created  thereby  in  some  manner  recog- 
nizable as  sufficient  to  work  such  a  determination  of  such 
rights  and  interests.  To  enable  a  court  of  ecjuity  to  quiet 
title  to  land,  or  to  adjudge  the  forfeiture  of  an  interest  therein 
under  a  lease  or  a  grant,  or  to  enforce  a  conveyance  of  land, 
the  court  must  ascertain  and  describe  the  real  estate  with 
certainty  and  exactness.  The  complaint,  as  is  asserted  in 
argument  by  counsel  for  the  appellant,  describes  definitely 
certain  parcels  of  land  as  to  wliich  the  api)ellaiit  desires  to 
be  restored  to  the  rights  and  interests  therein  which  are 
granted  by  the  written  agreement,  but,  upon  the  whole  facts 
stated  in  the  pleading,  it  appears  that  these  delinite  parcels 
are  arbitrarily  selected  by  the  appellant ;  and,  if  it  could  be 
said  that  in  other  respects  he  is  entitled  to  any  relief,  the 
complaint  does  not  furnish  facts  which  would  enable  the  court 
to  describe  definitely  any  i)arcels  out  of  the  one  liundred  acres 
to  which  it  could  apply  the  relief.  The  contract  required  the 
party  of  tlie  second  part  to  complete  a  well  in  every  period 
of  ninety  days  from  the  completion  of  the  first  well,  if  it 
proved  to  be  a  paying  well,  or  to  surrender  the  lease,  excepting 
ten  acres  for  each  paying  well.     The  contract  did  not  further 


8G8  OIL    AND    GAS. 

describe  these  tracts  of  ten  acres  each,  which  were  to  be 
excepted  out  of  the  one  hundred  acres;  and,  without  a  suffi- 
cient description  thereof,  there  could  be  no  definite  description 
of  the  remainder  of  the  one  hundred  acres,  tlie  rights  of  the 
appellees  in  which  were  to  be  surrendered.  As  appears  from 
the  complaint,  and  the  plats  made  a  part  thereof,  it  is  manifest 
that  it  would  be  possible  to  bound  in  many  different  shapes 
ten-acre  tracts  on  each  of  which  would  be  one  of  the  five  wells 
already  drilled.""  "It  plainly  appears  that  the  appellees 
are  not  carrying  out  the  purposes  of  the  contracting  parties, 
and  that  the  appellant  [lessor]  is  suffering  loss  in  consequence 
of  the  conduct  of  the  appellees  [the  lessees].  The  appellant 
does  not  desire  to  drill  additional  wells  himself.  lie  may  be 
unable  to  do  so.  He  can,  however,  procure  the  drilling  by 
other  persons  and  thereby  obtain  an  increase  of  income  from 
his  land,  and  prevent  the  loss  of  oil  which  is  being  taken  on 
adjoining  land,  if  the  contract  with  the  appellees  and  their 
conduct  thereunder  did  not  stand  in  the  way.  The  grant  was 
made  subject  to  conditions  expressed  in  the  habendum.  The 
grantee  was  to  have  and  to  hold  'the  above  premises  on  the 
following  conditions,'  etc.;  and  the  understanding  of  the 
parties  was  stated  to  be  that  'all  conditions  between  the 
parties'  should  extend  'to  their  heirs,  executors  and  assigns.' 
The  second  party  covenanted  to  complete  a  well  every  ninety 
days  from  the  completion  of  the  first  well,  if  it  should  be  a 
paying  well,  or  to  surrender  the  lease,  excepting  ten  acres 
for  each  paying  w^ell.  It  is  true  that  in  an  action  for  damages 
for  breach  of  covenant  it  could  not  be  determined  how  much 
oil  could  be  obtained  from  the  additional  well  if  drilled;  but 
this  covenant  is  among  the  expressed  conditions  upon  which 
the  appellees  have  and  hold,  and  it  is  not  for  the  appellees  to 
say  that  it  cannot  be  known  that  oil  or  gas  will  be  reached  by 
drilling  a  well  upon  a  particular  tract  of  land.  Their  obliga- 
tion to  continue  to  drill  wells  was  fixed  when  the  first  well 
proved  to  be  a  paying  well.  For  the  purposes  of  their  con- 
tract, it  is  an  ascertained  fact  that  the  remainder  of  the  tract 
is   a  paying  field.     The   provision   in   question   expresses  the 

54  "The  case  of  Jones  v.  Mount,  30  insufficient  because   of   tlie   impossi- 

Ind.  App.  59;  63  N.  E.  798,  cited  by  bility   of    definitely   describing    any 

the  appellees,  seems  to   sustain  the  parcels  of  land  to  be  excepted  out  of 

conclusion  that  this  complaint  was  the  tract  of  100  acres." 


lessor's  remedy.  8G9 

obligation  of  the  appelk'cs  in  the  alternative,  thereby  devolv- 
ing upon  them  the  making  of  a  choice  as  to  the  course  to  bt; 
pursued  by  them.  It  is  their  duty  to  make  such  choice,  and 
pursue  one  or  the  other  of  the  alternative  courses  indicated. 
For  a  long  period,  however,  from  ninety  days  after  September 
10,  1900,  until  the  commencement  of  this  action,  about  two 
years  later,  the  appellant  presumably  had  been  accepting  his 
share  of  oil  from  the  five  wells,  and  silently  allowing  the 
appellees  to  abstain  from  further  development  or  the  surrender, 
provided  for  in  the  contract ;  and  the  contract  did  not  cer- 
tainly prescribe  how  many  wells  should  be  drilled,  or  designate 
exact  locations  for  any  wells.  It  would  be  e(iuital)le,  it  would 
seem,  that  the  appellant  should  make  a  demand  upon  the 
appellees  to  exercise  their  choice  before  resort  by  him  to  the 
court.  While  the  appellant,  having  neglected  to  insert  definite 
descriptions  in  the  contract,  may  not  arbitrarily  dictate  the 
outline  of  the  parcels  to  be  excepted  with  the  paying  wells, 
it  is  competent  for  the  appellees  to  do  so,  and  no  valid  objec- 
tion on  the  part  of  the  appellant  could  j5revent  them  from 
doing  so.  If  the  appellees  should  refuse  or  neglect  for  an 
unreasonable  time  after  demand  to  enable  the  appellant  to 
have  such  use  of  his  land  as  the  contracting  parties  contem- 
plated, and  should  for  such  reason  be  held  to  have  forfeited 
all  their  rights  and  interests  for  the  future  under  the  contract, 
their  great  loss  would  be  attributable  solely  to  their  own 
wrong.  "'^^  In  another  case  a  landowner  leased  eighty  acres 
for  exploration  and  development  of  the  oil  and  gas  thereon. 
The  contract  contemplated  that  eight  wells  might  be  drilled 
on  the  tract.  But  one  well  was  drilled,  and  the  lessor  brought 
suit  to  quiet  title.  The  contract  provided  that  "on  failure 
to  drill  any  of  these  wells  within  the  specified  time,  the  second 
party  [the  lessee]  shall  surrender  the  right  to  drill  on  all  of 
this  grant  excepting  ten  acres  for  each  well  drilled."  The 
first  paragraph  of  the  complaint  was  to  quiet  title  to  the  whole 
eighty  acres,  and  the  other  to  all  of  them  except  a  specific 
ten  acres  in  a  square  form  surrounding  the  well  completed. 
"Appellee,"  said  the  court,  "cannot  recover  under  either  of 

65  Monaghan    v.    Mount,    3G    Ind.  intending    to    render    a    decision    in 

188;   74  N.  E.  570.     The  court  con-  advance   of    presentation   and   argu- 

eludes  ilie  ojjinion  by  saying:     "We  ment  of  this  matter." 
will  not  be  understood,  however,  us 


870  OIL    AND    GAS. 

said  paragraphs  of  complaint,  because  the  provision  concern- 
ing a  surrender  is  so  far  uncertain  that  it  cannot  be  said  that 
the  failure  to  drill  the  remaining  seven  wells  per  se  entitled 
him  to  all  or  to  any  particular  portion  of  the  real  estate." 
The  landowner  contended  that  the  whole  contract  was  void 
for  uncertainty,  but  the  court  held  otherwise.  "It  is  obvious," 
said  the  court,  "that  such  a  case  as  this  does  not  fall  witiiin 
the  principle  of  that  class  of  cases  in  which  it  is  adjudged 
that  nothing  passes  by  the  deed  where  the  terms  are  so 
uncertain  that  the  intention  of  tlie  parties  cannot  be  ascer- 
tained. It  will  be  observed  that  the  contract  contains  a 
covenant  upon  the  part  of  the  grantee  to  surrender.  This, 
within  limits,  gave  the  grantee  the  power  of  selection,  and  the 
mere  fact  that  the  land  which  he  might  elect  to  reconvey  was 
originally  uncertain  does  not  prevent  an  enforcement  of  the 
undertaking  according  to  its  terms. "^"  "There  is  no  more 
legal  uncertainty  in  such  a  matter  as  this  than  there  is  in  the 
ease  of  a  w^ay  of  necessity,  where  the  reservation  is  implied 
as  resting  on  the  presumed  intention  of  the  parties.  The 
right  is  to  be  reasonably  exercised,  having  in  view  the  interests 
of  both  parties,  as  in  such  a  case  as  the  one  just  mentioned, 
and  if  it  becomes  necessary  the  reservation  will  be  located  by 
decree." "'  From  these  cases  it  is  clear  that  the  remedy  of  the 
lessor  in  such  an  instance  is  to  make  a  demand  upon  the 
lessee  to  proceed  and  develop  the  land  fully,  accompanied 
with  a  statement  that  unless  the  land  be  developed  within  a 
reasonable  time  the  lessor  would  apply  to  a  court  of  equity 
to  set  aside  ten  acres  surrounding  each  paying  well  and  to 
cancel  the  lease  as  to  remainder  of  the  leased  premises.^^ 

56  "The   principal    here   announced  Lane  v.  Allen,  162  111.  426;  44  N.  E. 

was    exhaustively    considered    upon  831;    1    Jones,    Real    Property    Con- 

the  authorities  in  Smith  v.  Furbish,  veying,  §  334." 

68  N.  H.  123;  41  Atl.  398;  47  L.  R.  s 7  Jones  v.  IMount,    106   Ind.   570; 

A.  226.     And  see,   also,  Gardner  v.  77  N.  E.  1080. 

Webster,  64  X.  H.  520;   15  Atl.  144;  ss  For   an    instance    where    it   was 

Dull  V.  Blum,  68  Tex.  299;   4  S.  W.  held   that   the   lease   should   be  can- 

489;    Nye   v.   Moody,   70    Tex.   434;  celled  as  to  the  undeveloped  part  of 

8  S.  W.   606;   Dohoney  v.  Womack,  the  leased  premises,  see   CofTinberry 

1    Tex.    Civ.    App.    354;     19    S.    W.  v.    Sun    Oil    Co.,    68    Ohio    St.    4S8; 

883;  20  S.  W.  950;  Waters  v.  Ben,  67  N.   E.    1069. 
52    N.    J.    Eq.    787;    29    Atl.    590; 


lessor's  remedy.  871 

§  770.     Measure  of  damages  for  breach  of  implied  covenant  to 
develop  or  operate. 

The  measure  of  tlaiuages  for  a  breach  of  an  implii'd  cove- 
nant to  develop  land  or  operate  it  after  deveU)pnu'nt  i.s  as 
follows :  Ascertain  how  much  more  oil  tlie  lessor  ought  to 
have  received  than  he  actually  did  receive,  and  the  value  of 
it  during  the  time  when  it  shoukl  have  been  delivered  to  him; 
from  this  deduct  the  cost  of  providing  what  ought  to  have  been 
produced  at  the  time,  under  the  circumstances,  and  with  the 
appliances  then  known ;  and  add  to  this  remainder  the  interest 
on  it  from  the  time  when  the  oil  ought  to  have  been  produced 
to  the  time  of  the  trial. ^^  If  the  lease  give  the  lessee  the 
exclusive  right  to  bore  on  the  premises  for  oil  or  gas,  and 
restrict  the  operations  to  certain  sites,  and  the  lessor  or  his 
grantee  drill  wells  on  the  leasehold  outside  of  the  sites  desig- 
nated in  the  lease,  the  lessee's  measure  of  damages  is  the 
difference  in  value  of  the  leasehold  before  and  after  the  injury 
was  committed.  The  damages  cannot  be  estimated  by  the 
amount  of  oil  or  gas  which  the  new  wells  might  drain  from  the 
old  wells,  the  proof  of  damages  upon  this  basis  being  imjirac- 
ticable  in  the  nature  of  the  case.*"* 

§  771.     Dclaration  of  forfeiture  after  waiver  has  been  made. 

If  there  has  been  a  Avaiver  by  the  lessor  of  a  forfeiture 
incurred  by  the  lessee,  the  former  cannot  declare  a  forfeiture 
because  of  such  act  of  forfeiture.  If  he  desires  to  terminate 
the  lease  he  must  give  notice  to  the  lessee  of  his  intention  to 
do  so,  which  must  be  given  a  sufficient  time  before  the  date 
for  declaring  a  forfeiture  as  will  enable  the  lessee  to  comply 
wdth  the  terms  of  the  lease.  If  no  well  has  been  drilled,  and 
that  is  the  reason  for  the  forfeiture,  then  sufficient  time  must 
be  given  to  drill  a  well ;  and  if  the  ground  is  that  no  develop- 
ment has  been  begun,  then  a  sufficient  time  must  be  given  to 
enable  him  to  enter  and  commence  explorations.  If  after 
notice  given  a  sufficient  time  has  elapsed  to  enable  the  lessee 

B9§§i04,  105,   106.     Bradford  Oil  oo  §  lofl.      Dumcld    v.    Rosonzwcig, 

Co.    V.    Blair,    113    Pa.    83;    4    Atl.  150   Pa.   543;    24   Atl.   705;    IhilTVpId 

218;  J.  ]M.  DufTey  Petroleum  Co.  v.  v.     Rosenzweig,     144     Pa.    520;     23 

■L liaison   Town   Site   Co.    (Tex.   Civ.  Atl.  4. 
App.),  107  S.  W.  GOO. 


872  OIL   AND    GAS. 

to  do  what  was  originally  necessary  to  be  done  to  prevent  a 
forfeiture  of  the  lease  and  the  lessee  still  remains  in  default, 
the  lessor  at  the  time  lixed  in  such  notice  may  declare  a 
forfeiture  and  terminate  the  lease  as  there  had  been  no 
waiver."^ 

§  772.     Paying  quantities. 

Elsewhere  has  been  discussed  whether  a  lease  would  or  would 
not  be  canceled  on  the  ground  that  it  was  not  producing  oil 
or  gas  in  paying  quantities.  If,  in  fact,  the  production  is  not 
sufficient  to  pay  a  profit  to  the  lessee  upon  the  exj^ense  of 
production  the  lessor  may  declare  a  forfeiture  and  recover 
possession  of  the  property  in  an  action  of  ejectment,  or  bring 
an  action  in  ecjuity  to  cancel  the  lease  as  a  cloud  upon  the 
title."-  If  the  premises  have  been  developed  in  part,  and  the 
lessee  refuses  to  develop  the  remainder,  and  such  remainder 
should  be  developed  to  protect  its  lines  from  drainage  through 
wells  on  adjoining  properties,  or  the  lessee  claims  his  right  to 
develop  such  remainder  on  the  ground  that  the  leased  prem- 
ises is  producing  oil  in  paying  quantities,  the  lessor  may,  after 
proper  notice  to  develop  them,  maintain  an  action  to  cancel 
the  lease  as  to  the  unprotected  or  undeveloped  remainder,  at 
least  upon  satisfactory  proof  that  the  failure  of  the  lessee  to 
drill  additional  w^ells  amounts  to  a  fraud  upon  him,  the  lessor.®^ 
"Where  a  lease  provided  for  a  definite  term  after  which  it  was 
to  continue  so  long  as  oil  or  gas  was  found  in  paying  quan- 
tities, and  it  contained  a  clause  that  if  any  w^ell  produced  gas 
in  sufficient  quantities  to  justify  marketing,  the  lessee  should 
pay  a  yearly  rental  for  each  well  so  long  as  gas  from  it  was 
sold,  it  was  held  that,  after  the  gas  rental  clause  becomes 
operative  hy  the  finding  of  gas  in  paying  (luantities  and  the 

01  §  182.     Steiner    v.    IMarks,    172  Miller-Sibloy    Oil    Co.,    5.3    W.    Va. 

Pa.  400;  33  Atl.  695;  Lynch  v.  Ver-  501;  44  S.  E.  433;  97  Am.  St.  1027; 

sailles  Fuel,  etc.,  Co.,  165  Pa.  518;  Barnsdall   v.   Boley,    119   Fed.    191; 

30  Atl.  984;   Consumers'  Gas  Trust  Bay   State   Petroleum   Co.   v.   Penn 

Co.    V.    Littler,    1G3    Ind.    320;     70  Lubricating   Co.,    121    Ky.    637;    87 

N.    E.   363;    Consumers'   Gas   Trust  R.  W.   1102;   27   Ky.   L.   Bep.   1133; 

Co.  V.  Worth,  163  Ind.  141;  71  N.  E.  Murdock-West  Co.  v.  Txtgan,  69  Ohio 

489;    Consumers'   Gaa  Trust   Co.   v.  St.  514;   69  N.  E.  984. 
Ink,  1G3  Tnd.   174:   71  N.  E.  477.  63  Young  v.    Forest   Oil    Co.,    194 

62  §§  134,  13.5.     Lowthor  Oil  Co.  v.  Pa.   243;    45  Atl.    1021. 


lessor's  remedy,  873 

marketing  of  it,  the  lease  not  provitling  that  the  lessee  may 
surrender  it  at  any  time  upon  the  payment  of  all  rentals  due, 
the  lessee  eannot  tei-minate  the  lease  without  tjiviuf;  notice  to 
the  lessor  of  his  intention  to  do  so;  and  the  lessor  could  recover 
the  gas  rental  up  to  the  time  of  surrender,  or  until  the  lease 
terminated  it  after  notice  of  his  intention  to  do  so."*  If  the 
lessor's  compensation,  in  such  an  instance,  is  a  royalty  of  the 
oil  produced  «nd  an  annual  rental  for  gas  sold  off  the  prem- 
ises, and  the  lessee  discovers  either  gas  or  oil  in  paying 
quantities,  after  the  expiration  of  the  fixed  period  and  after 
the  fact  that  oil  or  gas  is  not  being  found  and  produced  in 
paying  quantities  becomes  susceptible  of  (clear)  proof,  the 
lessor  may  terminate  the  lease  and  re-enter  or  recover  posses- 
sion by  an  action  in  ejectment.  In  such  an  instance,  the 
tenancy  as  to  the  surface  of  the  land  is  in  the  nature  of  a 
tenancy  at  wiil.'^^  If  gas  be  found  in  paying  quantities  under 
such  a  lease,  the  lessee  must  market  it  or  show  some  reason 
for  not  doing  so.  lie  is  not  re(iuired  to  market  the  gas  at  a 
loss,  but  only  at  a  reasonable  profit,  and  in  determining 
whether  it  could  be  so  marketed,  the  distance  to  market,  the 
expense  of  marketing,  and  every  circumstance  of  a  similar  kind 
should  be  taken  into  consideration.  If  he  discovers  gas  in 
paying  quantities,  he  cannot  shut  the  gas  in  and  hold  the  lease 
without  the  payment  of  the  rent  that  can  be  derived  from 
marketing  it,  or  the  gas  rental,  and  for  this  he  is  liable  to  the 
lessor."* 


§  773.     Forfeiture  by  abandonment. 

If  a  lease  contain  a  rental  clause,  but  is  silent  as  to  tlie  effect 
upon  the  lease  if  the  rent  be  not  paid,  the  failure  of  the  lessee 
either  to  pay  the  rent  or  to  enter  and  explore  for  oil  and  gas 
within  a  reasonable  time  will  empower  the  lessor  the  right  to  de>- 
clare  a  forfeiture  of  the  lease  upon  the  grounds  of  abandonment. 
A  court  of  equity  will  cancel  it  upon  the  presumption  tliat  tlie 
lessee  has  abandoned  it."^    If  the  exploration  by  tlie  lessee  has 

e*  §  134.     Double  v.  Union  Heat.,  Nat.   Gas  Co.,    1!)4   Pa.   72;    45   Atl. 

etc.,  Co.,  172  Pa.  388;   33  Atl.  G94.  64. 

65  Casscll     V.     Crotliers,     193     I'a.  o^  §  18G.    Smith  v.  Root,  60  W.  Va. 

359;   44  Atl.  446.  033;  00  S.  E.  1005;  Logansport,  etc., 

«8  §§  134,   250.      lams   v.   Carnegie  Caa  Co.  v.  Seegar,  105  Ind.  1;  74  N. 


874 


OIL    .\ND    GAS. 


proven  unsuccessful,  and  he  then  pliysically  abandons  the 
premises,  the  lessor,  after  a  reasonable  time  given  the  lessee 
to  re-enter  and  continue  his  explorations,  may  proceed  in  equity 
for  relief  by  alleging  the  entry  and  exploration  and  failure 
to  find  oil  or  gas  and  the  subsequent  physical  abandonment  of 
the  premises,  and  upon  proof  of  these  facts  the  court  will 
presume  that  the  lessee  has  abandoned  the  search  and  will 
cancel  the  lease.**®  If  the  lease  specifies  the  test  that  shall 
be  made,  and  provides  for  no  other,  and  the  lessee  enters 
and  makes  such  test,  which  proves  unsuccessful,  and  then 
physically  abandons  the  premises,  not  returning  within  a 
reasonable  time  or  not  resuming  operations,  on  proof  of  actual 
cessation  of  search  it  need  not  be  shown  that  the  intention  of 
the  lessee  was  to  abandon  the  premises,  because  the  lessee  has 
performed  what  the  express  terms  of  the  lease  provided  for, 
and  his  intentions  are  shown  by  the  proof  of  his  acts.''***  If, 
after  discovering  oil  or  gas,  the  lessee  fails  to  operate  the 
well,  the  lessor,  after  giving  him  a  reasonable  time  within 
which  to  operate,  may  declare  the  lease  forfeited  and  bring 
his  action  in  a  court  of  equity  to  cancel  it.®**    If  it  contains  a 


E.  500;  151uestone  Coal  Co.  v.  Bell, 
38  W.  Va.  297;  18  S.  E.  493;  Buf- 
falo Valley  Oil  &  Gas  Co.  v.  Jones, 
75  Kan.  18;  88  Pac.  537;  Crawford 
V.  Richie,  43  W.  Va.  252;  27  S.  E. 
220;  Florence  Oil,  etc.,  Co.  v.  Mc- 
Cumber,  38  Colo.  3CG;  88  Pac.  265; 
Tennessee,  etc.,  Co.  v.  Brown,  131 
Fed.  G9G;  05  C.  C.  A.  524;  Mur- 
ray V.  Graham,  117  La.  1023;  42 
So.  489;  Ivogan  Xat.  Gas,  etc.,  Co. 
V.  Great  Southern  Gas  Co.,  12G  Fed. 
623;  Gl  C.  C.  A.  350;  Kimball  Oil 
Co.  V.  Keeton  (Ky.),  101  S.  W.  887; 
31  Ky.  L.  Rep.  146;  Flannagan  v. 
Marsh  (Ky.),  105  S.  W.  724;  32 
Ky.  L.  Rep.  184;  Federal  Oil  Co.  v. 
Western  Oil  Co.,  121  Fed.  G74 :  57 
C.  C.  A.  428;  Mills  v.  Hartz,  77 
Kan.  218;  94  Pac.  142;  Mcintosh 
V.  Robb,  4  Cal.  App.  484;  88  Pac. 
517. 

68  §  186.     Steelsmith    v.    Gartlan, 
45  W.  Va.  27;   29  S.  E.  987;   Ohio 


Oil  Co.  V.  Detamoro,  165  Ind.  243; 
73  X.  E.  006 ;  Parish  Fork  Oil  Co.  v. 
Bridgewatcr  Gas  Co.,  51  W.  Va. 
583;  42  S.  E.  655;  59  L.  R.  A. 
566;  Federal  Betterment  Co.  v. 
Blaes,  75  Kan.  69;  88  Pac.  555; 
Lowther  Oil  Co.  v.  Miller-Sibley  Oil 
Co.,  53  W.  Va.  501;  44  S.  E.  433; 
Foster  v.  Elk  Fork  Oil  &  Gas  Co., 
00  Fed.  178;  32  C.  C.  A.  560;  af- 
firming 84  Fed.  839;  Calhoun  v. 
Xcely,  201  Pa.  97;  50  Atl.  967; 
Suit  V.  Hochstetter  Oil  Co.,  63  W. 
Va.  317;    Gl   S.  E.  307. 

Gs*§141.  Steelsmitli  v.  Gartlan, 
45  W.  Va.  27:   20  S.  E.  987. 

60  §  141.  Heintz  v.  Shortt,  149 
Pa,  286;  24  Atl.  316. 

In  Indiana,  if  the  lessor  accept 
rental  for  failure  to  develop  the 
leasehold,  he  cannot  declare  a  for- 
feiture during  such  period;  but  he 
may,  at  the  next  rental  period,  de- 
cline to  accept  the  rent  and  demand 


LESSOR  S   REMEDY. 


87i 


rental  clause,  but  is  silent  as  to  the  eU'ect  of  non-payment  of  the 
rent  at  maturity,  and  the  lessee  has  not  actually  entered  on 
the  land  to  develop  it,  llie  lessor  may  institute  a  proeeedinp 
to  cancel  the  lease  on  the  ^M-ound  of  abandonment  or  relin- 
quishment which  then  becomes  a  mere  matter  of  intention, 
and  this  intention  may  be  established  by  jjroof  of  such  faets 
and  circumstances  as  evidence  a  voluntary  waiver  of  iiis 
rights.'"  Where  the  lessee  has  actually  entered  and  physically 
abandoned  the  premises,  the  proof  of  such  acts  shows  his 
intention  to  abandon  his  rights  under  the  lease;  but  if  he  has 
not  entered  and  assumed  physical  possession,  then  his  intention 
to  abandon  must  be  established  by  such  facts  and  circum- 
stances as  show  a  voluntary  waiver  or  relin(|uishment  of  his 
rights.'^^  If  the  lease  be  owned  by  several  lessees,  a  majority 
of  them  may  agree  to  commence  developments  within  a  certain 
time,  and  if  they  make  default,  the  lessor  may  declare  and 
enforce  a  forfeiture  of  the  whole  lease.'^-  Even  though  a 
lease  does  not  provide  that  a  failure  to  pay  the  rental  shall 
work  a  forfeiture,  yet  the  lessor  may  proceed  for  the  rental 
due,  and  upon  failure  to  recover  it,  he  may  declare  the  lease 
forfeited." 


that  the  leasehold  be  developed ;  and 
if  the  lessee  does  not  enter  within 
a  reasonable  time  and  begin  opera- 
tions, he  may  declare  a  forfeiture 
and  procure  a  cancellation  of  the 
lease.  Dill  v.  Fraze,  109  Ind.  5.3; 
70  N.  E.  971. 

70  Smith  V.  Root,  60  W.  Va.  033; 
66  S.  E.   1005. 

71  Smith  V.  Root,  66  W.  Va.  633 ; 
66  S.  E.  1005;  Steelsmith  v.  Cart- 
Ian,  45  W.  Va.  27;   29  S.  E.  978. 

72  §  140.  Hooks  V.  Forst,  105  Pa. 
238;   30  Atl.  S40. 

73  §  156.  Marshall  v.  Forest  Oil 
Co.,   198  Pa.  83;   47  Atl.  927. 

That  a  lease  maj-  be  cancelled  by 
a  court  of  equity  for  failure  to  de- 
velop the  leased  premises,  see  Hukill 
V.  GufTey,  37  W.  Va.  425;  16  S.  E. 
544;  Brewster  v.  Lanyon  Zinc  Co., 
140  Fed.  801;  72  C.  C.  A.  213; 
Gadberry    v.    Oiiio   &    Indiana    Con- 


solidated Gas  Co.,  162  Ind.  9;  07 
X.  E.  259;  62  L.  R.  A.  895;  :^run- 
roc  V.  Armstrong,  96  Pa.  307;  Fos- 
ter V.  Elk  Fork,  etc.,  Co.,  90  Fed. 
178;  32  C.  C.  A.  560;  Federal  Oil 
Co.  V.  Western  Oil  Co.,  112  Fed. 
373. 

"Where  there  has  been  a  cause  of 
forfeiture,  followed  by  an  entry  upon 
the  part  of  the  grantor,  so  that  the 
title  has  been  lost,  it  is  not  strirtly 
the  enforcing  of  a  forfeiture  for  a 
court  of  equity  to  declare  a  cancel- 
lation of  the  in-:truniciit.  [Citing 
^r.CIi'llan  V.  Cofiin,  9.3  Ind.  450,  and 
Hirniingliani  v.  Treason,  77  y.c  191. ] 
But  even  in  a  case  of  this  kind, 
where  the  circumstances  do  not  ju-r- 
mit  of  an  entry,  the  forfeiture  may 
be,  in  efTect,  enforced  by  suit  in 
equity.  Forfeitures  are  usually 
against  conscience,  and  without 
equity,   and  it   is   for   these   reasons 


876 


OIL   AND    GAS. 


§  774.     Landowner 's  remedy  for  unlawful  extraction  of  oil 
and  gas. 

Oil  and  <ras  in  i)laee  are  a  part  of  the  land,  and  their 
unlawful  extraction  by  one  lawfully  in  possession  is  waste, 
and  by  one  not  lawfully  in  possession,  trespass.'^  To  prevent 
this  unhiwful  extraction  a  court  of  equity  will  enjoin  those 
making    it,    ujx)!!    the    ground    of    irreparable    injury."'      A 


that  courts  of  clianccry  ordinarily 
refuse  relief  in  such  cases,  but  an 
exception  to  the  rule  must  exist 
where  it  he  against  equity  to  permit 
the  defendant  to  longer  assert  his 
title.  .  .  .  And  tlie  completion 
of  the  first  well,  having  cut  oil'  tlie 
liquidated  damages  of  one  dollar  per 
day  for  non-comi)letion,  and  that  no 
gas  has  been  disposed  of  off  the 
premises,  there  remains  no  measure 
of  damages,  for  while  the  damages 
would  be  substantial,  they  would  be 
speculative.  [Citing  Foster  v.  Elk 
Fork,  etc.,  Co.,  90  Fed.  178;  32 
C.  C.  A.  5G0;  Federal  Oil  Co.  v. 
Western  Oil  Co.,  112  Fed.  373.]  The 
lack  of  any  other  remedy,  and  the 
danger  that  the  gas  might  be  with- 
drawn from  the  wells  or  other  lands 
makes  a  case  of  this  kind  appeal  to 
the  conscience  of  the  chancellor,  and 
calls  upon  him  to  enforce  the  in- 
curred forfeiture  by  removing  the 
cloud  from  tlie  title."  Gadberry  v. 
Ohio  &  Indiana,  etc..  Gas  Co.,  162 
Ind.  9;  07  N.  E.  259;  62  L.  R.  A. 
895. 

'■*  Williamson  v.  Jones,  39  W.  ^'a. 
23];  19  S.  E.  ,43.6;  IMurray  v.  All- 
red,  lOO  Tenn.  100;  43  S.  W.  355; 
66  Am.  St.  740;  Williamson  v. 
Jones,  43  W.  Va.  562;  27  R.  E.  411; 
Duffield  v.  Hue,  136  Pa.  602;  20  Atl. 
526;  South  Penn.  Oil  Co.  v.  V^c- 
Intire,  44  W.  Va.  296;  28  S.  E.  922; 
Westmoreland  Xat.  Gas  Co.  v. 
DeWitt,  130  Pa.  325;  18  Atl.  724; 
Wilson  V.  Yost,  43  W.  Va.  826;   28 


S.  E.  781;  Haskell  v.  Sutton,  .53  W. 
Va.  200:  44  S.  E.  533;  Suit  v.  Hoch- 
stetter  Oil  Co.,  63  \V.  Va.  317;  01 
S.  E.  307;  Moore  v.  Jennings,  47 
\V.  Va.  ISl:  34  S.  E.  792;  Blakley 
v.  Marshall,  174  Pa.  425;  34  Atl. 
504;  Freer  v.  Davis,  52  W.  Va.  35; 
43  S.  E.  172;  Marshall  v.  Mellon, 
179  Pa.  371;  »0  Atl.  201;  .35  L.  R. 
A.  210;  Isam  v.  Rex  Crude  Oil 
Co.,  147  Cal.  659;  82  Pac.  317; 
Rettman  v.  Harness,  42  \V.  Va. 
433;  26  S.  E.  271 ;  Pre.ston  v.  White, 
57  W.  Va.  278;  50  S.  E.  236; 
Detlor  V.  Holland,  57  Ohio  St.  492; 
49  N.  E.  090;  40  L.  R.  A  266; 
Stoughton's  Appeal,  88  Pa.  198; 
Lanyon  Zinc  Co.  v.  Freeman,  68 
Kan.  691;  75  Pac.  995;  Poe  v. 
Ulrey,  233  111.  50;  84  N.  E.  40; 
Hughes  v.  United  Pipeline,  119 
N.  Y.  423;   23  N.  E.  1042. 

75  Bettman  v.  Harness,  42  W.  Va. 
423;  26  S.  E.  271;  Murray  v.  All- 
red,  100  Tenn.  100;  43  S.  W.  .355; 
66  Am.  St.  740;  Williamson  v. 
Jones,  39  W.  Va.  231;  19  S.  E.  430; 
Williamson  v.  Jones,  43  W.  Va.  502; 
27  S.  E.  411;  Haskell  v.  Sutton, 
5.3  W.  Va.  206;  44  S.  E.  533;  Di:f- 
field  V.  Hue,  130  Pa.  602;  20  All. 
526;  Moore  v.  Jennings,  47  W.  Vi. 
181;  34  S.  E.  279;  Isam  v.  Erx 
Crude  Oil  Co.,  147  Cal.  659;  82 
Pac.  317;  Detlor  v.  Holland,  57 
Ohio  Ft.  492;  49  X.  E.  090:  -11 
L.  R.  A.  266;  Lanyon  Zinc  Co.  v. 
Freeman,  08  Kan.  091;  75  Pac.  995. 


lessor's  remedy.  877 

reinaiiulerinan  has  the  same  remedy,  even  tlioui^li  tlie  life 
tenant  has  granted  a  lease  iiiidei-  which  the  defeiidaiit  is  oper- 
ating.'" But  a  court  of  e(|uity  will  not  settle  the  title  and 
boundaries  of  oil  land  as  between  either  the  claimants  to  the 
title  or  the  claimants  of  conflicting  oil  leases  matie  by  tin; 
respective  claimants,  if  the  (piestion  of  title  be  one  of  law; 
but  it  will  restrain  the  production  and  marketing  of  the  oil 
or  gas  pending  proceedings  at  law  to  settle  the  question  of 
title."'  If  there  be  no  controversy  as  to  the  facts  in  relation 
to  the  title  and  it  is  one  of  law,  a  claimant  of  an  oil  or  gas 
lease  may  maintain  a  bill  for  injunction  and  a  receiver  against 
an  adverse  claimant  to  the  title  and  an  adverse  lessee.^"*  And 
if  there  be  a  dispute  concerning  the  boundary  line  between 
oil  or  gas  tracts,  a  lessee  of  one  may  maintain  a  bill  in  eciuity 
to  settle  the  line  as  against  the  lessee  of  the  other  claimant, 
"wbere  he  alleges  that  the  defendant  lessee  is  drilling  across 
the  line  upon  the  premises  included  in  his,  the  plaintiff's,  lease. 
In  such  an  instance,  all  claimants,  the  lessors  and  the  lessees 
under  all  leases  and  those  interested  with  them  must  be  made 
defendants.'^^  If  oil  or  gas  wells  exist  on  a  tract  of  land,  and 
a  person  be  given  a  life  estate  therein,  he  is  entitled  to  the 
oil  or  gas,^"  and  he  may  maintain  an  action  in  e(iuity  for  an 
accounting  of  the  royalties  due  him.®^  Of  course,  the  owner 
of  land  leasing  it  may  maintain  a  suit  in  eciuity  for  an  account- 
ing of  the  royalties.  A  tenant  for  life  may  not  open  wells  and 
take  out  oil  or  gas,  and  if  he  do  and  has  converted  it  to  his 
own  use,  he  has  no  right  to  have  these  proceeds  invested  so 
that  he  may  have  the  interest  thereon  during  his  life  estate, 
for  such  proceeds  goes  at  once  to  the  next  vested  estate  of 

76  Williamson  v.  Jones,  39  W.  Va.  ts  Suit  v.  Ilnchstcttpr  Oil  Co.,  G3 
231;    19   S.   E.   436;    Williamson   v.       W.  Va.  317;   61   S.  E.  30". 

Jones,    43    W.    Va.    562;    27    S.    E.  ■;•  Moore   v.  Jenninpa,   47   W.   Va. 

411;   Haskell  v.  Sutton,  53  W.  Va.  181;    34   S.    E.   7<)3. 

206;  44  S.  E.  533;   South  Penn.  Oil  so  §  263.     Woodburn's  Estate,   138 

Co.   V.    Mclntire,    44    W.    Va.    296;  Pa.  606;  21  Atl.  16;   Koen  v.  Bart- 

28    S.   B.  922;    Stougliton's   Appeal,  lett,    41     W.    Va.    559;     23     S.    E. 

88  Pa.  198:  Blakley  v.  Marshall,  174  664;    31    L.   R.  A.    128. 

Pa.    425;    34    Atl."  564;     Wilson    v.  8i  §  268.     Wilson  v.  Vou'^t,  43  W. 

Youst,    43    W.    Va.    826;    28    S.    E.  Va.   826;    28    S.   E.    78;    Hlakloy  v. 

781.  Alarshall,  174  Pa.  425;  34  Atl.  564. 

77  Freer  v.  Davis.  52  W.  Va.  1 ; 
43  S.  E.  164:  Freer  v.  Davis,  52 
W.  Va..  35;  43  S.  E.   172. 


878  OIL    .VND    GAS. 

inheritance,  and  the  owner  of  sueh  vested  estate  may  maintain 
a  l)ill  in  e'luity  against  such  life  tenant  for  an  aecounting.'*- 
If  a  trespasser  or  other  wrongdoer  take  oil  from  the  land, 
he  does  not  acquire  title  thereto,  and  the  owner  of  the  land 
may  pursue  and  reclaim  it  wherever  he  can  find  it.^^ 

§  775.     Trespass — Void  lease — Receiver. 

If  a  person  enters  upon  land,  witliout  authority,  or  under 
a  void  lease,  drills  a  well  or  wells  thereon,  takes  oil  or  gas 
therefrom,  removes  it  from  the  premises,  and  threatens  to 
drill  other  Avells  and  take  the  oil  or  gas  produced  therefrom, 
a  court  of  equity  will  perpetually  enjoin  him  from  all  opera- 
tions, even  under  such  void  lease,  and  will  proceed  to  a  final 
determination  of  all  the  matters  at  issue  therein,  although 
the  plaintiff  ma}^  have  a  remedy  at  law  against  the  wrong- 
doer for  the  trespass.''*  So  a  lessor,  who  has  not  even 
developed  the  land  or  taken  physical  possession  of  it,  has  such 
an  inchoate  interest  in  such  land  as  enables  him  to  maintain 
proceedings  for  an  injunction  to  prevent  a  wrongdoer  from 
committing  waste  by  the  extraction  of  oil  and  gas.**^  A  court 
of  equity  will  cancel  a  void  lease  where  the  lessee  is  attempt- 
ing to  opei-ate  under  it,  and  will  enjoin  his  further  opera- 
tions.^** So  the  owner  of  land  across  which  a  railway  company 
has  an  easement  for  a  right  of  way  may  enjoin  the  sinking 
of  an  oil  or  gas  well  on  such  right  of  way,  where  it  will  tend 
to  diminish  the  flow  of  oil  or  gas  on  his  own  premises.^^     If 

82  §  268.  Williamson  v.  Jones,  43  &  Gas  Co.  v.  Kennedy,  Go  W.  Va. 
W.  Va.  562;   27  S.  E.   115.  595;    64   S.   E.    1027;    Steelsmith   v. 

83  §26.  Hughes  v.  United  Pipe-  Cxartlan,  45  W.  Va.  27;  29  S.  E. 
lines,  119  N.  Y.  42.3;  23  N.  E.  1042.  978;    Trees   v.    Eclipse   Oil    Co.,    47 

84  Haskell   v.   Sutton,   53    W.   Va.  W.  Va.  107:   34  S.  E.  933. 

200;   44  S.  E.  533;   Pyle  v.  Hender-  85  §  103.     Trees  v.  Eclipse  Oil  Co., 

son,   65  W.   Va.   39;    63   S.   E.  702;  47  W.  Va.  107;  34  S.  E.  93. 

Consumers'  Gas  Trust  Co.  v.  Amcr-  86  McGraw  Oil  &  Gas  Co.  v.  Ken- 

ican  Plate  Glass  Co.,  162  Ind.  392;  nedy,    65    W.    Va.    595;    64    S.    E. 

68    N.    E.    1020;    Lovvther    Oil    Co.  1027;    Huggins    v.    Daley,    99    Fed. 

V.  Miller-Sibley  Oil  Co.,  53  W.  Va.  60G;  40  C.  C.  A.  12;  Pyle  v.  Hender- 

501;     44    S.    E.    433;     Hyggins    v.  son,  65  W.  Va.  3Q;  63  S.  E.  762. 

Daley,    91)    Fed.    606;    40   C.    C.    A.  87  Consumers'    Gas    Trust    Co.    v. 

12;    Starn  v.   HufTman,   62   W.   Va.  American  Plate  Gla.ss  Co.,   1G2  Ind. 

422;    59    S.    E.    17G;    McGraw    Oil  392;   68  N.  E.  1030. 


lessor's  remedy.  S71) 

the  laiKiowiior  bring  an  action  to  ri-strain  a  jtci-son  operating 
under  a  void  lease,  and  to  cancel  it,  lie  should  make  all  persons 
affected  parties  thereto.  In  cases  of  extreme  Jieeessity  the 
court  will  appoint  a  receiver  to  protect  the  landowner's 
rights.*^ 

§  776.     Want  of  mutuality. 

If  no  valuable  consideration  be  jiaid  for  the  lease,  and  it 
does  not  bind  the  lessee  to  carry  out  its  covenants,  but  gives 
him  the  right  to  defeat  it  at  any  time  and  relieve  himself  from 
the  paj^ment  of  any  consideration  therefor,  the  lessor  may 
terminate  it  at  any  time  without  any  legal  proceedings  or 
formality  whatever,  for  it  does  not  create  any  estate  other 
than  the  mere  optional  right  of  entry.''"  The  execution  of  a 
second  lease,  the  death  of  the  lessor,  the  sale  of  the  i)roperty 
by  him,  or  its  sale  under  judicial  i)roceedings,  is  an  eflfeetual 
termination  of  the  lease. ''^  In  Kentucky,  if  the  lease  provide  that 
the  lessee  may,  by  the  payment  of  a  specified  sum,  surrender 
the  lease  at  any  time  and  be  relieved  of  all  o])ligations,  tiie 
lessor  may  also  terminate  the  lease  at  any  time  before  the 
lessee  enters  and  before  he  has  expended  any  money  in 
explorations.  After  entry  and  exploration  by  the  lessee  the 
lessor  may  revoke  the  lease  or  license  and  terminate  it  upon 
tender  or  payment  to  the  lessee  the  value  of  all  labor  done 
and  services  rendered  by  him  in  explorations."'-  If  the  terms 
of  the  lease  are  unfair,  unjust  and  against  good  conscience, 
the  lessor  may  declare  a  forfeiture  and  refuse  to  permit  the 

88  Suit  V.  Hochstetter  Oil   Co.,  03  etc.,  Co.  v.  Brown,  131   Fed.  (IDO;  0.5 

W.   Va.  317;    61   S.   E.  307.  C.  C.  A.  i524. 

90  §71.     Eclipse  Oil  Co.  v.  South  ai  Xational    Oil    &    riiiclino  Co.   v. 

Penn.  Oil  Co.,  47  W.  Va.  84;  34  S.  Teel.   n5   Tex.   5SG;    68   S.   W.   !)7i); 

E.  293;  Martel  v.  Jcnnings-Hej'wood  afRrniinfj  67   S.  W.  545;   Roberts  v. 

Oil    Co.,    114   La.   903;    38   So.   253;  MoFadden,    32    Tex.    Civ.    App.    47: 

Eclipse  Oil  Co.  v.  Garner,  53  W.  Va.  74   S.   W.   105;   Trees  v.   Eclipse  Oil 

151;    44  S.   E.   131;    Roberts  v.   Me-  Co.,   47   W.  Va.    107;   34  S.   E.  033; 

Fadden,   32   Tex.   Civ.   Ayip.   47;    74  Hodges  v.  Brice,  32  Tex.  Civ.  App. 

S.     W.     105;     Federal     Oil     Co.     v.  358;   74  S.  W.  5!)n;    Eclipse  Oil  ( ... 

Western  Oil  Co.,  112  Fed.  373;   Fed-  v.  Oarncr.  53  \V.  Va.   IT)!:   44  S.  E. 

eral  Oil  Co.  v.  Western  Oil  Co.,  121  131. 

Fed.  674;  57  C.  C.  A.  528;  Younp  v.  92.1.   M.  OufTey  Petroleum   Co.   v. 

Melllhenny    (Ky.),   116  S.   W.  728;  Oliver    (Ky.),  70  S.  W.  884. 
34   Ky.   L.   Rep.  — ;    Tennessee  Oil, 


880  OIL    AND    GAS. 

lessee  to  enter  and  cxploi-c  the  i)rt'inises  on  the  terms  of  the 
lease,  and  a  court  of  ('(|uity,  upon  suit  l)y  the  lessee,  will  not 
decree  specific  performance.^^ 

§  777.     Tenant  in  common  or  joint  tenant. 

If  a  joint  tenant,  or  tenant  in  common,  of  lands,  execute  an 
oil  and  gas  lease  for  the  entire  tract  of  land,  the  remedy  of 
his  co-tenants  is  by  bill  in  eciuity  for  an  injunction,  wherein 
they  may  recover  all  damages  they  have  sustained  by  the 
unlawful  extraction  of  oil  and  gas.'"  A  tenant  who  has 
received  royalties  under  a  lease  of  the  land  of  the  tenancy, 
may  be  required  to  account  to  his  co-tenants  for  their  share 
of  thera."^  If  one  joint  tenant  or  tenant  in  common  be  law- 
fully in  possession  and  claiming  title  to  the  whole  property, 
executes  a  lease  for  the  entire  property  under  which  the  lessee 
enters  and  produces  gas  and  oil  and  converts  the  working 
interest  to  his  own  use,  or  if  such  tenant  himself  develops  the 
premises,  his  co-tenants  may  enjoin  the  operations  and  recover 
their  proportion  of  the  production,  less  the  actual  cost  of 
production  and  development,  but  not  including  the  cost  of 
drilling  unproductive  wells."** 

§  778.     When  dry  hole  developed. 

If,  under  the  lease,  the  lessor  is  to  receive  a  percentage  of 
the  oil  as  a  royalty,  or  a  rental  for  such  w^ell  producing  gas 
(in  paying  quantities),  and  the  lessee  drills  one  or  more  dry 

93  Federal  Oil  Co.  v.  Western  Oil  ss  §  282.  Williamson  v.  Jones,  43 
Co.,  121  Fed.  674;  57  C.  C.  A.  528;  W.  Va.  502;  27  S.  K.  411. 
Waterford  Oil  &  Gas  Co.  v.  Ship-  96  §§  278,  279.  Williamson  v.  Jones, 
man,  233  111.  9;  84  N.  E.  53;  Great  43  W.  Va.  502;  27  S.  E.  411;  Stew- 
Western  Oil  Co.  V.  Carpenter,  43  art  v.  Tennant,  52  W.  Va.  559;  44 
Tex.  Civ.  App.  220 ;  95  S.  W.  57.  S.  E.  223 ;   McNeely  v.  Soutli  Penn. 

94  §  285.  Williamson  v.  Jones,  43  Oil  Co.,  58  W.  Va.  438;  44  S.  E. 
W.  Va.  562;   27   S.  E.  411.  508;  Pyle  v.  Henderson,  05  W.  Va. 

The  tenant,  not  joining  in  the  39;  63  S.  E.  620;  Wilson  v.  Youst, 
lease,  may  not  only  enjoin  tlie  43  W.  Va.  820;  28  S.  E.  781 ;  Eakins 
operations,  but  he  may  recover  his  v.  Hawkins,  48  W.  Va.  264;  37  S.  E. 
proportion  of  the  oil  and  gas  pro-  022;  Haskoli  v.  Sutton,  53  W.  Va. 
duced  by  the  lessee,  without  being  200;  44  S.  E.  533;  Headley  v.  Hoop- 
charged  with  any  cost  of  develop-  cngarner,  60  W.  Va.  026;  55  S.  Ek 
ment  or  production.  Zieglcr  v.  144. 
Brenneman,  237  111.  15;  86  N.  E. 
597. 


lessor's  remedy.  881 

wells,  and  thereafter  fails,  witliin  a  reasonable  time  to  con- 
tinue explorations  or  pay  tlie  land  rental  stipulated  for,  the 
lessor  may  declare  a  forfeiture  upon  the  ground  of  abandon- 
ment and  recover  possession  of  the  property,  or  he  may  bring 
a  suit  in  equity  to  cancel  the  lease.**^  The  landowner  may 
execute  a  new  lease  and  the  second  lessee  will  be  entitled  to 
secure  a  cancellation  of  the  first  lease  and  be  <iuieted  in  his 
title  and  possession  under  his  own  lease."" 

§  779.     Payment  of  rental  in  bank. 

If  the  rental  for  delay  is  payable  in  bank,  and  the  lessee 
fail  to  thus  make  payment,  the  lessor  may  declare  a  forfeiture 
of  the  lease;  and  if  he  do  so,  a  deposit  in  the  bank  by  the 
lessee  tliereafter  of  the  unpaid  rentals  will  not  revive  the  lease, 
and  the  lessor  or  the  second  lessor  may  procure  a  cancella- 
tion in  equity  of  the  lease,  upon  the  grounds  of  abandonment 
or  forfeiture  for  other  causes."" 

§780.     Life  tenant's  remedy. 

During  his  life  estate  in  lands  a  life  tenant  is  entitled  to 
interest  on  the  royalties  on  oil  received  and  on  rentals  on  gas 
taken  from  such  lands  after  such  life  estate  has  accrued ;  and 
he  may,  by  a  bill  in  equity,  have  his  rights  protected  and  his 
right  to  the  receipt  of  such  interest  quieted.'""     If  there  be 

»7  §  139.    Steelsmith  v.  Gartlan,  45  Oil  Co.  v.  Bridgewatcr  Gas  Co.,  51 

W.  Va.  27;  29  S.  E.  978;  Ziegler  v.  W.  Va.  583;  42  S.  E.  G55;  Lowtlier 

Dailey,  37  Ind.  App.  240;   7G  X.  E.  Oil  Co.   v.  Miller-Sibley  Oil   ("o.,  53 

819;     Lowther    Oil    Co.    v.    Miller-  W.   Va.   501;    44   S.   E.   433;    Barn- 

Sibley   Oil   Co.,   53  W.  Va.  501;    44  hart   v.   Lockw-ood,    152   Pa.   82;    25 

S.   E.   433;    Rawlings  v.  Armel,   70  Atl.  237;   Foster  v.  Elk  Fork  Oil  & 

Kan.  778;  79  Pae.  083;  Parish  Fork  Gas  Co.,  90  Fed.  178;   32  C.  C.  A. 

Oil  Co.  v.  Bridgcwater  Gas  Co.,  51  500. 

W.  Va.  583 ;  42  S.  E.  G55 ;  Florence  oo  Smith  v.  Root,  GG  W.  \a.  G33 ; 

Oil,    etc.,    Co.    V.    Ormer,    1!)    Colo.  CG   S.   E.   1005;    Puritan   Oil   Co.   v. 

App.  79;   73  Pac.  678;   Venture  Oil  ^tyers,  39  Ind.   App.  095;   80  N.  E. 

Co.  V.  Frctts,   152  Pa.  451;   35  Atl.  851. 

732;   Foster  v.  Elk  Fork  Oil  &  Gas  loo  Wilson    v.    Youst,    r.\    \V.    Va. 

Co.,  90  Fed.   178;  32  C.  C.  A.  560;  826;  28  S.  E.  781;   Eakins  v.  Ilaw- 

Aye   V.    Philadelphia    Co..    193    Pa.  kins,  52  W.  Va.  124;  43  S.  E.  211; 

451;  44  Atl.  655.  Ammons  v.  Amnions,  50  W.  Va.  390; 

ssSt-elsmith    v.    Gartlan,    45    W.  40   S.   E.   490;   Stewart  v.  Tennant, 

Va.  27;  29  S.  E.  978;  Parish  Fork  52  W.  Va.  559;   44  S.  E.  223. 


882  OIL   AND    GAS. 

■\vells  when  his  life  estate  arises,  the  life  tenant  is  entitled  to 
the  royalties  themselves  and  the  rental  for  gas  during  the 
continuance  of  his  estate;  and  a  court  of  e(|uity  will  protect 
liim  in  his  rights.     But  he  cannot  drill  additional  wells.^ 

§781.     Remainderman's  remedy. 

If  a  life  tenant  takes  out  gas  or  oil  by  drilling  wells  or 
leases  the  premises  to  another  who  drills  wells  and  takes  out 
gas  or  oil,  the  remainderman  may  enjoin  the  production  and 
recover  from  the  life  tenant  or  his  lessee  the  value  of  the  oil 
or  gas  so  taken  by  him.-  If  there  be  danger  the  lands  will 
be  drained  by  the  development  of  adjacent  lands,  so  much  so 
that  there  be  no  imperative  need  therefor,  the  remainderman 
may,  by  proceedings  in  equity,  secure  the  oil  or  gas  to  be 
produced,  or  otherwise  secured  for  their  protection,  where 
no  harm  will  be  done  to  the  life  tenant,  or  where  he  is  com- 
pensated. A  compensation  in  such  an  instance  for  the  life 
tenant  is  interest  on  the  royalties  or  gas  rentals  during  the 
continuance  of  the  life  estate.^ 

§  782.     Failure  of  lessee  to  begin  operations. 

If  the  lessee  does  not  begin  operations  within  the  time 
specified  in  the  lease,  and  it  provides  that  it  shall  be  null  and 
void  unless  a  well  be  commenced  within  that  time  and  com- 
pleted within  another  specified  time,  and  the  lessee  fails  within 
the  specified  time  to  begin  operations  in  good  faith  by  com- 
mencing to  drill  a  well  and  fails  to  comi)lete  it  within  the 
time  specified,  the  lessor  may  declare  a  forfeiture  and  maintain 
an  action  in  a  court  of  ef|uity  to  cancel  the  lease  and  quiet  his 
title. ^  If  the  lease  provide  that  the  lessee  must  commence 
operations  within  a  certain   time  and  within  a  certain  other 

1  ?  20.3.     Koen  v.  Bartlett,  41  W.  life  tenant  would  be  liable   for   the 

Va.  5.j0;  23  S.  E.  GG4 ;   5G  Am.  St.  oil  and  gas  his  lessee  e.xtractcd  from 

8S4;  31  L.  R.  A.  128.  the  lands. 

-  §  2G8.      Eakins    v.    Hawkins,    48  3  Williamson  v.  Jones,  43  W.  Va. 

W.  Va.  364;   37  S.  E.  622:   Stewart  5G3;   27  S.  E.  411. 

V.  Tennant,  52  W.  Va.  .559;  44  S.  E.  *  §  129.   Huggins  v.  Daley,  99  Fed. 

223;  Williamson  V.  .Jonr&,  43  W.  Va.  606;   40  C.   C.   A.   12;    48  L.   R.   A. 

503;   27   S.  E.  411:    Richmond  Xat.  320;   Dctlor  v.  Holland,  57  Ohio  St. 

Gas  Co.  V.  Davenport,  37  Iml.  App.  492;  49  N.  E.  690;  40  L.  R.  A.  266. 
25;    76   N.   E.   525.      No   doubt   the 


lessor's  remedy,  883 

time  complete  a  test  well,  upon  the  lessee's  l)ringiiig  a  suit  for 
possession  of  the  premises  or  in  e(|uity  for  an  injunction  against 
the  lessor,  the  latter  may  defeat  the  lessee's  action  by  sliowing 
a  non-compliance  with  the  terms  of  the  lease  in  this  respecl/ 

§  783.     Drainage  of  premises. 

If  a  landowner  drill  a  well  so  near  his  boundary  line  as  to 
drain  the  oil  or  gas  from  his  neighbor's  adjacent  land,  the 
latter  cannot  enjoin  him  or  recover  damages  because  of  the 
damage  to  his  land.  Ilis  only  remedy  is  to  drill  a  sufTicient 
number  of  olf-set  wells  along  the  line,  and  in  such  proximity 
as  he  may  desire,  to  protect  his  property  from  drainage." 
If  a  lessee  holds  leases  on  two  adjacent  tracts  of  land,  owiu'd 
by  different  persons,  he  cannot  develop  one  of  them  so  as  to 
drain  the  other.  If  he  does  so,  relief  in  ecjuity  will  be  afforded 
the  injured  owner;  '  but  he  may  drill  wells  on  one  tract  close 
to  the  line  of  the  other  and  draw  oil  or  gas  from  the  latter, 
if  he  drills  wells  on  such  other  land  for  its  protection,  or  in 
good  faith  endeavors  to  develop  them  in  the  performance  of 
his  duty  as  lessee.^ 

§784.    Landowner's' liability  for  injuries  caused  by  drilling- 
well  on  his  land. — Salt  water. 

If  a  landowner  drill  an  oil  well  on  his  land  from  which 
salt  water  escapes  to  the  injury  of  another,  he  may  defeat  a 
recovery  by  proof  that  the  use  of.  his  well  was  a  reasonable 
one,  that  he  exercised  due  care  to  avoid  the  injury,  that  he 
was  not  actuated  by  malice,  and  that  the  escape  of  the  salt 
water  was  necessary  to  the  enjoyment  of  his  well."  If  he 
penetrate  a  stream  of  clear  and  anotlier  of  salt  water  which 
mingle  and  injure  another  landowner's  spring  or  water  well, 
he  has  a  good  defense  if  he  had  no  knowledge  that  such  spring 
or  well  was  supplied  by  the  spring  of  clear  water  luiderlying 

5  Forney   v.   Word,   25   Tex.   App.  317;  49  X.  E.  .39!);  G3  Am.  St.  721; 

443;    02    S.    \V.    108;    Cleminger   v.  39  L.  R.  A.  7G5. 

Baden  Gas  Co.,  159  Pa.  IG;  28  Atl.  7§  101.     Barnard  v.  Monongalirla 

293.  Gas  Co.,  216  Pa.  362;   35  Atl.  801. 

«  §  102.    Barnard  v.  Monongahela  s  Barnard  v.  Monongalipla  Gas  Co., 

Gas  Co.,  216  Pa.  3G2;    65  Atl.  801;  21G  Pa.   3G2;    35   Atl.  801. 

Kelly  V.  Ohio  Oil  Co.,  57   Ohio  St.  »  Ohio  Oil  Co.  v.  \Vostf:ill,  43  Ind. 

App.  GGl;  88  N.  E.  354. 


884  OIL   AND    GAS. 

liis  land,  and  that  when  he  discovered  the  salt  and  fresh 
streams  of  water  he  made  use  of  the  means  available  to  him 
to  prevent  their  water  commingling,  or  by  showing  that  he 
could  not  prevent  the  commingling  of  the  water  at  a  reason- 
able outlay.'"  The  person  injured  by  the  commingling  of 
the  waters  may  recover  damages  by  alleging  and  proving  t^lat 
the  act  of  the  owner  was  malicious,  or  that  the  pollution  was 
not  necessary  to  the  enjoyment  of  the  well,  or  that  the  defend- 
ant did  not  exercise  due  care  to  avoid  the  injury,  or  that  he 
knew  the  neighboring  Avater  wells  were  supplied  by  a  stream 
of  clear  water  underlying  his  land  and  further  knew  that 
there  was  a  deeper  stratum  of  salt  water  when  penetrated 
would  likely  rise  and  mingle  with  fresh  water,  and  that  such 
defendant,  at  a  reasonable  outlay,  could  have  prevented  the 
commingling  of  the  water,  and  he  failed  to  use  the  means 
available  to  him  therefor,  or  that  the  expense  of  preventing 
the  damage,  though  large  in  actual  amount,  was  small  in  pro- 
portion to  the  gain  of  the  owner  of  the  well." 

§  785.    Enjoining  well  as  a  nuisancex 

The  operation  of  an  oil  well  will  not  be  enjoined  unless  it 
be  alleged  and  shovn  that  its  operation  will  endanger  the 
lives  of  persons  other  than  the  operators,  or  will  endanger 
the  plaintiff's  property  so  as  to  materially  lessen  its  \  alue. 
Mere  apprehension  of  injury  or  damages  is  not  sufficient.'-  If 
the  well  be  situated  near  a  public  highway  the  owner  will  be 
liable  to  a  person  injured  while  lawfully  using  such  highway, 
if  he,  the  owner,  fails  to  exercise  due  care  in  drilling  or 
operating  it  not  to  inflict  injury  upon  the  plaintiff  or  his 
property.^^ 


1"  Collins  V.  Chartiers  Valley  Gas  Bros.  v.  Bridgewater  Gas  Co.,  52  W. 

Co.,  131  Pa.   143;    18  Atl.   1012.  Va.    252;     43    S.    E.    87;    Tyner    v. 

11  Ohio  Oil  Co.  V.  Westfall,  43  People's  Gas  Co.,  131  Ind.  599;  31 
Tnd.  App.  GGl;  88  N.  E.  354:  N.  E.  61;  Windfall  Mfg.  Co.  v. 
Pfeiffer  v.  BrowTi,  165  Pa.  267;  30  i'atUison,  148  Ind.  414;  47  N.  E. 
Atl.  844;  44  Am.  St.  660;  Collins  v.  2;  02  Am.  St.  532;  37  L.  Pv.  A. 
Chai-tiers   Valley   Gas   Co.,    131    Pa.  38. 

143;   18  Atl.  1012.  i"- Snyder   v.   Pliiladelphia,  54   W. 

12  §  590.  :McGregor  v.  Camden,  47  Va.  149;  4G  S.  E.  3G6;  102  Am.  St. 
W.   Va.    193;    34    S.    E.   93G;    Pope  941;   63  L.  R.  A.  896. 


lessor's  remedy.  885 

§  786,     Malicious  or  negligent  waste  of  gas. 

A  person  who  is  operating  in  the  same  fiehl  may  he  enjoined 
by  the  owner  of  a  well  therein  if  he  malieiously  or  negligently 
wastes  oil  or  gas  from  the  common  reservoir.'*  And  if  the 
owner  of  a  Avell  al)andons  a  well  and  fails  to  elose  it  when 
gas  (or  even  oil)  is  escaping  in  large  (luantities  from  a  reser- 
voir, to  the  injury  of  another  whose  well  draws  gas  (or  even 
oil)  from  the  same  reservoir,  he  is  liable  in  damages,  and  the 
measure  is  the  difference  at  the  point  wiiere  taken  between  the 
value  of  the  natural  flow  and  that  of  the  diminished  flow 
directly  attributable  to  the  wrong.'^ 

§  787.     Reservation  of  oil  or  gas. 

The  vendor  of  land  reserving  the  oil  and  gas  underlying  it 
is  the  owner  of  such  oil  and  gas,  and  he  may  lease  or  convey 
such  oil  or  gas,  and  the  grantee  or  lessee  will  have  the  right 
to  enter  upon  the  premises  and  mine  therefor,  subject  only  to 
the  royalty  or  gas  rental  agreed  upon,  if  any.  Such  owner, 
or  his  grantee  or  lessee,  may  enjoin  the  surface  owner  from 
interfering  with  his  right  to  the  legitimate  use  of  the  surface 
for  mining  and  removing  such  oil  or  gas.^®  The  grantee  of 
the  surface  cannot  prevent,  by  injunction,  the  person  so 
reserving  the  oil  or  gas,  or  his  grantee  or  lessee,  from  entering 
upon  his  land  and  mining  the  oil  or  gas  reserved ;  nor  can  he 
recover  damages  because  of  such  entry  and  mining  opera- 
tions.^^    In  an  instance  of  such  severance  of  the  surface  and 

i<  Hague  V.  Wheeler,  157  Pa.  3*24 ;  for  tlie  reservation  of  "all  minerals" 

27    Atl.   714;    37    Am.   St.   736;    22  under   or   in   the    land    conveyed    is 

L.  R.  A.   141;   Calor  Oil  &  Gas  Co.  not   enough   to    reserve   the  oil    and 

V.  FranzcU,  128  Ky.  715;  109  S.  W.  gas  therein.     Detlor  v.   Holland,  57 

328;  33  Ky.  L.  Rep.  98.  Ohio  St.  492;   49  X.  E.  G90;   40  L. 

15  Louisville  Gas  Co.  v.  Kentucky  R.  A.  2GG;  McKinney's  Heirs  v.  Cen- 

Heating  Co.   (Ky.),  HI  S.  W.  374;  tral,    etc.,    Co.,    134    Ky.    239;     120 

33    Ky.    L.    Rep.    912;     Talbott    v.  S.  W.  314;   Silver  v.  Bush,  213  Ta. 

Southern   Oil    Co.,    GO   W.   Va.    423;  195;   G2  All.  832;    Dunham  v.  Kirk- 

55  S.  E.  1009.  Patrick,    101    Pa.   3G;    47    Am.    lU-p. 

10  §  305.    Porter  v.  Mack  Mfg.  Co.,  GOG.     But  see    §  304. 
65  W.  Va.  636;  64  S.  E.  853.  it  Kiscr    v.    McLean,    67    W.    Va. 

Care  must  be  observed,   however,  294 ;   67   S.   E.  725 ;   .Jackson  v.  Du- 

to    determine    whether    or    not    the  lancy,  G7  W.  Va.  309;  G7  S.  E.  795; 

oil   and  gas  was  actually   reserved;  Lillibridge  v.  Lackawanna  Coal  Co., 


886  OIL    AND   GAS. 

the  oil  and  gas  the  statute  of  limitations  does  not  begin  to 
run  in  favor  of  the  owner  of  the  surface  under  a  claim  of 
possession  of  the  oil  and  gas  thereunder  until  he,  such  surface 
owner,  has  taken  physical  possession  of  the  oil  and  gas.'^  If 
the  surface  owner  ])roceeds  to  mine  the  oil  or  gas,  the  person 
reserving  it,  or  his  grantee  or  lessee,  may  maintain  a  bill  in 
equity  to  enjoin  him."*  A  sale  of  the  land  for  taxes  in  which 
such  a  reservation  lias  been  made,  even  where  it  is  assessed 
in  the  name  of  tlie  surface  owner  only,  carries  title  to  the  oil 
and  gas  reserved  to  the  purchaser  at  such  tax  sale/"*  Oil  or 
gas  underlying  land  may  be  abandoned,  and  in  a  suit  between 
conflicting  claimants  one  party  may  always  show  the  other 
had  abandoned  it.-° 

§  788.     Several  tracts  under  one  lease. 

In  Ohio,  if  the  owners  of  separate  tracts  of  land  join  in 
one  lease  of  all  of  them  for  a  joint  or  single  royalty  of  the 
oil  or  gas  rental,  the  owner  of  one  of  such  separate  tracts  may 
recover  from  the  lessee  the  royalty  or  gas  rental  produced  on 
his  tract,-'  and  in  "West  Virginia,  one  of  the  owners  may  file 
a  bill  in  equity  against  the  lessee  and  the  owners  of  the  other 
tracts  to  have  decreed  to  him  all  the  royalty  of  oils,  and  all 
the  gas  rentals,  for  wells  drilled  upon  his  separate  tract  of 
land  upon  showing  that  there  was  a  contemporaneous  oral  or 

143  Pac.  293;  22  Atl.  1035;  24  Am.  in*  Peterson   v.    Hall,    57    W.   Va. 

St.  544]  Cliartiers  Block  Coal  Co.  v.  353;  50  S.  E.  G03.     As  to  taxes,  see 

Mellon,  152  Pa.  2SG;  25  Atl.  507;  IS  State  v.   Low,   46   W.   Va.   451;    33 

L.  P.  A.  702;  34  Am.  St.  645;  Mur-  S.  E.  271;    Suit   v.  Ilochstetter  Oil 

ray  v.  Allred,  100  Tenn.  100;  43  S.  Co.,   63  W.  Va.  317;   Gl  S.  E.  307; 

W.  355;   66  Am.  St.  740;   Moore  v.  Wallace  v.  Elm  Grove  Coal  Co.,  58 

Griffin,   72   Kan.    1G4;    83  Pac.   305.  W.   Va.   449;    52   S.   E.   485;    Riser 

18  §  296.     Murray    v.    Allred,    100  v.    MxjEcan,    67     W.    Va.     725;     67 

Tenn.  100;  43  S.  W.  355;  66  Am.  St.  S.    E.   725;    Toothman   v.   Courtney, 

740;    Delaware,    etc.,    Canal    Co.    v.  62  W.  Va.  167 ;  58  S.  E.  915;  Barnes 

Hughes,    183    Pac.    66;    63   Am.    St.  v.   Bee,   138   Fed.  476;   affirmed  Bee 

743;    Kiscr   v.   Mclean,   67   W.   Va.  v.  Barnes,  149  Fed.  727;  79  C.  C.  A. 

725;    67   S.  E.   725;    Plant   v.   Hum-  433. 

phreys,  66  W.  Va.  88 ;   66  S.  E.  94.  -'"  Garrett  v.  South  Penn.  Oil  Co., 

10  Westmoreland  Nat.  Gas   Co.   v.  66  W.  Va.  587;  66  S.  E.  741. 

DeWitt,    130  Pa.   235;    18  Atl.   724;  21  §  230.    Northwestern   Ohio  Nat. 

5  L.  Pv.  A.  731;  Delaware,  etc.,  Canal  Gas  Co.  v.  Ullery,  68  Ohio  St.  259; 

Co.  V.  Hughes,   183  Pa.  66;    63  Am.  67  N.  E.  494. 
St.  743. 


lessok's  remedy.  887 

written  agreeiiipnt  and  uiulcrstaiuliiif?  l)otweon  tlicin,  llm 
lessors,  that  the  royalty  should  be  paid  and  delivered  to 
the  owner  of  tlie  particular  tract  from  which  tlie  oil  or  gas 
should  ])e  produced.--  In  Pennsylvania,  where  land  covered 
by  one  lease  Avas  devised  in  different  tracts  to  several  i)ersoiis, 
it  was  held  that  one  of  such  devisees  might  recover  from  the 
lessee  or  the  other  devisees  the  proportion  of  the  royalties  of 
oil  or  rentals  for  gas  produced  from  the  other  tracts  so  sepa- 
rately devised,  as  the  acreage  of  his  tract  bore  to  the  total 
acreage  covered  by  the  lease,  regardless  of  whether  any  oil 
or  gas  was  produced  from  his  separate  tract.  The  decreased 
rental  value  of  the  tract  producing  gas  or  oil,  by  reason  of  the 
wells  thereon,  was  charged  against  the  value  of  the  royalty 
or  gas  rental  produced  from  the  wells  on  the  tract.  Each 
devisee  was  held  entitled  to  recover  such  a  share  of  the  total 
royalties  or  rentals  as  his  share  of  the  land  bore  to  the  whole 
tract  covered  by  the  lease,  no  matter  upon  which  subdivision 
the  wells  were  located.-^ 

§  789.     Enforcing  a  forfeiture — Court  of  equity  powerless. 

''Equity  will  not  enforce  a  forfeiture.  It  will  not  divest 
a  vested  estate  by  enforcing  a  forfeiture  for  the  breach  of  a 
subsequent  condition.  In  such  a  case  the  party  is  left  to  his 
legal  remedy."  -*  In  the  first  case  cited  it  was  said:  "Affirma- 
tive relief  against  penalties  and  forfeitures  was  one  of  the 
springs  or  fountains  of  equity  jurisdiction,  and  the  jurisdic- 
tion was  very  early  exercised,  and  it  would  be  going  in  the 
opposite  direction,  and  acting  contrary  to  its  essential  prin- 
ciples, to  affirmatively  enforce  a  forfeiture.  The  elementary 
books  on  equity  jurisprudence  state  the  rule  as  almost  an 
axiom  that  equity  never  enforces  a  penalty  or  forfeiture."-'' 

zzRymer  v.  South  Penn.  Oil  Co.,  W.  Va.  IGO;   06  S.  E.  102;   Ilcadlcy 

54  W.  Va.  530;   46  S.  E.  459.  v.    Hoopengarnor,    GO    W.    Va.    626; 

23Wettcngel  v.  Gormley,  160  Pa.  55  "S.   E.    144;    Pheasant   v.   Hanna, 

659;   28  All.  934;   40  Am.  St.  733;  63  W.  Va.  613;  60  S.  E.  618;  New- 

Wettongol  V.  Gormlej',  184  Pa.  354;  ton  v.  Kemper,  00  W.  Va.   100;   66 

39  Atl.  57.  S.  E.  102. 

24  Craig  V.  Hukill,  37  W.  Va.  520;  =5  2  Story  Eq.  Jnr.,  §  1319:   1  Pom. 

16  S.  E.  363;  Newton  v.  Kemper,  66  Eq.    Jnr.,    §  459;    IJisp.    Kij.,    §  181; 

Beach  :Mod.  Eq.  Jur.,  §  1013. 


CHAPTER  XXXV. 

LESSEE'S  REMEDY. 

$790.  Xo  consideration  for  lease. 

§791.  Exploration  of  premises. 

§792.  Right  to  continue  operations  after  expiration  of  term  of  lease. 

§793.  Reservation  for  farming  purposes. 

§794.  Removal  of  fixtures. 

§795.  Reservation  around  buildings. 

§796.  Discovery  of  gas  and  oil  in  paying  quantities. 

§797.  Forfeiture  or  payment  of  rent. — Lessor's  option. 

§798.  Forfeiture  or  payment  of  rent. — Lessee's  option. 

§799.  Surrender  of  lease. — Lessee  purchasing  premises. 

§800.  Assignee,  when  not  liable. 

§80L  Remedy  of  second   lessee  or  the   assignee. 

§802.  Lessee's  defense   in  equity  for  breach  of  implied  covenants. 

§803.  Waiver   of   forfeiture. 

§804.  Discovery  of  oil  and  gas  in  paying  quantities. 

§805.  Forfeiture  by  abandonment. 

§806.  Relief  from  a  forfeiture. 

§807.  Unlawful  extraction  of  gas  and  oil  in  place. 

§808.  Want  of  mutuality. 

§809.  Mining  partnership. 

§810.  Joint  or   co-owners  of  leasehold   mining  property  in  Pennsylvania. 

§811.  Partition  of  oil  and  gas  rights. 

§812.  Tenants  in  common  or  joint  tenants. 

§813.  Dry  hole. 

§814.  Payment  of  rental  in  bank. 

§815.  Life  tenant. 

§816.  Beginning  operations. 

§817.  Failure  to  plug  well. 

§818.  Exclusive  grant  to  construct  and  operate  a  pipe  line. 

§819.  Reservation  of  oil  and  gas. 

§820.  Several   tracts   under  one   lease. 

§821.  Rival  lessee  claimants. 

§822.  Specific  performance. 

§823.  Necessary  parties  to  settle  controversy  between   rival  claimants. 

§824.  Ejectment. 

888 


LESSEE  S   REMEDY. 


889 


§  790.    No  consideration  for  lease. 

If  there  be  no  eonsideralioii  I'or  a  g:as  or  oil  lease,  yet  the 
lessee  may  enter  upon  the  demised  premises  before  notice  of  a 
declaration  of  forfeiture,  or  before  the  lessor  has  executed  a 
second  lease,  for  the  purpose  of  making  tiie  exi)lorations  pro- 
vided for  in  his  lease ;  and  if  the  lessor  permit  him  to  drill  a 
well  wherein  he  discovers  oil  or  gas  in  paying  quantities,  he 
cannot  thereafter  declare  a  forfeiture;  nor  will  eciuity  at  the 
suit  of  either  of  them  cancel  the  lease  on  the  ground  of  want 
of  consideration.^  But  if  there  be  a  consideration  for  a  lease — 
even  though  it  be  only  a  nominal  one — the  lessee  may  hold 
the  lease  during  the  term  upon  complying  with  the  other  cove- 
nants, and  the  lessor  cannot  declare  a  forfeiture  because  of 
the  smallness  of  the  consideration.- 

§  791.     Exploration  of  premises. 

The  lessee  is  entitled  to  the  benefit  of  the  term  fixed  within 
which  to  make  explorations,  upon  payment  or  tender  of  the 
rental,  according  to  the  stipulations  of  the  lease. ^    If  the  lessor 


1  §  66.  Friend  v.  Mallory,  52  W. 
Va.  53;  43  S.  E.  114;  Eclipse  Oil 
Co.  V.  South  Penn.  Oil  Co.,  47  W. 
Va.  84;  34  S.  E.  933;  Lowther  Oil 
Co.  V.  Miller-Sibley  Oil  Co.,  53  W. 
Va.  501;  44  S.  E.  433;  87  Am. 
St.  1027. 

-  Brown  v.  Fowler,  55  Ohio  St. 
507;  63  X.  E.  76;  Dill  v.  Fraze, 
169  Ind.  53;  79  N.  E.  971;  Alle- 
gheny Oil  Co.  V.  Snyder,  106  Fed. 
764;  45  C.  C.  A.  604;  Central  Ohio 
Nat.  Gas  &  Fuel  Co.  v.  Eckert,  70 
Ohio  St.  127;  71  N.  E.  281;  Brews- 
ter V.  Lanyon  Zinc  Co.,  140  Fed. 
801;   72  C.  C.  A.  213. 

3  Smith  V.  South  Penn.  Oil  Co., 
50  VV.  Va.  204;  53  S.  E.  152;  Hays 
V.  Forest  Oil  Co.,  213  Pa.  550;  02 
Atl.  1072;  Van  Etten  v.  Kelly,  60 
Ohio  St.  <505;  64  N.  E.  500;  Erie 
Crawford  Oil  Co.  v.  Meek,  40  Ind. 
App.  156;  81  N.  E.  518;  Snodgrass 
V.  South  Penn.  Oil  Co.,  47  W.  Va. 
509;    35    S.    E.    820;    Vendocia    Oil, 


etc.,  Co.  V.  Robinson,  71  Ohio  St. 
302;  73  N.  E.  222;  Glasgow  v. 
Chartiers  Oil  Co.,  152  Pa.  48;  25 
Atl.  232:  Dill  v.  Fraze,  105  Ind. 
53;  79  N.  E.  971;  Lowther  Oil  Co. 
T.  Guffey,  52  W.  Va.  88;  43  S.  E. 
10.1;  Pittsburg,  etc.,  Co.  v.  Bailey, 
76  Kan.  42;  90  Pac.  803;  Monarch 
Oil  &  Gas  Co.  V.  Richardson,  99  S. 
W.  686;  30  Ky.  L.  Rep.  824;  Gil- 
lespie V.  Fulton  Oil  &  Gas  Co.,  236 
111.  188;  86  N.  E.  219;  Great 
Western  Oil  Co.  v.  Carpenter,  43 
Tex.  Civ.  App.  ^29;  9<5  S.  W.  57; 
Houssierre-Lattrcille  Oil  Co.  v.  Jon- 
nings-Hcywood  Oil  Syndicate,  115 
La.  107;  38  So.  932;  Armitage  v. 
Mt.  Sterling  Oil  &  Gas  Co.,  80  S. 
W.  177;  25  Ky.  L.  Rep.  2262;  Jen- 
nings-IIcywood  Oil  Syndicate  v. 
IIoussierre-Lattreille  Oil  Co.,  Hi) 
La.  864;  44  So.  481;  Ringle  v. 
Quigg,  74  Kan.  581;  87  Pa.  724; 
O'Xeill  V.  Rcsinger,  77  Kan.  63;  93 
Pac.  040. 


890  OIL    AND    GAS. 

acquiesces  in  delays  in  either  the  payment  of  the  rentals  or 
commencing  exi)lorations,  he  waives  the  right  to  forfeit  the 
lease  because  of  such  failure,  and  the  lessee  may  hold  the 
lease,  notwithstanding  such  technical  forfeiture.*  If  the  lessee 
be  excluded  by  the  lessor  from  the  premises  for  the  purposes 
of  the  lease,  or  he  withhokl  from  him  the  possession  for  such. 
l)urposes,  the  lessee  may  recover  damages  in  an  action  of  law 
against  the  lessor,  for  in  every  lease  there  is  an  implied 
covenant  of  right  of  entry  and  (luiet  enjoyment.^  If  the  lessee 
has  developed  a  Avell  that  produces  oil  or  gas  in  paying 
quantities,  he  may  enjoin  the  lessor  from  drilling  other  wells 
upon  the  leasehold  premises  or  from  interfering  with  him  in 
his  right  of  possession  for  the  purposes  of  the  lease."  The 
lessee  may  sue  anyone  who  enters  upon  the  demised  premises 
without  his  consent  during  the  term  and  takes  gas  or  oil 
therefrom ;  and  the  measure  of  his  damages  is  the  value  of  the 
oil  or  gas  taken.  But  if  such  person  enters  under  color  of 
title  or  in  good  faith,  believing  he  has  a  right  to  the  oil  and 
gas,  the  actual  cost  of  production  will  be  deducted  and  the 
lessee  allowed  only  the  value  of  the  gas  or  oil  less  such  actual 
cost.  No  deduction,  however,  will  be  made  for  drilling  dry 
holes.^'    if  a  lessee  be  unlawfully  excluded  from  the  leased 

4§  15i9.    New  American  Oil  Co.  v.  Ind.   141;   71   N.  E.  489;   Thompson 

Troycr,    IGG    Ind.    402;     7G    N.    E.  v.    Christy,    138    Pa.    230;    20    Atl. 

353;    Duffield   v.   ITue,    129   Pa.   94;  924;    Consumers'   Gas   Trust  Co.   v. 

18   Atl.   5&0;    Dentley   v.   Anderson,  Littler,  1G3  Ind.  320;  70  N.  B.  363; 

94    C.    C.    A.    647;     169    Fed.    391;  IluUill    v.    Myers,    36    W.    Va.    639; 

Westmoreland,  etc..  Gas  Co.  v.  De-  15    S.    E.    151 ;    Pyle   v.   Henderson, 

Witt,    130  Pa.   235;    18   Atl.  724;    5  65   W.  Va.  39;    63   S.   E.  762;    Ven- 

L.  R.  A.  731;  Campbell  v.  Rock  Oil  docia    Oil,    etc.,    Co.    v.    Robinson, 

Co.,     151    Fed.    191;    80    C.    C.    A.  71    Ohio  St.   302;    73   N.   E.   222. 
4G7:  Steiner  v.  Marks,  172  Pa.  400;  •"- Knotts  v.  McGregor,  47  W.  Va. 

33    Atl.    695;    Kansas    Natural    Gas  566;  37  S.  E.  899. 
Co.    V.    Harris,    79    Kan.    167;     100  «  §  103.     Westmoreland  Gas  Co.  v. 

Pac.  72;   Consumers'  Gas  Trust  Co.  DeWitt,   130  Pa.  235;    18  Atl.  724; 

V.  Inlc,  163  Ind.  174;   71  N.  E.  477;  5  L.  R.  A.  731. 

^lonarch  Oil,  etc.,  Co.  v.  Richardson,  7  §  108.    Backer  v.  Penn.  Lubricat- 

99  S.  W.  668;   30  Ky.  L.  Rep.  824;  ing  Co.,   162  Fed.  627;   89   C.  C.  A. 

Consumers'  Gas  Trust   Co.  v.  How-  419;    Doddridge   County   Oil   &   Gas 

ard,    163   Ind.   170;    71    N.   E.   493;  Co.  v.  Smith,   154  Fed.  970;   Dodd- 

Lynch  v.   Versailles   Fuel,  etc.,   Co.,  ridge  County  Oil  &  Gas  Co.  v.  Smith, 

165    Pa.    518;    30    Atl.    984;     Con-  173  Fed.  380. 
sumers'  Gas  Trust  Co.  v.  Worth,  103 


lessee's  remedy.  891 

premises,  he  may   maintain  an   action   to   recover  their  pos- 
session.** 

§  792.     Right  to  continue  operations  after  expiration  of  term 
of  lease. 

If  the  lease  provide  a  fixed  term  within  which  the  lessee 
is  given  the  exclusive  right  of  exploration,  and  provides  that 
if  oil  or  gas  be  found  in  paying  (luantities  within  that  term 
the  lease  shall  continue  as  long  thereafter  as  oil  or  gas  shouUl 
be  produced  in  paying  quantities,  the  lessee,  after  discovering 
oil  or  gas  in  paying  quantities  during  the  term,  may  continue 
operations  as  long  after  the  term  of  the  lease  has  expired  as 
it  produces  oil  or  gas  in  paying  quantities;  and  he  may  defeat 
the  lessor's  action  for  possession  or  to  cancel  the  lease  by 
proving  that  he  is  producing  oil  or  gas  in  paying  quantities, 
and  showing  that  it  is  paying  him  a  profit,  even  a  small  one, 
over  the  operating  expenses.^  If  the  lessee  drill  a  dry  hole 
within  the  term,  and  a  second  time  re-enters  for  the  purpose 
of  drilling  another  well  under  inducements  and  encourage- 
ments from  the  lessor  to  do  so,  he  may  defeat  an  action  of 
trespass  brought  by  the  lessor  against  him  because  of  such 
second  entry  and  exploration/" 

§  793.     Reservation  for  farming-  purposes. 

If  the  lessor  interfere  with  the  lessee's  rights  when  he  has 
entered  and  is  in  possession,  such  lessee  may  maintain  a  bill 
in  equity  for  an  injunction  against  him  if  he  attempts  to  drill 
upon  the  leased  premises  and  interfere  with  his  exclusive  right 
thereto  for  mining  purposes.'^ 


8  §  120.   Barnsdall  V.  Bradford  Gas  nedy,    G5    W.    Va.    505;     G4    S.    E. 
Co.,  225  Pa  338;    74  Atl.  207.  1027. 

9  §§  134,  135,  136.     Long  v.  Forest  lo  §  131.      Riddle    v.    Mellon,    147 
Oil   Co.,   104  Pa.  243;   45  Atl.   121;  Pa.  30;   23  Atl.  241. 

Kellar  v.   Craig,    12G   Fed.   030;    Gl  n  §  108.     Westmoreland,  etc.,  Gas 

C.   C.   A.  3GG;    Summerville   v.   Ap-  Co.  v.  DeWitt,  130  Pa.  235;   18  Atl. 

polio  Gas  Co.,  207  Pa.  234;   50  Atl.  724;    5    L.    R.    A.    731;    Greensboro 

876;  jMcGraw  Oil  &  Gas  Co.  v.  Ken-  Nat.  Gas  Co.  v.  Fayette  County  Gas 

Co.,  200  Pa.  388;   4!)  Atl.  708. 


yy2  OIL    iVND    GAS. 

§  794.     Removal  of  fixtures. 

If  the  lessee  enter  mikI  discover  oil  or  gas  in  paying  quan- 
tities, and  then  abandon  the  premises,  whereupon  the  lessor 
declares  a  forfeiture  and  takes  possession  of  the  wells,  derricks, 
machinery,  casing,  and  other  property,  he  may  recover  of  him, 
the  lessor,  the  value  of  tiie  property  so  converted,  for  he  had 
a  right  to  remove  it,  in  an  action  at  law/-  If  the  lease  give 
him  the  right  to  reserve  the  fixtures  (or  even  if  it  do  not), 
and  a  prior  lessee  cause  the  second  lease  to  be  cancelled  by 
decree  or  order  of  court,  and  takes  possession  of  the  fixtures 
and  converts  them  to  his  own  use,  he  will  be  liable  to  the 
second  lessee  for  tlieir  value. ^^  If  the  lessee  has  reserved  the 
right  to  remove  the  fixtures  within  a  reasonable  time  after 
ceasing  operations,  and  the  lessor  refuse  him  permission  to  do 
so  within  that  time,  and  himself  takes  possession  of  them,  the 
lessee  may  recover  possession  of  them  by  action  in  replevin 
or  recover  their  value  of  him.^* 

§  795.     Reservation  around  buildings. 

The  lessee  has  the  right  to  drill  so  as  to  take  out  the  gas 
under  that  portion  of  the  premises  reserved  for  buildings, 
but  not  upon  such  part.  He  cannot  open  such  reservation  for 
the  purpose  of  drilling  or  storing  oil,  or  the  like.  If  the  land- 
owner or  anyone  else  attempts  to  drill  within  the  reservation, 
the  remedy  of  the  lessee  is  not  by  an  action  in  ejeetment,^^ 
but  he  must  bring  an  action  in  equity  for  an  injunction.^® 
The  fact  that  the  lessee  may  enjoin  such  proceedings  does  not 
prevent  his  bringing  his  action  at  law  to  recover  the  damages 
he  has  been  occasioned  thereby.  The  mea.sure  of  such  damages 
is  the  difference  in  the  value  of  the  leasehold  before  and  after 

12  §191.  Cassell  v.  Crothers,  19.3  i8  Westmoreland,  etc.,  Gas  Co.  v. 
Pa.   359;    44  Atl.  446.  DcWitt,   130  Pa.  235;    18  Atl.  724; 

13  Linden  Oil  €o.  v.  Jennings,  207  Lynch  v.  Burfora,  201  Pa.  52;  50 
Pa.  524;  56  Atl.  1074;  Perry  v.  Atl.  228;  Consumers'  Gas  Trust  Co. 
Acme  Oil  Co.,  44  Ind.  App.  207;  v.  American  Plate  Glass  Co.,  1C2 
88  N.  E.  8i59.  Ind.   392;    08  X.   E.    1020;    Dufficid 

i4Gartlan  v.  Hickman,  50  W.  Va.  v.  Hup,   130  Pa.   CC2;   20  Atl.  52G; 

75;  49  S.  E.  14.  Brown  v.  Spillman,   155  U.  S.  065; 

15  §  90.     Duflield  v.  Hue,   129  Pa.  15  Sup.  Ct.  245. 
94;    18  Atl.  566. 


lessee's  remedy.  893 

the  injury,  and  not  the  amount  of  oil  or  gas  taken  out  of  the 
wells  on  the  reservation  by  the  defendant,  nor  the  amount  as 
fixed  by  the  speculative  opinions  of  the  operators  as  to  iiow 
much  of  it  might  have  been  obtained  through  the  lessee's 
wells.^^  In  a  proceeding  for  an  injunction  the  court  will 
assess  the  damages  if  there  be  a  proper  prayer  and  allegations 
for  their  recovery." 

§  796.     Discovery  of  gas  or  oil  in  paying  quantities. 

If  gas  be  discovered  in  paying  quantities,  the  lessee  may 
hold  the  premises  so  long  as  the  stipulated  rental  is  paid,  and 
he,  acting  in  good  faith,  is  the  judge  as  to  whether  or  not  the 
gas  is  produced  in  such  paying  quantities.^^  He  may  either 
market  the  gas  and  pay  the  revenue  thus  produced  to  the 
lessor,  or  he  may  pay  the  stipulated  rental.-^"  If  there  be  no 
market  for  the  gas,  he  need  make  no  effort  to  market  it,  but 
may  pay  the  gas  rental.-^  On  discovering  gas  in  paying 
quantities  the  lessee  becomes  vested  with  the  right  to  produce 
it ;  and  if  he  pays  or  tenders  the  stipulated  gas  rental,  and  the 
lessor  refuses  it  and  attempts  to  declare  a  forfeiture  and 
repossess  himself  of  the  premises,  a  court  of  equity  will 
enjoin  him  at  the  suit  of  the  lessee.--  If  the  lessee  may  pay  a 
rental  for  delay  from  year  to  year,  the  lessor  may  give  him 
notice  of  his  intention  to  declare  a  forfeiture  for  failure  to 
develop  the  premises  at  the  end  of  the  year,  but  the  notice 
must  be  given  sufficiently  long  before  the  expiration  of  the 
year  in  order  that  he  may  have  a  reasonable  time  to  develop 

17  §  108.     Duffield   V.    Rosenzweig,       Co.   v.    Coulehan,    65    W.    Va.   531; 
144  Pa.  520;   23  Atl.  4;   Duffield  v.       64  S.  E.  836. 

Rosenzweig,    150   Ta.    543;    24    Atl.  21  :\rcGraw  Oil  &  Gas  Co.  v.  Ken- 

705.  nedy,  05  W.  Va.  5!)5;  04  S.  E.  1027; 

18  Allison's  Appeal,  77  Pa.  221.  Westmoreland,  etc.,   Gas  Co.  v.  De- 
is §§  134,    135,    136.    ]\rcGraw   Oil  Witt,    130    Pa.    235;     18    Atl.    724; 

&  Gas  Co.   V.   Kennedy,   05   W.  Va.  McKnight    v.    Manufacturers'    Nat. 

59C     64  S.  E.  1027;  Eastern  Oil  Co.  Gas  Co.,   146  Pa.  185;   23  Atl.   164. 
V.  Couiehan,  65  W.  Va.  531;   64  S.  22  §  103.     Westmoreland,  etc.,  Gas 

E.  «36;  McKnight  V.  Munufacturcrs'  Co.  v.  DeWitt,  130  Pa.  235;    18  Atl. 

Nat.  Gas  Co.,  140  Pa.  185;   23  Atl.  724;  South  Penn.  Oil  Co.  v.  Edgell, 

164;    Summcrville    v.    Appollo    Gas  48  W.  Va.  348;  37  S.  E.  500;   l':ast-_ 

Co.,  207  Pa.  334;  50  Atl.  870.  ern  Oil  Co.  v.  Coulehan,  65  W.  Va." 

20  lams  V.  Carnegie  Gas  Co.,   194  531;  64  S.  E.  836. 
Pa.    72;    45    Atl.    54;    Eastern    Oil 


894  OIL    AND    GAS. 

them ;  and  if  the  lessee  desires  to  hold  the  premises  he  must 
develop  them  within  that  time.-^  If  the  lessor  is  to  have  free 
gas  for  his  dwelling  or  other  building,  the  lessee  must  furnish 
it  to  him,  either  from  the  lessor's  premises  or  from  other 
premises,  and  he  may  hold  the  premises  so  long  as  he  fur- 
nishes it,  not  to  exceed  the  term  of  the  lease. -^  If  the  lessee 
desires  to  terminate  the  lease  because  gas  is  not  produced  in 
paying  (juantities,  he  may  do  so  by  giving  the  lessor  notice 
before  he  enters  upon  another  year  of  his  term.^'  If  the  lessor 
sue  the  lessee  to  recover  the  stipulated  gas  rentals  he  must 
aver  and  prove  that  gas  had  been  discovered  in  paying  quan- 
tities; and  the  fact  that  the  wells  were  not  so  producing  gas 
is  also  a  good  defense  for  the  lessee.^* 

§  797.     Forfeiture  or  payment  of  rent. — Lessor's  option. 

If  a  lease  provide  that  it  shall  be  null  and  void  and  all 
rights  under  it  shall  determine  if  a  well  be  not  drilled  within 
a  time  stated  or  unless  the  lessee  pay  a  stipulated  rental  for 
delay  in  drilling  a  well  or  until  one  be  completed,  such  lessee 
may  continue  the  lease  in  force  during  the  term  for  which  it 
was  given  by  either  paying  the  rental  to  the  lessor  or  paying 
it  in  bank  to  his  credit,  if  the  lease  provide  for  the  latter 
way  of  paying  the  rental.-^  If  the  lessee  be  unlawfully  de- 
prived of  possession  of  the  leased  premises,  either  by  the 
owner  or  by  a  second  le-ssee  or  by  a  prior  lessee  holding  a 
void  lease,  or  by  a  third  person,  he  may  recover  possession 
thereof  by  a  promissory  action  for  the  purpose  of  performing 

23  Indiana  Nat.  Gas  Co.  v.  Leer,  Gas  Co.,  207  Pa.  334;  56  Atl.  STfi; 
34  Ind.  App.  01;  72  IST.  E.  283;  Bellovue  Oil  &.  Gas  Co.  v.  Pannell, 
Puritan   Oil    Co.   v.   Myers,   30   Ind.       76  Kan.  785;  92  Pac.  1101. 

App.  695;.  80  X.  E.  851;  Consumers'  25  Double    v.    Heat    &    Light    Co., 

Gas  Trust   Co.   v.   Littler,    102   Ind.  172  Pa.  388;  33  Atl.  694. 

320;  70  N.  E.  363;  Consumers'  Gas  20  Roberts  v.  Fort  Wayne  Gas  Co., 

Trust    Co.    V.    Ink,    163    Ind.    174;  40  Ind.  App.  528;   82  N.  E.  558. 

71X.  E.  477;  Consumers' Gas  Trust  27  Friend   v.   Mallory,   52   W.   Va. 

Co.  V.  Worth,  163  Ind.  141;  71  N.  E.  .53;  43  S.  E.  114;   Bettman  v.  Har- 

489;    Consumers'   Gas   Trust   Co.   v.  ness,  42  W.  Va.  433;  26  S.  E.  271: 

Chrystal    Window    Glass    Co.,     163  Yoke   v.    Shea,   47    W.   Va.    40;    34 

Ind.   190;   70  X.   E.  360.  S.   E.   748;    Gas  Co.  v.   George,   101 

24  §  226.     Summcrville  v.  Appollo  Pa.  47;   28  Atl.   1004. 


lessee's  remedy.  895 

the  covenants  of  his  lease.-^  If  the  lessor  by  his  eonduct 
clearly  indicates  that  i)ayment  will  not  he  exacted  when  due, 
and  thereby  lulls  the  lessee  into  a  feeling  of  security  and 
throws  hiiu  off  his  guard  whereby  he  does  not  pay  the  rental 
when  due,  the  lessor  cannot  suddenly,  without  demand,  declare 
a  forfeiture  of  the  lease.  Should  he  attempt  to  declare  one, 
the  lessee  may  file  a  ])ill  in  equity  and  obtain  relief  from  the 
technical  forfeiture.  In  fact,  in  such  an  instance,  there  is  no 
forfeiture.-®  If  the  lessee  has  only  a  mere  option  to  enter 
and  explore,  then  he  must  do  some  act  towards  the  develop- 
ment of  the  property  or  pay  the  rent  or  commutation  money 
for  delay,  and  in  one  of  these  ways  exercise  his  option  before 
the  lessor  gives  notice  of  his  election  to  revoke  and  cancel 
the  lease.  If  he  enters  upon  the  premises  to  develop  them,  or 
pays  his  rental,  he  is  entitled  to  hold  the  premises  while 
prosecuting  their  development,  but  he  must  use  due  diligence 
in  doing  so.^°  If  he  enter  and  drill  a  dry  hole,  and  he  desires 
to  hold  the  lease  longer,  he  must  drill  additional  wells  within 
a  reasonable  time  after  the  completion  of  the  first  well ;  for 
otherwise  it  will  be  considered  that  he  has  abandoned  it.^^ 
If  the  lessee  have  the  right  to  surrender  the  lease  and  thereby 
escape  liability  for  rent,  he  may  do  so  and  thereby  escape  all 
liability  for  rental  accruing  after  the  date  of  surrender.^-     If 

28  §120.  Guffey  v.  Hukill,  34  W.  vlock,  53  Ohio  St.  13G;  41  N.  E. 
Va.  39;  11  S.  E.  754:  Bartley  v.  35;  May  v.  Hazlewood  Oil  Co.,  152 
Phillips,   179  Pa.   175;   3G  Atl.   217.  Pa.    518;    25    Atl.    5G4;    Zicglcr    v. 

29  §  160.  Hukill  V.  Myers,  36  W.  Dailey,  37  Ind.  App.  240;  76  X.  E. 
Va.  639;  15  S.  E.  151;  Pyle  v.  Hen-  819;  Florence  Oil,  etc.,  Co.  v.  Or- 
derson,  65  W.  Va.  39;  63  S.  E.  man,  19  Colo.  79;  73  Pac.  628;  Fos- 
762;  Headley  v.  Hoopengarner,  60  ter  v.  Elk  Fork  Gas  Co.,  90  Fed. 
W.  Va.  626;  55  S.  E.  144;  Soutli  178;  32  C.  C.  A.  560;  Henne  v. 
Penn.  Oil  Co.  v.  Edgell,  48  W.  Va.  South  Penn.  Oil  Co.,  52  W.  Va.  192; 
348;   37  S.  E.  596;   Eastern  Oil  Co.  43  S.  E.   147. 

V.    Coulohan,    65    W.    Va.    348 ;    37  -2  §  240.    Roberts   v.   Cettman,   45 

S.  E.  596.  W.   Va.    143;    30   S.   E.   95';    BrowTi 

30  Lowther  Oil  Co.  v.  Miller-Sibley  v.  Fowler,  65  Ohio  St.  507 ;  63  N.  E. 
Co.,  52  W.  Va.  501 ;  44  S.  E.  433 ;  76 ;  Bettman  v.  Shadle,  22  Ind.  App. 
Cortelyou  v.  Barnsdall,  236  111.  138;  542;  53  N.  E.  662;  Marshall  v.  Oil 
86  N.  E.  200;  Ellipse  Oil  Co.  v.  Co.,  198  Pa.  83;  47  Atl.  927;  Brow- 
South  Penn.  Oil  Co.,  47  W.  Va.  ster  v.  Lanyon  Zinc  Co.,  140  Fed. 
84;   34  S.  E.  293.  801;   72  C.  C.  A.  213;  Poe  v.  Ulrey, 

41  Steelsniitli  v.  Gartlan,  45  W.  233  111.  56;  84  N.  E.  46;  Ward  v. 
Va.  27;  29  S.  E.  978;  Stahl  v.  Van-       Tripple  State,  etc.,   Co.    (Ky.),    115 


896  OIL    AND    GAS. 

the  lessor  declare  a  forfeiture  the  lessee  may  defend  by  alleg- 
ing that  he  has  performed  all  the  express  covenants  of  the 
lease,  breaches  of  which  are  therein  declared  to  be  grounds 
of  forfeiture.  Where  breaches  of  implied  covenants  do  not 
constitute  a  forfeiture,  such  a  defense  will  defeat  the  lessor's 
action  to  have  a  forfeiture  declared  of  record  to  cancel  the 
lease  or  to  recover  possession  from  the  lessee.^^ 

§798.    Forfeiture  or  payment  of  rent. — Lessee's  option. 

If  the  lessee  have  the  option  to  delay  development  by  pay- 
ment of  a  fixed  rental  at  specified  times,  and  there  be  no 
express  covenant  to  drill  or  pay  rental  for  delay,  he  may 
usually  delay  developments  within  the  term  by  paying  the 
rental  during  such  term.''*  If  the  lessee  has  paid  or  tendered 
the  stipulated  rental,  or  paid  it  in  bank  as  the  leases  provide, 
he  may  invoke  the  act  of  a  court  of  equity  and  obtain  the  can- 
cellation of  a  second  lease  the  lessor  has  made,  claiming  there 
was  a  forfeiture,  and  may  enjoin  all  interference  by  the 
second  lessee  with  his  right  to  the  full  enjoyment  of  the  leased 
premises  for  the  purposes  of  the  lease.*^ 

§  799.    Surrender  of  lease. — Lessee  purchasing  premises. 

If  a  lease  be  executed  without  any  consideration  for  it,  and 
the  lessee  enters  upon  it,  and  develops  the  premises,  he  then 

S.  W.  SIO;  Roberts  v.  McFadden,  v.  Forest  Oil  Co.,  213  Pa.  55G;  62 
32  Tex.  Civ.  App.  47;  74  S.  W.  Atl.  1072;  Erie  Crawford  Oil  Co. 
105:  Houssierre-Lattreille  Oil  Co.  v.  Meek,  40  Ind.  App.  15G;  81  X.  E. 
V.  Jennings-Heywood  Oil  Syndicate,  518;  Vendocia  Oil,  etc.,  Co.  v.  Rob- 
US  La:  107;  38  So.  932.  inson,    71    Ohio    St.   302;    73   X.   E. 

33  Core  V.  Petroleum  Co.,  52  W.  222;  Gillespie  v.  Fulton  Oil  &  Gas 
Va.  276;  43  S.  E.  128;  Freeland  v.  Co.,  .'236  111.  188;  86  N.  E.  219; 
South  Penn.  Oil  Co.,  189  Pa.  54;  Ringle  v.  Quigg,  74  Kan.  681;  87 
41  Atl.  lOOO;  Marshall  v.  Oil  Co.,  Pac.  724;  Monarch  Oil,  etc.,  Co.  v. 
198  Pa.  83;  47  Atl.  927;  Crawford  Richardson,  99  S.  W.  686;  30  Ky. 
V.  Belle\^ie,  etc..  Gas  Co.,  188  Pa.  L.  Rep.  824;  Jennings-Hej-^vood  Oil 
233;  38  Atl.  595;  Ahrns  v.  Gas  Co.,  Syndicate  v.  Houssierre-Lattreille 
188  Pa.  249;  38  Atl.  595;  Harris  v.  Oil  Co.,  119  La.  864;  44  So.  481. 
Ohio  Oil  Co.,  57  Ohio  St.  118;  48  35  Gillespie  v.  Fulton  Oil  Co.,  236 
N.  E.  502.  HI.  188;  86  N.  E.  219;  Pyle  v.  Hen- 

34  Smith  V.  South  Penn.  Oil  Co.,  derson,  65  W.  Va.  39;  63  S.  E. 
59  W.  Va.  204;   53  S.  E.  152;  Hays  620. 


lessee's  remedy.  897 

has  the  right  to  liold  the  lease  according  to  its  conditioas; 
and  the  lessor  cannot  then  declare  a  forfeiture,  even  liiougli 
the  lease  contain  a  clause  giving  the  lessee  the  right  to  sur- 
render the  lease  at  any  time  and  be  relieved  of  all  liabilities 
therein.-"'  If  he  may  surrender  the  premises,  but  he  pay  the 
stipulated  rental,  he  may  hold  the  premises  for  the  period 
covered  by  such  rental ;  ^'  and  the  lessor,  having  received  the 
rental,  although  normal,  cannot  during  the  time  for  which  the 
rental  was  paid,  declare  a  forfeiture;  for  there  is  a  sufficient 
consideration  to  support  the  surrender  clause.  Under  such  a 
lease  the  lessee  has  the  right  to  develop  the  premises  or  pay 
the  rental  for  the  delay,  but  not  for  a  longer  time  than  the 
term  for  which  the  lease  was  given. ^^  The  lessee  must  sur- 
render the  lease  in  the  manner  provided  in  it ;  and  if  recorded, 
he  must  execute  and  acknowledge  such  surrender  of  record. 
The  surrender  does  not  affect  the  right  of  the  lessor  to  recover 
rentals  that  accrued  prior  to  the  date  of  surrender.^''  If  the 
lessee  accept  a  new  lease  from  the  owner  of  the  land,  the  first 
lease  is  thereby  cancelled.^''  This  is  also  true  if  he  takes  a 
new  lease  of  the  reversioner.  If  the  lessee  has  the  right  to 
purchase  the  premises  under  an  option  given  in  the  lease, 
and  he  exercises  his  option,  his  act  wnll  put  an  end  to  the  lease, 
if  accompanied  by  a  tender  of  the  purchase  money.*^ 

36  Eclipse  Oil  Co.  v.  South  Penn.  39  Bettman  v.  Shadle,  22  Ind.  App. 

Oil  Co.,  47  W.  Va.  84 ;  34  S.  E.  293 ;  542 ;  53  X.  E.  662 ;  Ward  v.  Tripple 

Henne  v.   South   Penn.   Oil   Co.,   52  State    Gas    Co.    (Ky.),    115    S.    W. 

W.  Va.  192;  43  S.  E.   147;  Lowther  819;  Roberts  v.  Bettman,  45  W.  Va. 

Oil  Co.  V.  Miller-Sibley  Co.,  52  W.  143;   30  S.  E.  95. 

Va.  501;  44  S.  E.  433.  4o  §  23G.      Wade    v.    Soutli    Penn. 

3T  Friend   v.   Mallory,   52   W.   Va.  Oil   Co.,  45   W.   Va.   380;    32    S.    E. 

53;  43  S.  E.  114.  IGO;     Auor    v.    Penn,    92    Pa.    444; 

38  BrowTi  V.  Ohio  Oil  Co.,  65  Ohio  Curnegie  Xat.  Gas   Co.   v.   Philadel- 

St.   507;    63   N.   E.   76;    Houssierrc-  phia  Co.,   158  Pa.  317;   27   All.  95; 

Lattreille   Oil   Co.   v.   Jennings-Hey-  Edwards  v.  Hale,  37  W.  Va.  193;  16 

wood   Oil    Syndicate,    115    La.    107;  S.  E.  587. 

38  So.   932;    Friend   v.  Mallory,   52  4i  Wade   v.   South   Penn.   Oil   Co., 

W.  Va.  53;  43  S.  E.  114;   Brewster  45  W.  V.  380;  32  S.  E.  IGD;  Swear- 

V.  Lanyon  Zinc  Co.,   140   Fed.   801;  ingen   v.    Watson,   35    W.   Va.   403; 

72  C.  C.  A.  213;   Poe  v.  Ulrey,  213  14  S.  E.  249. 
111.  56;    84   N.   E.  4«;    Marshall   v. 
Oil  Co.,  198  Pa.  83;  47  Atl.  927. 


898  OIL   AND    GAS. 

§  800.     Assignee,  when  not  liable. 

If  the  lease  has  expired  before  it  is  assigned,  and  the  as- 
signee does  not  take  possession  of  the  leased  premises,  he 
will  not  be  bound  by  any  of  the  covenants  in  the  lease. ^-  If 
sued  for  a  breach  of  the  covenants  of  the  lease  he  may  show 
that  such  breach  occurred  before  the  assignment,  or  after  he 
parted  with  the  lease."  Indeed,  the  lessor  has  the  burden 
in  the  former  instance  to  show  that  the  breach  occurred  after 
the  assignment ;  but  in  the  latter  instance  the  defendant  as- 
signee has  the  burden  to  show  that  it  occurred  after  he  had 
assigned  it,  unless  the  complaint  shows  that  fact.  If  the 
lessor  seeks  to  enforce  claims  arising  out  of  facts  suppressed 
when  the  lease  was  made ;  or  he  seeks  to  recover  from  the 
lessee  a  bonus  provided  for  in  the  lease,  the  receipt  of  which 
was  acknowledged  in  the  lease,  the  lessee  may  defeat  such 
claims  or  the  recovery  of  the  bonus  by  showing  that  he  took 
it  for  value,  in  good  faith,  and  without  any  knowledge  of 
such  claims  or  that  the  bonus  had  not  been  paid.** 

§  801.    Remedy  of  second  lessee  or  the  assignee. 

An  assignee,  if  he  have  notice  of  a  prior  lease,  must  make 
diligent  inquiry  not  only  as  to  its  conditions,  but  also  as 
to  whether  or  not  its  conditions  have  been  performed.  If 
there  be  specifications  for  forfeiture  set  forth  in  the  lease,  he 
must  inquire  whether  or  not  the  lessor  has  elected  to  declare 
a  forfeiture ;  and  if  he  fail  to  make  such  inquiry  he  takes 
the  risk  of  all  equities  existing  in  favor  of  the  lessor  which 
diligent  inquiry  would  have  disclosed.  In  an  instance  of  a 
second  lessee  he  is  held  to  the  same  duty,  if  he  expects  to 
take  the  lease  free  of  the  first  lease." 

42Chaney  v.   Ohio   &  Indiana   Oil  36    Atl.    2173    Compton   v.    People's 

Co.,    32    Ind.    App.    193;    G!)    K    E.  Gas  Co.,  75  Kan.  572;  89  Pac.  1029; 

477.  10  L.   R.  A.    (X.   S.)    758;   Pyle  v. 

43  §  20G.  Washington  Nat.  Cas  Co.  Henderson,  65  W.  Va.  39;  63  S.  E. 
V.  Johnson,  123  Pa.  57G;  IG  Atl.  7G2;  Hicks  v.  Gas  Co.,  207  Pa.  570; 
799_  57   Atl.   55;    Carnegie   Natural    Gas 

44  Moore  v.  Sawyer,  167  Fed.  8'J«.  Co.    v.    Philadelphia    Co.,    158    Pa. 

45  Hartley  v.  Phillips,  179  Pa.  175;  317;  27  Atl.  95. 


LESSEE  S    KKAIEDY. 


899 


§802.    Lessee's  defense  in  equity  for  breach  of  implied  cov- 
enants. 

If  a  lessor  sue  in  equity  to  cancel  the  lease  for  failure  to 
develop  or  protect  lives,  or  for  its  specific  performance,  tlie 
lessee  may  allege  and  prove  that  his  management  of  the  prem- 
ises is  founded  upon  good,  honest  business  judgment,  that 
w^hether  or  not  additional  wells  should  be  drilled  is  a  question 
of  opinion,  and  doubtful  if  they  would  be  profitable.  If  his 
management  be  founded  upon  good,  honest  judgment,  and 
there  be  no  fraud,  a  court  of  equity,  after  the  lessee  has 
developed  gas  or  oil  in  paying  quantities  and  is  operating 
the  wells  and  delivering  the  royalties  or  paying  the  gas  rental, 
will  not  secure  a  forfeiture  and  cancellation  of  the  lease,  nor 
its  specific  performance.** 

§  803.    Waiver  of  forfeiture. 

In  an  action  to  cancel  a  lease  because  of  its  forfeiture,  or 
to  recover  damages  because  of  such  forfeiture,  the  lessee  may 
always  show  that  the  lessor  waived  the  forfeiture,  or  upon  a 
consideration  forgave  it ;  or  by  his  conduct,  where  the  action 
is  to  cancel  it,  led  him  to  believe  that  a  forfeiture  by  reason 
of  the  delay  would  not  be  enforced.'*'^ 


46  §  186.     Harness  v.   Eastern  Oil  Gas  Co.,   165  Pa.  518;   30  Atl.  984; 

Co.,  49  W.  Va.  232;   38  S.  E.  662;  Consumers'  Gas  Trust  Co.  v.  Littler, 

Doddridge  County  Oil  Co.  v.  Smith,  162  Ind.  320;    72   N.  E.  360;   Con- 

154    Fed.    970;    Ammons    v.    South  sumers'  Gas  Trust   Co.   v.   Ink.   163 

Penn.  Oil  Co.,   47   W.  Va.   610;    35  Ind.  174;  71  K  E.  477;  Consumers' 

S.  E.  1004;  McGraw  Oil  Co.  v.  Ken-  Gas   Trust   Co.   v.   Wortli,    1C3    Ind. 

nedy,    65    W.    \  a.    500;    04    S.    E.  141;   71  X.  E.  489;  Consumers'  Gas 

1027;  Young  v.  Forest  Oil  Co.,   194  Trust  Co.  v.  Howard,  163  Ind.  170; 

Pa.    243;    45    Atl.    121;    Kellar    v.  71   X.  E.  493;   Ilukill   v.  Myers,  36 

Craig,    126    Fed.    630;    61    C.    C.    A.  W.  Va.  639;    15  S.  E.   151;    Pylc  v. 

366;   Colgan  v.   Forest  Oil   Co.,   194  Henderson,  65  W.  Va.  39;  63  S.  E. 

Pa.   234;    45   Atl.    119;    75   Am.   St.  762;   Vendocia  Oil,  etc.,  Co.  v.  Rob- 

695.  inson,   71    Ohio   St.   302;    73    X.    E. 

*7§§159,    160.      Duffield    v.    Hue,  222;   Campbell  v.  Rock  Oil  Co.,   151 

129  Pa.  94;   18  Atl.  566;  Westmore-  Fed.  191;  80  C.  C.  A.  467;  Duntley 

land,  etc.,   Co.   v.    DeWitt,    130   Pa.  v.   Anderson,    169    Fed.   391;    94    C. 

235;    18   Atl.   724;   5   L.  R.  A.   721;  C.  A.  G47 ;   Kansas  X;itural  C.as  Co. 

Steiner  v.  Marks,  172  Pa.  400;  3S  v.  Harris.  79  Kan.  107;  100  Pac.  7. 
Atl.   095;    Lynch   v.  Versailles  Fuel 


900  OIL   AND    GAS. 

§  804.     Discovery  of  oil  and  gas  in  paying  quantities. 

As  a  rule  the  lessee  is  the  judge  of  whether  or  not  the  oil 
or  gas  has  been  discovered  in  paying  quantities,  if  his  judg- 
ment is  exercised  in  good  faith.  If  found,  the  lessee  must 
go  on  and  operate  the  property  so  as  to  make  it  of  benefit 
both  to  himself  and  the  lessor.  In  order  to  hold  the  lease, 
the  lessee  need  not  show  that  he  has  discovered  oil  or  gas  in 
sufficient  quantities  to  repay  him  the  cost  of  development; 
but  it  is  sufficient  to  show  that  it  is  being  produced  at  a  profit 
on  the  cost  of  production.  If  the  lessee  can  show  that  he  is 
producing  oil  or  gas  at  a  profit  on  the  cost  of  production  he 
will  thereby  defeat  the  lessor's  action  to  cancel  the  lease  on 
the  ground  that  neither  oil  nor  gas  has  been  discovered  and 
is  being  produced  in  ''paying  quantities."'**  If  on  discov- 
ering gas  he  cannot  market  it  at  a  profit,  he  may  close  the 
well  and  pay  the  rental  and  hold  the  lease  beyond  the  fixed 
term ;  and  in  an  action  to  compel  him  to  put  dowm  more  wells 
he  may  show  the  lack  of  a  profitable  market  for  it ;  and  in 
determining  whether  the  gas  could  be  profitably  marketed  the 
distance  to  the  market,  the  expense  of  marketing,  and  every 
circumstance  of  a  similar  kind  may  be  shown  by  him.^^ 

§  805.     Forfeiture  by  abandonment. 

If  a  lease  does  not  contain  a  clause  of  forfeiture,  the  mere 
failure  to  pay  the  rental  does  not  constitute  an  abandonment 
nor  authorize  a  court  of  equity  to  cancel  the  lease ;  and,  if 
the  lessor  bring  an  action  to  cancel  the  lease  for  failure  to 
pay  the  rental,  the  lessee  may  show  his  willingness  to  perform 
the  covenants  of  the  lease  and  that  the  explorations  had  not 
been   unreasonably   delayed."'"      If   he   has   entered   the  prem- 

48  §  134.  Ivowther  Oil  Co.  v.  Co.,  194  Pa.  234;  45  Atl.  119;  75 
Miller-Sibley  Oil  Co.,  53  W.  Va.  Am.  St.  G95;  Young  v.  Forest  Oil 
501;    44    S.'   E.    433;    87    Am.    St.        Co.,    194    Pa.    243;    45    Atl.    1021; 

1027;  Young  v.  Forest  Oil  Co.,   194  IManhattan   Oil   Co.   v.    Carrell,    164 

Pa.   243;    45   Atl.    1021.  Ind.  520;   73  N.  E.  1084. 

49  lams  V.  Carnegie  Natural  C.-s  •'''''  §  137.  Pheasant  v.  Hanna,  63 
Co.,  194  Pa.  72;  45  Atl.  54;  Mc-  W.  Va.  317;  60  S.  E.  618;  Marshall 
Knight  V.  Manufacturers'  Nat.  Gas  v.  Oil  Co.,  198  Pa.  83;  47  Atl. 
Co.,   146   Pa.    185;    23   Atl.    164;    28  927. 

Am.   St.   790;    Colgan  v.    Forest  Oil 


lessee's  remedy,  901 

ises  and  explored  them  unsuccessfully,  lie  may  re-enter  witliin 
a  reasonable  time  after  he  has  ceased  operations  and  defeat 
the  lessor's  proceedings  to  cancel  the  lease  by  proving  he 
did  not  intend  to  abandon  such  premises.^*  If  gas  or  oil  has 
been  developed  in  paying  quantities,  then,  in  order  to  estab- 
lish an  abandonment  of  the  premises  by  him  it  must  be  shown 
that  he  had  intentionally  abandoned  them,  had  relinquished  his 
possession  thereof.  The  relinquishment  must  be  actual,  and 
the  abandonment  intentional.  These  are  (|uestions  of  fact  that 
the  plaintiff-lessor  must  show.'^-  The  forfeiture  of  the  lease 
does  not  affect  the  right  of  the  lessee  to  convey  oil  or  gas  in 
pipes  across  the  demised  premises  from  other  premises  under 
an  agreement  in  the  lease  giving  him  the  right  to  covey  it 
across  them.'^  If  the  lessee  be  prevented  by  the  lessor  from 
taking  possession  of  the  leased  premises,  it  will  not  be  held 
that  he  forfeited  his  rights ;  and  this  is  especially  so  if  he 
in  good  faith  commenced  operations  preparatory  to  drill  a 
well  upon  them  within  the  time  the  lease  required,  him  to 
begin  operations.^* 

§  806.    Relief  from  a  forfeiture. 

If  the  dealings  between  the  lessor  and  lessee  be  such  as  to 
lead  the  latter  to  believe  the  former  would  not  demand  a 
strict  performance  of  the  covenant  for  the  payment  of  the 
land  rental  or  commutation  money ;  or  if  defects  have  been 
discovered  in  the  lessor's  title  to  the  land  which  will  endanger 
the  lessee's  right  under  the  lease  to  the  oil  or  gas,  a  failure 
to  pay  such  rental  or  commutation  money  at  the  time  speci- 
fied in  the  lease  will  be  only  a  technical  forfeiture,  and  the 
lessee  may  maintain  a  bill  in  equity  for  relief  against  such 
forfeiture.^^ 

61  §  141.      Henne   v.    South   Penn.  44-   S.   E.   433;    Shank   v.    Stahl,   35 

Oil   Co.,   52   W.  Va.    192;    43   S.   E.  Ind.  App.  443;   74  N.  E.  538;   Gar- 

147;   Lowther  Oil  Co.  v.  Miller-Sib-  rott  v.  South  Penn.   Oil  Co.,  66  W. 

ley  Oil  Co.,  53  W.  Va.  501;  44  S.  E.  Va.  587;  6G  S.  E.  741. 

433.  53  Stage   v.   Boyer,    183    Pa.    560; 

52  Henne  v    South  Penn.   Oil  Co.,  38  Atl.   1035. 

52    W.    Va.    192;     43    S.    E.    147;  54  Henderson   v.    Ferrell,    183    Pa. 

Mcltillan  v.  Titus,  222  Pa.  500;  72  547;  38  Atl.   1018. 

Atl.  240;  Tx>w-ther  Oil  Co.  v.  Miller-  55  §  187.      Pyle    v.    llen(k'rs<in,    05 

Sibley    Oil    Co.,    53    VV.    Va.    501;  VV.    Va.    39;    63    S.    E.    702;    South 


002  OIL   AND    GAS. 

§  807.     Unlawful  extraction  of  gas  or  oil  in  place. 

If  the  lessee  develops  the  leased  premises  he  becomes  vested 
with  the  exclusive  right  of  producing  the  gas  or  oil  discov- 
ered, and  may  maintain  a  bill  in  equity  for  an  injunction 
against  either  the  lessor  or  any  persons  claiming  through  him 
if  he  or  they  attempt  to  drill  upon  the  leasehold  premises.^'' 
If  a  tenant  for  life  or  years  grants  the  lease  the  lessee  will 
not  be  liable  for  the  rental  or  commutation  money;  for  such 
lessor  had  no  right  to  give  the  lease." 

§  808.     Want  of  mutuality. 

If  the  lease  be  void  for  want  of  mutuality,  or  if  it  be  in- 
capable of  specific  performance  by  reason  of  its  terms  being 
either  unfair,  unconscionable  or  unjust,  the  lessee  must  enter 
and  explore  to  entitle  him  to  hold  the  lease  against  the  lessor 
or  his  assigns.  If  the  lessor  permit  the  lessee  to  incur  ex- 
penses in  developing  the  premises,  he  will  not  be  allowed 
subsequently  to  declare  a  forfeiture;  nor  can  he  secure  its 
cancellation  on  the  ground  of  a  want  of  mutuality  or  unfair- 
ness.^^ If  the  lessee  has  paid  a  valuable,  even  though  nominal, 
consideration  for  the  lease,  and  has,  under  its  terms,  a  fixed 
time  within  which  to  enter  and  commence  operations  or  pay 
commutation  money,  he  may  hold  the  lease,  notwithstanding 
its  terms  may  be  unfair  or  unjust,  by  entering  and  developing 
them  or  paying  the  stipulated  rental  during  the  term.^^ 


Penn.  Oil  Co.  v.  Edgell,  48  W.  Va.  ss  Lowther  Oil  Co.  v.  Miller-Sibley 

348;  37  S.  E.  596;  Hukill  v.  Myers,  Oil   Co.,   53   W.   Va.    501;    44   S.   E. 

36  W.  Va.  639;   15  S.  E.  151;  East-  433;  Boyd  v.  Brown,  47  W.  Va.  238; 

em  Oil  Co.  v.  Coulehan,  65  W.  Va.  38   S.   E.    668;    Harness   v.   Eastern 

531;  04  S.  E.  830;  Headley  v.  Hoop-  Oil   Co.,   49   W.   Va.   232;    38   S.   E. 

engarner,  GO  W.  Va.  020;    55   S.  E.  602. 

144.  r,o  Brewster    v.    Lanyon   Zinc    Co., 

56  Westmoreland,  etc.,   Gas  Co.  v.  140    Fed.    801;    72    C.    C.    A.    213; 

DeWitt,   130  Pa.   325;    18  Atl.  724;  Pyle  v.   Henderson,   05  W.  Va.  39; 

Dnffield    v.    Hue,    130    Pa.    602;    20  63    S.    E.    702;    Poe   v.    Ulrey,    233 

Atl.  520.  111.  56;  84  N.  E.  40;  Pittsburg  Vit- 

=7  §  202.    Marshall  v.  Mellon,   179  rified,   etc.,   Co.   v.    Bailey,   70   Kan. 

Pa.  371;   30  Atl.  201;   35  L.  R.  A.  42;   90  Pac.  803. 
216. 


lessee's  remedy.  903 

§  809.     Mining  partnerships. 

The  owners  of  the  major  part  of  an  oil  and  pas  lease  have 
the  right  to  control  and  manage  it;  and  if  they  exercise  their 
judgment  fairly  and  honestly  the  court  will  not  inciuire  into 
their  management  at  the  instance  of  the  owners  of  the  minor 
part.*"'  One  partner  may  tile  a  hill  in  eciuity  chai-gmg  mis- 
management by  his  partners  in  control,  or  fraudulent  conduct 
on  their  part  to  his  injury,  or  that  the  business  is  being  con- 
ducted at  a  loss,  or  alleging  grounds  for  a  dissolution ;  and 
upon  proof  of  the  allegations  the  court  will  dissolve  the 
partnership,  order  an  accounting,  and  decree  a  sale  of  the 
partnership  property.**^  If  one  partner  had  advanced  money 
for  the  conduct  of  the  partnership  business,  he  has  a  lien  to 
the  extent  of  the  money  advanced  on  the  partnership  prop- 
erty, and  may  file  a  bill  in  equity  against  his  co-partners 
for  an  accounting  and  dissolution  and  sale  of  such  partner- 
ship property,  and  obtain  a  decree  over  against  them  for  any 
balance  remaining  after  exhausting  the  partnership  assets."- 
If  the  partners  divide  the  partnership  property  or  protfuction 
of  the  business,  whatever  lien  one  partner  may  have  had  for 
advances  made  over  and  above  his  just  proportion  is  lost ; 
and  the  execution  among  the  partners  of  "division  orders" 
whereby  the  share  of  each  partner  is  set  apart  in  the  pipe 
lines  to  each  one  of  them  is  such  a  severance  as  precludes  a 
partner  who  has  made  an  advance  claiming  a  lien  against 
the  production  so  divided."^  One  partner  may  sell  his  interest 
in  the  mining  partnership  which  w^U  vest  in  the  purchaser 
the  vendor's  interest,  but  the  sale  will  not  dissolve  the  part- 
nership nor  discharge  the  interest  sold  from  any  lien  that 
may  be  thereon  in  favor  of  the  other  partners  who  may  have 
made  advances  beyond  their  just  proportion.     The  purchaser 

80  §321.      Blackmaer   v.   William-  Va.  327;   66  S.  E.  474;  Kirchncr  v. 

son,  57  W.  Va.  249;   50  S.  E.  254;  Smith,    Gl    W.    Va.    434;    58    S.    E. 

Bartlett  v.  Boyles,  GG  W.  Va.  327;  614;   Greenlee  v.  Steelsmith,  64  W. 

66  S.  E.  474.  Va.  353 ;    62  S.  E.  459. 

61  Childers  v.  Neely,  47  W.  Va.  03  Cliilders  v.  Xeely,  47  W.  Va. 
70;  34  S.  E.  828;  81  Am.  St.  777;  70;  34  S.  E.  G28;  81  Am.  St.  777; 
49  L.  R.  A.  468;  Blackmaer  v.  Wil-  49  L.  R.  A.  468;  Bartlett  v.  Boyles, 
liamson,  57  W.  Va.  249;  50  S.  E.  66  W.  Va.  327;  66  S.  E.  474;  Creen- 
254.  Ice  V.  Steelsmith,  64  W.  Va.  353;  62 

62  §  323.    Bartlett  v.  Boyles,  66  W.  S.  E.  459. 


904  OIL   .VND    GAS. 

also  takes  such  interest  subject  to  the  rights  of  third  persons 
who  have  furnished  supplies  to  the  partners,  and  the  other 
partners  can  maintain  a  bill  in  equity  for  a  dissolution  and 
sale  of  the  property  without  regard  to  such  sale.""  Any  one 
furnishing  supplies  to  the  partnership  may  recover  a  judg- 
ment against  all  of  them  without  showing  a  special  contract 
or  express  agreement  amongst  the  partners  to  become  part- 
ners or  to  share  the  profits  and  losses  of  the  mining  adven- 
ture. It  is  sufficient  merely  to  show  that  the  defendants  had 
united  in  the  development  of  the  lease  or  operation  of  the 
well  thereon,  while  the  relation  of  mining  partners  arises 
from  the  ownership  of  shares  or  interest  in  the  lease,  and  the 
working  of  the  premises  for  the  purpose  of  taking  out  oil 
or  gas,  yet  as  actual  working  of  the  premises  is  essential  and 
necessary  to  charge  the  owners  as  a  mining  partnership,  for 
otherwise  the  owners  if  they  are  simply  tenants  in  common 
or  co-owners."^  If  a  suit  be  brought  to  recover  the  price  of 
supplies  furnished  the  mining  partnership,  any  one  of  the 
partners  may  defeat  the  plaintiff  by  showing  that  they  were 
not  necessary  and  were  unusual  in  the  transaction  of  the 
particular  business;  and  if  it  be  to  recover  for  money  bor- 
rowed, he  may  defeat  the  action  by  showing  that  the  person 
borrowing  the  money  on  behalf  of  the  partnership  had  no 
authority  to  borrow  it  or  to  execute  the  note  or  accept  the 
bill  of  exchange  given  to  secure  its  payment.®"  If  the  mem- 
bers are  discordant,  at  ill-will,  and  the  partnership  is  hope- 
less of  prosperity,  one  of  the  partners  may  secure  its  disso- 
lution, an  accounting  and  appointment  of  a  receiver  by  filing 
a  bill  in  eijuity  for  that  purpose."^ 

64  §315.  Greenlee  v.  Steelsmith,  777;  49  L.  R.  A.  4G8;  Waldron  v. 
64  W.  Va.  353;   62  "s.  E.  459.  Hughes,   44   W.   Va.    126;    29   S.  E. 

65  Childers  v.  Neely,  47  W.  Va.  505 ;  Charles  v.  Eslileman,  5  Colo. 
70;  34  S.  E.  828;  81  Am.  St.  777;  107;  Judge  v.  Brosvvcll,  13  Bush. 
49  L.  R.  A.  468;  Kirchnor  V.  Smith,  67;  :\rcConncll  v.  Denver,  35  Cal. 
61  W.  Va.  436;  58  S.  E.  614;  Jones  365;  Congdon  v.  Olds,  18  Mont.  4«7; 
V.  Clark,  42  Cal.  425;  Duryea  v.  46  Pac.  261;  :\Ianville  v.  Parks, 
Burt,  28  Cal.  569;  Taylor  v.  Castle,  7  Colo.  128;  2  Pac.  212;  Jones  v. 
42  Cal.  367;   Settenbree  v.  Putnam,  Clark,  42  Cal.  181. 

42  Cal.   490;    Decker  v.   Howell,   42  67  Childers    v.    Neely,    47    W.   Va. 

Cal.  636.  70;   34  S.  E.  828;   81  Am.  St.  777; 

06  §  322.    Childers  v.  Neely,  47  W.  49  L.  R.  A.  468. 
Va.   70;    34   S.   E.   828;    81   Am.   St. 


lessee's  uemedy.  905 

§  810.     Joint  or  co-owners  of  leasehold  mining  property  in 
Pennsylvania. 

In  Pennsylvjuiiji  joint  or  co-owners  of  mining  property  or 
an  oil  or  gas  leasehold  are  tenants  in  coinmon  wlicn  engaged 
in  the  development  of  the  coninion  property,  and  they  cannot 
be  chargeil  as  partners  in  the  al)sence  of  proof  of  a  contract 
for  a  partnership ;  but  as  to  third  persons  they  may  sul)ject 
themselves  to  lial)ility  as  partners  by  a  course  of  dealings  or 
by  their  acts  and  declarations.  As  to  each  other  their  rela- 
tion is  fixed  by  their  title  until  by  agreement  they  change 
it.*"'**  One  of  the  owners,  even  while  engaged  in  developing  or 
operating  the  lease,  may  convey  his  undivided  interest,  and 
the  purchaser  will  take  the  interest  conveyed  clear  of  any 
claim  for  advances  made  by  the  co-owners  or  tenants  in  com- 
mon. Neither  the  partner  selling,  the  purchaser,  nor  the 
interest  purchased  will  be  held  liable  for  advances  made  by 
such  co-owners.""  One  owner  nuiy  maintain  a  bill  in  eipiity 
against  the  other  owners  for  an  accounting  where  they  have 
kept  the  accounts  pertaining  to  the  lease,  purchased  the 
supplies,  paid  the  bills  and  furnished  the  plaintitt'  statements 
from  time  to  time,  deducting  his  proportion  of  the  expenses.'** 
If  a  joint  owner  has  been  fraudulently  deprived  by  his  co- 
tenants  of  his  interest  in  the  oil  leasehold,  he  may  bring  an 
action  for  his  share  of  the  oil  produced  and  converted  by  the 
other  tenants  while  in  possession,  and  recover  as  his  damages 
the  value  of  the  oil  in  the  pipes  and  tanks,  without  any 
deduction  for  the  expenses  of  production.'^  Where  all  the 
co-tenants  of  an  oil  lease  except  one  assigned  the  lease  to  one 
operator  who  was  to  deliver  to  them  a  part  of  the  i)roduct, 
and  the  one  who  did  not  join  notified  the  assignee  not  to 
deliver  any  oil  to  his  co-tenants,  it  was  held  that  he,  not 
having  joined  in  the  assignment,  was  not  entitled  to  his  share 
of  the  oil  without  proving  that  his  co-tenants  had  received 

68§31G.     Butler  Savings  Bank  V.  «!>  Dunham    v.    Loverock,    15«    Pa. 

Osborne,    159   Pa.   10;    28   Atl.    163;        197;   27  Atl.  990;   38  Am.  St.   838. 
39  Am.  St.  GG5 ;  Neill  v.  Shamburg,  "»  Harrington    Bros.    v.     Florence 

158  Pa.   263;    27  Atl.  992;    Walker       Oil  Co.,   178   Pa.   444;   35   Atl.  855. 
V.  Tupper,   152  Pa.   1;   25  Atl.   172.  7i  Foster  v.  Weaver,   118  Pa.  42; 

12  Atl.  213. 


906  OIL   AND    GAS. 

more  than  their  share ;  that  if  he  chose  to  affirm  the  assign- 
ment, he  must  take  his  share  with  the  others  upon  a  dis- 
tribution of  the  royalty  after  deducting  all  proper  charges 
and  expenses;  and  that  if  he  did  not  affirm  the  lease,  he  had 
no  claim  to  any  share  in  the  royalty,  and  could  only  look 
to  the  lessee  as  a  co-tenant  who  had  not  acquired  his  title. 
If  a  co-tenant  desires  to  recover  his  proportion  of  the  royalty, 
he  must  first  notify  the  assignee  when  his  remedy  will  be 
against  the  assignee  who  has  not  acquired  his  title.  If  he 
desires  to  share  in  the  royalty,  in  an  action  against  his  co- 
tenants,  he  must  show  that  they  had  received  more  than 
their  share  of  the  royalty.  All  proper  charges  and  expenses 
will  be  first  deducted  from  the  royalty  before  he  will  be 
entitled  to  anything.^-  If  lessees  are  tenants  in  common  in 
the  lease  but  partners  in  the  machinery  and  appliances  for 
developing  the  oil  and  gas,  and  in  the  business  of  mining  and 
selling  the  oil  and  gas,  and  are  engaged  in  the  development 
of  the  leasehold  premises  and  also  in  the  marketing  of  the 
oil  and  gas,  and  have  expended  money  upon  the  enterprise, 
any  one  of  them  may  maintain  a  bill  of  ecjuity  against  his 
partners  for  a  discovery  and  for  a  settlement  of  the  accounts 
of  the  expenses,  receipts  and  disbursements  incident  to  the 
business.  ^^ 

§811.     Partition  of  oil  and  gas  rights. 

One  co-owner  of  an  oil  or  gas  lease  cannot  maintain  a  suit 
for  partition  in  kind  against  the  other  co-owner.^^  If  one 
desires  a  division  his  remedy  is  by  a  bill  in  equity  for  a  sale 
of  the  whole  oil  or  gas  interest,  and  division  of  the  proceeds. 
A  decree  cannot  be  entered  partitioning  the  mining  rights  and 
interests  in  kind." 


72  Enterprise    Oil    &    Gas    Co.    v.  man,  233  111.  9;   84  N.  E.  53;  Zieg- 

Xational  Transit  Co.,   172  Pa.  421;  ler   v.   Erenneman,   237   111.    15;    86 

33  Atl    OS:.  X.    E.    507:    Emory    v.    League,    31 

'•'•■  Johnson  v.  Price,   172  Pa.  427;  Tex.  App.  474;   72  S.  W.  G03. 

33  Atl    GS8.  T.-,  Hall  v.  Vernon,  47  W.  Va.  295; 

'i  §  277.   Beardsley  V.  Kansas  Nat.  34    S.    E.    7G4;    Preston    v.    White, 

Gas  Co.,  78  Kan.  571;  96  Pac.  589;  57   W.   Va.   278;    50   S.   E.   236. 
Waterford  Oil  &  Gas  Co.   v.   Ship- 


lessee's  remedy.  907 

§812.    Tenants  in  common  or  joint  tenants. 

If  a  lessee  lias  agreed  to  pay  a  stipulated  royalty  and  the 
landowner  before  the  execution  of  the  lease  has  conveyed 
away  an  interest  in  the  oil  and  gas  e(|ual  to  one-lialf  or  one- 
third  of  the  agreed  royalty,  he  cannot  he  recpiired  to  pay 
more  than  the  royalty  stipulated  in  the  lease;  for  such  lease 
implies  a  covenant  of  general  warranty.'"  If  he  accpiire  a 
lease  of  land  from  a  joint  tenant  or  tenant  in  common,  he 
may  maintain  a  bill  in  equity  to  enjoin  operations  on  the 
demised  premises  by  a  person  holding  a  lease  which  is  either 
void  for  want  of  mutuality  or  unconscionable,  although  signed 
by  all  the  co-owners.'^  But  where  one  tenant  executes  a  lease 
for  the  whole  tract,  and  his  co-owners  are  minors  whose  in- 
terests are  sold  under  a  proceeding  taken  in  court  for  that 
purpose,  and  the  purchaser,  as  a  consideration  for  the  lease, 
agrees  to  pay  the  stipulated  royalty,  he  wall  be  required  to 
pay  the  royalty  agreed  upon  as  a  consideration  for  his  pur- 
chase."* As  the  execution  of  a  lease  by  one  tenant  for  the 
whole  premises  implies  a  covenant  of  general  warranty,  the 
lessee  may  maintain  a  bill  in  equity  to  cancel  a  subsecjuent 
lease  made  by  the  same  lessor  to  another  person  while  he  and 
the  lessee  were  endeavoring  to  acquire  the  interests  of  the 
other  tenants.'^"  A  lessee  of  one  tenant  is  not  entitled  to  a 
partition  of  the  lands,  but  is  entitled  as  against  his  lessor  to 
possession  for  the  purpose  of  operating  the  premises;  and 
while  he  cannot  lawfully  extract  oil  and  gas,  yet  if  he  does 
extract  it  he  will  be  required  to  account  to  the  co-owners, 
who  did  not  join  in  the  lease,  for  their  part  of  the  produc- 
tion.*" If  the  lease  be  executed  by  the  co-owners  jointly,  the 
lessee  may  pay  the  rent  or  royalty  to  any  one  of  them,  and 
his  receipt  will  be  binding  on  the  others.  But  if  one  of  them 
notify  him  he  intends  to   collect  and  receive  his  proportion 

76  Kilcoyne   v.    Southern    Oil    Co.,  ^9  Pyle   v.   Henderson,   05   W.   Va. 

61   W.  Va.  538;   53  S.  E.  888.  39;    03  S.  E.  020. 

7T,§§278,    279.      Trees   v.    Eclipse  so  Waterford    Oil    &    Cas    Co.    v. 

Oil    Co.,  47   W.   Va.    107;    34   S.   E.  Shipman,   233   111.  9;   84  X.   E.   53; 

933.  Gompton    v.    People's    Gas    Co.,    75 

-slToadley  v.  IToopengarner,  60  W.  Kan.  572;  89  Pac.  1020;   10  L.  R.  A. 

Va.  020;  55  S.  E.  144.  (N.  S.)    758;  Zicglcr  v.  Brenncman, 

237   111.   15;   80  X.  E.  507. 


908  OIL    AND    GAS. 

of  the  rent  or  royalty  separately,  then  the  lessee  must  pay 
him  his  proportion  accruing  under  the  lease  after  the  receipt 
of  the  notice/'  If  part  of  the  joint  tenants  or  tenants  in 
common  are  minors,  the  adult  tenant  may  declare  a  forfeiture 
of  the  lease  for  non-development  of  the  premises  or  non- 
payment of  the  rent,  and  if  the  forfeiture  is  not  against  the 
interest  of  the  minors  it  will  terminate  the  lease ;  but  if  the 
co-tenants  bring  suit  to  recover  the  rentals  accruing  subse 
quently  to  the  declaration  of  forfeiture,  the  lessee  may  defea* 
them  by  alleging  and  proving  the  declaration  of  the  for- 
feiture; and  that  he  accepted  it  as  a  final  determination  of  the 
lease,  and  thereafter  neither  paid  the  rentals  nor  attempted 
to  make  any  explanation.^-  If  one  tenant  lease  the  entire 
land  held  in  joint  or  common  tenancy,  the  other  tenants  may 
ratify  the  lease  and  in  a  suit  in  equity  for  an  accounting  of 
the  rents  and  royalties  they  will  be  entitled  to  an  accounting 
of  all  money  received  by  the  lessor  by  way  of  bonus  money, 
commutation  money,  royalty  or  gas  rentals  accruing  under 
the  lease.*^ 

§  813.     Dry  hole. 

If  the  lessee  drill  a  well  which  turns  out  to  be  a  non-pro- 
ductive one,  that  does  not  necessarily  terminate  his  lease ;  for 
he  may,  within  a  reasonable  time  either  make  additional 
explorations,  or  pay  commutation  or  land  rental  money  for 
delay,  if  the  lease  provide  for  such  payment.  If  the  lessor 
refuse  to  permit  him  to  continue  the  developments  within  a 
reasonable  time,  or  refuse  to  receive  the  commutation  or 
rental  money  for  delay,  he  may,  if  excluded  from  the  prem- 
ises by  him,  recover  possession  of  them  in  a  possessary  action, 
or  may  enjoin  him,  or  any  other  person,  from  any  interfer- 
ence in  making  furtlier  developments.**  If  he  has  abandoned 
the  premises,  and  neither  made  further  explorations  nor  paid 

81  §  287.  Swint  v.  McCalmont  Oil  84  §  139.  Henne  v.  South  Penn. 
Co.,  184  Pa.  202;  38  Atl.  1020.  Oil   Co.,   52    \V.   Va.    102;    4.3   S.   E. 

82  Wilson  V.  Goklstoin,  l.')2  P.a.  147:  Ptalil  v.  Van  Vkck,  53  Ohio 
524:  25  Atl.  493:  Ilcinaucr  V.  Jonas,  St.  13G;  41  X.  E.  35:  Bnrtley  v. 
159  Pa,  228:    28  Atl.  228.  Phillips,   179  Pa.    175;    30  Atl.  217 

83  Summers  v.  Bennett,  69  W.  Va. 
— :   69  S.  E.  690. 


lessee's  remedy.  909 

commutation  or  rental  mono}',  that  fact  is  a  grood  defense  in 
an  action  to  recover  rental  or  eoininutation  money  aeeruing 
subsequent  to  the  abandonment,  but  he  must  allege  and  show 
that  he  had  dug  a  test  well  which  was  non-productive,  that 
he  had  abandoned  the  premises  and  notified  tlie  lessor  or 
that  he  had  knowledge  of  the  abandonment  before  the  rentals 
had  accrued.^" 

§  814.     Payment  of  rental  in  bank. 

If  the  lease  provide  for  payment  of  the  rentals  in  a  desig- 
nated bank,  the  lessee  may  deposit  them  there  to  the  credit 
of  the  lessor,  and  that  will  continue  the  lease  even  thougli  he 
has  refused  to  accept  them  when  tendered  to  him  personally 
or  refuses  to  draw  them  from  the  bank.  If  he  executes  a 
second  lease  before  the  maturity  of  the  rentals  under  the 
first  lease,  the  lessee  may  still  make  the  deposit  without 
making  a  personal  tender  to  him.^**  Unless  the  lease  provide 
expressly  for  it,  the  rent  need  not  be  paid  in  advance,  but  it 
may  be  paid  at  any  time  before  the  end  of  the  period  desig- 
nated, and  upon  such  payment  (or  deposit  in  bank,  when  the 
lease  so  provides),  the  lease  is  extended  to  the  end  of  the 
next  period  provided  for  by  it  during  which  it  may  be  kept 
alive  by  the  payment  of  rental  or  commutation  money. *^  If 
the  rental  or  commutation  be  made  payable  under  the  lease 
in  bank,  then  the  lessor  may  refuse  to  accept  the  money  when 
tendered  to  him  in  person ;  and  the  lessee  must  then  pay  it 
into  the  bank ;  for  the  parties  having  tixed  the  place  and 
manner  of  payment  by  agreement,  the  money  must  be  paid 
as  thus  provided.     An  acceptance  by  the  lessor  of  the  money 

85May  V.  Hazlewood  Oil  Co.,   152  Co.,    80    Kan.    7G2:     104    Pao.    851; 

Pa.  518;  25  Atl.  564.  Friend   v.   Mallory,   52   W.   Va.   53; 

86  Indiana,  etc.,  Gas  &  Oil  Co.  v.  43    S.    E.    114;    Gillespie   v.    Fulton 

Beale,  1G6  Ind.  G84;  7G  N.  E.  520;  Oil    &,    Gas    C\).,    23G    111.    188;    86 

Lafayette    Gas   Co.    v.    Kelsey,    1G4  X.  E.  219;  Montfort  v.  I-anyon  Zinc 

Ind.   563;    74   X.    E.    7;    Sayers    v.  Co.,  67  Ivan.  310;  72  Pac.  78. 

Kent     (Pa.),    50    Atl.    296;    Amer-  87  Rhodes   v.   Mound   City    Gas   & 

lean     Window     Glass     Co.     v.     In-  Oil  Co.,  80  Kan.  7G2;  104  Pac.  851 ; 

diana,   etc.,   Gas   Co.,   37    Ind.   App.  Blodgett    v.    Lanyon    Zinc    Co.,    120 

439;   76  X.  E.   1006;   Yohe  v.  Shea,  Fed.  893;   58  C.  C.   A.  79;    Rose  v. 

47    W.    Va.    401;    34    S.    E.    748;  Lanyon   Zinc   Co.,   68   Kan.   12G;    74 

Rhodes   v.   Mound   City   Gas  &  Oil  Pac.  625. 


910  OIL   AND    GAS. 

when  tendered  him  is  a  waiver  of  the  right  to  have  it  depos- 
ited in  bank  to  his  credit.  If  the  bank  refuse  to  accept  the 
money  when  tendered,  yet  the  tender  will  be  good  if  tlie  lessee 
stantls  ready  to  pay  the  lessor  the  money  wlienever  re(|uested 
by  it  or  by  the  lessor  or  his  authorized  agent.  But  as  a  matter 
of  precaution  the  lessee  should  notify  the  lessor  of  the  bank's 
refusal  and  express  a  willingness  to  pay  it  to  him  in  person 
or  in  any  other  l)ank  in  the  vicinity.  The  fact  that  the  lessee 
has  on  deposit  money  in  the  bank  where  the  payment  is  to  be 
made  will  not  serve  as  a  tender  of  the  rental  or  commutation 
money  unless  he  in  some  way  direct  the  bank  to  credit  the 
lessor's  account  with  the  amount  due  him;  for  without  such 
direction,  or  a  cheek  payable  to  the  lessor,  the  bank  has  no 
power  to  appropriate  his  money  to  the  credit  of  the  lessor; 
but  if  it  should  unauthorizedly  do  so,  he  may  ratify  its  act. 

§  815.    Life  tenant. 

If  a  lessee  take  a  lease  from  a  life  tenant  he  may  defeat 
any  action  brought  to  enforce  its  covenants  by  alleging  and 
proving  that  the  plaintiff  (or  his  grantee"*  has  only  a  life 
estate  in  the  property  leased,  and  that  the  remainderman 
has  not  joined  therein. ^^ 

§  816.     Beginning  operations. 

Operations  begun  by  the  lessee  for  development  on  the  last 
day  specified  for  their  beginning  will  prevent  a  forfeiture 
for  not  beginning  development  proceedings,  and  is  a  defense 
when  an  action  is  brought  for  declaring  a  forfeiture  on  the 
ground  that  they  were  not  begun  within  the  time  specified. ^^ 

§  817.     Failure  to  plug  well. 

If  a  lessee  abandon  the  premises  he  must  close  any  gas 
well  he  has  drilled  so  that  the  gas  will  not  escape,  to  the 
injury  of  the  landowners ;  and  if  he  do  not  he  will  be  liable 


88  §  262.    Marshall  v.  Mellon,   179  89  Fleming  Oil  &  Gas  Co.  v.  South 

Pa.   371,    36   Atl.  201;    57  Am.   St.       Penn.   Oil   Co.,   37   W.  Va.   645;    17 
601;    35  L.   R.  A.   816.  S.    E.    203;    Henderson    v.    Ferrell, 

183  Pa.  547;  38  Atl.  1018, 


lessee's  remedy.  911 

for  whatever  damages  such  lessor  suffers  by   his  huul   being 
drained  of  gas."" 

§  818.     Exclusive  grant  to  construct  and  operate  pipe  lines. 

The  grant  to  a  lessee  of  the  exclusive  right  to  hiy  and 
operate  a  pipe  line  across  the  lessor's  tract  of  land  will  not 
prevent  a  corporation  having  the  right  of  eminent  domain 
condemning  a  right  of  way  over  the  same  land;  and  the  lessee 
is  not  entitled  to  compensation  in  sucli  condemnation  pro- 
ceedings for  the  invasion  of  his  exclusive  i-ight.""  A  subse- 
quent purchaser  of  the  tract  may  grant  to  others  rights  of 
way  over  it  for  the  construction  of  pipe  lines,  or  may  himself 
construct  and  operate  them,  and  the  lessee  cannot  secure  an 
injunction  to  prevent  their  being  laid.°^ 

§  819.    Reservation  of  oil  and  gas. 

A  vendor  of  land  who  has  reserved  the  oil  and  natural 
gas  under  it  may  lease  or  convey  such  oil  or  gas,  and  the 
conveyance  will  vest  the  title  thereto  in  his  lessee  or  grantee 
and  give  him  the  right  to  enter  upon  the  premises  and  mine 
for  gas  or  oil,  and,  if  found,  market  it."^  But  if  the  reserva- 
tion is  not  sufficient  to  reserve  the  oil  or  gas  then  the  vendor's 
lessee  obtains  no  right  to  mine  them ;  and  the  grantee  or 
his  lessee  may  enjoin  him  if  he  attempts  to  or  does  enter  on 
the  land  to  begin  mining  operations."* 


90  Talbott  V.  Southern  Oil  Co.,  60  ss  Porter  v.  Mach.  'Mfg.  Co.,  65 
W.  Va.  423;  55  S.  E.  1009.  As  to  W.  Va.  C3G;  64  S.  E.  853;  Williams 
State's  power  to  compel  pluggin^^  v.  South  Penn.  Oil  Co.,  52  W.  X-.i. 
of  dry  wells,  see   §§49  and  385.  181;  43  S.  E.  214;  GO  L.  R.  A.  7!)5; 

91  Calor  Oil  &  Gas  Co.  v.  Fra^ell,  Suit  v.  Hoehstetter  Oil  Co.,  03  W. 
128  Ky.  715;  109  S.  W.  328;  33  Va.  317;  Gl  S.  E.  307;  Murray  v. 
Ky.  L.  Rep.  98;  Brookshire  Oil  Co.  Allred,  100  Tenn.  100;  43  S.  W.  335; 
V.    Casmalia    Ranch    Oil,    etc.,    Co.,  GG  Am.  St.  740. 

156  Cal.  211;    103   Pac.   927.  94  Detlor  v.  Holland,  57  Ohio  St. 

92  West  Virginia  Transportation  492;  49  X.  E.  G90;  40  L.  R.  A.  266; 
Line  v.  Ohio  River  Pipeline  Co.,  22  McKinney's  Heirs  v.  Central  Ky. 
W.  Va.  600i  46  Am.  St.  627.  Xat.  Gas  Co.,   134  Ky.  239;    120  S. 

W.  314. 


912  OIL   AND   GAS. 

§  820.     Several  tracts  under  one  lease. 

If  two  or  more  separate  landowners  jointly  execute  a  joint 
lease  of  their  separate  tracts  for  a  joint  rental  or  royalty,  the 
lessee  may  enter  upon  any  one  of  the  tracts  for  exploration, 
and  upon  discovering  oil  or  gas  in  paying  ((uantities,  he  may 
hold  all  the  lands  upon  payment  of  the  royalties  or  gas  rentals 
during  and  beyond  the  term  of  the  lease,  in  accordance  with 
its  conditions,  regardless  of  his  failure  to  explore  for  or 
produce  oil  or  gas  from  the  other  separate  tract  or  tracts. 
The  production  of  the  oil  or  gas  is  a  good  defense  in  an 
action  to  cancel  the  lease  as  to  the  undeveloped  tracts.""'  In 
Pennsylvania  where  a  lessor  died  devising  the  leased  prem- 
ises to  several  devisees,  it  was  held  that  each  devisee  was 
entitled  to  the  proportional  interest  in  the  royalty  or  gas 
rental  as  his  tract  in  acreage  bore  to  the  total  acreage  cov- 
ered by  the  lease.®°  But  in  Ohio  where  the  owners  of  tAvo  tracts 
of  land  executed  a  lease  covering  both  tracts,  and  afterwards 
conveyed  those  tracts  to  different  persons,  it  was  held  that 
each  separate  grantee  was  entitled  to  the  royally  of  the  oils 
and  gas  rentals  from  the  wells  produced  upon  his  tract."^  In 
West  Virginia  where  two  persons  each  owning  a  separate 
tract  of  land  executed  a  joint  lease  covering  both  tracts,  in 
consideration  of  a  joint  royalty  of  oil  or  gas  rental,  it  was 
held  that  the  question  of  the  right  of  the  owners  to  the 
royalty  and  rentals  for  wells  on  each  separate  tract  was  a 
question  of  fact;  and  that  a  contemporaneous  agreement  be- 
tween them  that  the  royalty  should  be  paid  or  delivered  to 
the  owner  of  the  particular  tract  from  which  the  oil  was 
produced  might  be  proven,  in  determining  to  whom  the  roy- 
alties or  gas  rentals  were  to  be  paid."^ 

§  821.    Rival  lessee  claimants. 

A  court  of  equity  and  not  a  court  of  law,  has  jurisdiction 
to  settle  the  validity  and  priority  of  oil  and  gas  leases  between 
claimants,  where  they  have  been  executed  by  a  common  land- 

95  §  86.     Harness   v.   Eastern    Oil  97  Northwestern  Ohio  Nat.  Gas  Co. 

Co.,  49  W.  Va.  232;  38  S.  E.  002.  v.  Ullerj-,  08  Ohio  St.  259;  67  N.  E. 

9fi  §  230.      Wettengel    v.   Gormley,  494. 

160  Pa.  550;  28  Atl.  934;  40  Am.  St.  98  Rymer  v.  South  Penn.   0:1   Co., 

733;  Wettengel  v.  Gormley,  184  Pa.  54  W.  Va.  530-.   4fi  S.  E.  4-:n. 
Pa.  354;  ,30  Atl.  57. 


LESSEE  S   REMEDY. 


013 


owner.""  If  a  lessee  be  given  the  exclusive  right  to  take  tlie 
oil  and  gas  under  a  tract  of  land,  he  may  file  a  l)ill  in  e<iuity 
against  a  claimant  under  an  adverse  lease,  whether  made 
before  or  after  his  own  lease,  who  has  entered  upon  the 
premises  and  is  producing  and  marketing  oil  or  gas  there- 
from. The  remedy  is  an  injunction  and  accounting;  and  the 
court  will  settle  all  questions  in  dispute  between  the  conflict- 
ing claimants,  and  cancel  the  invalid  lease  as  a  cloud  upon 
the  title  of  the  valid  lease.  If  the  holder  of  the  invalid  lease 
has  converted  oil  and  gas  to  his  own  use,  it  will  give  a  judg- 
ment against  him  in  favor  of  the  other  lessee  for  the  value 
of  the  oil  and  gas  so  taken  out.'""     But  if  rival  lessees  claim 


99  Smith  V.  Root,  66  W.  Va.  633 ; 
66  S.  E.  1005;  Elk  Fork  Oil  &  Gas 
Co.  V.  Jennings,  84  Fed.  839;  90 
Fed.  178;  32  C.  C.  A.  560;  Trees 
V.  Eclipse  Oil  Co.,  47  W.  Va.  107; 
34  S.  E.  933;  Smith  v.  Linden  Oil 
Co.  (W.  Va.),  71  S.  E.  167;  Freer 
V.  Davis,  52  W.  Va.  1;  43  S.  E. 
164;  Steelsmith  v.  Gartlan,  45  W. 
Va.  27;  29  S.  E.  978;  Galloway  v. 
Campbell,  142  Ind.  324;  41  X.  E. 
597;  Williamson  v.  Jones,  43  W.  Va. 
562;  27  S.  E.  411;  Powers  v.  Bridge- 
port Oil  Co.,  238  111.  397;  87  N.  E. 
381;  Wilson  v.  Youst,  43  W.  Va. 
826;  28  S.  E.  781;  Thomas  v.  IIu- 
kill,  34  W.  Va.  355;  12  S.  E.  522; 
Crawford  v.  Ritchie,  43  W.  Va.  252; 
27  S.  E.  320;  Hukill  v.  Myers,  36 
W.  Va.  639;  15  S.  E.  151;  William- 
son V.  Jones,  39  W.  Va.  231 ;  19  S. 
E.  436;  Bettman  v.  Harness,  42  W. 
Va.  433;  26  S.  E.  271;  McGraw  Oil 
Co.  V.  Kennedy,  65  W.  Va.  595;  64 
S.  E.  1027 ;  Eclipse  Oil  Co.  v.  Soutli 
Penn.  Oil  Co.,  47  W.  Va.  84 ;  34  S.  E. 
928 ;  Eastern  Oil  Co.  v.  Coulehan,  65 
W.  Va.  531;  64  S.  E.  836;  Eakins 
V.  Hawkins,  48  W.  Va.  2G4;  37 
S.  E.  622;  Suit  v.  Hochstetter  Oil 
Co.,  63  W.  Va.  317;  61  S.  E.  307; 
South  Penn.  Oil  Co.  v.  Edgell,  48 
W.  Va.  348 J   37  S.  E.  596;  Headley 


V.  Hoopengarner,  60  W.  Va.  626;  55 
S.  E.  144;  Parish  Fork  Oil  Co.  v. 
Bridgewater  Gas  Co.,  51  W.  Va. 
583;  42  S.  E.  655;  Pheasant  v. 
Hanna,  63  W.  Va.  616;  60  S.  E. 
618;  Friend  v.  Mallory,  52  W.  Va. 
43;  43  S.  E.  114;  Starn  v.  HufTman, 
62  W.  Va.  422;  59  S.  E.  179;  Unv- 
ther  Oil  Co.  v.  Guffey,  52  W.  Va. 
88;  43  S.  E.  101;  Peterson  v.  ILill, 
57  W.  Va.  535 ;  50  S.  E.  63 ;  Haskell 
V.  Sutton,  53  W.  Va.  200;  44  S.  E. 
533 ;  Carnegie  Nat.  Gas  Co.  v.  South 
Penn.  Oil  Co.,  56  W.  Va.  402;  49 
S.  E.  548;  Pj'le  v.  Henderson,  55 
W.  Va.  122;  46  S.  E.  791;  Carney 
V.  Barnes,  56  W.  Va.  581;  49  S.  E. 
423. 

100  Tliomas  v.  Hukill,  34  W.  Va. 
385 ;  12  S.  E.  522 ;  Powers  v.  Bridge- 
port Oil  Co.,  238  111.  397;  87  X.  E. 
381;  Hukill  V.  Myers,  36  W.  Va. 
639;  15  S.  E.  151;  Peterson  v.  Hall, 
57  W.  Va.  535;  50  S.  E.  603;  Trees 
V.  Eclipse  Oil  Co.,  47  W.  Va.  107; 
34  S.  E.  933;  Suit  v.  Hochstetter 
Oil  Co.,  63  W.  Va.  317;  61  S.  E. 
307;  Eclipse  Oil  Co.  v.  South  Penn. 
Oil  Co.,  47  W.  Va.  84;  34  S.  K. 
923;  Pyle  v.  Henderson,  65  W.  Va. 
39;  03  S.  E.  620;  Parish  Fork  Oil 
Co.  V.  Bridgewater  Gas  Co.,  51  W. 
Va.  583;  42  S.  E.  655;  Lowther  Oil 


914  OIL    AND    GAS. 

under  conflicting  leases  executed  by  rival  lessors  holding  con- 
flicting titles,  a  court  of  equity  will  not  entertain  jurisdiction 
to  settle  their  claims;  the  remedy  is  in  a  court  of  law/"^^  A 
lessee  may  secure  in  a  court  of  equity  a  cancellation  of  an 
outstanding  forfeited  or  void  lease,  or  one  made  without 
consideration  qr  one  that  is  inequital)le,  unconscionable,  or 
void  for  want  of  mutuality.^"-  If  necessary  to  protect  the 
lines  of  the  leased  premises  while  the  suit  is  pending,  the 
court  may  appoint  a  receiver  to  make  developments  neces- 
sary to  their  protection,  and  for  the  purpose  of  preserving 
the  status  quo.^°^  In  Pennsylvania  a  lessee  who  has  developed 
the  premises  may  restrain  by  injunction  the  lessor  or  anyone 
acting  under  him  from  drilling  on  the  leasehold;  for  the 
rights  of  the  lessee  are  necessarily  exclusive,  and  the  damages 
to  arise  from  the  threatened  invasion  are  deemed  entirely  in- 
capable  of  measurement   at   law,   even  if  not   irreparable/*'* 


§  822,     Specific  performance. 

If  a  lessee  have  no  adequate  remedy  at  law  he  may  enforce 
specific  performance  of  the  provisions  of  the  lease  as  against 
the  lessor  or  any  one  claiming  in  privity  under  him.^°'^  If  a 
contract  be  unfair,  unjust  or  against  good  conscience,  specific 

Co.  V.  Miller-Sibley  Oil   Co.,   53  W.  Fed.  495;  39  C.  C.  A.  315;  Galloway 

Va.   501;    44    S.   E.   433;    Friend   v.  v.  Campbell,  142  Ind.  324;  41  X.  E. 

Mallory,   52   W.   Va.   53;    ^3    S.    E.  597. 

114;   Lowther  Oil  Co.  v.  GufTey,  52  io4  §  103.    Westmoreland,  etc.,  Gas 

W.   Va.   88;    43    S.    E.    101;    Henne  Co.  v.  DeWitt,  130  Pa.  235;   18  AtK 

V.  South  Penn.  Oil  Co.,  52  W.  Va.  724;    Greensboro    Xat.    Gas    Co.    v. 

192;  43  S.  E.  147.  Fayette    County    Gas    Co.,    200    Pa. 

101  Freer  v.  Davis,   52   W.  Va.   1;  388;     49    Atl.    7G8;     Carnegie    Nat. 

43   S.   E.    1G4;    Suit   v.   Hoclistctter,  Gas  Co.  v.  Philadelphia  Co.,  158  Pa. 

C3  W.  Va;  317;  Gl  S.  E.  307.  317;  27  Atl.  95;  Funk  v.  Haldeman, 

i^'2  Crawford  v.  Ritchie,  43  W.  Va.  53  Pa.  229. 

252;    27    S.    E.    220;    Steelsmith    v.  lor,  §  293.    Carnegie  Nat.   Gas   Co. 

Gartlan,    45    W.   Va.   27;    29    S.    E.  v.   South  Penn.  Oil  Co.,  56  W.  Va. 

927;  Bettman  v.  Harness,  42  W.  Va.  402;   49   S.   E.  548;   Eclipse  Oil  Co. 

433;  2G  S.  E.  271.  v.   South   Penn.   Oil   Co.,  47  W.  Va. 

103  Suit  V.  Ilochstetter  Oil  Co..  fi3  84 ;    34   S.   E.    923 ;    West   Virginia, 

W.   Va.   317:    Gl    S.   E.   307;    Dodd-  etc.,   Co.  v.  Vinol,   14   W.  Va.   637; 

ridge  County  Oil  &  Gas  Co.  V,  Smith,  Smith  v.  Root,  66  W.   Va.   633;    66 

154    Fed.    970;    173    Fed.    38G;    Elk  S.  E.  1005;  P.ettman  v.  Il^.rncss,  42 

Fork   Oil   &   Gas   Co.   v.   Fo..^ter,   09  W.  Va.  433;   26  S.   F.  271. 


lessee's  remedy.  915 

performance  will  be  rcfusod,  altli()u<zli  an  action  for  damagos  may 
be  enforced  at  law.'""  Lack  of  mutuality  is  no  defense,  even  if 
the  lessee  be  not  bound  by  the  terms  of  the  lease,  if  he  lia.s 
performed  all  the  conditions  of  the  contract  and  brought  himself 
clearly  within  its  terms. '°^ 

§  823.     Necessary  parties  to  settle  controversy  between  rival 
claimants. 

If  a  lessee  bring  a  suit  in  equity  against  another  lessee  to 
settle  a  controversy  between  them,  he  must  make  all  persons 
interested  under  the  rival  lease  parties,  including  tiie  lessor.""* 

§  824.     Ejectment. 

A  lease  of  land  in  Pennsylvania  which  demises  grants  and 
lets  a  tract  of  land  for  the  exclusive  right  to  enter  and 
develop  the  oil  and  gas,  conveys  an  interest  in  the  land,  and 
the  lessee  may  maintain  ejectment  against  one  who  has  en- 
tered into  possession  and  claims  adversely  to  him,  even  though 
he,  the  lessee,  has  never  entered  into  possession  of  the  land.'"'' 
He  may  maintain  the  action  against  a  second  lessee  of  the 
same  lessor,  if  he  show  he  has  entered  into  possession  and  not 
abandoned  the  premises.""  If  the  lease  give  the  lessee  only 
the  privilege  and  exclusive  right  to  enter  and  explore  for 
oil  and  gas,  and  the  land  itself  is  not  granted,  he  cannot  main- 
tain ejectment  to  secure  possession,  but  must  sue  for  dam- 
ages.''' 

106  Federal  Oil  Co.  v.  Western  Oil  Newton  v.  Kemper,  66  W.  Va.  130; 
Co.,  112  Fed.  373;  affirmed  121  Fed.  66  S.  E.  102;  Pyle  v.  Henderson,  53 
674;  57  C.  C.  A.  428;  Great  Western       W.  Va.   122;    4G   S.   E.  791. 

Oil   Co.   V.  Carpenter,   43   Tcs..   Civ.  loo  §  120.     Bamsdall    v.    Bradford 

App.  229 ;   95  S.  W.  57 ;   Waterford  Gas  Co.,  225  Pa.  338 ;   74  Atl.  207 ; 

Oil  &  Gas  Co.  V.   Shipman,  233   111.  Williams   v.   Fowler,    201    Pa.    330; 

9;   84  N.  E.  53.  50  Atl.  909;  Hicks  v.  American  Nat. 

107  Boyd  V.  Brown,  47  W.  Va.  238 ;  Gas  Co.,  207  Pa.  570 ;  57  Atl.  55. 
38  S.  E.  0G8.  no  Bartley    v.    Phillips,    105    Pa. 

108  Moore  v.  Jennings,  47  W.  Va.  325;  30  Atl.  842;  Bartley  v.  Phil- 
181;  34  S.  E.  793;  South  Pcnn.  Oil  lips,  179  Pa.  175;  30  Atl.  217. 

Co.  V.  Miller,   175   Fed.   729;    99  C.  m  Union  Petroleum  Co.  v.  Bliven 

C.  A.  305;   Steelsmith  v.  Foster  Oil       Petroleum  Co.,  72  Pa.  173. 
Co.,  47  W.   Va.  391;    35   S.   E.    15; 


APPENDIX  A. 

GAS  AND  OIL  LEASES  AND  AGREEMENTS. 

INDIANA. 

GRANT  OF  OIL  AND  GAS. 

IN  CONSIDERATION  of   the  sum  of Dollars    and   the  covenants 

and  agreements  hereinafter  contained first   part,  .hereby  grant 

unto second  party,  his  heirs  or  assigns,  all  the   lil   and  gas  in  and 

under  the  following  described  premises,  together  with  the  exclusive  right 
to  enter  thereon  for  the  purpose  of  drilling  or  oper3.\ing  for  oil  or  gas; 
to  erect,  maintain  and  remove  all  structures,  pipe  Mnes.  and  machinery 
necessary  for  the  production  and  storage  of  oil,  gas  or  w»*;er,  namely :     A 

lot    of    land    situated    in    the    Township    of County    o{ in    the 

State    of bounded    and    described    as    follows ....containing 

acres,  more  or  less. 

The  above  grant  was  made  on  the  following  terms: 

Should  oil  be  found  in  paying  quantities  upon  the  premises,  second 
party  agrees  to  deliver  to  the  first  party  in  the  pipe  line  w?th  which   he 

may  connect  the  well   or   wells,   the part  of   all   the   oil   saved  from 

said  premises. 

If  gas  only  is  found,  second  party  agrees  to  pay each  year  for  the 

produce  of  eacli  well  while  the  same  is  being  used  ofT  the  premises,  and 
first  party  shall  ha,ve  gas  free  of  expense  to  light  and  heat  the  dwellings 
on  the  premises. 

The  second  party  shall  have  the  right  to  use  sufficient  gas  or  water  to 
run  all  machinery  used  by  him  in  carrying  on  his  operations  on  said 
premises,  and  the  right  to  remove  all  his  property  at  any  time. 

If  no  well   is  drilled  within from  this  date  then  this  grant  shall 

become  null  and  void  unless  second  party  shall  pay  to  the  first  party 
for  each thereafter  such  completion  is  delayed 

IN   WITNESS  WHEREOF,  The  parties  have  hereunto  set  their  hands 

this day  of A.  D.  190.  .. 

Witness  :  


916 


APPENDIX.  917 

OIL  AND  GAS  GRANT. 

IN  CONSIDERATION  of  the  sum  of Dollars,  the  receipt  of  which 

is   hereby    acknowU'clycd first    part,  .hereby    j^^raiit    unto 

second  party,  its  successors  and  assigns,  all  the  oil  and  gas  in  and  under 
the  following  described  premises,  together  with  the  riglit  to  enter  thereon 
at  all  times  for  the  purpose  of  drilling  and  operating  for  oil.  ga.s  and  water, 
and  to  erect  and  maintain  all  buildings  and  structures,  and  lay  all  pipe 
necessary  for  the  production  and  transportation  of  oil,  gas  and  water 
from  said  premises.  Excepting  and  reserving,  however,  to  first  part.. the 
part  of  all  oil  produced  and  saved  from  said  premises,  to  be  deliv- 
ered  in   the   pipe    line   with    which    second    party   may   connect    its    wells, 

namely:     All  that  certain  lot  of  land  situated  in  the  Township  of 

County   of in   the  State   of bounded   and   described   as   follows, 

to-wit: containing acres  more  or  less. 

Second   party   agrees,   if   gas   is  only   found,    to   pay Dollars   each 

year,   in  advance,   for  the  product  of  each   well   while  the   same   is   being 

used  off  the  premises,  and  first  party  to  have  gas  free  of  cost  to  heat 

stoves  in  dwelling  house  during  the  same  time. 

Whenever  first  part.. shall  request  it,  second  party  shall  bury  all  oil 
and  gas  lines,  and  pay  all  damages  done  to  growing  crops  by  reason  of 
burying  and  removing  said  pipe  lines. 

No  well  shall  be  drilled  nearer  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre. 

In    case   no   well    is within from    this   date^   then    this   grant 

shall   become  null   and   void,   unless  second   party   shall    pay   to   said   first 

part Dollars  in  advance  for  each thereafter  such 

is  delayed. 

The  second  party  shall  have  the  right  to  use  sufficient  gas.  oil  and  water, 
for  all  their  operations,  and  also  the  right  to  remove  all  its  property  at 
any  time,  including  the  right  to  draw  and  remove  casing 

All  covenants  and  agreements  herein  set  forth  between  tlie  parties 
hereto  shall  extend  to  their  successors,  heirs,  executors  and  assigns. 

IN   WITNESS  WHEREOF.  Tlie  parties  hereto  have  hereunto  set  their 

hands  and  seals  this day  of A.  D.   19.  .. 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  INDIANA,      ) 
COUNTY   OF f  ^^• 

On  the day  of A.  D.  10.  .,  before  me,  the  subscriber,  a 

in  and   for  said  county,  personally  appeared to  me  known  to 

be  the  person  named  in,  and  who  executed  the   foregoing  instrument,  and 

in  due  form  of  law  acknowledge  the  same  to  be act  and  deed,  for  the 

uses  and    purposes  therein   mentioned,   and   desired  that   it   might   be  re- 
corded as  such. 

Witness  my  hand  ofTicial  seal. 

(Seal, 


918  on.    AND    GAS. 

OIL    AND    GAS    GRANT. 

IN  CONSIDKRATIOX  of  tlip  sum  of Dollars,  the  receipt  of  which 

is   hereby   atknowli'dgcil first   part .  . hereby   grant.  . unto 

second  part.  ..  successors  and  a.-i.signs,  all  the  oil  and  gas  in  and  under  the 
following  described  premises,  together  with  the  right  to  enter  thereon  at  all 
times  for  the  purpose  of  drilling  and  operating  for  oil,  gas  and  water,  and 
to  erect  and  maintain  all  buildings  and  structures,  and  lay  all  pipe  neces- 
sary for  the  production  and  traii.si)ortation  of  oil,  gas  and  water  from  said 

premises.     Excepting  and  re.serving,  however,  to  first  part.. the part 

of  all  oil  produced  and  saved  from  said  premise.s,  to  be  delivered  in  the 
pipe  line  with   which   second  party  may  connect  the  wells,   namely:     All 

that  certain  land   situate  in  the  Township  of ,  Count}'  of ,   in 

the  State  of  Indiana,  described  as  follows,  to-wit: containing 

acres  more  or  loss. 

This  grant  is  made  for  the  period  of  five  years  from  this  date  and  as 
much  longer  as  oil  or  gas  is  found  in  paying  quantities  under  the  terms 
and  conditions  herein  contained. 

Second   part .  .agree.  .,   if  gas  only  is   found,   to   pay Dollars  each 

year,  payable in  advance,  for  the  product  of  each  well  while  the  same 

is  being  used  off  the  premises,  and  first  part,  .to  have  gas  free  of  cost,  at 
the  well,  for  domestic  purposes  on  the  farm. 

Whenever  first  part,  .shall  request  it,  second  part,  .shall  bury  all  oil  and 
gas  lines,  and  pay  all  damages  done  to  growing  crops  by  reason  of  burying 
and  removing  said  gas  lines. 

No  well  shall  be  drilled  neared  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre.  The  first 
part,  .shall  fully  use  and  enjoy  said  premises  for  farming  purposes,  except 
such  parts  as  may  be  necessary  for  said  operations. 

In  case  no  well  is within from  this  date,  then  this  grant  shall 

become  null  and  void,  unless  second  part,  .shall  pay  to  said  first  part.. 
in  advance  for  each thereafter  such is  delayed. 

Payments  to  be  made  as  herein  provided  may  be  made  direct  to  first 
part,  .or  deposited  to  first  party's  credit  in 

It  is  understood  and  agreed  between  the  parties  hereto,  that,  second 
part,  .by  giving  to  first  part,  .thirty  days'  notice  in  writing  of  a  desire  to 
surrender  this  grant,  may  do  so  upon  the  payment  to  first  part.. of  the 
sum  of  one  dollar  and  releasing  the  same  of  record,  and  thereby  be  released 
from  all  further  liabilities  hereon. 

The  second  part.. shall  have  the  right  to  use  sufficient  gas,  oil  and 
water,  for  all  operations  hereunder,  and  also  the  right  to  remove  all 
property   at  any  time,   including   the   right   to   draw   and   remove   casing. 


All    covenants    and    agreements    herein    set    forth    between    the    parties 
hereto  shall  extend  to  their  successors,  heirs,  executors  and  assigns. 


AI'TKNIUX.  91!> 

In    Witness    Whereof,    the    parties    have  hereunto    sot    their    liands    and 

seals,  this day  of A.  1).   lUO.  .. 

Witness  :  ( Seal ) 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  INDIANA,  COUNTY  OF ss: 

Before    me.    the    luulersigned    Notary    Publie.    personally    appeared    the 

within    named and    severally    aeknowledj^ed    tlie    execution    of 

the  fore«^oing  instrument  to  be free  act  and   detnl. 

Witness   my  hand   and  offieial   seal,  this day   of 190... 

( Seal ) 

Notary  Public. 
Commission  expires 100.  .. 

STATP:  of  INDIANA.  COUNTY  OF ss: 

Before    me.    the    undersigned    Notary    Public,    personally    appeared    the 

within    named and    severally    acknowledged    the    execution    ot 

the  foregoing  instrument  to  be free  act  and  deed. 

Witness  my  hand  and  official  seal,  this day  of 190.  .. 

( Seal ) 

Notary  Public. 
Commission  expires 190 .. . 

OIL   OR   GAS   LEASE. 

THIS  LEASE,  Made  this day  of A.  D.  100.  .,  by  and  between 

of  the  County  of and  State  of  Indiana  of  the  first  part, 

and  The  Hancock  Oil  Company  of  the  second  part, 

WITNESSETH,  That  the  said  part,  .of  the  first  part,  in  consideration  of 
$1.00  in  hand  paid,  the  receipt  of  which  is  hereby  acknowledged,  and  the 
stipulations,  rents  and  covenants  hereinafter  contained,  on  the  part  of  the 
said  party  of  the  second  part,  his  executors,  administrators  and  assigns, 
to  be  paid,  kept  and  performed,  have  granted,  demised  and  let  imto  the 
said  party  of  the  second  part,  his  executors,  administrators  and  assigns, 
for   the   sole   and   only   purpose   of  drilling  and   operating   for    Petroleum 

Oil   or  Gas  for   the  term   of years  with   the  privilege  of years 

thereafter  on  the  same  terms  and  conditions  at  the  option  of  the  lessee. 
Said  lessee  to  give  thirty  day's  notice  in  writing  before  the  expiration  of 
said  year  of  its  intention  to  avail  itself  of  said  option,  or  as  long  there- 
after as  Oil  or  Gas  is  found  in  paying  quantities,  all  that  certain  tract  of 

land    situated    in Township County.    State    of    Indiana.    Being 

the Containing acres,  more  or  less;  excepting  and  reserv- 
ing   therefrom acres   around    the   buildings   on    said    premises,    upon 

which  there  shall  be  no  wells  drilled:  the  boundaries  of  which  shall  be 
designated  and  fixed  by  the  part,   of  the  first  part. 

The  said  second  party  hereby  agrees  in  consideration  of  the  said  lease  of 

the  above  described  premises,  to  give  said  first  part Pnvalty  Share.  . 

of  all  the  oil  or  mineral  produced  and  saved  from  said  premises,  except  for 


920  OIL    AND    GAS. 

operating  purposes  on  the  premises,  delivered  in  tanks  or  pipe  lines  to  the 

credit  of  tirst  part...     And  further  agrees  to  give  $ per  annum  for 

the  gas  from  each  and  every  well  drilled  on  the  above  described  premises, 
in  case  the  gas  be  found  in  quantity  to  transport  off  the  above  described 
premises,  and  convey  to  market,  which  the  second  party  is  to  be  the  sole 
judge  thereof.  The  said  second  party  not  to  unnecessarily  disturb  growing 
crops  thereon,  or  the  fences. 

Said  second  party  has  the  right,  which  is  hereby  granted  him,  to  enter 
upon  the  above  described  premises  at  any  time  for  the  purpose  of  mining 
or  excavating,  and  the  right  of  way  to  and  from  the  plsK;e  of  mining  or 
excavating  and  the  right  to  lay  pipe  lines  for  the  purpose  of  conveying  or 
conducting  water,  steam,  gas,  or  oil  over  and  across  said  premises,  and 
also  the  right  to  remove  at  any  time  any  or  all  machinery,  oil  well  supplies 
or  appurtenances  of  any  kind  belonging  to  the  said  second  party 

The  party  of  the  second  part  agrees  to  commence  one  well 

from  the  date  hereof  ( unavoidable  accidents  and  delays  excepted ) ,  and 
in  case  of  failure  to  commence  one  well  within  such  time,  the  party  of  the 
second  part  hereby  agrees  to  pay  thereafter  to  the  part,  .of  the  first  part 

for  any  future  delay,  the  sum  of dollars  per  annum  as  a  rental  on 

the  same  thereafter  until  a  well  is  commenced  or  the  premises  abandoned, 

payable   at and   the   part.. of  the  first   part  hereby   agree.. to 

accept  such  sum  as  full  consideration  and  payment  for  such  yearly  delay 
until  one  well  shall  be  commenced,  and  a  failure  to  commence  one  well  or 
to  make  any  of  such  payments  within  such  time  and  at  such  place  as 
above  mentioned,  renders  this  lease  null  and  void,  and  neither  party 
hereto  shall  be  held  to  any  accrued  liability,  otherwise  to  be  and  remain 
in  full  force  and  virtue. 

It  is  understood  by  and  between  the  parties  to  this  agreement  that  all 
conditions  between  the  parties  hereto  shall  extend  to  their  heirs,  executors 
and  assigns. 

IN  WITNESS  WHEREOF,  We,  the  said  parties  of  the  first  and  second 
part,  have  hereto  set  our  hand  and  seals  the  day  and  year  first  above 
written. 

( Seal ) 

(Seal) 

THE COMPANY, 

Attest : By 

Secretary.  President. 

STATE  OF  INDIANA.         ) 
COUNTY  OF I    ^^' 


Before  me,   the   undersigned,   a  Notary   Public   in   and   for   said    county, 

this day of 190.  .,     personally     appeared and 

the  Hancock  Oil  Company  by  its  officers,  William  C.  Budding,  President, 
and  Ephraim  Marsh,  Secretary,  and  acknowledged  the  execution  of  the 
foregoing  agreement. 

IN  WITNESS  WHEREOF,  I  have  hereunto  set  my  hand  and  Notarial 

Seal,  this day  of ,  190 .  . .  

Notary  Public. 


Ari'Exnix.  921 

AGREEMENT  TO  DRILL  WELL. 

AGREEMENT  made  and  condtidod  this day  of 189!)  by  and 

between  The  Ko\vland-Zt'i','hir  Oil  Co..  of  Montpclier,  Ind.,  party  of  the 
first  part,  and of party   of  the  second   part. 

WITNESSETH,   the   first   part   hereto  afjjees  to   furnish   one   wood   T\g, 

the    necessary    drive    pipe    and    casing    on farm    in    Section in 

the    Township    of County    of in    the    State    of     Indiana.     Also 

shot,  rods,  pumjjing  outfit  and  tank  provided  well  proves  a   producer  and 

the    second   party   hereto,   in   consideration   of cents   per   foot    (which 

sum  is  to  be  paid  to  second  part  by  first  part  when  job  is  completed  in 
accordance  witli  the  contract  hereinafter  set  forth )  agrees  at  his  own 
cost  and  risk,  furnishing  all  else  that  is  necessary  for  the  jiroper  com- 
pletion of  an  oil  or  gas  well;  and  to  effectually  shut  ofl"  all  fresh  water 
by  making  the  casing  entirely  tight,  a  test  of  the  casing  to  be  made  by 
use  of  the  I)<'vice  known  as  the  casing  tester,  by  first  part  on  notice  from 
second  part  that  the  well  is  on  top  of  the  sand,  and  to  drill  said  well  into 
the  Trenton  rock  to  any  depth  that  the  first  part  elects,  not  to  exceed  one 
hundred  feet ;  to  clean  out  after  shot,  on  the  following  day  from  that  on 
which  the  shot  is  put  in,  fit  up  and  start  said  well  to  pumping  in  first-class 
shape. 

Provided  the  well  should  prove  a  gas  producer,  to  pack  the  well  with  the 
material  furnished  by  first  part  for  same,  and  making  it  an  entirely  tiglit 
job.  And  provided,  further,  tliat  if  neither  gas  or  oil  is  found  in  pitying 
quantity  and  the  first  part  would  want  the  piping  and  casing  pulled  out 
of  said  well,  the  second  party  hereto  agrees  to  plug  the  well  in  accordance 
with  the  law  and  pull  the  piping  without  further  charge  excepting  that 
the  first  part  must  pay  for  the  use  of  the  jacks  or  cutters  if  the  same 
are   required. 

In  the  event  the  second  party  finds  it  necessary  to  have  a  water  well 
at  the  said  location,  the  first  part  agrees  to  furnish  the  necessary  casing 
for  the  same,  only. 


KANSAS 
OIL,  GAS  AND  MINERAL  LEASE. 

THIS  LEASE,     Made  between party  of  the  first  part,  and 

,  parties  of  the  second  part.  WITNESSETH,  that   in  consid- 
eration of  One  Dollar,  the  receipt  of  which  is  hereby  acknowledged,  and 

the    further   consideration    of  drilling   or    excavating   test   wells    in 

County,  Kansas,  for  Oil,  Gas  and  other  minerals,  or  prospecting  for  of  lier 

minerals party   of   the   first   part  hereby   agree   with    parties   of   the 

second    part:      That    they    shall    have    the    exclusive    right    for    Ten    Years 
from  this  date  to  enter  upon  and  operate  for  Oil.  Gas  and  other  ^finerals 

all    that    certain    tract    of    land    in township County,    Kansas, 

described  as  follows,  to  wit: 


922  OIL    AND    GAS. 

Section Twp Range,    Acres Containing 

acres,    more    or    less,    upon    the    following    terms    and    conditions: 

Second  parties  shall  deliver  in  tanks  at  the  wells  to  the  first  party  without 
cost,  one-tenth  of  an  Oil,  produced  on  these  premises;  second  parties  shall 
also  pay  Fifty  Dollars  per  year  for  each  Gas  well  of  sufficient  capacity  to 
utilize  when  used  olT  the  premises,  and  deliver  on  the  dump,  to  the  first 
party  without  cost,  one-tenth  of  all  mineral  produced  on  these  premises. 
If  Oil,  Gas  or  other  Mineral  is  foiuid  in  paying  quantities  in  any  well 
drilled,  the  privilege  of  operatiiiL,'  shall  continue  as  long  as  Oil,  Gas  or 
other  Mineral  shall  be  produced  in  j)aying  quantities  and  when  abandoned 
for  such  purposes  this  grant  shall  cease,  and  no  longer  be  binding  on 
either  party.  If  Gas  is  found  on  the  above  described  land  the  party  ot 
the  first  part  is  to  have  same  for  domestic  purpose  free.  The  second 
party  reserves  the  right  to  remove  all  machinery  and  fixtures  placed 
thereon  by  them.  In  case  no  Oil  or  Gas  well  is  sunk  or  prospecting  for 
other  Mineral  done  on  these  premises  within  fi'e  years  from  this  date 
this  lease  shall  becoJne  absolutely  null  and  void  unless  the  second  parties 
shall  from  year  to  year  continue  this  lease  by  paying  or  depositing  to  the 

credit  of  the  first  party  each  year  in  advance Dollars  at  the 

until  a  well  is  completed  or  other  prospecting  done  on  the  premises 

Party  of  the  first  part  further  agrees  that  for  and  in  consideration  of  the 
considerations  and  covenants  above  contained  that  second  party  at.  .option 
may  any  time  within year  from  this  date  purchase  the  above  de- 
scribed property  ty  paying Dollars  per  acre  and  first  party  at  such 

payment  agrees  to  deliver  deed  of  above  property  free  from  all  liens  and 
encumbrances  whatsoever.  It  is  imderstod  by  and  between  the  first  and 
second  parties  to  this  agreement  that  all  the  conditions  between  the  parties 
hereto  shall  extend  to  their  heirs,  executors  and  assigns. 

IN  WITNESS  of  which  we  hereunto  set  our  hands  and  seal  this  the.  .  . . 

day  of A.  D.  190... 

(Seal) 

Witnesses  :  { Seal ) 

(Seal) 

(Seal) 

STATE  OF  KANSAS, 

COUNTY  OF 

Be  It  Remembered,     That  on  this day  of ino..,  personally 

appeared'  before  me personally  known  to  me  to  l>e  the  persons 

who  executed  the  foregoing  instrument  and  said  per.sons  acknowledged  the 
execution  of  the  same. 

In  Witness  Whereof  I  heroxmto  s\ibscribe  my  name  and  afiix  my  official 

*^eal.  

My  Commission  expires  on  the day  of 190.  .. 

OIL  AND  GAS  LEASE. 

IN  CONSIDERATION  of  the  sum  of  One  Dollar,  the  receipt  of  which  is 
"hereby  acknowledged,  and  of  the  covenants  and  aa'roonionts  hereinafter 
contained first  party,  hereby  grant  unto  Lanyon  Zinc  Company, 


APIMONDIX.  92.5 

a  New  Jersey  Corporation,  second  party,  successors  and  assi<jns,  all  the 
Oil  and  Gas  in  and  under  tlie  followinf,'  described  i)reniises,  tojrether  with 
the  right  to  enter  tliereon  at  all  times  for  the  purpose  of  drillinff  and 
operating  for  oil.  gas  or  water,  to  erect,  maintain  and  remove  all  build- 
ings, structures,  pi|)cs.  pipe  lines  and  macliinery  necessary  for  the  pro- 
duction and  transportation  of  oil,  gas  or   water. 

PROVIDED:  That  the  first  party  shall  have  the  right  to  use  said 
premises  for  farming  purposes  except  sucli  part  as  is  actually  occupied  by 

second  parly,  namely:      A   lot  of  land  situated   in   the  township  of 

County  of in  the  State  of Section  number Town- 
ship number Range  nuiiiber containing acres,  more 

or  less. 

THE   AKOVE  GKANT   WAS   JIADE  OX   THE  FOLLOWI.NG   TEUMS: 

1st.     Second  party  agrees  to  drill  a  well  upon  said  premises,  within  one 

year  from  this  date,  or  thereafter  pay  to  first  party Dollars  annually 

until  said  well  is  drilled,  or  the  property  hereby  granted  is  conveyed  to 
the  first  party. 

2nd.  Should  Oil  be  found  in  i)aying  (luantitics  upon  the  premises, 
second  party  agrees  to  deliver  to  first  party  in  tanks  or  in  the  pipe  line 
with  which  it  may  connect  the  wells,  the  one-tenth  part  of  all  the  oil  pro- 
duced and  saved  from  said  premises. 

."^rd.  Should  Gas  be  found,  second  party  agrees  to  pay  to  first  party 
Fifty  Dollars  annually  for  every  well  from  which  Gas  is  used  ofT  the  said 
premises. 

4th.  The  first  party  shall  be  entitled  to  enougli  Gas  free  of  cost  for 
domestic  use  in  the  residence  on  said  premises  as  long  as  second  party 
shall  use  Gas  off  said  premises  under  this  contract,  but  shall  lay  and 
maintain  the  service  pipe  at  his  own  expense  and  use  said  Gas  at  his  own 
risk.  The  said  party  of  the  second  part  further  to  have  the  privilege  of 
excavating  for  water  and  of  using  sufficient  water.  Ga^  and  Oil  from  thr 
premises  herein  leased  to  run  the  necessary  engines  for  the  i)rosecution 
of   said  business. 

5th.  Second  party  shall  bury,  when  requested  to  do  so  by  the  first  party, 
all  Gas  lines  used  to  conduct  Gas  off  said  premises  and  ])ay  all  damages 
to  timber  and  crops  by  reason  of  drilling  or  the  burying,  repairing  or 
removal  of  lines  of  pipe  over  the  said   premises. 

0th.     No  well  shall  be  drilled  nearer  than feet  to  any  building  now 

on   said   premises,   nor   occupy   more   than  one   acre. 

7th.  Second  party  may  at  any  time  remove  all  liis  property  aiid 
re-convey  the  premises  hereby  granted  and  thereupon  this  instrument  shall 
be  null  and  void. 

8th.  A  deposit  to  the  credit  of  lessor,  his  heirs,  executors  or  assigns 
in Bank,  to  the  account  of  any  of  the  money  payments  herein  pro- 
vided for,  shall  be  a  payment  under  the  terms  of  this  lease. 

9th.  Tf  no  well  shall  be  drilled  upon  said  premises  within  five  years 
from  this  date,  second  party  agrees  to  re-convey,  and  thereupon  this 
instrument    shall    be    null    and    void. 

Iflth.  A  failure  by  second  party  to  comply  with  any  of  the  above 
conditions  shall  render  this  lease  pull  and  void. 


924  OIL    AM)    CAS. 

IN   WrrXIlSS   whereof,  the   ]);iitifs   luMomito  have  set  their  handa 

and    seal    this day    of A.    D..    1!)0... 

Signed,  sealed  and  delivered  in  the  presence  of 


(Seal) 

(Seal) 

(Seal) 

COMPANY. 

By (Seal) 

COUNIT  OF ) 

STATE  OF  KANSAS,  ii  ss 

BE   IT  REMEMBERED,     That  on  the day  of A.  D.,   190.., 

before   me    a    Notary    Public    for    the    County    and    State    aforesaid    came 

personally  known  to  me  to  be  the  same  persons  who  e.vecuted 

the  foregoing  instrument  and  said  persons  duly  acknowledge  the  execu- 
tion of  the  same. 

Witness  my  hand  and  olTicial  seal  the  day  and  year  aforesaid. 

My  commission  expires  the day  of A.  D.,    1!)0.  .. 

,  Notary  Public. 

OHIO 
OIL  AND   GAS  LEASE. 

IN  CONSIDERATION  of  the  sum  of Dollars,  the  receipt  of  which 

is    hereby    acknowledged first    part .  .  hereby    grant    unto 

second  party,  successors  or  assigns,  all  the  oil  and  gas  in  and  under 

the  following  described  premises,  together  with  the  right  to  enter  thereon 
at  all  times  for  the  purpose  of  drilling  and  operating  for  oil,  gas  or  water, 
and  to  erect  and  maintain  all  buildings  and  struc]tures,  and  lay  all  pipes 
necessary  for  the  production  and  transportation  of  oil,  gas  or  water  from 
or   over   said   premises.     Excepting  and   reserving,   however,   to   first  party 

the part    of   all    oil    produced   and    saved    from   said   premises,    to   be 

delivered  in  the  pipe  line  with  which  second  party  may  connect wells, 

namely:      All  that  certain  lot  of  land  situated   in  the  Township  of 

County    of in  the    State   of bounded   and    described   as    follows, 

to-wit:      

To  have  and  to  hold  the  above  premises,  for  the  said  purposes  only,  for 

and  during  the  term  of  twelve  years,    from  the  date  hereof,  and  as 

much  longer  as  Oil  or  Gas  shall  be  found  in  paying  quantities. 

If  gas  only  is  found,  second  party  agrees  to  pay dollars  each  year, 

in  advance,  for  the  product  of  each  well  while  the  same  is  being  sold  off 
the  premises,  the  first  party  to  have  gas  free  of  cost  at  the  well  to  heat 
stoves  in  dwelling  house  during  the  same  time. 

Whenever  first  party  shall  request  it,  second  party  shall  bury  all  oil 
and  gas  lines,  and  pay  all  damages  done  to  growing  crops  by  reason  of 
bur^'ing  and  removing  said  pipe  lines. 

No  well  shall  be  diilled  nearer  than feet  to  the  house  or  barn  on 

said  premises,  and  no  well  shall  occupy  more  than  one  acre. 


APPENDIX.  92.') 

In  case  no  well  is  completed  within from  this  date,  then  this  j^riint 

shall  become  null  and  void,  unless  second  party  siiall  pay  to  the  said  first 
party dollars  in  advance  for  each  year  such  conijiletitm  is  delayed. 

The  second  party  shall  liave  tiie  right  to  use  sullieient  gas,  oil  or  water  to 
run  all  necessary  machinery  for  operating  said  wells,  and  also  the  right  to 
remove  all  ot  his  property  at  any  time. 

It  is  expressly  stipulated  and  agreed  that  the  party  of  the  sec»)nd  part 
may,  at  any  time  in  its  option,  in  consideration  and  i)ayment  of  one 
dollar  to  the  party  of  the  first  part,  his  heirs  or  assigns,  surrender  and 
cancel  this  lease  and  terminate  all  right  and  rescind  all  obligations  of 
either  and  all  of  the  parties  hereto,  their  successor.s,  heirs  or  assigns. 

It  is  understood  between  the  parties  to  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  excutors  and 
assigns. 

IN  WITNESS  WHEREOF,  the  parties  hereto  have  hereunto  set  their 
hands  and  seals  this day  of A.  D.,  1!)0.  .. 

Signed,   sealed  and  delivered  in  the  presence  of 


•  (Seal) 

(Seal) 

(Seal) 

STATE  OF ,   COUNTY,  ss: 

Before   me ,    a in   and    for   said   County   and 

State,  personally  appeared and  acknowledged  the  execution  of 

the  within  lease  to  be voluntary  act  and  deed. 

WITNESS,     My  hand  and Seal,  this day  of 190 .. . 

(Seal) 

OIL  AND  GAS  LEASE. 

AN   AGREEMENT,    Made    the day    of A.    D.,    190.. between 

of  the County  of and  State  of Lessor,  .and 

of Lessee .  . . 

WITNESSETH,  That  the  lessor,  in  consideration  of  ONE  DOLLAR, 
the  receipt  of  which  is  hereby  acknowledged,  and  of  other  valuable  con- 
siderations do.. hereby  demise,  grant   and    let  unto   the   lessee heirs 

and  assigns,  all  the  oil  and  gas  in  and  under  the  following  described  tract 
of  land,  and  also  the  said  tract  of  land  for  the  purpose  and  with  the 
exclusive  right  of  operating  thereon  for  said  oil  and  gas,  together  with 
the  right  of  way.  the  right  to  lay  pipes  over,  to  use  water  from,  and  also 
the  right  to  remove,  at  any  time,  all  property  placed  thereon  by  the  lessee.  . 

which   tract   of  land   is  situated   in  the of County  of and 

State  of and  is  bounded  and  described  as  follows,  to-wit: 

To  have  and  to  hold  the  same  unto  the  lessee,  .heirs  and  assigns  for  the 

term  and  period  of year,  .from  the  date  hereof,  and  as  much  longer 

as  oil  or  gas  is  found  in  paying  quantities  thereon  or  the  rental  paid 
by  lessee. 

The  lessee,  .shall  pay  to  the  lessor,  .the part  of  all  the  oil  pro- 
duced and  saved  from  the  premises,  and  deliver  free  of  expense  into  tanks 


926  on.    AND    GAS. 

or  1M|K'  lines  to  the  lessor's  ciedit,  and  slioiild  any  well  produce  gas  in 
butrKieiit  quantities  to  justify  marketing,  the  lessor .  .shall   be  paid  at  the 

rate  of dollars  per  year  for  such  well  so  long  as  the  gas  therefrom  is 

sold. 

If  no  well   l)e   completed  on  the  above  described   premises  within 

from   the   ilatc   hereof,   then  this  lease  shall  become  null   and   void   unless 

tne    lessee,  .shall    thereafter    pay    for   further    delay   at   the    rate    of 

dollars  per  year  until  a  well  shall  be  completed.  Said  amount  may  b€ 
paid   in  hand  or  by  deposit  to  the  lessor's  credit. 

The  lessor  to  have  sulhcient  gas  for  heating  dwellings  on  said  premises 
free  of  charge  at  the  wells.     All   pipe  lines  to  be  buried  below  plow  defjlh. 


It  is  further  agreed,  that  the  lessee  shall  pay  all  damage  done  to  growing 
crops  and  shall  operate  the  well  within  three  months  after  said  well  is 
completed. 

It  is  fully  understood  by  and  between  the  parties  hereto,  that  the  rights 
and  privileges  herein  conferred  shall  be  construed  to  mean  simply  a  lease 
of  privilege  to  drill  and  operate  as  above  set  forth,  for  gas  and  oil ;  and  any 
attempt,  on  the  part  of  the  second  party,  to  exceed  the  privileges  granted, 
as  so  construed,  shall  render  the  same  liable  for  trespass;  and,  furthermore, 
shall  work  a  forfeiture  of  all  the  rights  conferred,  and  this  instrument 
shall  become  null  and  void. 

IT  IS  FURTHER  AGREED,  That  the  lessee,  .shall  have  the  right  at 
any  time  to  surrender  this  lease  to  the  lessor.. and  thereby  be  fully 
discharged  from  any  and  all  damages  or  claims  whatsoever  arising  from 
any  neglect  or  nonfulfillment  of  the  foregoing  contract. 

It  is  understood  that  all  the  terms  and  conditions  between  the  parties 
hereto  shall  extend  and  apply  to  their  respective  heirs,  executors,  admin- 
istrators and  assigns. 

IN  WITNESS  WHEREOF.  The  said  parties  have  hereunto  set  their 
hands  and  seal,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  the  presence  of 


(Seal) 
(Seal) 
(Seal) 


STATE  OF  OHIO  ) 

COUNTY  OF p^- 

On   this day    of A.    D.,    100.  .before   me,    a in    and    for 

said    county,    personally    appeared    the    above    named and    ac- 
knowledged that did   sign  and  seal  the  within   instrument,  and  that 

the  same  is free  act  and  deed  for  the  purpose  herein  named. 

( Seal ) 

GAS  AND  OIL  LEASE. 

IN  CONSIDERATION  of  the  sum  of  One  Dollar,  the  receipt  of  which 

is  hereby  acknowledged of of  the  First  Part,  hereby  Grant  and 

Guarantee  unto Second  Party  all  the  Oil  and  Gas  in  and  under 

the  following  described  premises,  together  with  the  right  to  enter  thereon 


APPENDIX.  927 

at  all  times  for  the  purpose  of  Drilling'  ami  ()|)eratiii;.'  for  Oil  ami  (las  aii<i 
to  erect  and  maintain  all  liuililinj^s  ami  striutures  ami  lay  all  |)ipes  m-ti'.s- 
sary  for  the  proihution  and  trans|)()rtation  of  Oil  and  (Jas.  The  First  I'arty 
shall  have  the  one-eighth  (1-8)  part  oi  Oil  produced  and  saved  from  said 
premises,  to  be  delivered  to  the  Pipe  Line  with  which  Second  Party  may 
connect wells,  namely:  All  that  certain  lot  of  land,  in  the  Town- 
ship of County  of in  the  State  of hounded  and   descril)ed 

as  follows,  to-wit: containinj^ acres,  more  or  less. 

To  have  and  to  hold  the  above  described  premises  on  the  following  condi- 
tions, for  and  during  the  term  e|  Five  years  from  the  date  hereof  and  as 
long  after  said  term  of  years  as  Oil  and  Gas  can  be  fcmnd  on  said  real 
estate  in  paying  quantities  or  the  rental  is  paid  thereon  as  hereafter 
herein  provided. 

If  Gas  only  is  found,  in  suflicient  quantities  to  transport,  Second  Party 
agrees  to  pay  First  Party  One  Hundred  (.$100)  Dollars  annually  for  the 
product  of  each  and  every  well  so  transported,  and  First  Party  to  have 
Gas  free  of  cost  for  heating  and  lighting  purposes  in  dwelling  house. 
Second  Party  shall  bury  all  Oil  and  Gas  lines  when  same  intcrfeie  with 
cultivation,  and  pay  all  damages  done  by  reason  of  operating  under  this 
grant. 

It  is  agreed  that  Part.. of  the  Second  Part  is  hereby  given  the  option 

to  purchase  the  above  described  land  at  the  sum  of Dollars  per  acre 

on  or  before  the day  of 100... 

In   case   no   well    is   commenced    within from    this    date,    then    this 

grant  shall  become  null  and  void  unless  Second  Party  shall  thereafter  pay 

at   the   rate Dollars    for    each   year    such    commencement    is    delayed. 

A  deposit  to  the  credit  of  the  First  Party  in will  be  good  and  sufli- 
cient payment  for  any  money  falling  due  on  this  grant.  First  Party  has 
right  to  locate  roads  to  and  from  places  of  operation 

The  Second  Party  shall  have  the  right  to  use  sufncient  Gas,  Oil  and 
Water  to  run  all  machinery  for  operating  said  Wells,  also  the  right  to 
remove  all  its  property  at  any  time,  and  may  cancel  and  annul  this 
contract  or  any  undrilled  portion  thereof  at  any  time  upon  payment  of 
One  Dollar  to  said  First  Party  and  releasing  the  same  of  record. 

It  is  understod  between  the-  parties  of  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  executors,  success- 
ors  and   assignees. 

IN  WITNESS  WHEREOF.  The  parties  hereunto  set  their  hands  and 
seals  this dav  of A.  D..   100.  .. 


STATE  OF  INDIANA,  COUNTY  OF ss: 

Before  me a   Notary   Public  in  and   for   said   County,  this 

day   of 100...    personally    appeared    the   above    named 

to  me  well  known,  and  acknowledged  the  execution  of  the  above  and  fore- 
going instrument  to  be  their  free  act  and  deed. 

Witness  my  hand  and  Notarial  seal   this  day  and  year  above  written. 

My  commission  expires 190 ...  


928  oil.    AND    GAS. 

OIL  AND  GAS  LEASE. 

IN  CONSIDERATION  of  the  sum   of  One  Dollar,  tlic  receipt  of  which 

is  hereby  acknowledfjed,    of ,  first  part.  .,  hereby  grant  unto 

second    party,    all    the    oil    and    gas    in    and    under    the    following 

described  premises,  together  with  the  right  to  enter  thereon  at  all  times 
for  the  purpose  of  drilling  and  operating  for  Oil  or  Gas,  and  to  erect 
and  maintain  all  buildings  and  structures,  and  lay  all  pipes  necessary  for 
the  production  and  transportation  of  Oil  or  Gas  taken  from  said  premises. 
Excepting  and  reserving,  however,  to  first  part.. the  one-eighth  (%)  part 
of  all  oil  produced  and  saved  from  said  premises,  to  be  delivered  in  the 
pipe  line   with   which    second   party   may   connect  his   wells,   namelj':      All 

that  certain  lot  of  land  situate  in  the  township  of ,  County  of 

in  the  State  of ,  bounded  and  described  as  follows,  to-wit: 

containing.  ....  .acres,  more  or  less. 

To  have  and  to  hold  the  above  premises  on  the  following  conditions:      If 

gas  only  is  found,  second  party  agrees  to  pay Dollars  each  year  for 

the  product  of  each  well  while  the  same  is  being  used  off  the  premises,  and 

first  party  to  have  gas  free  of  cost  to  heat stoves  in  dwelling  house 

during  the  same  time. 

In    case    no    well    is    completed    within from    this    date,    then    this 

grant  shall   become  null   and  void,  unless  second   party   shall   pay  to  said 

first  part Dollars  annually  for  each  year  thereafter  such  well  is 

delayed. 

The  second  party  shall  have  the  right  to  use  sufficient  gas,  oil  or  water, 
to  run  all  machinery  for  operating  said  wells,  and  also  the  right  to  remove 
all  its  property  at  any  time 

It  is  understood  between  the  parties  to  this  agreement  that  all  conditions 
between  the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IN   WITNESS   WHEREOF,  the  parties   hereto  have   hereunto   set  their 

hands  and  seals  this day  of ,  A.  D.  190.  .. 

(Seal) 

( Seal ) 

( Seal ) 

(Seal) 

STATE  OF ■) 

COUNTY  OF C  ^^• 

Before  me in   and   for  said   county  aforesaid,   personally  appeared 

and  acknowledged  the  execution   of  the   foregoing  lease. 

Witness  my  hand  and seal  this day  of ,   100.  .. 


AIM'KM.IX.  920 

C)1I1()   AM)   I'KNNS^  LVANIA 

OIL   I.KASK. 
[Entered  according  to  Act  c{  Congress  in  the  gear  1SS(!,  bg  ./.  .1.  llrgdrick, 

of  Butler,  I'a.,   in    the   Office   of    Librariun    of    Congress,   tit    W  ushington, 

L).  C,  and  used  bg  his  permission.] 

AGREEMENT,      Maile    and    ciitcri'd    into    this day    of A.    D. 

190..,    by    and    betwoeii of   the    County   of and    Stat*'   of 

party  of  the  first  part,  and party  of  tlie  second  i)ait. 

WITNESSETH,  That  the  said  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of Dollars,  to  liini  in  haiul  well  and  truly  paid, 

the  receipt  of  which  is  hereby  ackno\vlodi,'ed,  and  in  further  consideration 
of  the  covenants  and  a^neenients  hercinafler  mentioned,  does  covenant  and 
agree  to  lease,  and  by  these  pre.sents  has  leased  and  granted  the  exclusive 
right  unto  the  party  of  the  second  part,  his  heirs  or  assigns,  for  the 
purpose  of  operating  and  drilling  for  petroleum  and  gas.  to  lay  pipe  lines, 
erect  necessary  buildings,  release  and  sub-divide  all  of  that  certain  tract 

of  land  situate  in Township,    County  and  State  of and 

bounded  and  described  as  follows,  to-wit : 

Bounded  on  the  North  by  the  lands  of on  the  East  by  the  lands  of 

on   the   South   by  the   lands   of on   the   West  by   the    lands    of 

Containing acres The   party   of  the    second 

part,  his  heirs  or  assigns,  to  have  and  to  hold  the  said  premises  for  and 
during  the  term  of  fifteen  years  from  the  date  hereof,  and  so  long  there- 
after as  oil  or  gas  can  be  produced,  in  paying  quantitie.s. 

The  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give  to  the 
party  of  the  first  part  one-eighth  part  of  all  the  petroleum  obtained  from 
the  said  premises,  as  produced  in  a  crude  state,  the  said  one-eighth  part 
of  the  petroleum  to  be  set  apart  in  the  pipe  line  running  said  petroleum 
to  the  credit  and  for  the  benefit  of  the  said  party  of  the  first  part.  The 
said  party  of  the  first  part  is  to  fully  use  and  enjoy  the  said  premises 
for  the  purpose  of  tillage,  except  such  part  as  shall  be  necessary  for  said 
mining  purposes,  and  a  right  of  way  over  and  across  the  said  premises  to 
the  place  or  places  of  mining  or  operating.  The  said  party  of  the  second 
part  is  further  to  have  the  privilege  of  using  sufficient  gas  and  water  from 
the  premises  herein  leased  to  run  the  necessary  engines,  the  rigiit  to 
remove  any  machinery,  fixtures  and  buildings  placed  on  said  premises  by 
said  party  of  the  second  part,  or  those  acting  under  him.  and  is  not  to 
put  down  any  well  for  oil  on  the  lands  hereby  leased  within  ten  rods  of 
the  buildings  now  on  said  premises  without  the  consent  of  the  said  party 

of  the   first   part 

IT  IS  AGREED.  That  if  gas  is  found  in  paying  quantities,  the  consid- 
eration in  full  to  the  party  of  the  first  part  for  gas  shall  be Dollars. 

per  annum  for  the  gas  from  each  well  when  utilized  olT  the  aforesaid 
premises. 

The   party   of   the    second   part   agrees   to    commence    operations    within 

from  the  execution  of  this  lease,  or  in  lieu  thereof  thereafter  pay  to 

the   said   party  of   the    first    part dollars    per    annum    until    wmk    is 

commenced 


930  on.    AND    GAS. 

AND  IT  IS  FURTHER  ACMIKKI).  I'liat  Ihc  second  parly,  his  heirs  or 
assigns,  sliall  have  the  riglit  at  any  time  to  surrender  up  this  lease,  and  be 
released  from  all  moneys  due  and  eonditions  unfullilled,  then  and  from 
that  time  this  lease  and  agreement  shall  be  null  and  void  and  no  longer 
binding  on  either  party,  and  the  payments  whieh  shal'  have  been  made 
shall  be  held  by  the  party  of  the  first  part  as  the  full  stipulated  damages, 
for  the  non-fulfillment  of  the  foregoing  contract;  that  all  conditions  be- 
tween the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IX  WITNESS  WHEREOF,  we,  the  said  parties  of  the  first  and  second 
parts,  have  hereunto  set  our  hands  and  seals  the  day  and  year  first 
above   written. 

WlTNKSS: 

(Seal) 

(Seal) 

COilMONWEALllI  OF. 

COUNTY   OF 

BE   IT   REMEMBERED,     That   on   the day   of A.   D.    190.. 

before   me,    a in    and    for    said    county,    personally    came    the    above 

named and  in  due  form  of  law  acknowledged  the  above  inden- 
ture to  be act  and  deed,  and  desired  that  the  same  might  be  recorded 

as  such. 

(Seal) 

AGREEMENT. 

[Entered  according  to  the  Act  of  Congress  in  the  year  1886,  hy  J.  A. 
Ileydrick,  of  Butler,  Pa.,  in  the  office  of  Librarian  of  Congress  at  Wash- 
ington, D.  C,  and  used  with  his  permission.] 

THIS   AGREEMENT,     Made   and  entered   into  this day  of 

A.  D.   190.  .,  by  and  between of  the  first   part,  and of  the 

second  part. 

WITNESSETH.      Tliat    the    said for    and    in   consideration    of   the 

sum  of Dollars,  to well  and  truly  paid  by the  receipt  and 

payment  of   which   is   hereby   acknowledged,   has   sold,   granted,    conveyed, 
assigned,   transferred   and   set   over  and   l)y   these  presents  do  sell,   grant, 

convey,  assign,  transfer  and  set  over  unto  the  said heirs  and  assigns 

interest    in    the    within    lease    made    by to on    the 

day  of 190.  .,   with of  the  property,   rights  of   property, 

interest,   powers  and   possessions  of  every  kind   therein    conveyed,  all   and 

singular,  s.ubject  to  the  conditions  therein  specified 

IN  WITNESS  WHEREOF.  The  parties  have  hereunto  set  their  hands 
and  seals   the  day  and  year  first  above  written. 

Witness  :  ( Seal ) 

(Seal) 

( Seal ) 

(Seal) 


ATPKNDIX.  d'A\ 

COMMONWEALTH  OF. 


COUNTY  OF  '  ^^' 

BE   IT   REMEMBERED.'     That  on   iho day   of A.  D.    U>0.. 

before  nic,  a in  and  for  said  county.  ptMsonally  came  the  ubovi*  nanu-d 

and    in   due    form    of   law    acknowlcdf^cd   tlu'   above    imlcnture 

to  be act  and  deed,  and  desired  that  the  same  might  be  recorded  as 

such. 

(Seal) 

OHIO  AND  WEST  VIRGINIA 
OIL  LEASE. 

AGREEMENT,    made    and    entered    into    this day    of A.    D., 

190...    by    and    between of    the    county    of and    State    of 

piirty  of  the  first  part  and party  of  the  second  ])art. 

WITNESSETH,      That    the    said    part.. of    tlic    first    part,    for    an<l    in 

consideration  of  the  sum  of Dollars  to  him  in  hand  well  and   truly 

paid,  the  receipt  of  which  is  hereby  acknowledged,  and  in  further  con- 
sideration of  the  covenants  and  agreements  hereinafter  mentioned,  does 
covenant  and  agree  to  lease,  and  by  these  presents  luis  leased  and  granted 
the  exclusive  right  unto  the  party  of  tlie  second  part,  his  heirs  or  assigns, 
for  the  purpose  of  operating  and  drilling  for  petroleum  and  gas,  to  lay 
pipe    lines,    erect    necessary    buildings,    re-lease    and    sub-divide    all    that 

certain  tract  of  land  situate  in district;    county  and  State  of 

and  bounded  and  described  as  follows,  to-wit: 

On  the  North  by  lands  of ;  on  the  East  by  lands  of ;  on  the 

South    by    lands    of ;    on    the    West    by    lands    of ;    containing 

acres Tlie    party    of    the    second    part,    his    heirs    or 

a.ssigns,   to  have  and    to  hold   the  said   premises   for  and  during  the  term 

of from   tlie   date   hereof,   and    so  long  thereafter   as   oil   or   gas   can 

be   produced    in    paying   quantities,    or   rental    paid   thereon. 

The  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give 
to  the  party  of  the  first  part  one-eighth  part  of  the  petroleum  obtained 
from  said  premises,  as  produced  in  the  crude  state,  the  said  one-eighth 
part  of  the  petroleum  to  be  set  apart  in  the  pipe  line  running  said 
petroleum,  to  the  credit  and  for  the  benefit  of  the  said  party  of  the 
first  part'.  Tlie  said  party  of  the  first  part  is  to  fully  use  and  enjoy 
the  said  premises  for  the  purpose  of  tillage,  except  such  parts  as  shall 
be  necessary  for  said  mining  purposes,  and  a  right  of  way  over  and 
across  said  premises  to  the  place  of  mining  or  operating.  The  said  party 
of  the  second  part  is  further  to  have  the  privilege  of  using  sufiieient 
gas  and  water  from  the  premises  herein  leased  to  run  the  necessary 
engines,  the  right  to  remove  any  machinery,  fixtures  and  buildings  placed 
on  said  premises  by  said  party  of  the  second  part,  or  those  acting  under 
him,  and  is  not  to  put  down   any  well   for  oil  on  the  lands  hereby  leased 

within feet  of  the  buildings  now  on  said  premises  without  the  consent 

of  both  parties  in  writing. 


932  on.    AND    GAS. 

Party  <if  the  soooiiJ  part  a<ir»M>  to  pay  daiiiafjjo  dnno  to  growing  crops 
by  their  operations  on  said  jjreniises. 

IT  IS  ACiHEEl),  Tiiat  if  gas  is  found,  in  paying  quantities,  the  con- 
sideration   in    full    to    the   party   of   the   first  part   for  gas   shall   be 

Dollars  per  annum  for  the  gas  from  each  well  when  utilized  off  the 
premises  of  the  parties  of  the   second  part. 

Part.. of  the  first  part  to  have  gas  for  dome.stic  purpose.^  free  by 
making  his  own  connections  to  well  or  wells.  Party  of  the  second  part 
to  have  privilege  of  disconnecting,  pulling  casing  or  abandoning  said 
well  or  wells  without  becoming  liable  for  any  damage  to  party  of  first 
part. 

The    party    of    the    second    part    agree    to    commence    operations    within 

from   the  execution  of  this  lease,  or   in  lieu  thereof  thereafter  pay 

to  the  said  party  of  the  first  part until  the  work  is  commenced,  pay- 
able  at 

AND  IT  IS  FURTHER  AGREED,  That  the  second  party,  his  heirs 
or  assigns,  shall  have  the  right  at  any  time  to  surrender  up  this  lease, 
and  be  released  from  all  moneys  due  and  conditions  unfulfilled;  then  and 
from  that  time  this  lease  and  agreement  shall  be  null  and  void,  and  no 
longer  binding  on  either  party,  and  the  payments  which  shall  have  been 
made  be  held  by  the  party  of  the  first  part  as  the  full  stipulated  damages 
for  the  non-fulfillment  of  the  foregoing  contract;  that  all  conditions  be- 
tween the  parties  hereunto  shall  extend  to  their  heirs,  executors  and 
assigns. 

IN  WITNESS  WHEREOF,  We,  the  said  parties  of  the  first  and  second 
parts,  have  hereunto  set  our  hands  and  seals  the  day  and  year  first  above 
written. 

In    Presence   of 


(Seal) 
( Seal ) 
(Seal) 
(Seal) 


STATE   OF   WEST  VIRGINIA, 

COUNTY.   OF 

To-WIT: 

I ,    a of    said    county    of ,    do    certify    that and 

his   wife,   whose   names   are   signed   to  the   within   writing,   hearing 

date    the day    of A.    D.,    190.  .ha.  .this    day   acknowledged   the 

same  before  me  in  my  said  county. 

Given  under  my  hand   this day  of A.  D.,    190.. 


THE  STATE  OF  OHIO,  ) 
COUNTY  OF \^^^- 

Be  it  remembered  that  on  the day  of A.  D.,  190.  .before  me, 

the  subscriber,  a in  and  for  said  county,  personally  came 

and his    wife,    and    acknowledged    the    signing    and    sealing    of    the 

foregoing  instrument  to  be act  and  deed   for  the  use  and   purposes 

therein  expressed. 


APPEXDix.  y.i;; 

In  witness  wlicrodf  I  liave   liereunto  set  my  liand  and  seal  the  day  ami 
year  above   written. 


OIL    l.KASE. 

AGREEMENT,    made    and    entered    into    tins day    of \.    ]).. 

190.  .by  and  between of  tlie  eounty  of and  State  of party 

of  the  first  part  and party  of  tlie  seeond  part. 

WITNESSETH,      That    the    .said    part.. of    the    first    part,    for    and    in 

consideration  of  the  sum  of Dollars,  to  him  in  hand  well  and  truly 

paid,  the  receipt  of  which  is  hereby  acknowledged,  and  in  further  consid- 
eration of  the  covenants  and  agreements  hereinafter  mentioned,  does 
covenant  and  agree  to  lease,  and  by  these  presents  has  leased  and  giant«>d 
the  exclusive  right  unto  the  party  of  the  second  part,  his  heire  or  assigns, 
for  the  purpose  of  operating  and  drilling  for  petroleum  and  gas,  to  lay 
pipe  lines,  erect  necessaiy  buildings,  re-lease  and  sub-divide  all  that  certain 

tract   of   land   situate   in district,    county   and   State  of 

and  bounded  and  described  as  follows,  to-wit : 

On  the  North  by   lands  of ;    on   the   East  by   lands  of ;    on 

the  South  by  lands  of ;  On  the  West  by  lands  of ;   containing 

acres,     The    party    of    the   second    part,    his    heirs   or 

assigns,  to  have  and  to  hold  the  said  premises  for  and  during  the  term  of 

from  the  date  hereof,   and  so  long  thereafter  as  oil  or   gas  can   be 

produced  in  paying  quantities,  or   rental  paid  thereon. 

The  party  of  the  second  part,  his  heirs  or  assigns,  agrees  to  give  to  the 
party  of  the  first  part  one-eighth  part  of  the  petroleum  obtained  from 
said  premises,  as  produced  in  the  crude  state,  the  said  one-eighth  ])art  of 
the  petroleum  to  be  .set  apart  in  the  pipe  line  running  said  petroleum, 
to  the  credit  and  for  the  benefit  of  the  said  party  of  the  first  part.  The 
said  party  of  the  first  part  is  to  fully  use  and  enjoy  the  said  premises  for 
the  purpose  of  tillage,  except  such  parts  as  shall  be  necessary  for  said 
mining  purposes,  and  a  right  of  way  over  and  across  said  premises  to  the 
place  of  mining  or  operating.  The  said  party  of  the  second  part  is  further 
to  have  the  privilege  of  using  sufficient  gas  and  water  from  the  premises 
herein  leased  to  run  the  necessary  engines,  the  right  to  remove  any 
machinery,  fixtures  and  buildings  placed  on  said  premises  by  said  party  of 
the  second  part,  or  those  acting  under  him,  and  is  not  to  put  down  any 
■well  for  oil  on  the  lands  hereby  leased  within  ten  rods  of  the  building.s 
now  on  said  premises  without  the  consent  of  both  parties  in  writing. 

IT  IS  AGREED,  That  if  gas  is  found,  in  paying  quantities,  the  con- 
sideration  in  full   to  the   party  of  the   first  part   for  gas   shall   be 

Dollars  per  annum   for  the  gas  from  each  well   when  utilized. 

The    party    of    the    second    part    agree    to    commence    operations    within 

from  the  execution  of  this  lease,  or  in  lieu  thereof  thereafter  j)ay  to 

the   said   party   of  the  first   part dollars  per   annum    until   the  work 

is  commenced.  A  failure  to  pay  such  rental  shall  render  this  lease  null 
and   void 

AND  IT  IS  FURTHER  A(;KEED,  That  the  second  parly,  his  heirs 
or   assigns,   shall   have   the  right  at  any   time   to  surrender   up   this  lease, 


934  OIL    AND    GAS. 

and  be  released  from  all  moneys  duo  and  conditions  iinfiiHillcd ;  then 
and  from  tiiat  lime  this  lease  and  agreement  shall  be  null  and  void,  and 
no  longer  binding  on  either  party,  and  the  payments  which  shall  have 
been  made  be  held  by  tlie  party  of  the  first  part  as  the  full  stii)ulated 
damages  for  the  non-fuUillment  of  the  foregoing  contract ;  that  all  con- 
ditions between  the  parties  hereunto  shall  extend  to  their  heirs,  executors 
and  assigns. 

IX  WITNESS  WHEREOF,  We,  the  said  parties  of  the  first  and 
second  parts,  have  hereunto  set  our  hands  and  seals  the  day  and  year 
first  above  written. 

In  Presence  of 


(Seal) 
(Seal) 
(Seal) 
(Seal) 


STATE    OF    WEST   VIRGINIA, 

COUNTY  OF [  To-wiT : 


I,     a of    said    county    of ,    do    certify    that and 

his    wife,   whose   names   are   signed   to   the   within   writing,   bearing 

date   the day  of A.  D.,   190..,  ha.. this  day  acknowledged  the 

same  before  me   in  my  said   county. 

Given  under  my  hand  this day  of A.  D.,   190.  . 


THE  STATE  OF  OHIO,  ) 
COUNTY  OF p^- 

Be  it  remembered  that  on  the day  of A.  D.,   1;")0.  .before  me, 

the    subscriber,    a in    and    for    said    county,    personally    came 

and his    wife,    and    acknowledged    the    signing    and    sealing    of    the 

foregoing  instrument  to  be act  and   deed   for   the  use  and   purposes 

therein  expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year  above  written. 


OIL  AND  GAS  LEASE. 

AGREEMENT  OF  LEASE,     Made  this day  of A.  D.,  190. . 

between of ,   Lessor .  . ,    and ,    Lessee .  . ,    Witnesseth  : 

That  the   lessor   does   hereby  grant   unto   lessee   for  the   term   of 

years  (and  so  long  thereafter  as  oil  or  gas  is  nrofi"ccJ  rrom  tne  land 
leased  and  royalty  or  rentals  paid  by  lessee  therefor)  the  exclusive  right  to 
mine  for  and  produce  petroleum  and  natiirnl  gas  from,  and  the  possession 

of   ".o   much    of acres    of    l.iiid Township County, 

^tate  of as  may  be  necessary  therefor,  with   the  right  to  use   water 

and  gas  (if  found)  for  the  necessary  engines,  and  to  remove  all  machinery, 
fixtures,  etc.,  placed  by  the  lessee  on  the  premises.  Said  land  bounded: 
North   by   lands   of ;    East   by   land   of ;    South    by   lands   of 


Arri:Ni>ix.  9.'{r) 

,    and    West    by    lands    of No    well    will    Ijo    drilUxl    williiu 

feet  of   the   buildings   wilbout   the   lessor's   consent.     The    lessee  to 

deliver   to  lessor,    in   pipe   line,   the   oneeiphth    of   all    ])etr()leuni    produeeQ 

from  the  premises,  and  to  pay doMurs  per  aiiinim   for  eaeh  {,'as  well 

from  which  gas  is  marketed,  payable  yearly  from  the  date  and  while  the 
same  is  so  utilized,  and  to  pay  all  damages  to  growing  crops.  If  gas  is 
found  on  the  ])reinises  the  lessee  is  to  have  suHieient  gas  for  fuel  [)urpo.se9 
in  the  operation  of  this  lease;  lessor  is  to  have  gas  for  household  juirposes 
free  of  charge.  Lessee  is  to  have  all  rights  and  i)rivileges  necessary  for  the 
proper  use  and  enjoyment  of  this  lease. 

This  lease  to  be  null  and  void  and  no  longer  binding  on  eitlicr  [larty  if  a 

well  is  not  completed  on  the  premises  within months  from  tliis  date. 

unless  the  lessee  shall   theieafter  pay  monthly   to   the   lessor dollars 

per  month  for  eaeh  month's  delay  in  commencing  said  well.  Each  Jiay- 
ment  to  extend  the   time   for   commencing   for   one   month   and   no   longer. 

A  deposit  to   credit  of  lessor  in Bank to  be  good   payment  of 

any  moneys  on  this  lease. 

All    grants    and    covenants    to    extend    to    tlie    lieirs    and    assigns   of    the 
parties   hereto 

Witness  the  hands  and  seals  of  the  parties. 

Witness  :      *  ( Seal ) 

(Seal  I 

(Seal) 

(Seal) 

STATE  OF  OHIO,    COUNTY,  ss. 

Be  it  remembered,  that  on  the day   of A.  D.,    190..,   before 

me,   a in   and    for   said   County,    personally   came   the   above    named 

and   in  due  form  of  law  acknowledges  the   within  agreement 

to    be free    act    and    deed^    and    desired    that    the    same    might    be 

recorded  as   such. 

(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNT\'  OF To-wit: 

I,     ,    a of    said    county    of do    certify    that and 

his  wife,   whose  names  are  signed  to   the  within  writing,   bearing 

date  the day  of A.  D.,   190..,  have  this  day  acknowledged   the 

same  before  me  in  my  said  county. 

Given  under  my  band   this day   of A.  D.,    190... 


ASSIGNMENT  OF  LEASE. 

KNOW    ALL   MEN    BY    THESE    PRESENTS,      That for    and    in 

consideration   of  the   sum  of Dollars   the   receipt  of  which    is   herehy 

acknowledged,  has  this  day  transferred,  conveyed  and  soid  unto 

my interest   in   the   foregoing   lease. 

Witness  :  


936  OIL    AND    GAS, 

ACKNOWLEDGMENT  OF  TRANSFER. 

STATE   OF COUNTY   OF ,   To-wrr : 

1,     ,     a of    said    county    of do     certify     that 

whoso    name signed    to    the    above    writing    bearing    date    the 

day    of I'.tO..,   ha .  .acknowledged    the   same   to   be free   act  and 

deed   before    me   in    my    said    county 

Given   under   my    liand    and    notarial    seal    this day    of 190.. 

State  of 

County Ollice 1!)0... 

Tlu"  foregoing  writing  and  the  certificate  of  acknowledgment  tliereol 
were  tliis  day   admitted  to  record   in  this  ollice. 

Teste : 

OIL  AND  GAS  LEASE. 

AGREEMENT,      Made    and    entered    into    the day    of A.    D., 

100.  .,  by  and  between of County   of and   State  of 

party  of  the  first   part,   and party  of  the  second   part: 

WITNESSETH,  that  the   said  party  of  tlie   first   i)art,    fur  and   in    con- 

.•dderation   of   the    sum   of Dollars    in    hand    well    and   truly    paid   by 

the  said  party  of  the  second  part,  the  receipt  of  which  is  hereby  ac- 
knowledged, and  the  covenants  and  agreements  hereinafter  contained  on 
the  part  ot  the  said  party  of  the  second  part,  to  be  paid,  kept  and  per- 
formed, has  granted,  demised,  leased  and  let.  and  by  these  presents  does 
grant,  demise,  lease  and  let  unto  the  said  party  of  the  second  part,  his 
heirs,  e.\ecutors,  administrators  or  assigns,  for  the  sole  and  only  purpose 
of  mining  and  operating  for  oil  and  gas,  and  of  laying  pipe  lines,  and 
of    building    tanks,    stations    and    structures,    to    take    care    of    the    said 

production,    all    that    certain    tract    of    land,    situate    in of 

County  of and  State  of on  waters  of bounded  substan- 
tially as  follows: 

On  the  North  by  lands  of ;  on  the  East  by  lands  of ;  on  the 

South    by    lands   of ;    on    the    West   by    lands    of Containing 

acres,   more  or   less. 

IT  IS  AGREED  that  this  lease  shall  remain  in  force  for  the  term  of 
ten  years  from  this  date,  and  as  long  as  oil  or  gas.  or  either  of  them,  is 
produced  therefrom  by  the  party  of  the  second  part,  its  successors  and 
assigns. 

IN  CONSIDERATION  OF  THE  PREMISES  the  said  party  of  the 
second  part  covenants  and  agrees;  1st — To  deliver  to  the  credit 
of  the  first  party,  his  heirs  or  assigns,  free  of  cost,  in  the  pipe 
line  to  which  it  may  connect  its  wells,  tlie  eipial  one-eighth  part  of  all 
oil    produced    and    saved    from    the    leased    premi.ses;    and    2nd  —  to    pay 

Dollars  per  year  for  the  gas   from  each   and  every  gas  well   drilled 

on  said  premises,  the  product  from  which  is  marketed  and  used  off  the 
premises,  said  payment  to  be  made  on  each  well  within  sixty  days  after 
commencing  to  use  the  gas  therefrom,  as  aforesaid,  and  to  be  paid  j'early, 
thereafter   while   the  gas  from   said   well   is   so  used. 


AIM'KNDIX.  937 

Second  party  covenants  and  a^jrees  to  locate  all  wcjis  so  as  to  interfert? 
as  little  as  possible  with  the  cultivated  jiortions  of  tlie  farm,  and  to  drill 

no    well    within feet   of    the    buildings   on    these    premises,    except    by 

consent  of  the  first  party. 

Provided,  however,  that  this  lease  shall  become  null  and  void,  ami  all 
rights    hereunder     shall     cease     and     determine     unless     a     well     shall     be 

completed    on    the    said    premises    within from    the    date    hereof,    or 

unless  the  lessee  shall  pay  at  the  rate  of Dollars  ([uarterly,  in  ad- 
vance for  each  adiiitional  tiiree  months  suih  t()m|)letion  is  delayed,  from 
the  time  above  mentioned  for  the  completion  of  such  well  until  a  well  is 
completed;  and  it  is  agreed  that  the  completion  of  such  well  shall  be 
and  operate  as  a  full  liqiiidatinn  of  all  rental  under  this  provision  during 
the  remainder   of   the   t(>nn    of   this    l(>ase.     Such   payments   may   be   made 

direct  to  the   lessors  or   by   check   to  order  of deposited   in   the   post 

office  by  registered  letter  directed  to 

IT  IS  AGIIKED  that  the  second  party  shall  have  the  privilege  of  using 
sufficient  water  from  the  premises  to  run  all  necessary  machinery  and  at 
any  time  to  remove  all  machinery  and  fixtures  placed  on  said  premises; 
and,  further,  shall  have  the  right  at  any  time  to  surrender  this  lease  to 
the  first  party  for  cancellation,  after  which  all  payments  and  liabilities 
to  accrue  under  and  by  virtue  of  its  terms,  shall  cease  and  determine,  and 
this  lease  becomes  absolutely  null  and  void. 

Witness  the   following  signatures  and  seals: 

Witness  :  

(Seal) 

(Seal) 

( Seal ) 

(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNTY  OF To-wit: 

I, a of  said  County  of do  certify  that and 

his  wife,  whose  names  are  signed  to  the  within  writing,  bearing  date  the 

day  of A.  D.,  190.  .,  hu .  .this  day  acknowledged  the  same  before 

me  in  my  said  county. 

Given  under  mv  hand  this dav  of A.  D.,    IDO.  . 


THE  STATE  OF  OHIO,  COLNTV  OF ss. 

Be  it  remembered  that  on  the day  of A.  D..   100.  .before  me, 

the  subscriber,   a in  and   for  said  county,   personally  came and 

his  wife,  and  acknowledged  the  signing  and  sealing  of  the  foregoing 

instrument   to    be act   and    deed    for    the   use    and    purpo.ses   therein 

expressed. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  the  day  and 
year  above  written. 


OIL   AND   GAS  LEASE    (NEW). 

THIS    INDENTURE.      Made    the day    of A.    D.,    1 be- 
tween  of  the of County  of and  State  of .  .    ... 

lessor  and ,   lessee. 


938  OIL    AND    GAS. 

WITNESSETH.     That  tlio  lessor.  .,  in  consideration  of Dollars,  the 

receipt  whereof  is  hereby  acknowledf^ed,  does  hereby  grant,  denii.se  and  let 
unto  the  said  lessee,  all  the  oil  and  gas  in  and  under  the  following  de- 
scribed tract  of  land,  with  covenant  for  the  lessee's  (juiet  enjoyment  of  the 
term,  and  that  lessor  has  the  right  to  convey  the  premises  to  the  said 
lessee;  together  with  the  exclusive  light  unto  the  lessee  to  operate  and 
drill  for  petroleum  and  gas,  to  lay  and  maintain  pipe  lines,  and  erect- 
and  maintain  telephone  and  telegraph  lines,  and  buildings  convenient  for 
such  operations;  with  the  right  to  use  water  and  gas  from  said  lands, 
and  right  of  way  over  same  for  any  purpose,  and  right  of  ingress,  egress 
and  regress  for  such  purposes,  and  of  removing,  either  during  or  at  any 
time  after  the  term  hereof,  any  property  or  improvements  placed  or 
erected  in  or  upon  said  land  by  said  lessee;  with  the  right  of  sub-dividing 

and  re-leasing  all  that  tract  of  land  situate  in  the of County  of 

and  State  of and  bounded  and  described  as  follows,  to- wit: 

On  the  North  by  the  lands  of ;  on  the  East  by  the  lands  of ; 

on  the  South  by  the  lands  of ;   on  the  West  by  the  lands  of 

Containing acres,  more  or  less. 

TO  HAVE  AND  TO  HOLD  unto  and  for  the  use  of  the  lessee  for  the  term 
of years  from  the  date  liereof  and  as  much  longer  as  oil  or  gas  is  pro- 
duced in  jiaying  quantities,  yielding  to  the  lessor  the  one-eighth  part  of 
all  the  oil  produced  and  saved  from  the  premises,  delivered  free  of  ex- 
pense into  tanks  or  pipe  lines  to  the  lessor's  credit;  and  should  a  well 
be  found  producing  gas  only,  then  the  lessor  shall  be  paid  for  each  such 

gas  well  at  the  rate  of Dollars  for  each  year,  so   long  as  the  gas  is 

sold  therefrom,  payable  quarterly  while  so  marketed. 

PROVIDED.  That  this  lease  shall  become  null  and  void  unless  opera- 
tions shall  be  commenced  on  the  premises  and  a  well  completed,  unavoid- 
able delay  or  accident  excepted,  within months  from  the  date  hereof, 

or,  unless  lessee  shall  pay  at  the  rate  of Dollars  per ,  payable 

in  advance  or  within  ten  days  thereafter  for  each  additional 

such  completion  of  well  is  delaj^ed ;  and  the  completion  of  such  well, 
productive  or  otherwise,  shall  vest  in  lessee,  during  the  remainder  of 
the  term  of  this  lease,  rental  free,  the  grant  hereunder  including  the 
exclusive  right  to  make  such  otiier  and  further  search  for  oil  or  gas  as 
lessee  may  wish 

Lessor  is  to  fully  use  and  enjoy  said  premises  for  the  purpose  of  tillage, 
except  such  parts  as  may  be  used  by  lessee  for  the  purposes  aforesaid. 
Lessee  is  not  to  put  down  any  well  on  the  lands  hereby  leased  within  ten 
rods  of  the  buildings  now  on  said  premises  without  the  consent  of  the 
lessor  in  writing.  Lessor  may,  if  any  well  or  wells  on  said  premises 
produce  sufficient  gas.  have  gas  for  domestic  purposes  for  one  family,  the 
lessor  paj'ing  for  connections  at  such  point  as  may  be  from  time  to  time 
designated   by   lessee. 

The  above  rental  shall  be  paid  to  lessor  in  person  or  by  check  deposited 

in   postoffice  directed   to And    it  is   further  agreed,  that  lessee 

shall  have  the  right  at  any  time  to  surrender  this  lease,  whereupon  this 
lease  shall  be  null  and  void;  and  that  all  conditions,  terms  and  limitations 


APPENDIX. 


939 


between  the  parties  hereto  shall   cxtcinl   to   their   licirs,   personal    represen- 
tatives  and   assirjns. 

IN  WITNESS  WHEREOF,     We,    the  said  i)arties  hereto,  have  hereunto 
set  our  hands  and  seals  the  day  and  year  lirst  al)ove  written. 
Witness  : 


(Seal) 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  WEST  VIRGINIA,  COUNTY  OF ,  To-wit: 

I,     a of    said    County    of ,    do    certify    that and 

his    wife,   whope   names   are    sijjned    to    tlie    within    writinj;,    hearinjj 

date   the day   of A.    D.,    190..,   ha..tiiis   day    ackiinwltHlged   tlie 

same   before  me   in   my    said   county. 

Given  under  my  hand  this day  of A.  D.,   190.  . 


STATE  OF  OHIO,  COUNTY  OF ,  ss. 

Be  it  remembered  that  on  this day  of A.  D.,  190.  .before  me, 

a in    and    for    said    county,    personally    appeared    the    above    named 

to  me  personally  known  to  be  the  part,  .named  in  and  who  executed 

the  within  agreement  and  acknowledged  to  be act  and  desired  the  same 

to  be  recorded. 

Witness  my  hand  and seal  the  day  and  year  aforesai<l. 


(Seal) 


OIL  AND  GAS  LEASE    (NEW). 


AGREEMENT,      Made    and    entered    into    the day    of A.    D., 

190.  .,  by  and  between of County   of and   State  of 

part.. of  the  first  part,  and part.. of  the  second  part: 

WITNESSETH.  That  the  said  part,  .of  the  first,  for  and  in  considera- 
tion of  the  sum  of Dollars  to ii;  hand  well  and  truly  paid  by  the 

said  part,  .of  the  second  part,  the  receipt  of  which  is  hereby  acknowledged, 
and  the  covenants  and  agi"eements  hereinafter  contained  on  the  part  of  the 
said  party  of  the  second  part,  to  he  i)ai(l.  ko\)\  and  performed,  ha., 
granted,  demised,  leased  and  let,  and  by  these  presents  do.. grant,  deinise, 

lea.se  and  let  unto  the  said  part,  .of  the  second  part heirs,  executors. 

administrators  or  assigns,  for  the  sole  and  only  purpose  of  mining  and 
operating  for  oil  and  gas,  and  of  laying  piy>e  lines,  and  of  building  tanks, 
stations   and   structures   thereon    to   take    care  of   tlie   said    products.   .\LL 

that  certain  tract  of  land,  situate  in District County  and  State 

of on    waters  of bounded    substantially  as   follows: 

North    by    lands   of ;    East   by   lands   of ;    South    by    lands   of 

and     West     Iiy    lands    of Containing acres,    more    or 

less,    and    being   same   land    conveyed    to   the    first   part..l)y by   (h-ed, 

bearing  date ,  100.  ..  reservinfr.  liowever.  thcrcfrfini feet   aroimd 

the  buildings  on  wliich  no  well  shall  be  drilled  by  either  party  exeept  by 
mutual  consent. 


940  OIL    AND    GAS. 

IT  IS  AGREED  that  this  lease  sliall  iciuaiii  in  force  for  the  term  (^ 
ten  years  from   this  date,  and  as  long  thereafter   as  oil  or  gas.  or  either 

of  them,   is   produced    tlierefrom   by  the   party  of  the  second  part,    

heirs,  executors,  administrators  or  assigns. 

IN  COXSIDEKATIOX  OF  THE  PREMISES  the  said  part.. of  the 
second   part  covenants  and  agrees:      1st — To  deliver  to  the  credit  of  the 

first  part heirs  or  assigns  free  of  cost,  in  the  pipe  line  to  which  it 

may  connect  its  wells,  the  equal part  of  all  oil  produced  and  saved 

from  the  leased  premises;  and,  2nd  — To  pay Dollars  per  year  for  the 

gas  from  each  and  every  gas  well  drilled  on  said  premises,  the  product  of 
whicii  is  marketed  and  used  off  the  premises,  said  payment  to  be  made  on 
each  well  within  sixty  days  after  commencing  to  use  the  gas  therefrom, 
as  aforesaid,  and  to  be  paid  ycail.v  tlicrcaftcr  wliilo  the  gas  from  said 
well  is   so  used. 

Second  part .  .covenant,  .and  agree.. to  locate  ail  wells  so  as  to  inter- 
fere as  little  as  possible   with   the  cultivated  portions  of   tlie   farm.     And 

further   to    complete   a   well    on   .said   premises   within from    the   date 

hereof,  or  pay  at  the  rate  of Dollars  quarterly,  in  advance,  for  each 

additional  three  months  such  completion  is  delayed  from  the  time  above 
mentioned  for  the  completion  of  such  well  utitil  a  well  is  completed;  and 
it  is  agreed  that  the  completion  of  such  well  shall  be  and  operate  as  a 
ful  liquidation  of  all  rental  under  this  provision  during  the  remainder  of 
the  term  of  this  lease.  Such  payments  may  be  made  direct  to  the  lessor 
or   deposited   to credit    in 

IT  IS  AGREED  that  the  second  party  shall  have  the  privilege  of  using 
sufficient  water  from  the  premises  to  run  all  necessary  machinery  and 
at  anv  time  to  remove  all  machinery  and  fixtures  placed  on  said  premises; 

and.    further,    upon    tlie    payment    of Dollars,    at    any    time,    by    the 

part,  .of  the  second  part heirs,  successors  of  assigns,  to  the  part.  . 

of   the   first heirs   successors   or   assigns,   said   part.. of  the   second 

part,    heirs,  successors  or  assigns,  sliall   have  the  right  to  surrender 

this  lease  for  cancellation,  after  which  all  payments  and  liabilities  there- 
after  to  accrue  under  and  by  virtue  of  its  terms,  shall  cease  and  determine, 
and  this  lease   become  absolutely  null   and  void. 

Witness  the  following  signatures  and  seals: 

Witness. 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

STATE  OF  WEST  VIRGTXTA.  COUNTY  OF To-wit: 

I,    a of   said    county    of ,    do    certify    that and 

his  wife,  whose  names  are  signed  to  the  within  writing,  bearing  dat<> 

the day  of A.  D..  190.  .,  have  this  day  acknowledged  the  same 

before  me  in  mv  said  countv. 

Given  under  my  hand  this day  of A.  T)..  IflO.  .. 


APPENDIX.  941 

STATE  OF  OHIO County,  ss. 

Be   it    romeinbered    that   on   tlie day   of A.    D.,    190...    bofor« 

me,  the  subscriber,  a in  and  for  said  county,  personally  came 

and his    wife,    and    acknowlcdfied    the    sijjning    and    scalin;;    of    the 

foregoing    instrument   to    be act   and   deed    for   the   use   and    purposes 

therein  expressed. 

In  witness  whereof  1  have  hereunto  set  my  hand  and  seal  tlu'  day  and 
year  above   written. 

OIL  AND  CxAS  GRANT. 

IN  CONSIDERATION  of  the  sum  of dollars,  tiie  receii)t  of  whi.li 

is    hereby    acknowledged grantor,    ha.. granted    and    conveyed, 

And  do.  .hereby  grant  and  convey,  subject  to  the  following  conditions,  unto 

grantee.. all    the    Oil    and    Gas    in    and    under    the    fullowing 

described   premises,  to-wit:      All   that  piece  or  parcel  of  land   in  the 

of county    of and    State    of containing acres, 

be  the  same  more  or  less. 

This  grant  is  subject,  nevertheless,  to  any  rights  now  existing  to  tlie 
lessee  by  virtue  of  the  lease  heretofore  given  on  said  land  for  oil  and  g.is; 
but  if  said  lease  has  expired  or  become  void,  or  shall  hereafter  expire 
or  become  void,  or  if  no  such  lease  ever  existed,  said  grantee  shall  ha\e  and 
is  hereby  granted,  all  the  rights  and  privileges  of  drilling  and  operating 
on  said  land,  to  produce,  store  and  remove  the  said  oil  and  gas  necessary 
and  usually  granted  to  the  lessee  in  an  oil  and  gas  lease. 

This   grant  and   conveyance    is    made   on    condition    that    said    grantee.. 

do.. within days  after  a  well  shall  have  been  drilled  on  said  land  to 

the  usual  depth  for  oil  and  gas.  and  been  properly  completed,  tubed  and 
tested  for  oil,  pay  unto  the  said  grantor,  .the  sum  of dollars. 

If  said  grantee  shall,  as  he  may  do  at  his  option,  omit  to  pay  the  said 

sum   of  $ within  the  time   aforesaid,  then   this  grant    shall   become 

as  absolutely  null   and  void  as  though  it  had  never  been  made,  and  said 
grantor    shall    retain    the    sum    first    above    mentioned    as    full    liquidated 

damaf,-es.     Depositing  the  sum  of  .$ in  the  bank  at to  the  credit 

of   said   grantor   shall    l)e   equivalent  to    paj'ment   of  the   same   to   and    its 
acceptt-nce  by  said  grantor 

This  grant  shall  expire years  from  this  date,  if  no  well  sliall   have 

been  drilled  on   said  land  by   that   time,   unless  the   said   sum    of   $ 

shall  be  paid  without  the  well  being  drilled. 

This  g/ant  and  the  conditions,  terms  and  provisions  thereof,  shall  apjily 
and  extei.d  to  the  said  grantor.. and  grantee,  their  heirs,  executors,  ad- 
ministrators  and   assigns. 

IN  WITNESS  WHEREOF  we  have  hereunto  set  our  hands  and  seals  this 

day  of A.  D.,    190.  .. 

Witness  : 

(Seal) 

(Seal) 

(Seal) 

(Seal) 

(  Sea  I ) 

(Seal) 


942  OIL    AND    GA3. 

1,   for  said  county,  do  certify  that and his  wife, 

whose  names  are  signed  to  the  writing  hereto  annexed,  bearing  date  the 
day  of 190.  .have  this  day  acknowledged  the  same  before  me. 

Given  under  my  liand  tliis day  of 1!K).  . 


TEXAS. 
OIL  AND  GAS  LEASE. 

THIS    LEASE,    made    and    entered    into    this day    of A.    D., 

100 .. ,    by    and    between of State    of le.s.sor ...    and 

Petroleum  Company,  a  Texas  corporation,  lessee,  witnesseth: 

The  Lessor.  .,  for  and  in  consideration  of  tlie  sum  of dollar.  .,  paid 

to  the  lessor.. by  the  lessee,  the  receipt  of  which  is  hereby  acknowledged, 
do.. hereby  grant,  demise  and  let  unto  the  lessee,  its  successors  and 
assigns  all  the  oil  and  gas  in  and  under  the  following  described  tract  of 
land,  and  also  tlie  said  tract  of  land  for  the  purpose  and  with  tlie  ex- 
clusive right  of  drilling  and  operating  thereon  for  saiil  oil  and  gas, 
together  with  the  right-of-way  and  the  right  to  lay  pipes  to  convey  water, 
oil,  steam  and  gas,  and  to  have  sufiicicnt  water,  oil  and  gas  from  the 
premises  to  drill  and  operate  wells  thereon  and  on  adjoining  leases,  also 
such  other  privileges  as  are  necessary  for  condiicting  said  operations,  and 
the  right  to  remove  at  any  time  any  and    all   property  placed   thereon  by 

the  lessee,  all  that  certain  tract  or  parcel   of  land  situated  in State 

of boduded  and  described  as  follows: containing 

acres,  more  or  less,  but  no  wells  are  to  be  drilled   within feet  of  the 

present  buildings  without  the  consent  of  both  lessor,  .and  lessee. 

TO  HAVl':  AND  TO  HOLD  the  same  unto  the  lessee  for  and  during  the 
term  of  ten  years  from  the  date  hereof  and  as  much  longer  as  oil  or  gas  is 
found  in  paying  quantities   thereon,  yielding  and  paying  to  the   lessor.. 

Iho (  ■  ■  )  part  or  share  of  all  the  oil  saved  from  that  produced  on  the 

premises,  delivered  free  of  expense  at  the  well  into tiniks  or  i)ip<'  line 

to  the  lessor's  credit,  and  should  any  well  on  said  premises  produce  gas 
in    sufficient    quantities    to    justify    the    lessee    marketing    same    ofT    said 

premises,  the  lessor,  .shall  be  paid  at  the  rate  of dollars  a  year  for 

each  and  every  well,  the  prodm-t  of  which  is  maiketed  and  sold  off  said 
premises,   the   first  payment  to   miitiiic   sixty  days   after  a   well    is   turned 

into  a  pipe  line  for  marketing  and  to  be   paid thereafter   while  the 

gas  fiom   said   premises  is  so  sold. 

Provided,  however,  that  this  lease  shall  become  null  and  void  and  all 
rights  hereunder  shall  cease  and  determine  unless  n   well  is  commenced  on 

said  premises  within from  the  date  hereof,  or  imless  the  lessee  shall 

pay  to  the  lessor,  .a  delay  rental  of per  annum,  payable  quarterly  in 

advance  for  every  three  months  sucli  commencement  is  delayed  from  the 
time  above  specified  until  a  well  is  commenced,  such  payments  to  be  made 
direct  to  the  lessor,  .either  by  check  mailed  to or  deposit  to 


APPENDIX.  943 

credit  in at ami  in  default  nf  tlic  payment  of  sueli  rental  wlien 

due  this  lease  shall  bceomc  null  and   void  ami  of  nn  ellVet 

It  is  expressly  understood  and  agreed  i)et\\ceii  tiie  lessor.. ami  the  lessee 
herein  that  the  said  lessee  shall  have  tlu'  rij;ht  to  hold  this  lease  for  the 
period  of  ten  years  as  above  provided,  and  as  lonjjf  thereafter  as  oil  or  jjas 
in  paying  quantities  is  produced  tiierefroni,  if  a  well  is  ooinnieneed  as 
above  specified  or   if  the  rental   is  paid  promptly   when  due,  and   the  said 

sum  of dollar,  .tliis  day  received  by  the  lessor.,  from  the  lessee   is  a 

consideration  for  the  riglit  of  tlie  lessee  to  hold  said  lease  during  said 
term  either  by  commencing  a  well  on  saiii  promises  as  herein  provided  or 
by  paying  the  rental  above  specified. 

The  lessee  agrees  to  locate  all  wells  so  as  to  interfere  as  little  as  possible 
with    the    cultivated    portions    of    the    farm. 

It  is  agreed  that  all  the  conditions  and  terms  herein  shall  extend  to 
the  heirs,  executors,  successors  and  assigns  of  the  parties  hereto. 

In   witness   whereof  the   lessor.. and   the   lessee   have   hereunto   set   (lieir 
hands  and  seals  the  day  and  year  first  above  written. 
Witness  :  


STATE  OF  TEXAS. 
COUNTY  OF 


Before  me.  the  undersigned  authority,  on  this  day  personally  appeared 

known  to  me  to  be  the  person,  .whose  name sub.scribed  to 

the  foregoing  instrument  and   acknowleilged  to  me  that executed  tlie 

same  for  tlie  purposes   and  considerations  therein   expressed;    and   on   tliis 

day  also  appeared   before   me wife   of   the   said who   liaving 

been  examined  by  me  privily  and  apart  from  her  said  husband,  and  having 
the  said  instrument  by  me  fully  explained  to  her,  she  the  said ac- 
knowledged the  same  to  be  her  act  and  deed,  and  declared  that  she  had 
willingly  executed  the  same  for  the  purposes  and  considerations  therein 
expressed  and  that  she  did  not  wish  to  retract  it. 

CJiven  under  my  hand  and  seal  of  office  this  the day  of A.  D., 

190... 


APPENDIX  B. 


STATUTES   CONCERNING    PETROLEUM    AND    NATURAL 

GAS. 

Note. — Probably  in  every  State  in  the  Union  are  statutes  for  the 
inspection  of  oils  for  burning  purposes,  and  providing  oflicers  for  that 
purpose.  None  of  tholse  are  herein  included.  Only  such  statutes  as 
pertain  to  petroleum  in  its  natural  state  and  to  natural  gas  are  included. 
Statutes  for  organization  of  companies  for  supplying  natural  gas  as  a 
commercial  commodity  are  also  omitted;  but  those  for  transporting  oils 
by  means  of  pipes  are  included. 

CALIFORNIA. 

CASING    AND    PLUGGING    OIL    AND    GAS    WELLS. 

§1.  Casing  wells. 

§2.  Plugging    abandoned    wells. 

§3.  Drilling  log  to  be  kept. 

§4.  Definitions. 

§5.  Appointnit'nt  of  commissioner. — Duties. — Pay. 

§6.  Nuisance. — Abatement. 

§7.  Misdemeanor. 

§8.  Refusing  inspection. 

§9.  Repeal. 

§  1.     Casing  wells. 

It  shall  be  the  duty  of  the  owner  of  any  well  now  drilled 
or  that  may  be  drilled  in  the  State  of  California,  on  lands  pro- 
ducing or  containing  oil,  gas,  or  petroleum,  to  properly  case 
such  well  or  wells,  with  metal  casing  in  accordance  with  the 
most  approved  methods,  and  to  effectually  shut  off  all  water 
overlying  or  underlying  the  oil-bearing  strata  and  to  effectu- 
ally prevent  any  water  from  penetrating  such  oil-bearing 
strata.     (Act  March  20,  1909,  p.  586,  §  1.) 

944 


APPENDIX   B.  945 

§  2.     Plugging  abandoned 

It  shall  be  the  duty  of  the  owner  of  any  well  referred  to  in 
section  1  of  this  act,  before  abantioning  the  same  to  with- 
draw the  easing  therefrom,  and  to  securely  fill  such  well  with 
clay,  earth  or  cement  mortar,  or  other  good  and  sufficient  ma- 
terials used  alone  or  in  suitable  combination,  and  thoroughly 
pack  and  tamp  the  same  into  such  well  to  a  point  as  far 
above  the  upper  oil-bearing  strata  as  the  commissioner  here- 
after provided  for  may  decide  shall  be  necessary,  and  while 
withdrawing  the  casing  therefrom  to  effectually  and  perma- 
nently shut  off  and  exclude  all  water  underlying  and  overlying 
each  oil-bearing  strata,  and  to  the  satisfaction  of  the  commis- 
sioner, whether  any  oil-bearing  strata  has  been  encountered 
or  not.     (Act  March  20,  1911,  p.  586,  §  2.) 

§  3.     Drilling  log  to  be  kept. 

It  shall  be  the  duty  of  the  owner  of  any  well  referred  to 
in  section  1  of  this  act,  to  keep  a  careful  and  accurate  log  of 
the  drilling  of  such  well,  such  log  to  show  the  character  and 
depth  of  the  formations  passed  through  or  encountered  in  the 
drilling  of  such  well,  and  particularly  to  show  the  location  and 
depth  of  the  water-bearing  strata,  together  with  the  character 
of  the  water  encountered  from  time  to  time,  and  to  show  at 
what  point  such  water  was  shut  off,  if  at  all,  and  if  not  to  so 
state  in  such  log,  and  show  the  depth  at  which  oil-bearing 
strata  is  encountered,  and  the  character  of  the  same,  and 
whether  all  water  overlying  and  underlying  such  oil-bearing 
strata  was  successfully  and  permanently  shut  off  so  as  to 
prevent  the  percolation  or  penetration  into  such  oil-bearing 
strata  ;  said  record  of  well  to  be  kept  on  file  and  subject  to 
the  inspection  of  hereinafter-mentioned  commissioner,  at  any 
time  during  business  hours.     (Act  March  20,  1911,  p.  586,  §  3.) 

§  4.     Definition. 

The  term  "owner"  as  herein  used  shall  mean  and  include 
each  and  every  person,  persons,  partnership,  co-partnership, 
association  or  corporation  owning,  leasing,  managing,  oper- 
ating, drilling  or  possessing  any  Avell  mentioned  in  sections  1 
and  2  of  this  act,  either  as  principal  or  principals,  lessee  or 


946  <31L    AND    GAS. 

lessees  of  such  priiu-ipiil  of  principals,  contractor  or  contrac- 
tors, and  their  and  each  of  their  employees.  Tiui  term  "oil- 
bearing  strata"  as  herein  used  shall  mean  and  include  any 
oil  seams  or  stratum  of  rock  or  sand  or  other  material  which 
contains,  includes,  or  yields  earth  oil,  rock  oil,  or  petroleum, 
oil  or  natural  gas,  or  either  of  them.  (Act  March  20,  1911,  p. 
586,  §4.) 

§  5.     Appointment  of  commissioner. — Duties. — Pay. 

In  order  to  carry  out  the  provisions  of  sections  1  and  2  of 
this  act,  upon  petition  of  three  or  more  operating  oil  companies, 
within  the  county,  it  shall  be  the  duty  of  the  board  of  super- 
visors of  said  county  to  appoint  a  commissioner,  who  shall  be 
a  practical  oil  man,  whose  term  of  office  shall  be  until  December 
31st  of  the  year  following  [the]  time  of  appointment,  or  until 
his  successor  is  appointed.  The  duties  of  said  commissioner 
shall  be  to  see  that  the  provisions  of  this  act  shall  be  enforced. 
The  compensation  of  said  commissioner  shall  be  fixed  by  the 
board  of  supervisors  and  shall  be  paid  out  of  the  general 
county  fund.  Upon  filing  of  a  complaint  with  said  commis- 
sioner alleging  the  violation  of  the  provisions  of  sections  1  or  2 
of  this  act,  it  shall  be  the  duty  of  the  hereinbefore  mentioned 
commissioner  of  the  county,  if  so  reciuested  by  the  complain- 
ants, to  make  or  cause  to  be  made  a  thorough  examination  of 
the  well  in  question,  to  determine  whether  or  not  any  of  the 
provisions  of  this  act  have  been  violated  and  for  such  purpose 
he  is  hereby  empowered  to  appoint  all  necessary  agents  and 
assistants  to  conduct  such  examination  and  such  agents  and 
assistants  may  enter  upon  the  premises  where  such  well  is 
situated  and  may  take  charge  of  such  well  for  the  purpose  of 
making  such  investigations.  If  the  defendant  in  the  action 
shall  be  convicted  of  a  violation  of  any  of  the  provisions  of 
sections  1  or  2  of  this  act,  he  shall  in  addition  to  the  penalties 
hereinafter  set  forth,  pay  all  reasonable  and  proper  costs  inci- 
dent to  the  making  of  such  investigations.  (Act  March  20, 
1911,  p.  586,  §4.) 

§  6.    Nuisance. — Abatement. 

Any  well  drilled  and  abandoned,  in  violation  of  sections  1 
or  2  of  this  act,  is  hereby  declared  a  public  nuisance.    If  any 


APPENDIX   B.  947 

well,  under  the  provisions  of  sections  1  or  2  of  this  act  be 
declared  a  public  nuisance,  it  shall  be  the  duty  of  [the]  com- 
missioner of  the  county  in  which  such  well  is  situated  to  enter 
upon  the  premises,  take  possession  of  such  well  and  to  abate 
said  nuisance  and  to  take  all  necessary  steps  to  prevent  the 
percolation  of  water  into  the  oil-bearing  strata.  He  siiall 
keep  an  accurate  account  of  the  expense  of  such  work  and  all 
expenses  so  incurred  shall  be  a  charge  against  the  owner  of 
such  well  and  a  lien  upon  the  same.  (xVct  March  20,  liJll,  p. 
586,  §4.) 

§  7.     Misdemeanor. 

Any  person  violating  the  provisions  of  this  act  shall  be  guilty 
of  a  misdemeanor.     (Act  March  20,  1911,  p.  586,  §  4.) 

§  8.     Refusing  inspection. 

Any  owner  of  anj^  well  referred  to  in  sections  1  or  2  of  this 
act,  who  refuses  to  permit  the  commissioner  to  inspect  the  same 
or  who  wilfully  hinders  or  delays  the  commissioner  in  the 
performance  of  his  duty  is  guilty  of  a  misdemeanor.  (Act 
March  20,  1911,  p.  586,  §  4.) 

§  9.     Repeal. 

An  "act"  to  prevent  injury  to  oil,  or  petroleum-bearing 
strata,  or  formations  by  infiltration  or  intrusion  of  water 
therein,  approved  IMarch  24,  1903,  is  hereby  repealed.  (Act 
March  20,  1911,  p.  586,  §4.) 

Eminent  Domain. 

The  right  of  eminent  domain  has  been  extended  to  oil  pipe 
lines.     (Code  of  Civil  Procedure,  1906,  §  1238.) 

Pipe  Lines. 

Pipe  lines  are  subject  to  the  control  of  the  railroad  commis- 
sioner.   A  pipe  line  is  defined  as  follows : 

"  (m)  The  term  'pipe  line,'  when  used  in  this  act,  includes 
all  real  estate,  fixtures  and  personal  property,  owned,  con- 
trolled, operated  or  managed  in  connection  with  or  to  facili- 
tate the  transmission,  storage,  distribution  or  delivery  of  crude 
oil  or  other  fluid  substance  except  water  through  pipe  lines." 
(Acts  December  23,  1911,  p.  18,  §  2.) 


948  OIL   AND   GAS. 

COLORADO. 
TRANSPORTATION  OF  GAS  AND  OIL. 

§  1.     Incorporation  of  company. 

Whenever  any  tliree  or  more  persons  associate  under  the 
provisions  of  said  (Jhapter  XTX.  of  the  general  statutes  of 
the  State  of  Colorado,  to  form  a  company,  for  tlie  purpose  of 
constructing  a  pipe  line  for  the  conveyance  of  gas,  water  or 
oil,  they  shall  in  their  certificate,  in  addition  to  the  matters 
re(|uired  in  section  2  of  said  Chapter  XIX.,  specify  as  follows: 
The  places  from  and  to  which  it  is  intended  to  construct  the 
proposed  line  or  lines,  and  any  pipe  line  company  formed 
under  the  provisions  of  said  Chapter  XIX.,  shall  have  the  right 
of  way  over  the  line  or  lines  named  in  the  certificate,  and 
shall  also  have  the  right  to  convey  gas,  water  or  oil  by  said 
lines  as  stated  in  such  certificate,  through  lands  of  the  State 
of  Colorado,  and  lands  of  individuals,  with  the  right  to  erect 
thereon  pump  stations,  storage  tanks,  and  other  buildings 
necessary  for  such  business,  and  if  any  such  corporation  shall 
he  unable-  to  agree  with  such  individuals  owning  any  of  such 
lands  for  the  purchase  of  any  real  estate  required  for  the 
purpose  of  any  such  corporation  or  company,  or  transporta- 
tion of  the  business  of  the  same,  or  for  right  of  way,  or  any 
other  lawful  purpose  connected  with  or  necessary  to  the  opera- 
tion of  said  company,  such  corporation  may  acquire  such  title 
as  in  manner  provided  by  law.     (Act  April  9,  1891,  p.  94.) 

Note. — Chapter   XIX,   relates   to    the   formation   of    corporations   in 
general. 

ILLINOIS. 
OIL  OR  GAS  LEASES. 

§1.     Forfeited  leases. — Penalty  for  failure  to  release  of  record. 
§2.     Actions  to  compel    release. — .Judgment. — Costs. 

AN  ACT  for  the  purpose  of  compelling  oil  or  gas  leases,  when  forfeited, 
to  be  re^leased  of  record  and  j)roviding  a  penalty  therefor. 

[Acts  May  27,  1907;  Acts  1907,  p.  400.] 

§  1.     Forfeited  leases — penalty  for  failure  to  release  of  record. 

Be  it  enact ed  hy  the  Peoplr,  of  the  State  of  Illinois,  repre- 
sented in  the  General  Assembly:  When  any  lease  on  land  here- 


APPENDIX   B.  949 

tofore  or  hereafter  taken  for  the  purpose  of  prospecting  for 
oil  or  natural  gas  or  operating  oil  or  gas  wells  upon  lands  so 
leased,  shall  become  forfeited  by  the  terras  of  said  lease  or 
the  acts  of  the  lessee,  it  shall  be  the  duty  of  the  lessee,  his,  her 
or  their  successors  or  assigns  within  sixty  days  from  the  date 
this  Act  shall  take  effect,  if  such  forfeiture  take  effect  prior 
thereto  and  within  sixty  days  from  day  of  forfeiture  of  any 
and  all  other  leases,  to  have  such  lease  or  leases  released  of 
record  in  the  county  where  such  land  is  situated,  without  any 
cost  to  the  owner  or  owners  of  the  land,  and  any  failure  so 
to  do  shall  constitute  a  misdemeanor  and  shall  subject  the 
offender  to  a  fine  of  not  more  than  two  hundred  dollars. 

§  2.     Actions  to  compel  release. — Judgment. — Costs. 

Whenever  the  lessee  of  any  oil  or  natural  gas  lands  or  the 
person,  firm,  company  or  corporation,  only  holding  or  having 
control  of  any  such  lease  shall  allow  the  same  to  become  for- 
feited, or  by  his,  her  or  their  acts  shall  forfeit  the  same,  and 
shall  refuse,  fail  or  neglect  to  cause  the  same  to  be  released  of 
record,  the  lessor  or  owner  of  said  lands  may  begin  a  civil 
action  to  compel  said  party  to  release  the  same  of  record  and 
upon  judgment  being  rendered  decreeing  said  lease  forfeited 
and  dircting  the  release,  the  said  lessee,  or  his  assigns,  shall 
be  decreed  to  pay  all  costs  of  such  action,  including  a  reason- 
able attorney  fee  to  be  taxed  as  costs.  (Approved  May  27, 
1907.) 

OIL  AND  GAS  WELLS. 

§1.  Distance  of  woll  from  mine  npeninsj. 

§2.  Statement  and  map  of  well  tlirough  eoal  seam. 

§3.  Abandoned  well. — Treatment  prescribed. 

§4.  Affidavit  filed  with  recorder. 

§5.  Provides  for  casinf^. 

§6.  Violations. — Penalties. 

§7.  Emergency. 

(House  Bill  No.  540.    Approved  June  7.  1011.) 

AN  ACT  to  amend  an  Act  entitled,  "An  Act  in  relation  to  sinking,  filling 
and  operating  of  oil  or  gas  wells,"  approved  and  in  force  May  16, 
1905. 

[Acts   1911,   p.  420.] 


950  OIL    AND    GAS. 

Section  1.  Be  it  enacted  by  the  People  of  the  State  of  Illi- 
nois, represented  in  the  General  Assembly:  That  an  Act  enti- 
tled, "An  Act  ill  relation  to  sinking,  filling  and  operating  of 
oil  or  gas  wells,"  approved  and  in  force  ]\Iay  16,  1905,  be  and 
the  same  is  hereby  amended  to  read  as  follows : 

§  1.     Distance  of  well  from  mine  opening. 

No  oil  or  gas  well  shall  be  drilled  hereafter  nearer  than  250 
feet  to  any  opening  to  a  mine  used  as  a  means  of  ingress  or 
egress  for  the  persons  employed  therein  or  which  is  used  as  an 
air  shaft. 

§  2.     Statement  and  map  of  well  through  coal  seam. 

It  shall  be  the  duty  of  any  person,  firm  or.  corporation 
having  the  custody  of  the  land  in  which  such  well  is  drilled, 
when  the  drill  hole  penetrates  a  coal  seam,  to  file  in  the  office 
of  the  recorder  of  the  county  in  which  said  oil  or  gas  well  is 
drilled,  a  statement  and  map  giving  the  location  and  depth 
of  every  w^ell  so  drilled  and  the  county  recorder  shall  file  and 
enter  and  index  same  in  the  records  of  his  office  relating  to 
the  titles  to  real  property. 

§  3.     Abandoned  well. — Treatment  prescribed. 

Before  the  casing  shall  be  drawn  from  any  well  for  the 
purpose  of  abandonment  thereof,  which  has  been  drilled  into 
any  gas  or  oil-bearing  rock,  it  shall  be  the  duty  of  any  person, 
firm  or  corporation  having  the  custody  of  such  well  at  the 
time  of  such  abandonment,  and  also  the  owner  or  owners  of 
the  land  wherein  such  well  is  situated,  to  properly  and  se- 
curely stop  and  plug  the  same  in  the  following  manner:  Such 
hole  first  be  solidly  filled  from  the  bottom  thereof  to  a  point 
at  least  twenty  feet  above  such  gas  or  oil-bearing  rock  -svith 
sand,  gravel  or  pulvertized  rock,  immediately  on  the  top  of 
which  filling  shall  be  seated  a  dry  wood  plug  not  less  than 
two  feet  in  length,  having  a  diameter  of  not  less  than  one- 
fourth  of  an  inch  less  than  the  inside  diameter  of  the  casing 
in  such  well.  And  above  such  wooden  plug  such  well  shall 
be  solidly  filled  for  at  least  twenty-five  feet  with  the  above- 


APPENDIX    B.  951 

mentioned  filling  material,  iinmecliately  above  which  shall  be 
seated  another  wootl  plug  of  the  same  kind  and  size  as  above 
provided,  and  sueh  well  shall  again  be  solidly  filled  for  at 
least  twenty-five  feet  al)Ove  such  plug  with  sueh  filling  ma- 
terial. After  the  casing  has  been  drawn  from  sueh  well  there 
shall  immediately  be  seated  at  the  point  where  such  casing 
was  seated  a  cast-iron  ball  or  taiupered  wood  i)lug  at  least  two 
feet  in  length,  the  diameter  of  which  ball  or  the  top  of  which 
wood  plug  shall  be  greater  than  that  of  the  hole  Ix^low  where 
such  casing  was  seated,  and  above  such  ball  or  plug  sueh  well 
shall  be  solidly  filled  to  top  of  well  with  the  aforesaid  material. 

§  4.     Affidavit  filed  with  recorder. 

The  person,  firm  or  corporation  owning  or  having  control 
or  custody  of  any  such  well,  or  the  laud  in  which  any  such 
well  is  situated,  shall  file  or  cause  to  be  filed  in  the  office  of 
the  recorder  of  the  county  in  which  any  such  w'ell  is  located, 
within  fifteen  days  after  the  same  has  been  plugged,  as  pro- 
vided in  section  3,  the  affidavit  of  at  least  two  persons  who 
were  present  during  the  plugging  of  such  well,  which  affidavit 
shall  be  recorded  in  the  record  books  in  the  office  of  the 
recorder  of  such  county,  and  shall  set  out  in  detail  the  manner 
in  which  such  well  was  plugged  and  the  depth  of  each  such 
wood  plugs  and  iron  ball  below  the  surface  of  the  ground, 
and  the  record  of  such  affidavit  shall  be  prima  facie  evidence 
in  any  court  of  a  compliance  wnth  the  provisions  of  this  Act. 

§  5.     Provides  for  casing. 

It  shall  be  the  duty  of  any  person,  firm  or  corporation 
sinking  a  well  in  any  oil  or  gas-bearing  rock,  or  having  sunk 
such  well  and  maintaining  the  same,  to  case  off  and  keep  cased 
off  all  fresh  water  from  such  well. 

§  6.     Violations. — Penalties. 

Any  person,  firm  or  corporation  violating  the  provisions  of 
section  1  or  failing  to  comply  with  the  provisions  of  section 
2  of  this  Act,  or  who  shall  fail  or  refuse  to  plug  a  well  in  the 
time  and  manner  provided  in  section  3  of  this  Act,  or  shall 
fail  or  neglect  to  secure  and  file  in  the  proper  recorder's  office 


952  OIL   AND   G/VS. 

the  affidavit  provided  for  and  reciuired  in  section  4  of  this  Act, 
or  slijill  fail  and  neglect  to  properly  case  off  fresh  water  from 
such  well  and  keep  the  same  cased  off  while  said  well  is  main- 
tained, as  provided  in  section  5  of  this  Act,  shall  be  liable  to  a 
penalty  of  one  hundred  dollars  ($100)  for  each  and  every 
violation  thereof;  and  the  further  sum  of  one  hundred  dollars 
($100)  for  each  ten  days  during  which  such  violation  shall 
continue,  and  all  such  penalties  shall  be  recoverable  in  a  civil 
action  brought  in  any  court  of  competent  jurisdiction  in  any 
county  in  which  said  violation  occurred,  brought  in  the  name 
of  the  State  of  Illinois  on  the  relation  of  such  county,  and  for 
the  use  and  benefit  of  such  county,  and  in  all  such  cases ;  if 
there  be  recovery  by  the  State,  it  shall  recover  in  addition  to 
such  penalties  a  reasonable  attorney's  fee. 

§  7.     Emergency. 

Whereas,  An  emergency  exists  for  the  immediate  taking 
effect  of  this  Act,  therefore,  the  same  shall  be  in  force  and 
effect  from  and  after  its  passage.     (Approved  June  7,  1911.) 

INDIANA. 

• 

§   1.  Natural  gas  supervisor. 

§  2.  Duties. 

§  3.  Laws  repealed. 

§  4.  Leakage,  repairing. 

§  5.  Pipes  for  carrying. — Pressure. 

§  6.  To  be  confined   in  pipes. 

§  7.  Civil   liability. 

§  8.  Recovery    of   expense   of    plugging. 

§  9.  Altering  gas  connections. 

§10.  ^Making  gas  connections  without  consent. 

§11.  Refusal   to  deliver  gas  meters. 

§12.  Setting  fire  to  gas. 

§13.  Penalty. 

§14.  Natural  gas. — Preventing  waste. 

§15.  Jumbo  burners. — 'When  lighted. 

§16.  Penalty. 

§17.  Meters  open  for   inspection. 

§18.  Excessive  charges   prohibited. 

§19.  Penalty  for  violation. 

§20.  False  gas   meters. 

§21.  Organization   of  oil   company. 

§22.  Oil   and   gas  wells. 


APPENDIX   B.  953 

§23.  "Mining"   includes  gas  wells. 

§24.  Capital    stock    liniitctl. 

§25.  Drilling  for  gas  or  oil. — rowcra. 

§26.  Right  of  way. 

§27.  Easement    appropriated. — Damages. — Procedure. 

§28.  Conflicting  claimants. — Money   paid  into  court. 

§29.  Attorneys  for  unknown   parties. — Powers  of  courts. 

§30.  New  proceedings. — Limit  of  right  to  condemn. 

§31.  Gas  companies. — Eminent  domain. 

§32.  Board   of   trust^-es. — Power   to   hold   and   vote   stock. 

§33.  Existing  agreements  violated. 

§34.  Marine   railways. — Gas    pipes. 

§35.  Gaa  and  waterworks  companies. 

§36.  Gas,  water  and  hydraulic  companies. 

§37.  Statement  under  oath. 

§38.  Schedule. 

§39.  Failure. — Duty  of  Auditor  of  State. 

§40.  Natural  gas  supervisor. — Plugging  wells. 

§41.  Notice  to  supervisor. — Fee. 

§42.  Assistants. — Compensation. 

§43.  Salt  water  or  oil. 

§44.  Fresh  water,   casing  ofT. 

§45.  Powers  of  supervisor. 

§46.  Penalty. 

§47.  Repealing  section. 

§48.  Emergency. 

Note. — The   figures   immediately    following   a   section   are   the   section 
numbers  to  the  corresponding  sections  in  Burns's  Revised  Statutes  of  1908. 

[Acts  1891,  p.  379.    In  force  March  9,  1891.] 


§  1.     Natural  gas  supervisor. 

That  the  office  of  natural  gas  supervisor  is  hereby  estab- 
lished, and  within  thirty  days  after  the  taking  effect  of  this 
act  the  State  geologist  of  Indiana  shall  appoint  a  skilled  and 
suitable  person,  who  shall  have  a  practical  knowledge  of  geol- 
ogy and  natural  gas,  and  who  is  not  directly  or  indirectly 
interested  in  piping  or  selling  natural  gas,  as  natural  gas 
supervisor  of  the  State  of  Indiana.  Such  supervisor  shall 
serve  for  a  term  of  four  years,  and  until  his  successor  is  ap- 
pointed and  qualified,  and  in  case  a  vacancy  occurs  in  the 
office  of  natural  gas  supervisor  from  any  cause,  the  state 
geologist  shall  fill  such  vacancy  by  appointment  as  herein  pre- 
scribed:  Provided,   however,   The    State   geologist   shall    iiave 


954  OIL   AND    GAS. 

power  to  remove  such  supervisor  at  any  time  for  violation  or 
neglect  of  duty.  Such  supervisor  shall  receive  an  annual 
salary  of  twelve  hundred  dollars,  and  the  further  sum  of  six 
hundred  dollars  for  traveling  and  other  expenses,  and  an  an- 
nual appropriation  of  eighteen  hundred  dollars  is  hereby  made 
out  of  any  moneys  in  the  State  treasury  not  otherwise  appro- 
priated for  the  salary  and  expenses  of  such  supervisor.  The 
State  geologist  shall  issue  to  such  natural  gas  supervisor  a 
certificate  of  appointment,  and  said  supervisor  shall,  within 
ten  days  thereafter,  make  and  execute  a  bond  in  the  sum  of 
one  thousand  dollars,  payable  to  the  State  of  Indiana,  with 
his  oath  of  office  endorsed  thereon,  which  bond  shall  be  for  the 
faithful  performance  of  duty,  and  shall  be  approved  by  and 
filed  with  the  Secretary  of  State.  Such  supervisor,  when  he 
has  qualified  according  to  law,  shall  devote  all  his  time  to  the 
business  of  his  office,  and  he  shall  work  at  all  times  under 
the  direction  of  the  State  geologist.  He  shall  make  personal 
inspection  of  all  the  gas  wells  of  the  State,  as  far  as  prac- 
ticable, and  shall  see  that  every  precaution  is  taken  to  insure 
the  health  and  safety  of  workmen  engaged  in  opening  gas 
wells  and  laying  mains  and  pipes,  and  of  those  who,  in  any 
manner,  use  gas  for  mechanical,  manufacturing,  domestic  or 
other  purposes.  He  shall  see  that  all  the  provisions  of  law 
pertaining  to  the  drilling  of  wells  and  the  piping  and  con- 
sumption of  natural  gas  are  faithfully  carried  out,  and  that 
the  penalties  of  law  are  strictly  enforced  against  any  person 
or  persons  who  violate  the  same,  and  promptly  report  all  vio- 
lations of  law  to  the  attorney-general  of  the  State.  He  shall 
collect  and  tabulate  in  his  annual  report  to  the  State  geologist, 
which  shall  be  made  on  the  second  Monday  in  January  of 
each  year,  and  published  in  the  report  of  the  State  geologist, 
the  following  facts:  The  number  of  gas  wells,  with  location;  a 
record  of  the  geological  strata  passed  through  in  drilling  wells, 
depth  at  which  salt  water  is  reached  in  the  various  wells, 
and  the  height  to  which  it  rises ;  the  volume  of  gas  produced 
by  each  well,  so  far  as  it  can  be  ascertained,  and  also  the 
initial  or  rock  pressure  of  the  same;  the  increase  or  decrease 
in  pressure  of  the  various  wells,  so  far  as  it  can  be  ascertained, 
and  also  the  increase  or  decrease  in  volume  of  gas  produced ; 
the  number  of  miles  of  mains  laid  for  the  transportation  of 
gas,  and  capacity  and  cost  of  the  same ;  the  amount  of  capital 


AiTExnix  B.  955 

invested  in  the  gas  industry,  and  the  number  of  persons 
employed  in  the  same ;  the  cost  of  gas  as  fuel  at  tlie  various 
points  at  which  it  is  used ;  the  amount  of  capital  invested  in 
manufactories  located  on  account  of  natural  gas,  and  the  num- 
ber of  the  same,  together  with  the  amount  and  kiml  of  products 
and  number  of  employees,  and  such  other  facts  and  informa- 
tion as  the  State  geologist  may  require.     (9056.) 

§  2.     Duties. 

It  shall  be  the  duty  of  the  natural  gas  supervisor  to  inspect 
all  natural  gas  pipe  lines  in  this  State,  at  least  once  in  each 
year,  and  as  often  as  may  be  necessary,  or  whenever  he  may 
be  directed  by  the  State  geologist;  and  he  shall  have  the  power 
to  condemn  any  pipes  or  portions  of  lines  that  he  may  deem 
unsafe  or  dangerous  to  life  or  property.  iVnd  any  person  or 
persons  using,  or  causing  to  be  used,  any  pipe  lines  or  por- 
tions thereof  after  the  same  has  been  condemned,  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
in  any  court  having  jurisdiction  of  misdemeanors,  in  any  sum 
not  exceeding  one  hundred  dollars ;  and  any  person  or  persons 
in  this  State  owning  natural  gas  wells  or  natural  gas  pipe 
lines,  or  who  controls  the  same,  who  refuses  to  allow  the  same 
to  be  inspected  by  the  natural  gas  supervisor,  upon  conviction 
shall  be  fined  in  any  sum  not  exceeding  fifty  dollars:  Provided, 
further,  That  whenever  any  responsible  person  shall  file  with 
such  gas  supervisor  an  affidavit  charging  the  owner  or  owners 
of  such  gas  plant  or  wells,  or  any  person  using  the  same,  or 
their  emploj^es,  with  the  violation  of  any  of  the  laws  regulating 
the  use  of  natural  gas,  and  particularly  specifying  the  viola- 
tion complained  of,  it  shall  be  the  duty  of  such  supervisor  to 
examine  and  inquire  into  the  alleged  violation  of  the  law  as 
set  forth  in  the  affidavit,  and  if  he  finds  the  facts  as  charged 
it  shall  be  his  duty  to  see  that  the  law  is  complied  with.     (0058.) 

§  3.    Laws  repealed. 

Section  7  of  an  act  entitled  "An  act  establishing  a  depart- 
ment of  geology  and  natural  resources  in  the  State  of  Indiana, 
and  providing  for  a  director  of  the  department,  abolishing  the 
department  of  geology  and  natural  history,  and  the  office  of 


956  OIL   AND   GAS. 

State  geologist  connected  tlierewith ;  abolishing  the  offices  of 
mine  inspector  and  State  inspector  of  oils ;  repealing  all  laws 
or  parts  of  laws  in  conflict  with  any  of  the  provisions  of  this 
act,  and  declaring  an  emergency,"  passed  over  the  governor's 
veto,  and  in  force  February  26,  1889,  is  hereby  repealed. 
(9059.) 

[Acts  1889,  p.  83.     In  force  February  22,  1899.] 

§  4.     Leakage,  repairing. 

That  it  shall  be  and  is  hereby  made  the  duty  of  the  natural 
gas  supervisor  of  the  State  of  Indiana,  upon  the  discovery  of 
any  leak  in  any  pipe  line  for  transportation  of  natural  gas,  or 
in  any  machinery,  apparatus,  appliance  or  device  used  in  the 
regulation  or  distribution  thereof,  to  forthwith  notify,  in  writ- 
ing, the  owner  or  superintendent  of  said  pipe  line,  machinery, 
apparatus,  appliance  or  device,  to  have  the  same  repaired 
within  two  days  from  the  time  of  receipt  of  said  notice.  In 
case  such  leak  has  not  been  repaired  \vithin  two  days  from 
the  time  of  receiving  such  notice  it  shall  be  the  duty  of  said 
natural  gas  supervisor  to  make  such  repairs  as  may  in  his 
judgment  be  necessary  to  stop  said  leak ;  and  such  natural  gas 
supervisor  shall  have  a  lien  upon  said  pipe  line  and  all  wells 
w'ith  which  the  same  may  be  connected,  for  the  cost  of  making 
such  repairs,  for  the  enforcement  of  which,  with  all  costs  of 
suit,  and  a  reasonable  attorney's  fee,  an  action  may  be  main- 
tained by  him  in  any  court  of  competent  jurisdiction ;  and  the 
judgment  so  obtained  shall  be  collectible  without  relief  from 
valuation  or  appraisement  laws  of  the  State.  In  case  of  any 
pipe  line,  machinery,  apparatus,  appliance  or  device,  owned 
by  a  corporation,  partnership,  or  by  a  non-resident  of  or  ab- 
sentee from  the  State  of  Indiana,  the  notice  herein  provided 
may  be  served  upon  any  person  in  charge  of  such  pipe  line. 
(9059.) 

[Acts   181)1,   p.  89.     In  force  March  4,   1891.] 

§  4.     Pipes  for  carrying. — Pressure. 

That  any  person  or  persons,  firm,  company  or  corporation, 
engaged  in  drilling  for,  piping,  transporting,  using  or  selling 
natural  gas,  may  transport  or  conduct  the  same  through  sound 
wrought  or  cast-iron  castings  and  pipes  tested  to  at  least  four 


APPENDIX   B,  <J57 

hundred  pounds'  pressure  to  the  stjuare  ineli :  I'ruvidcd,  Such 
gas  shall  not  be  transported  tlirough  pipes  at  a  pressure  ex- 
ceeding three  hundred  pounds  per  scjuare  inch :  Provided,  That 
the  provisions  of  tliis  act  shall  not  alt'ect  the  costs  in  any 
pending  litigation.      (DOGU.     As  amended,  Acts  1*JU3,  p.  IIUJ 

§  5.     Penalty. 

Any  person  or  persons,  firm,  company  or  corporation  vio- 
lating any  of  the  provisions  of  this  act  shall  be  fined  in  any 
sum  not  less  than  one  thousand  dollars  or  more  than  ten  thou- 
sand dollars,  and  may  be  enjoined  from  conveying  and  trans- 
porting natural  gas  through  pipes  otherwise  than  in  this  act 
provided :  Provided,  That  nothing  in  this  section  shall  operate 
to  prevent  the  use  of  nitro-glycerine  or  other  explosives  for 
shooting  any  well  or  wells  from  which  the  gas  is  procured. 
(9061.) 

[Acts  1893,   p.  300.     In  force  May  18,   1893.] 

§  6.    To  be  confined  in  pipes. 

That  it  shall  be  unlawful  for  any  person,  firm  or  corporation 
having  possession  or  control  of  any  natural  gas  or  oil  well, 
whether  as  a  contractor,  owner,  lessee,  agent  or  manager,  to 
allow  or  permit  the  flow  of  gas  or  oil  from  any  such  well  to 
escape  into  the  open  air,  without  being  confined  within  such 
well  or  proper  pipes,  or  other  safe  receptacle  for  a  longer 
period  than  two  (2)  days  next  after  gas  or  oil  shall  have 
been  struck  in  such  well.  And  thereafter  all  such  gas  or  oil 
shall  be  safely  and  securely  confined  in  such  well,  pipes  or 
other  safe  and  proper  receptacles.     (9062.) 

§  7.     Civil  liability. 

Whenever  any  person  or  corporation  in  possession  or  con- 
trol of  any  well  in  which  natural  gas  or  oil  has  been  found 
shall  fail  to  comply  with  the  provisions  of  this  act,  any  person 
or  corporation  lawfully  in  possession  of  lands  adjacent  to  or 
in  the  vicinity  or  neighliorhood  of  such  well  may  enter  upon 
the  lands  UDon  which  such  well  is  situate  and  take  possession 
of  such  well  from  which  gas  or  oil  is  allowed  to  escape  'v\ 
violation  of  the  provisions  of  section  1  of  this  act  and  pack 


958  OIL   AND    GAS. 

and  tube  such  well  and  shut  in  and  secure  the  flow  of  gas  or 
oil,  and  maintain  a  civil  action  in  any  court  of  competent 
jurisdiction  in  this  State  against  the  owner,  lessee,  agent  or 
manager  of  said  well,  and  each  of  them  jointly  and  severally 
to  recover  the  cost  and  expense  of  such  tubing  and  packing, 
together  with  attorney's  fees  and  costs  of  suit.  This  shall  be 
in  addition  to  the  penalties  provided  by  section  3  of  this  act. 
(9063.) 

§  8.     Recovery  of  expense  of  plugging. 

Whenever  any  person  or  corporation  shall  abandon  or  cease 
to  operate  any  natural  gas  or  oil  well,  and  shall  fail  to  comply 
with  the  provisions  of  section  2  of  this  act,  any  person  or  cor- 
poration lawfully  in  possession  of  lands  adjacent  to  or  in  the 
vicinity  or  neighborhood  of  such  well  may  enter  upon  the  lands 
upon  which  such  well  is  situated  and  take  possession  of  such 
well,  and  plug  and  fill  the  same  in  the  manner  provided  by 
section  2  of  this  act,  and  may  maintain  a  civil  action  in  any 
court  of  competent  jurisdiction  of  this  State  against  the  per- 
son, persons  or  corporations  so  failing,  jointly  and  severally, 
to  recover  the  costs  and  expense  of  such  plugging  and  filling, 
together  with  attorney's  fees  and  costs  of  suit.  This  shall  be 
in  addition  to  the  penalties  provided  by  section  3  of  this  act. 
(9064.) 

[Acts  1891,   p.  382.     In  force  June  3,   1891.] 

§  9.     Altering  gas  connections. 

It  is  hereby  declared  to  be  unlawful  for  any  person,  in  any 
manner  whatever,  to  change,  extend  or  alter,  or  cause  to  be 
changed,  extended  or  altered  any  service  or  other  pipe  or 
attachment  of  any  kind  connecting  or  through  which  natural 
or  artificial  gas  is  furnished  from  tlie  gas  mains  or  pipes 
of  any  person,  company  or  corporation  witliout  first  procuring 
from  said  person,  company  or  corporation,  written  permission 
to  make  such  change,  extension  or  alteration.     (2705.) 

§  10.    Making  gas  connections  without  consent. 

It  is  hereby  declared  to  be  unlawful  for  any  person  to  make, 
or  cause  to  be  made,  any  connection  or  reconnection,  with  the 


APPENDIX    B.  059 

gas  mains  or  service  pipes  of  any  person,  company,  or  corpora- 
tion, furnisliing  to  consumers  natural  or  artiiicial  gas,  or  to  turn 
on  or  off,  or  in  any  manner  interfere  with  any  valve  or  stop- 
cock, or  other  appliances  ])elonging  to  such  person,  company  or 
corporation,  and  connected  with  its  service  or  other  pipes,  or 
to  enlarge  the  orifice  of  mixers,  or  to  use  natural  gas  for 
heating  purposes  except  through  mixers,  without  first  pro- 
curing from  such  person,  company  or  corporation  a  written 
permit  to  turn  on  or  off  such  stop-cock  or  valve,  or  to  make 
such  connections  or  reconnection,  or  to  enlarge  the  orifice  of 
mixers,  or  to  use  gas  for  heating  without  mixers,  or  to  inter- 
fere with  the  valves,  stop-cocks,  or  other  appliances  of  such 
person,  company  or  corporation,  as  the  case  may  be.     (2706.) 

§  11.     Refusal  to  deliver  gas  mixers. 

It  is  hereby  declared  to  be  unlawful  for  any  person  or  per- 
sons to  Avhom  any  mixer  or  mixers  or  other  appliances  may  be 
or  may  have  been  loaned  or  rented  by  any  person,  company 
or  corporation  for  the  purpose  of  furnishing  gas  through  the 
same,  to  retain  possession,  or  to  refuse  to  deliver  such  mixer 
or  mixers,  or  other  appliances  to  the  person,  company  or  cor- 
poration entitled  to  the  possession  of  the  same,  after  such 
person,  company  or  corporation  shall  have  been  entitled  to  the 
possession  of  ,the  same,  or  to  sell,  loan  or  in  any  manner  dis- 
pose of  the  same  to  any  person  or  persons,  other  than  said 
person,  company  or  corporation  entitled  to  the  possession  of 
the  same.     (2707.) 

§  12.    Setting  fire  to  gas. 

It  is  hereby  declared  to  be  unlawful  for  any  person  or 
persons  to  set  on  fire  any  gas  escaping  from  wells,  broken 
or  leaking  mains,  pipes,  valves,  or  other  appliances,  used 
by  any  person,  company  or  corporation  in  conveying  gas 
to  consumers,  or  to  interfere  in  any  manner  with  the 
wells,  pipes,  mains,  gate  boxes,  valves,  stop-cocks  or  other  ap- 
pliances, machinery  or  property  of  any  person,  company  or 
corporation  engaged  in  furnishing  gas  to  consumers,  unless 
employed  by  or  acting  under  the  authority  and  direction  of 
such  person,  company  or  corporation  engaged  in  furnishing 
gas  to  consumers.     (2708.) 


960  OIL    AND    CAS. 

§  13.    Penalty. 

Any  person  violating  any  provision  of  this  act  shall,  upon 
conviction,  be  fined  in  any  sum  not  less  than  five  dollars  nor 
more  than  one  hundred  dollars  for  such  offense.     (2709.) 

[Acts   1891,  p.   55.     In   force  June  3,    1891.] 

§  14.     Natural  gas — preventing  waste. 

The  use  of  natural  gas  for  illuminating  purposes,  in  what 
are  known  as  flambeau  lights,  is  a  wasteful  and  extravagant 
use  thereof,  and  is  dangerous  to  the  public  good,  and  it  shall 
therefore  be  unlawful  for  any  company,  corporation  or  person, 
for  hire,  pay  or  otherwise,  to  use  natural  gas  for  illuminating 
purposes  in  what  are  known  as  flambeau  lights  in  cities,  towns, 
highways,  or  elsewhere :  Provided,  That  nothing  herein  con- 
tained shall  be  construed  as  to  prohibit  any  such  company, 
corporation  or  person  from  the  necessary  use  of  such  gas  in 
what  are  known  as  "jumbo"  burners  enclosed  in  glass  globes, 
or  lamps  or  by  the  use  of  other  burners  of  similar  character 
so  enclosed,  as  will  consume  no  more  gas  than  said  "jumbo" 
burners.     (2710.) 

§  15.     Jumbo  burners — when  lighted. 

All  gas  lights  in  said  "jumbo"  burners  and  glass  globes, 
or  lamps  used  in  all  streets  and  public  highways  shall  be  turned 
off  not  later  than  8  o'clock  in  the  morning  of  each  day  such 
lights  or  burner  is  used,  and  the  same  shall  not  be  lighted 
between  the  hours  of  8  o'clock  a.  m.  and  5  o'clock  p.  m.     (2711.) 

§  16.     Penalty. 

Any  one  violating  any  of  the  provisions  of  section  one  (1) 
of  this  act,  shall  be  deemed  guilty  of  a  misdemeanor  and  upon 
conviction  shall  be  fined  in  any  sum  not  exceeding  twenty-five 
dollars,  and  for  a  second  offense  may  be  fined  in  any  sum  not 
exceeding  two  hundred  dollars.     (2712.) 

[Acts  1901,  p.  97.     Tn  force  March  6,  1901.] 

§  17.     Meters  open  for  inspection. 

That  every  person,  company  or  corporation  now  engaged 
or  hereafter  engaging  in  the  business  of  furnishing  natural  or 


ArPExnix  n.  961 

artificial  gas  for  heating,  illuminating  or  othor  purposes,  to  be 
used  and  paid  for  by  patrons  by  nietor  measure,  shall  furnish 
to  each  and  every  patron  a  meter  properly  tested  and  in  good 
order,  and  shall  arrange  sueh  meters  so  that  the  patron  can, 
at  any  time,  see  the  meter  dial  and  ascertain  how  much  gas  he 
is  consuming,  and  how  much  he  is  liable  to  pay  for.     (2713.) 

§  18.    Excessive  charges  prohibited. 

It  shall  be  unlawful  for  any  person,  company  or  corpora- 
tion engaged  in  furnishing  gas  to  consumers,  to  be  paid  for 
by  meter  measure,  to  charge  or  receive,  from  any  patron  or 
consumer,  pay  for  more  gas  than  the  meter  furnished  by 
such  person,  company  or  corporation  shall  indicate  has  been 
used  by  such  consumer  at  the  time  to  which  payment  is  made 
and  received.     (2714.) 

§  19.     Penalty  for  violation. 

Any  person,  company  or  corporation  violating  any  of  the 
provisions  of  this  act  shall  be  deemed  guilty  of  a  misdemeanor 
and  upon  conviction  thereof  shall  be  fined  in  any  sum  not  less 
than  ten  dollars  and  not  more  than  one  hundred  dollars  for 
each  oifense.     (2715.) 

[Acts  1905,  p.  584.     In  force  April   15,  1905.] 

§20.    False  gas  meter. 

"Whoever  know'ingly  constructs,  or  uses  or  furnishes  to  gas 
consumers  to  be  used,  any  false  meter  provided  for  measuring 
and  registering  the  quantity  of  gas  consumed  by  any  person 
under  a  contract  with  any  gas  company,  shall,  on  conviction, 
be  fined  not  less  than  ten  dollars  nor  more  than  one  hundred 
dollars.     (2608.) 

[Acts  1901,  p.  289.     In  force  March  9,   1901.] 

§  21.     Organization  of  oil  company. 

That  such  association  [voluntary  association]  may  be  formed 
for  one  only  of  the  following  purposes:    (4287.) 


962  OIL    AND    GAS. 

§  22.     Oil  and  gas  wells. 

To  organize  companies  for  the  purpose  of  sinking  and  op- 
erating oil  and  gas  wells,  and  of  selling  the  products  of  such 
wells.     (4304.) 

[Acts  1889,  p.  38.     In  force  February  23,  1889.] 

§23.     "Mining"  includes  gas  wells. 

That  it  was  and  is  the  intent  and  meaning  of  said  word 
"milling,"  as  used  in  said  chapter  (chap.  35,  R.  S.  1881),  to 
cover  and  include  the  sinking,  drilling,  boring  and  operating 
wells  for  petroleum  and  natural  gas.     (5134.) 

§  24.     Capital  stock  limited. 

That  the  capital  stock  of  any  company,  corporation  or  asso- 
ciation to  carry  on  exclusively  the  business  of  mining,  drilling, 
sinking  and  operating  wells  for  petroleum  and  natural  gas,  or 
selling  the  same,  or  manufacturing  petroleum  and  other  min- 
erals into  gas  for  fuel  and  light,  which  company,  corporation 
or  association  is  or  shall  hereafter  be  incorporated  under  said 
chapter  thirty-five  (35)  of  the  Revised  Statutes  of  Indiana, 
shall  not  exceed  two  millions  of  dollars :  Provided,  That  no 
suits  now  pending  or  the  rights  of  the  parties  litigant  thereto, 
shall  be  affected  by  the  provisions  of  this  act.  (5137.  As 
amended,  Acts  1903,  p.  227.) 

[Acts  1889,  p.  22.     In  force  February  20,  1889.] 

§  25.    Drilling  for  gas  or  oil. — Powers. 

That  whenever  any  company,  corporation  or  voluntary  asso- 
ciation incorporated  under  the  laws  of  the  State  of  Indiana, 
or  which  may  hereafter  be  incorporated  thereunder  for  the 
purpose  of  drilling  and  mining  for  petroleum  or  natural  gas, 
or  otherwise  acquiring  gas  or  petroleum  wells  and  the  products 
thereof,  and  to  furnish  the  same  to  its  patrons  for  use  within 
this  state,  and  by  manufacture  to  convert  the  same  into  gas 
for  fuel  and  illuminating  purposes,  and  other  articles  of  com- 
merce, shall  desire  to  dig  trenches  and  lay  pipes  for  the  pur- 
pose of  conducting  gas  to  its  patrons  within  this  State  or 
conducting  gas  from  its  wells,  or  wells  leased  by  it,  or  from 


APPENDIX   B.  0G3 

its  manufactory  to  any  point  within  tliis  State,  such  com- 
pany, corporation  or  voluntary  associations  shall  i)oss('ss 
the  powers,  be  subject  to  the  liabilities  and  restrictions  ex- 
pressed in  the  following: 

Fh'st.  To  cause  such  examination  and  surveys  as  nuiy  be 
necessary  to  the  selection  of  the  most  advantageous  routes  for 
the  said  trenches  and  pipes,  and  for  such  puri)oses,  by  their 
officers,  agents  and  servants,  to  enter  upon  tiie  lands  and 
waters  of  any  person ;  but  subject  to  the  responsibility  for  any 
damages  which  they  shall  do  thereto. 

Second.  To  receive,  hold  and  take  such  voluntary  grants 
and  donation  of  real  estate  and  other  property  as  shall  be  made 
to  it  to  aid  in  the  construction,  maintenance  and  accommo- 
dation of  such  trenches  and  pipes,  but  the  real  estate  thus 
received  by  voluntary  grants  shall  be  held  and  used  for  the 
purposes  of  such  grants  only. 

Third.  To  purchase,  and  by  voluntary  grants  and  donations, 
receive  and  take,  and  by  its  officers,  engineers,  survej^ors  and 
agents  enter  and  acquire  an  easement  in  and  upon  and  take 
possession  of  and  use  all  such  lands  and  real  estate  and  other 
property  as  maj^  be  necessary  for  the  construction  and  main- 
tenance of  the  said  trenches  and  pipes,  and  other  accommoda- 
tions necessary  to  accomplish  the  objects  for  which  the  com- 
pany, corporation  or  voluntary  association  is  created ;  but  not 
until  the  compensation  to  be  made  therefor  is  agreed  upon 
by  the  parties,  or  ascertained  as  hereinafter  prescribed  shall 
have  been  paid  to  the  owner  or  owners  thereof  or  deposited 
as  hereinafter  directed,  unless  the  consent  of  such  owner  be 
given  to  enter  into  possession. 

Fourth.  To  locate  and  lay  out  and  construct  its  said 
trenches,  not  exceeding  one  rod  in  width  for  a  single  pipe  line, 
and  to  construct  the  same;  said  trenches  and  pipe  lines  in  all 
cases  to  be  laid  at  such  depth  as  not  to  interfere  with  the 
tillage  of  the  soil,  or  the  existing  drainage,  and  the  soil  taken 
from  said  trenches  shall  be  returned  with  tlie  toj)  soil  on  top. 
as  originally  found;  said  company,  corporation  or  voluntary 
association  to  have  the  right  to  enter  and  go  upon  said  right 
of  way  by  its  officers  and  agents,  without  hindrance,  for  the 
purpose  of  digging  said  trenches  and  laying  said  pipe,  inspect- 
ing, operating  and  repairing  the  same. 


964  OIL    AND   GAS. 

Fifth.  To  dig  its  trenches,  to  lay  its  pipe  lines  over,  across  or 
under  any  stream  of  water,  water-course,  road,  highway  or 
railroad,  so  as  not  to  interfere  with  the  free  use  of  the  same, 
which  the  route  thereof  shall  intersect,  in  such  manner  as  to 
afford  security  for  life  or  property.  And  whenever  the  board 
of  count}^  commissioners  of  the  proper  county  shall  so  direct, 
said  trenches  and  pipe  lines  may  be  constructed  and  laid  along 
the  right  of  way  of  any  road  or  highway,  but  in  all  cases  where 
said  trenches  or  pipe  lines  shall  be  laid  across,  upon  or  along 
any  gravel  road,  road  or  highway  thus  intersected,  said  com- 
pany, corporation  or  voluntary  association  shall  immediately, 
upon  the  laying  of  any  such  pipe,  restore  the  same  to  its  former 
state,  or  in  a  sufficient  manner  not  to  have  unnecessarily  im- 
paired its  usefulness  or  injured  its  franchises. 

Sixth.  To  purchase  or  acquire  easements  in  and  upon  lands, 
and  it  may  change  the  line  of  its  said  trenches  and  pipe  lines 
whenever  a  majority  of  the  directors  shall  so  determine. 
(5138.) 

§  26.    Right  of  way. 

"Whenever  any  such  company,  corporation  or  voluntary  as- 
sociation is  unable  to  agree  with  the  owner  or  owners  about 
the  purchase  of  any  real  estate  in  any  county  required  for  the 
construction  of  its  trenches  and  the  laying  of  the  mains  and 
connecting  pipes,  it  shall  have  the  right  to  acquire  an  ease- 
ment in  and  upon  the  same  in  the  manner  and  by  the  special 
proceedings  prescribed  in  this  act.     (5139.) 

§  27.     Easement  appropriated. — Damages. — Procedure. 

Such  company,  corporation  or  voluntary  association  is  hereby 
authorized  to  enter  upon  any  land  for  the  purpose  of  exam- 
ining and  surveying  its  line  for  trenches  and  pipe  lines,  and 
may  acquire  an  easement  in  and  upon  so  much  thereof  as  may 
be  deemed  necessary  for  its  said  trenches,  not  exceeding  one 
rod  in  width  for  any  single  pipe  line.  The  company,  corpora- 
tion or  voluntary  association  shall  forthwith  deposit  with  the 
clerk  of  the  circuit  or  other  court  of  record  in  the  county  where 
the  line  lies,  a  description  of  the  rights  and  interest  intended 
to  be  appropriated,  and  an  easement  in  such  land,  rights  and 
interest  shall  belong  to  such  company,  corporation  or  volun- 


APPENDIX   B.  065 

tary  association  to  use  for  the  purpose  specified,  by  making 
or  tendering  payment  as  hereinafter  provided.  The  company, 
corporation  or  voluntary  association  may,  by  its  directors, 
purchase  any  such  lands,  right  of  way  or  interest  of  the  owner 
of  such  land,  or  in  case  the  same  is  owned  by  a  person  insane 
or  an  infant,  at  a  price  to  be  agreed  upon  ])y  the  regularly 
constituted  guardian  of  said  insane  person  or  infant,  if  the 
same  shall  be  approved  by  the  court  in  which  the  description 
aforesaid  shall  be  filed,  and  on  such  agreement  and  jijiproval 
the  owner  or  guardian,  as  the  case  may  be,  shall  convey  the 
easement  or  right  of  way  upon  the  said  premises  so  purchased, 
to  such  company,  corporation  or  voluntary  association,  and  the 
deed  when  made  shall  be  valid  in  law.  If  the  company,  cor- 
poration or  voluntary  association  shall  not  agree  with  the 
owner  of  the  land  "or  with  his  guardian  if  the  owner  is  in- 
capable of  contracting"  touching  the  damages  sustained  by 
such  owner,  such  company,  corporation  or  voluntary  associa- 
tion shall  deliver  to  such  owner  or  guardian  within  the  county 
a  copy  of  such  instrument  of  appropriation.  If  the  owner  "or 
his  guardian,  in  case  such  owner  is  incapable  of  contracting," 
be  unknown  or  does  not  reside  within  the  county,  such  com- 
pany, corporation  or  voluntary  association  shall  publish  in  some 
newspaper  of  general  circulation  in  the  county,  for  the  term 
of  three  weeks,  an  advertisement  reciting  the  substance  of  such 
instrument  of  appropriation.  Upon  filing  such  act  of  appro- 
priation and  the  delivery  of  such  copy  or  making  of  such 
publication,  the  circuit  court  or  other  court  of  record  in  the 
county  where  the  land  lies,  or  any  judge  thereof  in  vacation, 
upon  the  application  of  either  party,  shall  appoint  by  warrant 
three  disinterested  freeholders  of  said  county  to  appraise  the 
damages  which  the  owner  of  the  land  may  sustain  by  such 
appropriation.  Such  appraisers  shall  be  duly  sworn.  They 
shall  consider  the  injury  which  such  owner  may  sustain  by 
reason  of  such  trenches  and  pipe  lines,  and  shall  forthwith 
return  their  assessment  of  damages  to  the  clerk  of  such  court, 
setting  forth  the  value  of  tlip  property  taken  or  iiiiurv  done 
to  the  property  "which  they  shall  assess  to  \ho  owner  or  owners 
separately,"  to  be  by  him  filed  and  recorded.  Thereupon  said 
company,  corporation  or  voluntary  association  shall  pay  to 
such  clerk  the  amount  thus  assessed,  or  tender  the  same  to  the 
party  in  whose  favor  the  damages  are  awarded  or  assessed. 


966  OIL   AND    GAS. 

On  making  payment  or  tender  thereof  in  the  manner  herein 
required,  it  shall  he  lawful  for  such  company,  corporation  or 
voluntai-y  association  to  hold  the  interest  in  said  lands  or 
material  so  ai)pro{)riated  for  the  uses  aforesaid :  Provided, 
First,  That  any  person  aggrieved  by  the  action  or  assessment 
of  any  appraisers  appointed  under  this  act  may  appeal  there- 
from to  the  circuit  court  of  their  county,  under  the  same  pro- 
visions and  subject  to  the  same  restrictions  as  provided  for  in 
ease  of  api)eals  from  assessments  under  the  laws  of  this  State 
for  the  appropriation  of  real  estate  for  rights  of  way  of  rail- 
roads, as  provided  by  an  act  of  the  general  assembly  of  the 
State  of  Indiana,  in  force  May  6,  1853,  and  all  acts  amendatory 
thereof:  And  Provided,  further.  That  nothing  in  this  act  con- 
tained shall  in  any  manner  abridge  or  impair  the  rights  of 
incorporated  towns  and  cities  by  their  respective  councils, 
boards  of  aldermen  or  boards  of  trustees  to  grant  to  such  cor- 
porations or  companies  the  privilege  to  use  and  occupy  the 
streets  and  alleys  of  such  cities  and  towns  for  the  purpose  of 
laying  mains  for  conveying  gas  to  their  patrons.     (5140.) 

§28.     Conflicting  claimants. — Money  paid  into  court. 

If  there  are  diverse  or  conflicting  claimants  to  the  money 
or  any  part  of  it  to  be  paid  as  compensation  for  the  real  estate 
taken,  the  court  may  direct  the  money  to  be  paid  into  said 
court  by  said  company,  corporation  or  voluntary  association 
until  it  can  determine  who  is  entitled  to  the  same,  and  shall 
direct  to  whom  the  same  shall  be  paid,  and  may,  in  its  dis- 
cretion order  a  reference  to  ascertain  the  facts  on  which  said 
determination  and  order  are  to  be  made.     (5141.) 

§29.     Attorneys  for  unkown  parties. — Powers  of  court. 

The  court  shall  appoint  some  competent  attorney  to  appear 
for  and  protect  the  rights  of  any  party  in  interest  who  is 
unknown  and  who  has  not  appeared  in  the  proceedings  by 
an  attorney  or  agent.  The  court  shall  also  have  power  at 
any  time  to  amend  any  defect  or  informality  in  any  of  the 
special  proceedings  authorized  by  this  act  as  may  be  necessary, 
or  to  cause  new  parties  to  be  added,  and  to  direct  such  further 
notice  to  be  given  to  any  party  in  interest  as  it  deems  proper, 
and  also  to  appoint  other  commissioners  in  the  place  of  any 


APPENDIX    B.  967 

who  shall  die  or  refuse  or  neglect  or  be  uiuil)le  to  serve,  or 
who  may  leave  or  be  absent  from  the  State.     (5142.) 

§  30.     New  proceedings. — Limit  of  right  to  condemn. 

At  any  time  after  an  attempt  to  ac(iiiire  title  by  appraise- 
ment of  damages  or  otherwise,  if  it  siiall  be  found  tiiat  the 
title  thereby  attempted  to  be  acquired  is  defective,  the  com- 
pany, corporation  or  voluntary  association  may  proceed  anew 
to  acquire  or  perfect  the  same  in  the  same  manner  as  if  no 
appraisal  had  been  made :  Provided,  That  the  provisions  of 
this  act  shall  not  be  construed  to  give  to  any  person,  corpora- 
tion or  association  the  right  to  enter  upon  lands  and  dig  or 
prospect  for  natural  gas  or  oil,  or  to  take  any  lands  for  the 
purpose  of  digging  or  boring  any  wells,  but  it  shall  be  con- 
strued to  give  the  right  to  take  the  right  of  way  for  pipe  lines 
only:  And  Provided,  further.  That  no  person  or  corporation 
shall  have  the  right  to  condemn  or  take  any  lands,  or  lay  their 
pipe  lines  within  seventy-five  yards  of  any  dwelling  or  barn, 
unless  the  OAvncr  shall  agree  in  writing  that  the  same  may  be 
placed  within  such  distance,  except  when  the  line  of  such 
pipes  shall  be  along  a  public  highway.     (5143.) 

[Acts  1907,  p.  340.     April  10,  1907.] 

§  31.     Gas  companies,  eminent  domain. 

That  whenever  any  corporation  or  voluntary  association, 
organized  under  the  laws  of  the  State  of  Indiana,  or  wliich 
may  hereafter  be  incorporated  thereunder  for  the  purpose  of 
manufacturing,  piping,  distributing  or  selling  artificial  or 
other  gas  for  heat,  light,  fuel,  or  power  or  whenever  any  per- 
son or  corporation  engaged  in  the  business  of  manufacturing, 
piping,  distributing  or  selling  artificial  or  other  gas  for  heat, 
light,  fuel,  or  power,  and  furnishing  the  same  to  its  patrons 
within  this  State,  shall  desire  to  dig  trenches  and  lay,  main- 
tain or  repair  pipes  or  mains  outside  of  the  limits  of  corporate 
cities  or  towns  for  the  purpose  of  conducting  and  distributing 
gas  or  its  products  to  its  patrons  within  this  State,  or  from  its 
manufactory  to  its  patrons  at  any  point  within  this  State,  such 
person,  corporation  or  voluntary  association  shall  have  the 
rights  and  powers  conferred  upon  and  granted  to,  and  be  sub- 


968  OIL   AND    GAS. 

ject  to  the  liabilities  and  restrictions  imposed  upon  corpora- 
tions organized  for  the  purpose  of  drilling  and  mining  for 
petroleum  or  luitural  gas  and  marketing  the  same  by  an  act 
entitled  "An  act  to  authorize  companies  organized  for  the 
purpose  of  drilling  and  mining  for  petroleum  or  natural  gas 
and  marketing  the  same  to  appropriate  and  condemn  real 
estate  and  declaring  an  emergency,"  approved  February  20, 
1889.     (5144.) 

§  32,     Board  of  trustees. — Power  to  hold  and  vote  stock. 

That  the  sul)scribers  to  the  capital  stock  of  any  company, 
corporation  or  voluntary  association,  organized  for  the  purpose 
of  furnishing  natural  or  artificial  gas  for  fuel  or  for  illumi- 
nating purposes,  or  for  furnishing  electric  lights  or  water  to 
the  citizens  of  any  village,  town  or  city  within  the  State  of 
Indiana,  may,  by  written  stipulation  at  the  time  of  making 
subscriptions  to  the  capital  of  said  company,  corporation  or 
voluntary  association,  and  with  one  another,  that  the  power 
of  holding  and  voting  said  capital  stock  may  be  irrevocably 
given  to  a  board  of  trustees  or  a  majority  of  them,  which  said 
board  of  trustees  may  be  selected  in  such  manner  as  the  arti- 
cles of  incorporation  may  provide.     (5145.) 

§  33.     Existing  agreements  validated. 

That  any  such  agreement  heretofore  made  by  the  subscribers 
to  the  capital  of  any  company,  corporation  or  voluntary  asso- 
ciation organized  for  the  purposes  set  forth  in  the  preceding 
section,  shall  be  valid  and  binding  upon  said  subscribers  to  the 
capital  stock  and  their  assigns.     (5146.) 

[1  R.  S.  1852,  p.  358.     In  force  IVIay  6,  1853.] 

§  34.     Marine  railways. — Gas  pipes. 

Corporations,  building  steamboats  and  other  vessels  shall 
have  the  right  to  construct  marine  railways,  and  all  other 
necessary  fixtures  and  machinery  for  repairing  and  launching 
the  same;  and  gas  light  companies  may  lay  pipes  througn  the 
streets  and  alleys  of  any  incorporated  city  or  town,  by  repair- 
ing or  making  good  any  injury  done  thereto.     (5072.) 


APPENDIX  n.  969 

[Acts  1883,  p.   17.     In  force  Fchniary  21,   1S83.] 

§  35.     Gas  and  water  works  companies. 

That  any  gas  light  or  water  works  company  in  anj'  city  or 
town  of  this  State  shall  be  authorized  and  empowered  to  ex- 
tend their  pipes  and  mains  Ix'yond  the  corj)orate  limits  of  such 
city  or  town,  not  to  exceed  a  distance  of  live  miles  from  the 
corporate  limits  of  any  such  city  or  town,  for  the  purpose  of 
supplying  persons  or  corporations  with  gas  or  water,  and  any 
.such  company  shall  be  authorized  and  empowered  to  furnish 
and  supply  gas  or  water  to  any  persons  or  corporations  re- 
siding or  located  within  five  miles  of  the  corporate  limits  of 
any  such  city  or  town.     (5073.) 

[Acts  1891,  p.  1Q9.     In  force  March  6,  1891.] 

§  36.     Gas,  water  and  hydraulic  companies. 

The  personal  property  of  gas  and  coke  companies,  natural 
gas  companies,  electric  light  companies,  water  works  com- 
panies and  hydraulic  companies  shall  be  listed  and  assessed 
in  the  townsliip,  town  or  city  where  the  principal  works  are 
located ;  the  mains,  pipes  and  wires  of  such  companies  laid  in 
or  along  roads,  streets  or  alleys  shall  be  listed  as  personal 
property  in  the  township,  city  or  town  where  the  same  are 
laid  or  placed.     (10166.) 

[Acts  1891,  p.  199.     In  force  March  G,  1801.] 

§  37.     Statement  under  oath. 

Every  street  railroad,  water  works,  gas,  manufacturing, 
mining,  gravel  road,  plank  road,  saving (s)  l»aiik,  insurance 
and  other  associations  incorporated  under  the  laws  of  this 
State  (other  than  railroad  companies  and  those  lieretofore  spe- 
cifically designated)  shall,  by  its  president  or  other  proper 
accounting  officer,  between  the  first  day  of  IMareli  and  the 
fifteenth  day  of  IMay  of  the  current  year,  in  addition  to  the 
other  property  required  by  this  act  to  be  listed,  make  out  and 
deliver  to  the  assessor  a  sworn  statement  of  the  amount  of  its 
capital  stock,  setting  forth  particularly: 

First.    The  name  and  location  of  the  company  or  association. 


970  OIL   AND   GAS. 

Second.  The  amount  of  capital  stock  authorized,  and  the 
number  of  shares  in  wliich  such  capital  stock  is  divided. 

Third.    The  amount  of  capital  stock  paid  up. 

Fourth.  The  market  value,  or  if  no  market  value,  then  the 
actual  value  of  the  shares  of  stock. 

Fifth.  The  total  amount  of  indebtedness,  except  the  indebt- 
edness for  current  expenses,  excluding  from  such  expenses  the 
amount  paid  for  the  purchase  or  improvement  of  property. 

Sixth.    The  value  of  all  tangible  property. 

Seventh.  The  difiFerence  in  value  between  all  tangible  prop- 
erty and  the  capital  stock. 

Eighth.  The  name  and  value  of  each  franchise  or  privilege 
owned  or  enjoyed  by  such  corporation. 

Such  schedule  shall  be  made  in  conformity  to  such  instruc- 
tions and  forms  as  may  be  prescribed  by  the  auditor  of  State. 
In  case  of  the  failure  or  refusal  to  make  report,  such  corpora- 
tions shall  forfeit  and  pay  one  hundred  dollars  for  each  addi- 
tional day  such  report  is  delayed  beyond  the  fifteenth  day  of 
May,  to  be  sued  and  recovered  in  any  proper  form  of  action 
in  the  name  of  the  State  of  Indiana,  on  the  relation  of  the 
prosecuting  attorney,  such  penalty  when  collected,  to  be  paid 
into  the  county  treasury.  And  such  prosecuting  attorney  in 
every  case  of  conviction  shall  be  allowed  a  docket  fee  of  ten 
dollars  to  be  taxed  as  costs  in  such  action.  (10233.  As 
amended,  Acts  1903,  p.  49.) 

§  38.     Schedule. 

Such  statement  shall  be  scheduled  by  the  assessor  and  such 
schedule,  with  the  statement  so  scheduled,  shall  be  returned 
by  the  assessor  to  the  county  auditor.  The  auditor  shall  an- 
nually, on  the  meeting  of  the  county  board  of  review,  lay 
before  said  board  the  schedule  and  statements  herein  required 
to  be  returned  to  him,  and  said  board  shall  value  and  assess 
the  capital  stock  and  all  franchises  and  privileges  of  such 
companies  or  associations  in  the  manner  provided  in  this  act, 
and  the  said  auditor  shall  compute  and  extend  the  taxes  for 
all  purposes  on  the  respective  amounts  so  assessed,  the  same 
as  may  be  levied  on  other  property  in  such  towns,  cities  or 
other  localities  in  which  such  companies  or  associations  are 
located.     In  all  cases  where  the   capital   stock   of  any  such 


APPENDIX   B.  971 

corporation  exceeds  in  value  tliat  of  the  tangible  property 
listed  for  taxation,  then  such  capital  stock  shall  he  subject  to 
taxation  upon  such  excess  of  value;  where  no  tangible  j)rop- 
erty  is  returned  or  found,  and  the  capital  stock  has  a  value; 
it  shall  be  assessed  for  its  true  cash  value.  Hut  where  the 
capital  stock,  or  any  part  thereof,  is  invested  in  tangible  prop- 
erty, returned  for  taxation,  such  capital  stock  shall  not  be 
assessed  to  the  extent  that  is  so  invested.  Every  franchise  or 
privilege  of  any  such  corporation  shall  likewise  be  assessed  at 
its  true  cash  value.  Where  the  full  value  of  any  franchise  is 
represented  by  the  capital  stock  listed  for  taxation  then  such 
franchise  shall  not  itself  be  taxed ;  but  in  all  cases  where  the 
franchise  is  of  greater  value  than  the  capital  stock,  then  the 
franchise  shall  be  assessed  at  its  full  cash  value,  and  the 
capital  stock  in  such  case  shall  not  be  assessed.     (10234.) 

§  39.    Failure. — Duty  of  auditor  of  State. 

In  case  of  the  failure  or  refusal  of  the  person  or  persons, 
joint  stock  associations,  companies  or  corporations,  their  offi- 
cers, agents  or  employes  specified  in  the  preceding  section  to 
make  and  return  the  statements  and  reports  therein  provided 
for,  the  auditor  of  State  shall  make  out  such  returns,  state- 
ments and  valuations  from  the  best  information  he  can  obtain, 
and  for  that  purpose  he  shall  have  power  to  summon  and 
examine,  under  oath,  any  person  whom  he  may  believe  to  have 
a  knowledge  thereof.  And  he  shall  add  to  such  valuation 
twenty-five  per  centum  thereon.     (10235.) 

[Approved  March  5,   1909.     Acts   1909,   p.  234.] 

§  40.    Natural  gas  supervisor. — Plugging  wells. 

Sec.  1.  Be  it  enacted  hy  the  General  Assemhly  of  the  State 
of  Indiana:  That  before  the  casing  shall  be  drawn  from  any 
well  drilled  into  gas  or  oil-bearing  rock  for  the  purpose  of 
abandoning  the  same,  it  shall  be  the  duty  of  any  person,  firm 
or  corporation  having  the  custody  of  such  well,  or  having 
charge  of  removing  the  casing  therefrom  for  the  purpose  of 
abandoning  the  same,  at  the  time  of  such  abandonment,  to 
properly  and  securely  stop  and  plug  each  of  said  wells  so 
abandoned  in  the  following  manner:    Such  hole  shall  first  be 


972  OIL   AND   GAS. 

solidly  filled  from  the  bottom  thereof  to  a  point  at  least  twenty- 
five  (25)  feet  above  sneh  gas  or  oil-bearing  rock  witli  sand, 
gravel  or  pulverized  rock,  on  the  top  of  which  filling  shall  be 
seated  a  dry  pine  wood  plug  not  less  than  two  (2)  feet  long 
and  having  a  diameter  of  one-fourth  of  an  inch  less  than 
the  inside  diameter  of  the  casing  in  such  well ;  above  such 
■wooden  plug  such  well  shall  be  solidly  filled  for  at  least  tw^enty- 
five  (25)  feet  with  the  above-mentioned  filling  material,  imme- 
diately above  this  shall  be  seated  another  wooden  plug  of  the 
same  kind  and  size  as  above  provided,  and  such  well  shall 
again  be  solidly  filled  for  at  least  twenty-five  (25)  feet  above 
said  second  plug  v/ith  such  filling  material.  After  the  casing 
has  been  drawn  from  such  well  there  shall  immediately  be 
seated  at  the  point  in  said  well  where  such  casing  was  seated 
a  cast-iron  ball,  the  diameter  of  which  ball  shall  be  greater 
than  that  of  the  hole  below  the  point  where  such  casing  was 
seated,  and  above  such  ball  sueli  well  shall  again  be  solidly 
filled  with  the  above-mentioned  filling  material  for  a  distance 
of  fifty  (50)  feet.  Any  person,  firm  or  corporation  owning  or 
having  charge  or  supervision  of  any  well  which  has  been 
drilled  into  gas  or  oil-bearing  rock,  or  having  charge  or  con- 
trol of  removing  the  drive  pipe  or  casing  from  any  such  well, 
and  from  which  the  drive  pipe  and  easing  or  the  drive  pipe 
alone  has  been  or  shall  be  pulled,  leaving  therein  the  tubing, 
casing,  or  both,  shall  give  notice  to  the  State  natural  gas 
supervision  (supervisor),  and  under  the  supervision  and  di- 
rection of  said  supervisor,  or  one  of  his  assistants,  shall  plug 
such  tubing,  where  such  tubing  only  remains  in  such  Avell,  and 
shall  fill  from  the  bottom  up  not  less  than  three  hundred  (300) 
feet  with  cement  and  clean  sandj  one  part  Portland  cement  to 
four  parts  of  sand,  and  where  the  casing  and  tubing  remains 
in  any  such  well,  such  well  shall  be  filled  on  the  packer  with 
not  less*  than  fifty  (50)  feet  of  Portland  cement  and  sand,  and 
if  there  be  no  such  packer,  with  not  less  than  one  hundred 
(100)  feet  of  Portland  cement  and  sand  in  the  proportion  here- 
inbefore indicated,  and  in  all  cases  where  the  drive  pipe  and 
casing  or  either  the  drive  pipe  or  casing  are  removed  from 
any  such  well  and  the  tubing  is  left  therein  said  tubing  shall 
be  plugged  as  herein  provided,  and  if  any  part  of  the  tubing, 
drilling-stem  or  other  substance  prevent  the  plugging  of  any 
such  W'Cll  or  wells  as  hereinbefore  provided,  such  well  or  wells 


APPENDIX   B.  9T;{ 

shall  be  filled  to  a  point  within  twenty-five  (25)  feet  of  the 
top  part  of  said  tubing;  drill-stem  or  substance  with  sand, 
gravel  or  crushed  stone,  and  shall  thereupon  be  filled  to  a  point 
twenty-five  (25)  feet  above  such  part  of  tul)ing.  drill-stem  or 
substance  with  Portland  cement  and  sand,  all  proportioned  as 
above  provided. 

§  41.     Notice  to  supervisor. — Fee. 

Sec.  2.  Any  person,  firm  or  corporation,  before  proceeding 
to  plug  any  such  well  so  drilled  into  any  gas  or  oil-lx-aring 
rock,  or  to  pull  the  casing  or  drive  pipe  therefrom,  shall  notify 
the  State  natural  gas  supervisor,  or  one  of  his  authorized  as- 
sistants, of  such  intention,  and  the  time  and  place  when-  such 
plugging  is  to  be  done,  and  it  shall  be  the  duty  of  said  natural 
gas  supervisor  or  his  duly  authorized  assistants  to  be  present 
in  person  all  the  time  while  such  plugging  is  being  done,  and 
the  same  shall  be  done  under  his  instructions  and  supervision, 
and  such  person,  firm  or  corporation  so  plugging  such  well 
shall  file,  or  cause  to  be  filed,  in  the  office  of  the  recorder  of 
the  county  in  which  anj^  such  well  is  located,  within  fifteen 
days  after  the  same  has  been  plugged,  as  provided  in  section 
one  (1)  hereof,  a  Avritten  statement  of  such  State  natural  gas 
supervisor,  or  his  duly  appointed  assistant,  showing  that  such 
well  was  duly  plugged  under  his  personal  supervision  and 
instruction  and  in  the  manner  herein  prescribed  and  required, 
which  statement  shall  be  recorded  in  the  miscellaneous  records 
in  the  office  of  such  recorder.  And  for  supervising  and  super- 
intending the  plugging  of  any  such  well,  said  person,  firm  or 
corporation  plugging  such  Avell  or  having  the  same  done,  shall 
pay  in  advanee  of  doing  any  such  work  or  plugging  a  fee  of 
five  dollars  ($5.00)  to  the  State  natural  gas  inspector  or  his 
assistants,  to  be  by  them  turned  into  the  State  treasury. 

§  42.     Assistants. — Compensation. 

Sec.  3.  For  the  purpose  of  enforcing  the  provisions  of  this 
act  and  supervising  the  plugging  of  said  wells  the  State  nat- 
ural gas  inspector  shall  appoint  such  assistants  as  he  may 
deem  necessary,  who  shall  receive  for  their  services  for  such 
supervision  in  the  plugging  of  each  well  the  sum  of  five  dol- 
lars ($5.00),  to  be  paid  by  the  treasurer  of  State  each  month, 


974  OIL   AND   GAS. 

111)011  a  warrant  drawn  by  tlie  auditor  of  State,  upon  a  verified 
statement  made  by  said  assistants  showing  the  wells  plugged 
by  him  during  such  month,  their  location,  the  date  when 
plugged  and  by  whom  the  fee  has  been  paid,  and  file  the  same 
with  the  auditor  of  State.  Such  verified  statement  shall,  before 
any  warrant  is  drawn  thereon  or  therefor,  be  approved  by  the 
State  natural  gas  supervisor,  and  in  no  event  shall  any  such 
assistant  be  paid  any  such  fee  until  the  same  shall  have  been 
(paid)  into  the  treasury  of  State  as  herein  provided. 

§  43.     Salt  water  or  oil. 

Sec.  4.  It  shall  be  the  duty  of  every  person,  firm  or  cor- 
poration who  sinks  or  maintains  a  well  to  the  depth  of  the 
oil  or  salt-bearing  strata  to  prevent  the  salt  water  or  oil  of 
any  such  well  from  flowing  into  fresh  water  strata  of  that  or 
any  other  wer 

§  44.     Fresh  water. — Casing  off. 

Sec.  5.  It  shall  be  the  duty  of  any  person,  firm  or  corpo- 
ration sinking  a  well  into  any  gas  or  oil-bearing  rock,  or 
maintaining  the  same  after  it  has  been  sunk,  to  case  off  and 
keep  eased  off  all  fresh  water  from  such  well  until  such  well 
has  been  plugged  as  herein  provided. 

§  45.     Powers  of  supervisor. 

Sec.  6.  For  the  purpose  of  enforcing  the  provisions  of  this 
act  that  State  natural  gas  supervisor  is  hereby  authorized  and 
empowered  to  enter  upon  any  land  at  any  time  for  the  purpose 
of  examining  or  testing  any  such  well  or  wells  for  the  purpose 
of  plugging  the  same,  and  said  supervisor  and  his  assistants 
are  hereby  given  police  powers  to  arrest  persons  found  violat- 
ing any  of  the  provisions  of  this  act. 

§  46.     Penalty. 

Sec.  7.  Any  person,  firm  or  corporation  violating  any  of 
the  provisions  of  this  act  shall,  on  conviction,  be  fined  in  any 
sum  not  less  than  one  hundred  dollars  nor  more  than  one 
thousand  dollars,  to  which  may  be  added  imprisonment  in. the 
county  jail  not  to  exceed  six  months. 


APPENDIX    B.  975 

§  47.     Repealing  section. 

Sec.  8.  All  laws  and  parts  of  laws  in  conflict  herewith  are 
hereby  repealed. 

§  48.     Emergency. 

Sec.  9.  "Whereas  an  emergency  exists  for  tlio  immodiate 
taking  effect  of  this  act,  the  same  shall  be  in  full  force  from 
and  after  its  passage. 

KANSAS. 

§   1.  Drilling  well  near  railway. 

§  2.  Jlisdenieanor. 

§  3.  Transporting  gas. 

§  4.  Increasing  flow  of  gas. 

§  5.  Penalty,  violating  two  preceding  sections. 

§  6.  Casing  wells. 

§  7.  Filling  well. 

§  8.  Misdemeanor. 

§  9.  Kelease  of  forfeited  lease. 

§10.  Action  to  compel  release. 

Sll.  Demand  for  release. 

§12.  Repealing  section. 

§13.  Lien    for   labor   and   material. 

§14.  Subcontractor  or  materialman. 

§15.  Enforcement  of   liens. 

§16.  Repealing  section. 

AN  ACT  proliibiting  the  drilling  and  operating  of  oil  and  gas  wells  within 
certain  limits  from  the  rights  of  way  of  steam  and  electric  railway 
lines,  and  fixing  i)enalties   for  the  violation  thereof. 

[General  Statutes,   1909.] 

§  1.     Near  railway. 

Par.  10.  It  shall  be  unlawful  for  any  person,  firm,  company 
or  corporation  in  this  State  to  drill  or  operate  gas  or  oil  wells 
within  one  hundred  feet  of  the  center  of  the  right  of  way  of 
any  steam  or  electric  line  of  railway.  (L.  1905,  chap.  210, 
par.  1,  June  8,  §  3915.) 

§  2.    Misdemeanor. 

Par.  11.  Any  person,  firm,  company  or  corporation  violating 
the  provisions  of  this  act  shall  l)e  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined   in   any 


976  OIL   AND    GAS. 

sum  not  loss  tlian  one  hundred  nor  more  than  one  thousand 
dollars.     (Id.,  par.  2,  §3914.) 

AN  ACT  to  regulaio  the  modo  of  jirocuriiif;;,  transporting  and  using  natural 
gas,  and  to  provide  penalties  for  its  violation. 

§  3.     Transporting  gas. 

Par.  12.  That  anj^  person  or  persons,  firm,  company  or  cor- 
poration engaged  in  drilling  for,  piping,  transporting,  using 
or  selling  natural  gas  may  transport  or  conduct  the  same 
through  sound  wrought  or  cast-iron  or  steel  casings  and  pipes 
tested  to  at  least  four  hundred  pounds  pressure  to  the  square 
inch.     (L.  1905,  chap.  312,  par.  1;  March  8;  §  3915.) 

§  4.     Increase  flow.  ■ 

Par.  13.  It  is  hereby  declared  to  be  unlawful  for  any  person 
or  persons,  firm,  company  or  corporation  to  use  any  devise  for 
pumping,  or  any  other  artificial  process  or  appliance  that  shall, 
have  the  effect  of  increasing  the  natural  flow  of  natural  gas 
out  of  any  well.     (Id.,  par.  3;  §  3916.) 

§  5.     Penalty  violating  two  preceding  sections. 

Par.  14.  Any  person  or  persons,  firm,  company  or  corpora- 
tion violating  any  of  the  provisions  of  this  act  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  shall  be  fined 
in  any  sum  not  less  than  one  hundred  dollars  or  more  than  ten 
thousand  dollars,  and  may  be  enjoined  from  conveying  and 
transporting  natural  gas  through  pipes  otherwise  than  in  this 
xVct  provided :  Provided,  That  nothing  in  this  section  shall 
operate  to  prevent  the  use  of  nitroglycerine  or  other  explo- 
sives for  shooting  any  well  or  wells  from  which  the  gas  is  pro- 
cured.    (Id.,  par.  3;  §3917.) 

AN   ACT   regulating  the   casing  of  oil   and   gas   wells,   and   the   mode   <f 
plugging  the  same  when  abandoned. 

§  6.     Casing  wells. 

Sec.  26.  That  the  owner  or  operator  of  any  well  put  down 
for  the  purpose  of  exploring  for  and  producing  oil  or  gas  shall, 
before  drilling  into  the  oil  or  gas-bearing  rock,  encase  the  well 
with  good  and  sufficient  wrought  iron,  oil-well  casing,  and  in 
such  manner  as  to  exclude  all  surface  or  fresh  water  from  the 


APPENDIX    B.  {)(7 

lower  part  of  such  well,  and  from  pcMiolratiiip  tlio  oil  or  pas- 
bearing  rock.  Should  any  well  he  put  down  throufjli  llic  first 
into  a  lower  oil  or  gas-bearing  rock,  the  same  shall  he  cased 
in  such  manner  as  will  exclude  all  fresh  or  salt  water  from 
both  upper  and  lower  oil  or  gas-hearing  rocks  iienetrated. 
(L.  1891,  chap.  151,  §  1 ;  March  20;  §  3918.) 

§7.     Filling  well. 

Sec.  27.  The  owner  of  any  well,  when  about  to  abandon  or 
cease  operating  the  same,  for  the  purpose  of  excluding  all  fresh 
or  salt  water  from  penetrating  the  oil  or  gas-bearing  rock  or 
rocks,  and  before  drawing  the  casing,  shall  fill  the  well  witii 
sand  or  rock  sediment  to  the  depth  of  two  feet  below  the  top 
of  each  oil  or  gas-bearing  rock,  and  drive  therein  a  round, 
seasoned  wooden  plug  at  least  two  feet  in  length,  and  in 
diameter  equal  to  the  full  diameter  of  the  well  below  the 
casing,  and  immediately  upon  drawing  the  easing,  sliall  fill 
in  on  top  of  such  plug  witli  saiid  or  rock  sediment  fo  tiie 
depth  of  five  feet,  and  again  drive  into  the  well  a  round 
wooden  plug  three  feet  in  length,  the  lower  end  tapering  to  a 
point,  and  to  be  of  the  same  diameter  at  the  distance  of  eigh- 
teen inches  from  the  smaller  end  as  the  diameter  of  the  well 
below  the  point  at  which  it  is  driven:  and  after  such  plug  has 
been  driven,  the  well  shall  be  filled  with  sand  or  rock  sedi- 
ment to  the  depth  of  twenty  feet.     (Id.,  §  2 ;  §  3918.) 

§  8.    Misdemeanor. 

Sec.  28.  Any  owner  or  operator  or  person,  who  shall  violate 
the  provisions  of  the  preceding  sections  of  this  Act,  shall  be 
guilty  of  a  misdemeanor,  and  shall  be  fined  in  the  sum  of 
five  hundred  dollars  for  each  and  every  offense,  which  fine 
when  collected  shall  be  paid  to  the  school  fund  of  the  comity 
in  which  the  well  is  situated.     (Id..  §  3;  §  4316.) 

AN  ACT  in  relation  to  the  release  or  record  of  oil.  gas  nnd  oilier  mineral 
leases,  providing  civil  remedies  in  connection  therewith,  and  repealing 
Chapter  314  of  the  Session  T^aws  of  1905. 

§  9.    Release  of  forfeited  lease. 

Par.  18.  When  any  oil.  gas  or  other  mineral  lease  hereto- 
fore or  hereafter  executed  shall  become  forfeited,  it  sliall  he 


978  OIL   AND   GAS. 

the  duty  of  the  lessee,  liis  successors  or  assigns,  within  sixty 
days  from  the  date  this  Act  shall  take  effect,  if  the  forfeiture 
occurred  prior  thereto,  and  within  sixty  days  from  the  date 
of  the  forfeiture  of  any  and  all  other  leases,  to  have  such 
lease  released  from  record  in  the  county  where  the  leased 
land  is  situated,  without  cost  to  the  owner  thereof.  (L.  1909, 
chap.  179,  par.  1;  April  1;  §3921.) 

§  10.     Action  to  compel  release. 

Par.  19.  Should  the  owner  of  such  lease  neglect  or  refuse  to 
execute  a  release  as  provided  by  this  Act,  then  the  owner 
of  the  leased  premises  may  sue  in  any  court  of  competent 
jurisdiction  to  obtain  such  release,  and  he  may  also  recover 
in  such  action  of  the  lessee,  his  successors  or  assigns,  the  sum 
of  one  hundred  dollars  as  damages,  and  all  costs,  together  with 
a  reasonable  attorney's  fee  for  preparing  and  prosecuting  the 
suit,  and  he  may  also  recover  any  additional  damages  that  the 
evidence  in  the  case  will  warrant.  In  all  such  actions,  writs 
or  attachment  may  issue  as  in' other  cases.     (Id.,  par.  2 ;  §  3922.) 

§  11.     Demand  for  release. 

Par.  20.  At  least  twenty  days  before  bringing  the  action 
provided  for  in  this  Act,  the  owner  of  the  leased  land,  either 
by  himself  or  by  his  agent  or  attorney,  shall  demand  of  the 
holder  of  the  lease  (if  such  demand  by  ordinary  diligence  can 
be  made  in  this  State),  that  said  lease  be  released  of  record. 
Such  demand  may  be  either  written  or  oral.  When  written,  a 
letter-press  or  carbon  copy  thereof,  when  shown  to  be  such, 
may  be  used  as  evidence  in  any  court  with  the  same  force  and 
effect  as  the  original.     (Id.,  par.  3.) 

§  12.     Repealing  section. 

Section  4,  chapter  314  of  the  Session  Laws  of  3  905  is  hereby 
repealed. 

AN  ACT  relating  to  liens  for.  labor  and  materials  furnished  to  owners 
of  leaseholds  for  oil  and  gas  purposes  and  for  materials  and  labor 
for  tlie  construction  of  oil  and   gas  pipe  lines. 

§  13.     Lien  for  labor  and  material. 

Par.  21.  Any  person,  corporation  or  copartnership  who  shall 
under  contract,   express  or  implied,   with   the   owner  of  any 


APPENDIX   B.  97!) 

leasehold  for  oil  and  gas  purposes,  or  the  owner  of  any  gas 
pipe  line  or  oil  pipe  line,  oi-  with  the  trustee  or  af?ent  of  such 
owner,  who  shall  i)erforni  lahor  or  furnish  nuitei-ial,  machinery 
and  oil-well  supplies  used  in  the  digging,  drilling,  torpedoing, 
completing,  operating  or  repairing  of  any  oil  or  gas  well,  or 
■who  shall  furnish  any  oil-well  supplies  or  perform  any  labor 
in  constructing  or  putting  together  any  of  the  machinery  used 
in  drilling,  tori)edoing,  operating,  completing  or  repairing  of 
any  gas  well,  shall  have  a  lien  upon  the  whol(>  of  such  lease- 
hold or  oil  pipe  line  or  gas  pipe  line,  or  lease  for  oil  and  gas 
purposes,  the  Iniilding  and  appurtenances,  and  upon  the  ma- 
terial and  supplies  so  furnished,  and  upon  said  oil  and  gas 
well  for  which  they  were  furnished,  and  upon  all  the  other 
oil  wells,  fixtures  and  appliances  used  in  the  operating  for 
oil  and  gas  purposes  upon  the  leasehold  for  wdiich  said  ma- 
terial and  supplies  were  furnished  and  labor  performed.  Such 
lien  shall  be  preferred  to  all  other  liens  or  incumbrances  which 
may  attach  to  or  upon  said  leasehold  for  gas  and  oil  purposes 
and  upon  any  oil  pipe  line  or  gas  pipe  line,  or  such  oil  and 
gas  w^ells,  and  the  material  and  machinery  so  furnished  and 
the  leasehold  for  oil  and  gas  purposes  and  the  fixtures  and 
appliances  thereon  subsequent  to  the  commencement  of  or  the 
furnishing  or  putting  up  of  any  such  machinery  or  supplies. 
(L.  1909,  chap.  159,  par.  1 ;  March  31 ;  §  3924.) 

§  14.    Sub-contractor  or  material-man. 

Par.  22.  Any  person,  copartnership  or  corporation  who  shall 
furnish  such  machinery  or  supplies  to  a  sub-contractor 
under  a  contractor,  or  any  person  who  shall  perform  such  labor 
under  a  sub-contract  with  a  contractor,  or  who  as  an  artisan 
or  day  laborer  in  the  employ  of  such  contractor,  and  who 
shall  perform  any  such  labor,  may  obtain  a  lien  upon  said 
leasehold  for  oil  and  gas  purposes  or  any  gas  pipe  line  or  any 
oil  pipe  line  from  the  same  tank  and  in  the  same  manner  and 
to  the  same  extent  as  the  original  contractor  for  the  amount 
due  him  for  such  labor,  as  provided  in  section  1  of  this  Act. 
(Id.,  Par.  2;  §3925.) 

§  15.     Enforcement  of  lien. 

Par.  23.  The  liens  herein  created  shall  be  enforced  in  the 
same  manner,  and  notice  of  the  same  shall  be  given  in  the  same 


980  OIL    AND    GAS. 

manner,  and  the  material-man's  statement  or  the  lien  of  any 
laborer  herein  mentioned  shall  be  filed  in  the  same  manner 
as  provided  for  in  sections  2  and  3  of  chapter  168,  Session 
Laws  of  Kansas  for  the  year  1899,  and  all  actions  brought  for 
the  purpose  of  enforcing  such  liens  shall  be  governed  by 
article  27,  chapter  80  of  procedure  civil,  as  provided  in  the 
General  Laws  of  Kansas  for  the  year  1901.  (Id.,  par,  3; 
§  3926.) 

§  16.     Repealing  section. 

Sec.  4.  All  Acts  and  parts  of  Acts  in  conflict  wi-.,li  this  Act 
are  hereby  repealed.     (Id.,  par.  4.) 

COUNTY  GAS  INSPECTOR. 

§   1.  County  board  may  appoint  gas  inspector. 

§  2.  Oath  and  bond  of  gas  inspector. 

§  3.  Reports  to  be   made  to   inspector. 

§  4.  General  duties  of  inspector. 

§  5.  Other   duties  of   inspector. 

§  6.  Duties  of  inspector  concerning  leaks. 

§  7.  Duty  of  owner  to  allow  inspection. 

§  8.  Appointment  of  deputy  inspector. — Duty  and  bond  of  deputy. 

§  9.  Penalty  for   violating  act. 

§10.  Compensation  of  inspector, 

AN  ACT  authorizing  the  appointment  of  an  inspector  of  natural  gas,  gas 
wells  and  natural  gas  pipe  lines  by  the  county  commissioners  of  the 
various  counties  in  this  State,  and  prescribing  the  powers,  duties  and 
compensation  of  such  inspector  representing  and  regulating  such  gas, 
well,  and  lines,  and  providing  for  reports  to  be  made  to  him  by  owners 
of  gas  wells  and  premises  upon  which  such  wells  are  located,  and 
providing  penalties  for  the  violation  of  this  Act. 

[General   Statutes,   1909.] 

§  1.     Gas  inspector. 

Par.  24.  In  each  county  in  this  State  the  board  of  county 
commissioners  is  hereby  authorized,  in  its  discretion,  to  appoint 
a  suitable  and  competent  person,  who  shall  not  be  .interested 
privately  in  producing,  piping  or  selling  natural  gas,  to  be 
known  and  designated  as  the  "gas  inspector"  of  such  county, 
who  shall  serve  for  a  term  of  two  years  from  the  date  of  his 
appointment  and  qualification  and  until  his  successor  shall  be 


APPENDIX   n.  981 

appointed  and  qualified :  Provided,  That  said  board  may  end 
said  term  by  an  order  to  tliat  effect  at  any  time  after  the  expi- 
ration of  said  period  of  two  years  without  appointing  such 
successor.     (L.  1905,  chap.  313,  par.  1;  March  24;  §  3927.) 

§  2.     Oath  and  bond. 

Par.  25.  He  shall  be  required,  before  assuming  the  duties 
of  his  office,  to  take  and  subscribe  an  oath  or  aflfirniation  tliat 
he  will  faithfully,  impartially  and  to  the  best  of  his  skill  and 
ability  discharge  his  duties,  which  oath  or  affirmation  shall  be 
filed  with  the  county  clerk  of  the  county  for  which  he  is  ap- 
pointed, and  within  ten  days  after  his  appointment  he  shall 
file  with  said  county  clerk  a  good  and  sufficient  bond  to  the 
people  of  the  State  of  Kansas,  with  a  resident  surety  or  sure- 
ties to  be  approved  by  said  county  commissioners,  in  the  sura 
of  three  thousand  dollars,  conditioned  for  the  faithful  per- 
formance of  his  duties.     (Id.,  par.  2;  §  3928.) 

§  3.    Report  wells. 

Par.  26.  All  persons  are  hereby  required  to  report  in  writ- 
ing, by  mail  or  otherwise,  to  said  inspectors,  within  thirty  days 
after  their  appointment  and  qualification,  the  location  and 
number  of  all  wells  in  the  county  of  such  inspector  belonging 
in  whole  or  part  to  them  or  which  are  upon  premises  owned 
in  whole  or  part  by  them,  except  only  such  wells  as  have 
already  been  reported  to  some  predecessor  of  said  inspector. 
and  they  shall  also  report  to  him  in  writing  the  number  and 
location  of  each  of  such  gas  wells  thereafter  drilled  within  two 
days  after  its  completion.     (Id.,  par.  3 ;  §  3929.) 

§  4.     Inspector 's  duty. 

Par.  27.  It  shall  be  the  duty  of  such  inspector  to  see  tliat 
all  provisions  of  law  pertaining  to  the  drilling  for  gas,  the 
regulating  of  gas  wells  and  the  piping  and  consumption  of 
natural  gas  are  faithfully  carried  out.  and  tliat  tlie  penalties 
of  such  laws  are  enforced  against  all  violaters  of  the  same; 
and  to  that  end  he  shall  promptly  report  all  violations  of  such 
laws  that  come  to  his  knowledge  to  the  county  attorney  of  his 
county,  and  file  a  proper  coniplaint  for  the  prosecution  of  the 
offender.     (Id.,  par.  4;  §3930.) 


982  OIL   AND   GAS. 

§  5.     The  same ;  record. 

Par.  28.  Said  inspector  shall  inspect  all  gas  wells  in  his 
county.  lie  shall  measure  and  record,  as  nearly  as  can  be 
ascertained,  the  initial  rock-pressure  of,  and  also  the  volume 
of  gas  produced  by,  each  of  such  wells.  Such  inspection  shall 
be  made  and  measurements  taken  and  recorded  at  least  once 
in  each  six-months'  period  during  his  term  of  office,  and  at 
any  other  time  or  times  directed  l)y  the  board  of  county  com- 
missioners. All  such  records  shall  be  entered  and  kept  in  sub- 
stantially bound  record  books,  suitably  ruled,  printed,  indexed 
and  arranged  for  that  purpose,  to  be  provided  by  the  county 
and  kept  in  the  office  of  the  register  of  deeds  subject  to  public 
inspection.     (Id.,  par.  5;  §3931.) 

§  6.     Duties  concerning"  pipe  lines. 

Par.  29.  Such  inspector  shall  also  inspect  all  natural  gas 
pipe  lines  in  his  county  at  least  once  in  every  period  of  six 
months  during  his  term  of  office,  and  as  much  oftener  as  may 
be  necessary  or  as  may  be  directed  by  the  board  of  county  com- 
missioners, and  shall  test  and  record  the  pressure  of  the  gas 
therein  and  the  volume  of  the  flow  through  the  same,  as  nearly 
as  is  practicable.  If  he  shall  discover  any  leakage  or  waste 
of  gas  from  any  such  well  or  pipe  line,  he  shall  notify  the 
owner  thereof,  or  his  agents  or  servants,  or  some  one  of  them, 
of  that  fact,  and  if  such  leakage  or  waste  be  not  stopped  within 
two  days  after  such  notice,  it  shall  be  and  it  is  hereby  made 
the  duty  of  such  inspector  to  take  such  steps  and  make  such 
changes  and  repairs  as  may  in  his  judgment  be  necessary  to 
stop  said  waste  or  leakage ;  and  he  shall  have  a  lien  upon  said 
well  or  pipe  line  and  all  w^ells  with  Avhich  the  same  may  be 
connected  for  the  material,  labor  and  cost  of  making  such 
repair,  for  the  enforcement  of  which,  with  all  costs  of  suit, 
and  a  reasonable  attorney's  fee,  an  action  may  be  maintained 
by  said  inspector  in  any  court  of  competent  jurisdiction ;  and 
if  gas  shall  be  taken  from  any  well  at  a  rate  such  as  to  con- 
sume more  than  fifty  per  cent,  of  its  daily  production,  it  shall 
be  deemed  a  waste  within  the  meaning  of  this  clause  to  the 
extent  of  such  excess.  If  any  owner  of  any  such  well  or  pipe 
line,  or  any  agent  or  servant  of  such  owner  in  charge  and 
control   of  such  well   or  pipe   line,   shall  for  more   than  two 


APPENDLX   B.  983 

days  after  the  service  of  the  notice  last  aforesaid  fail  to  stop 
the  leakage  or  waste  by  this  clause  proliibited,  such  owner, 
agent  or  servant  shall  be  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  fined  a  sum  of  not  less  than  twenty- 
five  dollars  nor  more  than  five  hundred  dollars  for  each  of- 
fense, and  each  day  that  such  failure  continues  after  the 
expiration  of  the  said  period  of  two  days,  shall  constitute  a 
separate  offense.     (Id.,  par.  6;  §3932.) 

§  7.    Interference. 

Par.  30.  No  person  or  persons  in  this  State  owning  or  having 
control  of  natural  gas  pipe  lines  shall  refuse  to  allow  the 
same  to  be  inspected  by  the  natural  gas  inspector,  nor  shall 
any  such  person  interfere  with  said  inspector,  directly  or  indi- 
rectly in  the  performance  of  his  duties  as  herein  prescribed, 
and  it  is  made  the  duty  of  all  such  persons  to  furnish  said 
inspector  reasonable  facilities  and  opportunity  to  make  any 
inspection  or  perform  any  duty  hereby  authorized.  (Id.,  par. 
7;  §3933.) 

§  8.    Deputies ;  qualification. 

Par.  31.  The  inspector  provided  for  in  this  Act  is  hereby 
authorized,  with  the  consent  and  approval  of  the  board  of 
county  commissioners,  to  appoint  and  assign  for  duty  depu- 
ties, not  exceeding  two  in  number,  at  such  time  and  for  such 
terras  as  in  his  judgment  may  be  necessary  to  enable  him 
promptly  to  perform  all  the  duties  of  his  office.  Such  deputies 
shall  have  the  same  qualifications  as  the  inspector.  Said  in- 
spector shall  be  liable  for  all  acts  or  omissions  of  his  deputies 
in  the  performance  of  their  duties.  Each  deputy,  before  he 
enters  upon  the  duties  of  his  office,  shall  execute  a  bond  to  the 
inspector,  with  sureties  to  be  approved  by  hjm,  in  the  sum  of 
one  thousand  dollars,  which  shall  be  filed  witli  the  inspector, 
and  shall  be  conditioned  for  the  faithful  performance  of  the 
duties  of  such  deputies.  The  said  inspector  shall  provide  liim- 
self  and  deputies  with  proper  inslruineiits  and  appliances  for 
use  in  the  performance  of  his  and  their  duties  in  making  tlie 
tests  and  records  herein  designated.     (Id.,  par.  8;  §  3934.) 


984  OIL   AND    GAS. 

§  9.     Penalty. 

Par.  32.  Any  person  violating  any  of  the  foregoing  provi- 
sions of  this  Act,  except  those  for  the  violation  of  which  pen- 
alties are  especially  prescribed,  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  thereof  shall  be  fined  in  the  sum 
of  not  less  than  twenty-five  dollars  nor  more  than  five  hundred 
dollars.     (Id.,  par.  9;  §3935.) 

§  10.     Compensation. 

Par.  33.  The  compensation  of  such  inspectors  shall  be  five 
dollars  per  day  for  the  time  actually  and  necessarily  consumed 
by  them  in  the  performance  of  their  duties  as  herein  pre- 
scribed, and  the  compensation  of  each  deputy  inspector  shall 
be  four  dollars  per  day  for  each  day  actually  and  necessarily 
consumed  by  him  in  the  performance  of  his  duties  as  herein 
prescribed,  and  the  same  shall  be  paid  by  the  county  in  which 
such  service  is  performed,  upon  allowance  by  the  board  of 
county  commissioners,  as  other  claims  against  such  county. 
(Id.,  par.  10;  §3936.) 

TRANSPORTATION  OF  OILS. 

§1.  Pipe  lines  for  conveyinj^  crude  oil  as  common  carriers. 

§2.  Storage  of  oil  for  transportation. 

§3.  Charges  for  transporting  oils. 

§4.  Control  of  board  of  railroad  commissioners  over  pipe  lines. 

§5.  Liability  for  damages  for  failing  to  receive  and  transport  oils. 

AN  ACT  relating  to  the  transportation  of  oil  by  means  of  pipe  lines. 
[General  Statutes,   1909.] 

§  1.     Common  carrier. 

Par.  58.  All  pipe  lines  laid,  built  or  maintained  for  the 
conveyance  of  crude  oil  within  the  State  of  Kansas  are  hereby 
declared  to  be  common  carriers,  and  said  conveyance  of  said 
oil  shall  be  in  the  manner  and  under  the  restrictions  in  this 
Act  provided.     (L.  1905,  chap.  315,  par.  1 ;  Feb.  28 ;  §  3931.) 

§  2.     Storage  for  transportation. 

Par.  59.  It  shall  be  the  duty  of  every  person,  firm,  associa- 
tion or  corporation  operating  under  such  pipe  line  to  provide 


APPENDIX    B.  985 

suitable  and  necessary  receptacles  for  receiving  such  oil  for 
transportation  and  for  storage  at  the  place  of  delivery  until 
the  same  can  be  reasonably  removed  by  the  consignee,  and 
shall  be  liable  therefor  from  the  time  the  same  is  delivered  for 
transportation  until  a  reasonable  time  after  the  same  has  been 
transported  to  the  place  of  consignment  and  ready  for  delivery 
to  the  consignee.  It  shall  be  the  duty  of  every  such  person, 
firm,  association  or  corporation  to  receive  and  forward  such 
oil  as  shall  be  offered  for  shipment  in  the  order  of  application 
therefor,  upon  the  applicant's  complying  with  the  rules  herein 
provided  for  as  to  delivery  and  payment  for  such  transporta- 
tion. Such  common  carrier  shall  issue  to  the  shipper  a  cer- 
tificate showing  the  actual  quantity  and  specific  gravity  there- 
of; but  no  application  for  such  transportation  shall  be  valid 
beyond  or  for  a  greater  quantity  than  the  applicant  has  ready 
for  delivery  at  the  time  of  making  such  application.  (Id., 
par.  2.) 

§  3.     Charge  for  carriage. 

Par.  60.  It  shall  be  unlawful  for  any  such  person,  firm, 
association  or  corporation  to  charge  for  the  transportation  of 
such  crude  oil  through  its  line  in  excess  of  the  following  rates 
for  each  barrel  of  forty-two  gallons  transported :  Six  miles 
and  less,  five  cents;  over  six  miles  and  not  more  than  fifteen 
miles,  six  cents;  over  fifteen  miles  and  not  more  than  forty 
miles,  seven  cents;  over  forty  miles  and  not  more  than  eighty 
miles,  eight  cents;  over  eighty  miles  and  not  more  than  one 
hundred  miles,  ten  cents ;  over  one  hundred  miles  and  not  more 
than  one  hundred  and  fifty  miles,  fifteen  cents;  over  one  hun- 
dred and  fifty  miles  and  not  more  than  two  hundred  miles. 
twenty  cents;  over  two  hundred  miles  and  not  more  than 
two  hundred  and  fifty  miles,  twenty-three  cents;  over  two 
hundred  and  fifty  miles  and  not  more  than  three  hundred 
miles,  twenty-five  cents.     (Id.,  par.  3;  §  3963.) 

§  4.     Control  of  railroad  commission. 

Par.  61.  The  State  board  of  railroad  commissioners  shall 
have  the  general  supervision  and  control  over  all  such  persons, 
firms,  associations  or  corporations  in  the  performance  of  said 
business,  and  shall  prescribe  reasonable  rules  for  the  conduct 


986  OIL   AND    GAS. 

thereof,  which  rules,  Avhen  prescribed  and  delivered  in  writing 
to  any  such  person,  firm,  association,  or  corporation,  shall  be 
printed  and  posted  up  in  a  convenient,  accessible  and  con- 
spicuous place  at  each  office,  station  or  place  of  business  where 
such  oil  is  received  or  delivered.  The  State  board  of  railroad 
commissioners  is  hereby  authorized  to  prescribe  reasonable 
maximum  rates,  not  exceeding  the  rates  set  forth  in  section  3 
hereof,  which  shall  be  charged  for  the  transportation  of  such 
oil,  which  rate  shall  be  binding  on  every  such  person,  firm, 
association  or  corporation  after  its  publication  in  the  official 
State  paper:  Provided,  The  reasonableness  of  such  rates  may 
be  tested  by  proceedings  therefor  in  any  court  of  competent 
jurisdiction  in  this  State,  and  such  court  shall,  upon  hearing 
the  same,  make  such  order  as  shall  be  proper,  and  such  order 
may  be  reviewed  by  the  Supreme  Court  as  other  civil  proceed- 
ings, regardless  of  sum  or  value  involved ;  Provided,  Before 
beginning  such  proceedings  in  court  to  test  such  matters,  such 
person,  firm,  association  or  corporation  shall  execute  a  bond 
to  the  State  of  Kansas  in  such  reasonable  sum  as  the  judge  of 
the  court  in  which  such  matter  is  brought  shall  order,  condi- 
tioned that  the  person,  firm,  association  or  corporation  making 
such  application  will  promptly  pay  to  any  shipper  the  differ- 
ence between  the  rate  received  for  transporting  oil  and  the 
rate  finally  ordered  by  such  court.  When  such  maximum  rates 
shall  be  fixed  by  the  State  board  of  railroad  commissioners, 
the  rates  prescribed  in  section  3  of  this  Act  shall  cease  to  be 
of  force,  and  the  rates  so  fixed  by  the  State  board  of  railroad 
commissioners  shall  govern,  as  in  this  section  provided.  (Id., 
par.  4;  §3964.) 

§  5.    Liability  for  damages. 

Par.  62.  Any  such  person,  firm,  association  or  corporation 
which  shall  fail  or  refuse  to  accept,  transport  and  deliver  oil 
when  offered,  up  to  the  full  capacity  of  such  pipe  line,  at  rates 
not  to  exceed  those  provided  for  by  this  Act,  or  shall  fail, 
neglect  or  refuse  to  ohcy  any  rule  so  established  by  the  State 
board  of  railroad  commissioners,  shall  be  liable  to  the  person 
injured  by  such  failure  or  refusal  in  the  sum  of  five  hundred 
dollars  liquidated  damage,  together  with  reasonable  attorney's 


APPENDIX   B.  987 

fees,  to  be  fixed  liy  the  court,  in  case  suit  sliall  be  brouplit 
therefor;  such  liquidated  damages  and  attorney's  fees  to  be 
recovered  in  any  court  of  competent  jurisdiction ;  and  in  case 
of  any  corporation  so  refusing  or  failing,  the  charter  board  is 
hereby  authorized  to  revoke  the  charter  or  permit  to  do  busi- 
ness in  this  State  of  such  corporations.     (Id.,  par  5;  §  39G5.) 


GAS. 

§1-  Piping   natural   pas. 

§2.  Provisions  for  control  of  gas  and  oil  wells. 

§3.  Flambeau   lights. 

§4.  Street  lighting. — Hours. 

§5.  Penalty.  ^ 

§6.  Altering  or  injuring  pipes. 

§7.  Unlawful   connections. 

§8.  Unlawful   interference  with  pipes. 

§9.  Penalties,  violating  law. 

[General  'Statutes,   1900,  p.   873.] 

AN  ACT  authorizing  the  owner  of  lands  not  in  an  incorporated  city  to  lay, 
maintain  and  operate  natural  gas  pipes  for  the  purpose  of  furnishing 
the  residents  of  such  lands  with  natural  gas  for  light  and  fuel. 

§  1.     Piping  natural  gas. 

Sec.  1.  Whenever  any  tract  of  land  not  in  an  incorporated 
city  shall  be  laid  out  in  lots  or  other  subdivisions  as  now  re- 
quired by  law,  the  owner  of  such  lands  or  his  assigns  is  author- 
ized to  laj^  maintain  and  operate  natural  gas  pipes  along  and 
across  the  streets  and  other  grounds  dedicated  by  such  owner 
to  public  use  for  the  purpose  of  furnishing  natural  gas  for 
light  and  fuel  to  the  residents  of  said  land,  and  for  such 
purpose  is  authorized  to  lay,  maintain  and  operate  natural 
gas  pipes  across  any  public  highway :  Provided,  That  the  said 
pipes  shall  be  laid  under  the  surface  of  said  streets,  public 
grounds,  and  highways,  and  that  said  streets,  grounds  and 
highways  shall  be  restored  so  as  not  to  impair  their  usefulness; 
And  provided,  further,  That  nothing  herein  sliall  lie  construed 
as  granting  to  such  owner  or  his  asj?igns  the  exclusive  right  to 
furnish  said  residents  with  natural  gas  for  light  and  fuel.  (L. 
1899,  chap.  143,  §  1;  Feb.  22;  §  3904.) 


988  OIL   AND    GAS. 

An  ACT  regulating  the  control  of  natural  gas  and  oil  wells,  and  to  pre- 
vent waste  of  natural  gas,  altering  gas  connections,  making  gas  con- 
nections without  consent,  setting  fire  to  gas,  and  penalties  therefor. 

§  2.     Control  of. 

Sec.  2.  That  it  sliall  be  unlawful  for  any  person,  firm  or 
corporation  having  possession  or  control  of  any  natural  gas  or 
oil  well,  whether  as  a  contractor,  owner,  lessee,  agent,  or  man- 
ager, to  use  or  to  permit  the  use  of  gas  by  direct  well  pressure 
for  pumping  of  oil  or  for  blowing  oil  out  of  wells,  or  for 
operating  any  machinery  by  direct  well  pressure  of  gas,  or  to 
allow  or  permit  the  flow  of  gas  or  oil  from  any  such  well  to 
escape  into  the  open  air  without  being  confined  within  such 
well  or  pijoper  pipes  or  other  safe  receptacle  for  a  longer 
period  than  two  days  after  gas  or  oil  shall  have  been  struck  in 
such  well :  Provided,  That  a  reasonable  time,  not  exceeding 
five  days,  shall  be  allowed  such  contractor,  owner,  lessee,  agent, 
or  manager,  in  addition  to  said  two  days,  in  which  to  place  in 
said  well  the  casing,  tubing,  packer's  and  other  appliances 
necessary  to  properly  operate  the  same  and  obtain  the  products 
therefrom,  or,  in  case  such  contractor,  owner,  lessee,  agent,  or 
manager  shall  not  desire  to  operate  such  well,  to  securely 
enclose  the  same,  so  as  to  prevent  the  escape  of  oil  or  gas  there- 
from, and  thereafter  all  such  gas  or  oil  shall  be  safely  and 
securely  confined  in  such  well,  pipes,  or  other  proper  recep- 
tacle: And  provided,  furtlier.  That  the  provisions  of  this  sec- 
tion shall  not  be  construed  to  apply  to  the  escape  of  gas  or 
oil  during  continuous  drilling.  Any  person  violating  any  of 
the  provisions  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  fined  in  the  sum  of  not  less  than  fifty 
dollars,  nor  more  than  two  hundred  dollars,  or  by  imprison- 
ment in  the  county  jail  for  not  less  than  thirty  days  nor  more 
than  six  months,  and  each  day  that  the  violation  continues  shall 
constitute  a  separate  offense.  (L.  1901,  chap.  224,  §  1 ;  March 
22;  §3905.) 

§  3.     Flambeau  lights. 

Sec.  3.  That  it  shall  be  unlawful  for  any  company,  corpo- 
ration, or  person,  for  hire,  pay,  or  otherwise,  to  use  natural 
gas  for  illuminating  purposes  in  Avhat  are  known  as  "flam- 
beau"  lights  in   cities,   towns,   highways,   or   elsewhere;   pro- 


APPENDIX    B.  989 

viding,  tluit  nothing  herein  contained  shall  be  so  construed 
as  to  proliibit  any  such  company,  corporation,  or  person  from 
the  necessary  use  of  such  gas  in  what  are  known  as  "Jumbo" 
burners;  enclosed  in  glass  globes  or  lamps,  or  by  the  use  of 
other  burners  of  similar  character  so  enclosed  as  will  consume 
no  more  than  said  "Jumbo"  burners.     (Id.,  §  2;  §  3906.) 

§  4.     Street  lighting. 

Sec.  4.  All  gas  lights  made  through  said  "Jumbo"  burners 
enclosed  in  glass  globes  or  lamps  used  in  all  public  streets,  and 
elsewhere  outside  of  buildings,  shall  be  turned  off  not  later 
than  eight  o'clock  in  the  morning  each  day  such  lights  or 
burners  are  used,  and  the  same  shall  not  be  lighted  between 
the  hours  of  eight  o'clock  a.  m.,  and  five  o'clock  p.  m.   (Id.,  §  3.) 

§  5.     Penalty. 

Sec.  5.  Any  person,  company  or  corporation  violating  any 
of  the  provisions  of  sections  2  and  3  of  this  Act  shall  be  deemed 
guilty  of  a  misdemeanor,  and  be  fined  in  the  sum  of  not  less 
than  fifty  dollars  nor  more  than  two  hundred  dollars.  (Id., 
§4;  §3908.) 

§  6.     Injuring  pipes. 

Sec.  6.  That  it  shall  be  unlawful  for  any  person,  in  any 
manner  whatsoever,  to  change,  injure,  extend,  or  alter,  or 
cause  to  be  changed,  injured,  extended,  or  altered,  any  sur- 
face or  other  pipe  or  attachment  of  any  kind  connecting  or 
through  which  natural  or  artificial  gas  is  furnished  from  the 
gas  mains  or  pipes  of  any  person,  company,  or  corporation 
without  first  procuring  from  such  person,  company,  or  cor- 
poration written  permission  to  make  such  change,  extension^ 
or  alteration.     (Id.,  §  5 ;  §  3909.) 

§  7.     Connections. 

Sec.  7.  That  it  shall  be  unlawful  for  any  person  to  make  or 
cause  to  be  made  any  connection  or  re-connection  with  the 
gas  mains  or  surface  pipes  of  any  person,  company,  or  cor- 
poration furnishing  natural  gas,  or  to  turn  on  or  off  or  in 
any  manner  interfere  with  any  valve,  stop-cock,  or  other  ap- 
pliance belonging  to  such  person,  company,  or  corporation  and 


990  OIL   AND    GAS. 

connected  with  its  surface  or  other  pipes,  or  to  alter  or  injure 
the  orifice  of  mixers,  or  to  use  natural  gas  for  heating  pur- 
poses except  through  mixers,  without  first  procuring  from 
such  person,  company,  or  corporation  a  written  permit  to  turn 
on  or  off  sucli  stop-cock  or  valve,  or  to  make  such  connections 
or  re-connections,  or  to  alter  or  injure  the  orifice  of  mixers, 
or  to  interfere  Avith  the  valves,  stop-cocks,  or  other  appliances 
of  such  person,  company,  or  corporation,  as  the  case  may  be. 
(Id.,  §6;  §3910.) 

§  8.     Interfering. 

Sec.  8.  That  it  shall  be  unlawful  for  any  person  or  persons 
to  set  fire  to  any  gas  escaping  from  wells,  broken  or  leaking 
mains,  pipes,  valves,  or  other  appliances  used  by  any  person, 
company,  or  corporation  in  conveying  gas,  or  to  interfere  in 
any  manner  with  the  wells,  machinery,  or  property  of  any 
person,  company,  or  corporation  engaged  in  drilling  for  nat- 
ural gas  or  in  furnishing  the  same,  unless  employed  by  or 
acting  under  the  authority  or  direction  of  such  person,  com- 
pany, or  corporation  engaged  in  so  furnishing  gas.  (Id.,  §7; 
§3911.) 

§  9.    Penalties. 

Sec.  9.  Any  person  violating  any  of  the  provisions  of  sec- 
tions 5,  6  and  7  of  this  Act  shall  be  deemed  guilty  of  a  mis- 
demeanor, and,  upon  conviction,  shall  be  fined  not  less  than 
twenty-five  dollars  nor  more  than  one  hundred  dollars,  and 
shall  be  liable  to  the  said  person,  company,  or  corporation, 
whose  property  was  so  changed,  injured,  altered,  or  destroyed, 
in  a  civil  action  for  the  amount  of  damages  sustained,  together 
with  all  the  costs  in  the  case.     (Id.,  §  8 ;  §  3912.) 

KENTUCKY. 

CONDE^INATION  OF  LAND  FOR  OIL  AND  GAS. 

[Kentucky  Statutes,  1903,  §  376Ga.] 

§  1.     Condemnation  of  land. 

All  corporations  or  companies  organized  for  the  purpose  of 
constructing,  maintaining  or  operating  oil  or  gas  wells  or  wells 
or  pipe  lines  or  lines  for  conveying,  transporting  or  deliver- 
ing oil  or  gas,  or  both  oil  and  gas,  are  hereby  vested  with  the 


APPENDIX    B.  991 

right  and  power  to  condemn  lands  and  material  in  this  Com- 
monwealth, or  the  use  and  occupation  of  so  much  thereof  as 
may  be  necessary  for  constructing,  maintaining  and  operating 
such  pipe  line,  or  lines,  and  all  necessary  machinery,  pumping 
stations,  appliances  and  fixtures,  including  tanks,  telephone 
and  telegraph  lines,  for  use  in  connection  therewith,  together 
with  the  rights  of  ingress  and  egress  to  examine,  alter,  repair, 
maintain  and  operate  or  remove  such  pipe  line  or  lines,  all  such 
being  hereby  declared  to  be  a  public  use ;  and  when  any  such 
corporation  or  company  desires  to  construct  oil  or  gas  pipe 
line  or  lines,  or  both,  for  the  purpose  of  conducting,  trans- 
porting or  delivering  oil  or  gas,  or  both,  over  the  lands  of 
others,  shall  be  unable  to  contract  or  agree  with  the  owner  or 
owners  of  land  or  material  necessary  for  its  use  for  said  pur- 
pose, it  may,  in  the  mode  prescribed  for  the  condemnation  of 
land  for  railroads,  condemn  the  use  of  so  much  of  said  land 
as  may  be  necessary  for  the  purpose  of  constructing,  main- 
taining and  operating  such  pipe  line  or  lines,  and  all  necessary 
machinery,  pumping  stations,  appliances  and  fixtures,  includ- 
ing necessary  tanks,  telephone  and  telegraph  lines,  and  in- 
cluding rights  of  ingress  and  egress  to  examine,  alter,  repair, 
maintain  and  operate  or  remove  the  same.  (Act  March  20, 
1900.) 

PLUGGING  OIL  AND  GAS  WELLS. 

§  1 .     How    plugged. 

§2.     Penalty  for  neglect. 

§3.     Repeal. 

WHEREAS,  It  is  most  injurious  and  detrimental  to  oil  and  gas  wells 
and  contiguous  and  adjacent  land,  and  even  detrimental  to  oil  and 
gas  lands  in  the  neighborhood,  and  especially  land  in  close  proximity 
to  an  oil  well,  cither  dry  «r  producing,  that  casing  be  taken  from 
said  well  without  plugging  same,  so  as  to  prevent  the  surface  water 
that  may  enter  said  well  flowing  underground  to  and  destroying  otlier 
oil  and  gas  wells  in  close  proximity  to  same. 

BE  IT  ENACTED  by  the  General  Assembly  of  the  Commonwealth  of 
Kentucky : 

§  1.     How  plugged. 

It  shall  be  unlawful  for  any  person  or  persons,  corporations 
or  companies  to  abandon  any  oil  or  gas  wells,  either  dry  or 
producing,  in  this  Commonwealth,  or  to  remove  casings  there- 


992  OIL   AND    GAS. 

from,  whether  same  be  either  oil  or  gas,  either  producing  or 
dry,  or  for  any  cause  abandon  said  well  or  wells  without  first 
plugging  the  same  in  a  secure  manner  by  placing  a  plug  of 
pine,  poplar  or  some  other  material  which  will  prevent  said 
well  from  becoming  flooded,  said  plug  to  be  placed  above  the 
oil-producing  sand  or  sands,  and  filled  in  above  for  the  dis- 
tance of  seven  feet  witii  sediment  or  clay  and  placing  upon 
the  same  another  plug  of  similar  material  as  that  of  the  first 
and  also  placing  about  ten  feet  below  the  said  casing  another 
plug  of  like  material  as  above  referred  to,  seven  feet  of  sedi- 
ment or  clay,  and  then  another  plug,  all  plugs  to  be  securely 
driven  in  so  that  no  water  can  pass  the  same,  before  the 
casing  is  removed.     (Act  March '17,  1906,  p.  281,  §  1.) 

§  2.     Penalty. 

Any  person  or  persons,  corporations  or  companies  refusing 
or  failing  to  comply  with  the  foregoing  provision  as  provided 
for  in  section  1  herein,  shall,  on  conviction,  be  fined  in  any 
sum  not  less  than  one  hundred  dollars,  or  not  more  than  one 
thousand  dollars,  in  the  discretion  of  the  jury.  (Act  March 
17,  1906,  p.  280,  §2.) 

§  3.     Repeal. 

All  Acts  or  parts  of  Acts  in  conflict  herewith  are  hereby 
repealed.     (Act  March  17,  1906,  p.  280,  §3.) 

PETROLEUM,   NATURAL   GAS    AND    SALT   WATER   WELLS. 

[Kentucky   Statutes,   1003,    §§3910  io  3914.] 

§1.  Persons  not  using  well  to  close  it,  so  as  to  prevent  waste. 

§2.  How   abandoned   wells   to   be   closed. 

§3.  Penalty  for  violation  of  provision  of  this  law. 

§4.  Who,  besides  owner,  may  close  abandoned  well. 

§5.  Person  not  owner,  closing  well,  may  recover  costs  of  owner. 

§  1.     Person  not  using  well  to  close  it  so  as  to  prevent  waste. 

That  from  and  after  the  passage  of  this  Act,  any  person  or 
corporation,  and  each  and  every  of  them,  in  possession,  whether 
as  owner,  lessee,  agent  or  manager  of  any  well  in  which  petro- 
leum, natural  gas  or  salt  water  has  been  found,  shall,  unless 


APrEXDix  B.  993 

said  product  is  sooner  utilized,  witliin  a  reasonal)le  time,  not, 
however,  exceeding  three  niontlis  from  the  comi)letion  of  said 
well,  in  order  to  prevent  said  product  wasting  hy  escape,  sliut 
in  and  confine  the  same  in  said  well  until  such  time  as  it  sliall 
be  utilized:  Provided,  however,  That  this  section  shall  not 
apply  to  gas  escaping  from  any  well  while  it  is  being  operated 
as  an  oil  well,  or  while  it  is  used  for  fresh  or  mineral  water. 
(Act   May  14,  1892.) 

§  2.     How  abandoned  wells  to  be  closed. 

That  whenever  any  well  shall  have  been  shut  down  for  the 
purpose  of  drilling  or  exploring  for  oil,  gas  or  salt  water,  upon 
abandoning  or  ceasing  to  operate  the  same,  the  person  or  cor- 
poration in  possession  as  aforesaid  shall,  for  the  purpose  of 
excluding  all  fresh  water  from  the  gas-bearing  rock,  and  before 
drawing  the  casing,  fill  up  the  well  with  sand  or  rock  sedi- 
ment to  a  depth  of  at  least  twenty  feet  above  the  rock  which 
holds  the  oil,  gas  or  salt  water,  and  drive  a  round,  seasoned 
wooden  plug,  at  least  three  feet  in  length,  equal  in  diameter  to 
the  diameter  of  the  well  below  the  casing,  to  a  point  at  least 
five  feet  below  the  bottom  of  the  casing ;  and  immediately 
after  drawing  the  casing,  shall  drive  a  round,  seasoned  wooden 
plug,  at  a  point  just  below  where  the  lower  end  of  the  casing 
rests,  which  plug  shall  be  at  least  three  feet  in  length,  tapering 
in  form,  and  of  the  same  diameter,  at  the  distance  of  eighteen 
inches  from  the  small  end,  as  the  diameter  of  the  hole  below 
the  point  at  which  it  is  to  be  driven.  After  the  plug  has  been 
properly  driven,  there  shall  be  filled  on  top  of  the  same  sand 
or  rock  sediment  to  the  depth  of  at  least  five  feet.  (Act  May 
14,  1892.) 

Note. — This  section  is  probably  repealled.      See  §  1,  Act  preceding. 

§  3.     Penalty  for  violation  of  provisions  of  this  law. 

Any  person  or  corporation  who  shall  violate  any  of  the  pro- 
visions of  sections  3910  or  3911  [the  two  sections  just  above], 
shall  be  liable  to  a  penalty  of  one  hundred  dollars  for  each  and 
every  violation  thereof,  and  to  the  further  penalty  of  one  hun- 
dred dollars  for  each  thirty  days  during  which  said  violation 
shall  continue ;  and  all  such  penalties  shall  be  recovered,  with 


994  OIL.   AND    GAS. 

cost  of  suit,  in  si  civil  action  or  actions,  in  the  name  of  the 
State,  for  the  use  of  the  county  in  which  tlie  well  shall  be 
located.     (Act  May  14,  1892.) 

§  4.    Who,  besides  owner,  may  close  abandoned  well. 

Whenever  any  person  or  corporation  in  possession  of  any 
well  in  which  oil,  gas  or  salt  water  has  been  found,  shall  fail 
to  comply  with  the  provisions  of  section  3910  [the  first  section 
above],  any  person  or  corporation  lawfully  in  possession  of 
lands  situate  adjacent  to  or  in  the  neighborhood  of  said  well, 
may  enter  upon  the  lands  upon  which  oil,  gas  or  salt  water  is 
allowed  to  escape  or  waste  in  violation  of  said  section  3910, 
and  tube  and  pack  said  well,  and  shut  in  said  oil,  gas  or  salt 
water,  and  may  maintain  a  civil  action  in  any  court  of  this 
State  against  the  owner,  lessee,  agent  or  manager  of  said  well, 
and  each  and  every  one  of  them,  jointly  and  severally,  to 
recover  the  cost  thereof.  This  shall  be  in  addition  to  the 
penalties  provided  by  [the  next  above]  section  3912.  (Act 
May  14,  1892.) 

§  5.    Person  not   owner  closing  well  may  recover  costs   of 
owner. 

Whenever  any  person  or  corporation  shall  abandon  any  well, 
and  shall  fail  to  comply  with  section  3911  [second  section 
herein],  any  person  or  corporation  lawfully  in  possession  of 
lands  adjacent  to  or  in  the  neighborhood  of  said  well,  may 
enter  upon  the  land  upon  which  said  well  is  situated,  and  take 
possession  of  said  well,  and  plug  the  same  in  the  manner  pro- 
vided by  section  3911,  and  may  maintain  a  civil  action  in  any 
court  of  this  State  against  the  owner  or  person  abandoning 
said  well,  and  every  one  of  them,  jointly  and  severally,  to 
recover  the  cost  thereof.  This  shall  be  in  addition  to  the 
penalties  provided  by  section  3912  [second  section  above]  : 
Provided,  This  section  shall  not  apply  to  persons  owning  the 
lands  on  which  said  well  or  wells  are  situated,  and  drilled  by 
other  parties;  and  in  case  the  person  or  corporation  drilling 
said  well  or  wells  is  insolvent,  then,  in  that  event,  any  person 
or  corporation  in  possession  of  lands  adjacent  to  or  in  the 
neighborhood  of  said  well  or  wells,  may  enter  upon  the  land 


APPENDIX   B.  .  995 

upon  which  said  well  or  wells  are  situated,  and  take  possession 
of  said  well  or  wells,  and  plug  the  same  in  the  manner  provided 
for  in  section  3911,  at  their  own  expense.     (I\Iay  14,  1892.) 

LOUISIANA. 

DEPARTMENT  OF  MINING  AND  MINERALS. 

§1.  Creating  a  department  of  mining  and  minerals;   how  imposed. 

§2.  Duties  of  deputy  and  supervisor  to  enforce  laws  relating  to  mining. 

§3.  Qualifications  of  deputy  supervisor. 

§4.  His  duty  to  inspect  mines,  etc. 

§5.  Emergency. 

ACT  No.  254. 

HOUSE  BILL  No.  281. 

AN  ACT  to  establish  a  department  of  mining  and  minerals',  including  oil 
and  gas  production,  to  provide  for  its  proper  administration,  to  provide 
for  the  service  of  a  supervisor  of  minerals  and  assistants;  and  fixing 
their  duties  and  salaries;  authorizing  the  prohibition  of  unsafe  and 
wasteful  mining;  and  providing  penalties^ 

[Acts  July   7,    miO.     Acts   1910,   p.  423.] 

§  1.     Creating  a  Department  of  Mining  and  Minerals ;  how  im- 
posed. 

Sec.  1.  Be  it  enacted  hy  the  General  Assembly  of  the  State 
of  Louisiana,  That  there  be  and  is  hereby  established  a  De- 
partment of  Mining  and  Minerals,  including  gas  and  oil,  to 
consist  of  the  Register  of  the  State  Land  Office,  who  shall  be 
Ex-officio  Supervisor  of  Minerals,  and  one  Deputy  Supervisor 
of  Minerals,  who  shall  be  a  person  having  a  practical  knowl- 
edge of  geology,  and  natural  gas,  and  oil,  and  who  shall  be 
appointed  and  commissioned  by  the  Governor,  on  the  recom- 
mendation of  the  Conservation  Commission,  for  the  period  of 
one  year  at  a  time ;  provided  the  Ex-officio  Supervisor  of 
Minerals  shall  receive  as  compensation  for  the  performance 
of  his  duty  imposed  on  him  l)y  this  Act,  five  hundred  dollars 
per  annum  ($500.00),  and  the  Deputy  Supervisor  and  such 
assistants  as  may  be  provided  to  be  compensated  as  herein- 
after provided,  all  to  be  paid  from  the  Conservation  Fund,  the 
Supervisor  on  his  own  warrant. 


996  OIL   AND   GAS. 

§  2.     Duties  of  Deputy  and  Supervisor  to  enforce  laws  relating 
to  mining. 

Sec.  2.  Be  it  further  enacted,  etc.,  That  the  Supervisor  of 
]\Iiiierals  sliall  make  inspection,  either  in  person  or  througli 
the  Deputy  Supervisor,  of  all  mining  operations  carried  on  in 
this  State,  particularly  that  of  the  production  of  natural  gas 
and  oil,  so  far  as  practicable,  and  shall  see  that  every  precau- 
tion is  taken  to  insure  the  health  and  safety  of  workmen 
engaged  in  mining.  lie  shall  see  that  all  the  provisions  of  law 
pertaining  to  mining  now  in  force,  or  hereafter  enacted,  par- 
ticularly those  provisions  pertaining  to  the  drilling  of  wells 
and  piping  and  consumption  of  natural  gas  and  oil,  are  faith- 
fully carried  out,  and  that  the  penalties  of  law  are  strictly 
enforced  against  any  person  or  persons  who  violates  the  same. 

He  shall  make  an  annual  report  to  the  Conservation  Com- 
mission on  the  first  Monday  in  April  of  each  year,  tabulating 
the  number  and  character  of  mining  operations  being  carried 
on  in  this  State,  with  location  and  annual  production,  both  in 
quantity  and  value;  a  record  of  the  geological  strata  passed 
through  in  drilling  gas  and  oil  wells;  the  depth  at  which  salt 
water  is  reached  in  the  various  wells  and  the  height  to  which 
it  rises  so  far  as  practicable. 

He  shall  report  the  volume  of  gas  and  oil  produced  by  each 
well,  and  also  the  initial  or  rock  pressure  of  the  same ;  the  in- 
crease or  decrease  in  pressure  of  the  various  wells  so  far  as  it 
can  be  ascertained,  and  also  the  increase  or  decrease  in  value 
of  gas  produced  in  gas  wells ;  the  number  of  miles  of  mains 
laid  for  the  transportation  of  gas  and  oil  and  capacity  and 
course  of  the  same ;  the  amount  of  capital  invested  in  the  oil, 
gas  or  other  mining  industries ;  and  the  number  of  persons 
employed  in  the  same ;  the  amount  of  capital  invested  in 
manufacturers  located  on  account  of  natural  gas  and  oil  and 
other  minerals,  and  the  number  of  employees,  and  other  facts 
or  information  as  the  Conservation  Commission  may  require. 

§  3.     Qualifications  of  Deputy  Supervisor. 

Sec.  3.  Be  it  further  enacted,  etc.,  That  there  shall  be  ap- 
pointed by  the  Governor,  upon  the  recommendation  of  the 
Conservation  Commission,  a  person  having  a  practical  knowl- 
edge of  geology  and  natural  gas  and  oil,  and  who  is  not  directly 


I 

APPENDIX  n.  997 

or  indirectly  interested  in  mining  or  in  piping  or  selling  nat- 
ural gas  and  oil,  as  Deputy  Supervisor  ol"  ^Minerals  of  the  State 
of  Louisiana. 

Ilis  duty  shall  be  as  herein  prescribed  for  the  Supervisor 
of  Minerals,  and  he  shall  be  the  chief  assistant  under  the 
supervision  of  the  Supervisor  of  Minerals,  in  carrying  out  the 
mining  policy  of  the  State.  Within  ten  (10)  days  after  he 
shall  have  been  commissioned  he  shall  make  and  execute  a 
bond  in  the  sum  of  tvi^enty-five  hundred  dollars  ($2,500.00), 
payable  to  the  Governor  of  Louisiana,  which  bond  shall  be 
for  the  faithful  performance  of  duty  and  shall  be  approved 
and  filed  with  the  Secretary  of  State.  Such  Deputy  Supervisor 
shall  devote  all  his  time  to  the  business  of  supervision  of 
mining. 

He  shall  receive  a  salary  of  two  thousand  dollars  ($2,000.00) 
per  annum,  and  under  the  supervision  of  the  Supervisor  of 
Minerals  shall  have  an  allowance  not  exceeding  one  thousand 
dollars  ($1,000.00)  per  year  for  office  and  traveling  expenses 
for  himself  and  such  assistants  as  may  be  hereinafter  provided, 
which  sum  shall  be  paid  from  the  Conservation  Fund  upon  his 
warrant,  countersigned  by  the  Supervisor  of  Mining. 

§  4.    His  duty  to  inspect  mines,  etc. 

Sec.  4.  Be  it  further  enacted,  etc.,  That  it  shall  be  the  duty 
of  the  Deputy  Supervisor  of  Minerals  to  inspect  all  mining 
operations  carried  on  in  the  State,  and  he  shall  have  power  to 
prohibit  any  such  operations  as  he  may  deem  unsafe  or  danger- 
ous to  life  or  property  or  wasteful  of  natural  resources;  re- 
serving a  right  of  appeal  by  the  operator,  or  operators,  or 
owners,  to  the  Conservation  Commission  for  ten  (10)  days 
if  notified  by  such  operator  or  operators,  or  owner,  to  the 
Supervisor  at  the  time  they  shall  receive  notice  to  cease 
operation. 

And  any  person  or  persons  carrying  on  any  such  operations 
prohibited  shall  be  guilty  of  a  misdemeanor  and  upon  convic- 
tion shall  pay  a  fine  in  any  court  having  jurisdiction  of  such 
misdemeanor  in  a  sum  of  not  exceeding  one  thousand  dollars 
($1,000.00),  or  shall  be  imprisoned  in  the  parish  jail  a  period 
not  exceeding  six  months  at  the  discretion  of  the  court ;  and 
any  person  or  persons  in  this  State  owning  mines  or  carrying 


998  OIL   AND    GAS. 

on  mining  operations,  or  who  contracts  the  same,  who  refuses 
to  allow  the  same  to  be  inspected  by  the  Supervisor  of  Minerals, 
upon  conviction  shall  be  fined  in  a  sum  not  exceeding  five 
hundred  dollars  ($500.00)  ;  provided,  further,  that  whenever 
any  responsible  person  shall  file  with  the  Supervisor  of  Min- 
erals an  affidavit  charging  the  owner  or  owners,  or  operators 
of  such  mines,  or  gas  and  oil  wells,  or  their  employees  with 
the  violation  of  any  of  the  laws  regulating  mining,  or  the  pro- 
duction of  natural  oil  and  gas,  and  particularly  specifying  the 
violation  complained  of,  it  shall  1)6  the  duty  of  the  supervisor 
to  examine  and  inquire  into  the  alleged  violation  of  the  law, 
as  set  forth  in  the  affidavit,  and  if  he  finds  the  facts  as  charged 
it  shall  be  his  duty  to  see  that  the  law  is  complied  with. 

He  shall  have,  and  is  hereby  invested  with  authority  to 
inquire  if  all  person  or  persons  engaged  in  mining  operations 
subject  to  a  license  tax  have  procured  license  and  when  he 
shall  find  any  operating  without  license  he  shall  report  the 
same  to  the  Supervisor  of  Minerals,  who  shall  proceed  accord- 
ing to  law  to  enforce  the  license  tax  collections, 

§  5.     Emergency. 

Sec.  5.  Be  it  further  enacted,  etc.,  That  this  Act  shall  take 
effect  from  and  after  its  passage,  and  all  laws  in  conflict  here- 
with are  hereby  repealed.      (Approved  July  7,  1910.) 

PLUGGING  WELLS. 

§L     Abandoned  wells  must  be  plugged;  how  same  shall  be  done. 

§2.     Unlawful   to   permit  gas   or  oil   to   escape  and  waste  for   more   than 

two  days. 
§3.     Supervisor  of  minerals  authorized  to  prescribe  regulations  for  boring 

wells  for  oil  and  gas. 
§4.     Penalty. 
§5.     Adjacf^nt  landowners  may  stop  abandoned  wells  at  expense  of  owner 

of  land  where  well  is  located. 
§G.     Emergency. 

ACT  No.  190. 

HOUSE  BILL  No.  333. 

AN  ACT  to  provide  for  tlie  conservation  of  natural  gas  by  regulations  to 
prevent  waste  in  the  extraction  of  oil  and  gas,  and  transportation 
thereof;   and  to  provide  penalties. 

[Acts  July  G,  1910.     Acts  1911,  p.  313.] 


APPENDIX    B.  999 

§1.     Abandoned  wells  must  be  plugged;  how  same  shall  be 
done. 

1.  Be  it  enacted  by  the  General  Asscmhhj  of  the  State  of 
Louisiana,  That  uhenever  any  ^vt'll  shall  have  been  sunk  for 
the  purpose  of  obtaining  natural  gas  or  oil  or  exploring  for  the 
same,  and  shall  be  al)andoned  or  cease  to  be  operated  for 
utilizing  the  flow  of  gas  or  oil  therefrom,  it  shall  be  the  duty 
of  any  person,  firm  or  corporation  having  the  custody  or  con- 
trol of  such  well  at  the  time  of  such  abandonment  or  cessation 
of  use,  and  also  of  the  owner  or  owners  of  the  land  wherein 
such  well  is  situated,  to  properly  and  securely  stop  and  plug 
the  same  as  follows:  If  such  well  has  not  been  "shot"  there 
shall  be  placed  in  the  bottom  of  the  hole  thereof  a  plug  of 
well-seasoned  pine  wood,  the  diameter  of  which  shall  be  within 
one-half  inch  as  great  as  the  hole  of  such  well,  to  extend  at 
least  three  feet  above  the  salt  water  level,  where  salt  water 
has  been  struck  such  plug  shall  extend  at  least  three  feet  from 
the  bottom  of  the  well.  In  both  cases  such  wooden  plugs  shall 
be  thoroughly  rammed  down  and  made  tight  by  the  use  of 
drilling  plugs.  After  such  ramming  and  tightening  the  hole 
of  such  well  shall  be  filled  on  top  of  such  plug  with  finely 
broken  stone  or  sand,  which  shall  be  well  rammed  to  a  point 
at  least  four  feet  above  the  gas  or  oil-bearing  rock ;  on  top  of 
the  stone  or  sand  there  shall  be  placed  another  wooden  plug 
at  least  five  feet  long  with  diameter  aforesaid,  which  shall  be 
thoroughly  rammed  and  tightened.  In  case  such  well  has  been 
"shot"  the  bottom  of  the  hole  thereof  shall  be  filled  with  a 
proper  and  sufficient  mixture  of  said,  stone  and  dry  cement, 
so  as  to  form  a  concrete  up  to  a  point  at  least  eight  feet 
above  the  top  of  the  gas  or  oil-bearing  rock  or  rocks,  and  on 
top  of  this  filling  shall  be  placed  a  wooden  plug  at  least  six 
feet  long,  with  diameter  as  aforesaid,  which  shall  ])e  properly 
rammed  as  aforesaid.  The  casing  from  the  well  shall  then  be 
pulled  or  withdrawn  therefrom,  and  immediately  tliei-eafter 
a  cast-iron  ])all,  eight  inches  in  diameter,  shall  be  dropped  in 
the  well,  and  securely  rammed  into  the  shale  by  the  driller 
or  owner  of  the  well,  after  which  not  less  than  one  cubic  yard 
of  sand  pumping  or  drilling  taken  from  the  well  shall  be  put 
on  top  of  said  iron  ball. 


1000  OIL   AND   GAS. 

§  2.     Unlawful  to  permit  gas  or  oil  to  escape  and  waste  for 
more  than  two  days. 

2.  Be  il  fiirUier  enacted,  etc.,  That  it  shall  be  unlawful  for 
any  person,  linn  or  corporation  having  possession  or  control 
of  any  natural  gas  or  oil  well,  whether  as  a  contractor,  owner, 
lessee,  agent  or  manager,  to  allow  or  permit  the  flow  of  gas 
or  oil  from  any  such  well,  to  escape  into  the  open  air,  without 
being  confined  within  such  well  or  proper  pipes,  or  other  safe 
receptacle,  for  a  period  longer  than  two  (2)  days,  next  after 
gas  or  oil  shall  have  been  struck  in  such  well,  and  thereafter 
all  such  gas  or  oil  shall  be  safely  and  securely  confined  in 
such  wells,  pipes  or  other  safe  and  proper  receptacles;  pro- 
vided, that  this  law  shall  not  apply  to  any  well  that  is  being 
operated  for  the  production  of  oil  and  in  which  the  oil  pro- 
duced has  a  higher  salable  value  in  the  field  than  has  the  gas 
so  lost. 

§  3.     Supervisor  of  Minerals  authorized  to  prescribe  regula- 
tions for  boring  wells  for  oil  and  gas. 

3.  Be  il  further  e^iacted,  etc.,  That  the  Supervisor  of  Min- 
erals shall  have,  and  he  is  hereby  invested  with,  authority  to 
prescribe  regulations  for  the  boring  of  oil  and  gas  wells,  to 
the  end  that  blow-outs,  and  gas  waste,  shall  be  avoided,  which 
regulations  shall  be  followed  by  drillers. 

§  4.     Penalty. 

4.  Be  it  further  enacted,  etc.,  That  any  person,  firm  or  cor- 
poration, violating  the  provisions  of  sections  1  and  2  of  this 
Act  or  any  reasonable  regulations  provided  by  the  Supervisor 
of  Minerals,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof  shall  be  fined  in  any  sum  not  exceeding  five 
hundred  dollars  ($500.00),  or  shall  be  imprisoned  for  a  period 
not  exceeding  three  months,  in  the  discretion  of  the  court. 

§  5.    Adjacent  owners  of  land  may  stop  abandoned  wells  at 
expense  of  owner  of  land  where  well  is  located. 

5.  Be  it  further  enacted,  etc.,  That  whenever  any  person, 
or  corporation  in  possession  or  control  of  any  well  in  which 
natural  gas  or  oil  has  been  found  shall  fail  to  comply  with 


APPENDIX    U.  1001 

the  provisions  of  this  Act,  any  j)erson  or  corporation  lawfully 
in  possession  of  lands  situated  adjacent  to  or  in  the  vicinity  or 
neighborhood  of  such  Avell  may  enter  upon  the  lands  upon 
which  such  well  is  situated  and  take  possession  of  such  well 
from  which  gas  or  oil  is  allowed  to  escape  in  violation  of  the 
provisions  of  sections  1  and  2  of  this  Act,  and  pack  and  tube 
such  well  and  shut  in  and  secure  the  flow  of  gas  or  oil,  and 
maintain  a  civil  action  in  any  court  of  competent  jurisdiction 
in  this  State  against  the  owner,  lessee,  agent  or  manager  of 
said  well,  and  each  of  them  jointly  and  severally,  to  recover 
the  cost  and  expenses  of  such  tubing  and  packing,  together 
with  attorney's  fees  and  costs  of  suit.  This  shall  be  in  addi- 
tion to  the  penalties  provided  by  section  4  of  this  Act. 

§  6.    Emergency. 

6.  Bp  it  further  enacted,  etc.,  That  this  Act  shall  take  effect 
from  and  after  its  passage,  and  all  laws  in  conflict  herewith  are 
hereby  repealed. 

July  6,  1910. 

NEBRASKA. 

[Coffey's  Annotated  Statutes,  1911.] 

EEWARD  FOR  DISCOVERY  OF  OIL. 

§  7351.     Reward  for  discovery  of  oil. 

Provided,  further,  Tbat  whenever  it  shall  be  made  apparent 
to  the  Governor  of  Nebraska,  by  affidavit  or  otherwise  by  the 
owner  or  owners  thereof,  that  crude  oil  has  been  discovered  by 
sinking  a  well  or  wells,  and  the  output  of  such  well  or  wells 
is  not  less  than  fifty  barrels  every  twenty-four  hours,  pumping 
consecutively  for  a  period  of  not  less  than  sixty  days,  it  shall 
be  the  duty  of  the  Governor  to  appoint  a  suitable  person  to 
examine  the  same^  wiiose  duty  it  shall  be  to  report  on  the 
location  and  capacity  thereof.  In  the  event  such  report  shows 
a  well  or  wells  to  be  of  a  capacity  and  in  a  location  entitling 
the  same  to  receive  the  benefit  of  this  Act,  then,  in  that  event, 
the  Governor  of  Nebraska  shall  direct  the  Auditor  to  draw 
an  order  on  the  Treasurer  of  the  State  of  Nebraska  for  the 
sum  of  fifteen  thousand  dollars,  to  be  paid  to  the  owner  or 


1002  OIL   AND    GAS. 

owners  of  such  oil  well  or  wells.  Said  order  to  be  paid  out 
of  tlie  General  Fund  of  the  State  of  Nebraska,  as  above  di- 
rected:  Provided,  further,  That  the  expense  of  such  examina- 
tion and  report  to  the  Governor  shall  be  paid  by  the  owner 
or  owners  of  the  w'ell  or  wells  securing  the  benefit  of  the  pro- 
visions of  this  Act. 

(History. — Laws  1875,  p.  15G,  §2;  in  force  February  23;  this  ir.d  the 
next  section  inserted  in  phice  of  g  2  of  the  originaJl  Act,  1!}U3,  ch.  03,  p.  359, 
§  2;   in  force  April  8.) 

(This  bounty  cannot  be  paid  until  there  is  a  specific  application. 
State  ex  rcl.  v.  Moore,  50  JS'eb.  102;  69  N.  W.  373;  61  Am.  St.  K.  538.) 

§  7352.     Reward  for  discovery  of  gas. 

Provided,  further.  That  w^hen  it  shall  be  made  apparent  to 
the  Governor  of  the  State  of  Nebraska,  by  affidavit  or  other- 
wise, by  the  owner  or  owners  thereof,  that  they  have  discov- 
ered a  gas  field  by  sinking  a  well  or  wells  or  otherwise,  and 
that  such  well  or  wells  have  a  capacity  of  500,000  cubic  feet 
for  a  period  of  twenty-four  hours,  and  that  said  well  or  wells 
have  continued  to  produce  500,000  cubic  feet  of  gas  within 
the  period  named,  for  not  less  than  thirty  days,  it  shall  be 
the  duty  of  the  Governor  to  appoint  a  suitable  person  to  ex- 
amine the  same,  whose  duty  it  shall  be  to  report  the  probable 
capacity  and  geographical  location  of  said  gas  well  or  wells 
by  personal  examination  and  measurement  of  the  output 
thereof,  and  in  the  event  such  report  shows  the  well  or  wells 
to  be  of  the  capacity  above  specified,  then  the  Governor  of 
Nebraska  shall  direct  the  Auditor  to  draw  an  order  on  the 
treasurer  for  the  sum  of  fifteen  thousand  dollars  to  be  paid 
to  the  owner  or  owners  of  said  gas  well  or  wells,  the  same  to 
be  paid  out  of  the  General  Fund  of  the  State  of  Nebraska,  as 
above  directed.  Provided,  further,  That  the  expense  of  such 
examination  and  report  to  the  Governor  shall  be  paid  by  the 
owner  or  owners  of  the  gas  well  or  w^ells  securing  the  benefit 
of  the  provisions  of  this  Act. 

(History. — Laws  1875,  p.  156,  §2;  in  force  February  23;  this  and  the 
preceding  section  inserted  in  place  of  §  2  of  the  original  Act,  1903,  ch.  63, 
p.  360,  §  3 ;   in  force  April  8. ) 


APPENDIX    B.  100.'i 

NEW  YORK. 

§1.  Abandoned  oil  and  gas  wolls  to  he  filled  up  and  plupged. 

§2.  Violation  of  this  Act  a  misdemeanor. 

§3.  In  case  of  neglect,  adjacent  owners  may  plug  well  at  owner's  expense. 

§4.  Repealing  section. 

[Acts   1879,   p.   295.] 

The  peoj)le  of  the  State  of  New  York,  represented  in  Senate 
and  Assembly,  do  enact  as  follows: 

§  1.     Abandoned  oil  and  gas  wells  to  be  filled  up  and  plugged. 

Par.  1.  Whenever  any  well  shall  have  been  put  down 
for  the  purpose  of  exploring  for  and  producing  oil  or  gas, 
upon  abandoning  or  ceasing  to  operate  the  same,  the  owner 
or  operator  shall,  for  the  purpose  of  excluding  all  water  from 
the  oil  or  gas-bearing  rock,  and,  before  drawing  the  casing, 
fill  up  the  well  with  sand  or  rock  sediment  to  the  depth  of  at 
least  twenty  feet  above  the  third  sand  or  oil-bearing  rock,  in 
case  of  an  oil  well,  or  any  gas-bearing  rock,  in  case  of  a  gas 
well ;  and  in  case  of  an  oil  well,  drive  a  round,  seasoned  wooden 
plug,  at  least  two  feet  in  length,  equal  in  diameter  to  the 
diameter  of  the  well  below  the  casing,  to  a  point  at  least  five 
feet  below  the  bottom  of  the  casing,  and  whether  an  oil  or 
gas  well,  immediately  after  the  drawing  of  the  casing,  shall 
drive  a  round,  wooden  plug  into  the  well  at  the  point  just 
below  where  the  lower  end  of  the  casing  shall  have  rested, 
which  plug  shall  be  at  least  three  feet  in  length,  tapering  in 
form,  and  to  be  of  the  same  diameter  at  the  distance  of  eighteen 
inches  from  the  smaller  end  as  the  diameter  of  the  well  below 
the  point  at  which  it  is  to  be  driven ;  after  it  has  been  prop- 
erly driven,  shall  fill  in  on  top  of  same  with  sand  or  rock  sedi- 
ment to  the  depth  of  at  least  five  feet.  (As  amended  April 
23,  1893.     Acts  1893,  p.  490.) 

§  2.     Violation  of  this  Act  a  misdemeanor. 

Par.  2.  Any  person  who  shall  violate  the  provisions  of  this 
Act  shall,  upon  conviction  thereof,  be  deemed  guilty  of  a 
misdemeanor,  and  be  punished  by  a  fine  of  not  less  than  two 
hundred  nor  exceeding  five  hundred  dollars,  or  by  imprison- 


1004  OIL   AND    GAS. 

ment  in  the  county  jail  where  the  conviction  shall  be  had,  for 
a  time  not  exceeding  one  year,  or  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court  before  whom  such 
conviction  shall  be  had;  one-half  of  the  fine  so  imposed  to  be 
paid  to  the  informer,  the  residue  to  the  use  of  the  school  dis- 
trict in  which  such  well  may  be  situated.  (Amended  April  14, 
1882.    Acts  1882,  p.  59.) 

Par.  3.  Section  3  of  said  Act  is  hereby  amended  so  as  to 
read  as  follows : 

§  3.     In  case  of  neglect  adjacent  owners  may  plug  well  at 
owner's  expense. 

Par.  3.  Whenever  any  owner  or  operator  shall  neglect  or 
refuse  to  comply  with  the  provisions  of  section  1  of  this  Act, 
the  owner  of,  or  operator  upon,  any  land  adjoining  that  upon 
which  such  abandoned  well  may  be,  may  enter,  take  posses- 
sion of  said  abandoned  well  and  plug  the  same,  as  provided 
by  this  Act,  at  the  expense  of  the  owner  or  operator  whose 
duty  it  may  be  to  plug  the  same,  (Amended  April  14,  1882. 
Acts  1882,  p.  59.) 

§  4.    Repealing  section. 

Par.  4.  All  Acts  or  parts  of  Acts  inconsistent  or  in  anywise 
conflicting  with  the  provisions  of  this  Act,  are  hereby  re- 
pealed. 

OHIO. 

NATURAL  GAS,  OIL  AND  ]\UNfiEAL  WATERS. 

§L  Incasing  an   oil   well,  etc. 

§2.  Filling   an   abandoned    well. 

§3.  Failure  of  owner  to  comply. 

S4.  Costs  and  expenses. 

§5.  Confinement  of  natural  gas  in  well  until  utilized. 

§G.  Does  not  apply  to  oil  well. 

§7.  Flamljeau  liglits  prohibited. — Other  regulations. 

§8.  Proviso. 

§9.  Penalty. 

[2  General  Code,  1910.] 


APPENDIX   B.  1005 

§  1.     Encasing  an  oil  well,  etc. 

The  owner  or  operator  of  a  well  for  the  production  of  petro- 
leum oil,  natural  gas  or  mineral  waters,  before  drilling  into 
the  oil  and  gas-bearing  rock,  shall  encase  such  well  with  good 
and  suliticient  wrought  iron  casing,  so  that  the  surface  or  fresh 
water  from  the  lower  part  of  such  well  will  not  penetrate  th^ 
oil  or  gas-bearing  rock.  If  a  well  is  drilled  througii  the  first 
oil  or  gas-bearing  rock  into  a  lower  one,  it  must  be  cased  so 
as  to  exclude  all  fresh  water  above  the  last  oil  or  gas-bearing 
rock  penetrated.  (90  v.  24,  par.  1;  2  General  Statutes  1910, 
§  6311.) 

§  2,     Filling  an  abandoned  well. 

The  owner  or  operator  of  a  well  constructed  for  any  of  the 
purposes  named  in  the  next  preceding  section,  intending  to 
abandon  or  cease  operating  it,  and  before  drawing  the  casing 
therefrom,  shall  securely  fill  such  well  with  rock  sediment,  or 
mortar  composed  of  tAvo  parts  sand  and  one  part  cement,  to 
the  depth  of  two  hundred  feet  above  the  top  of  the  first  oil 
or  gas-bearing  rock,  so  as  to  prevent  the  surface  or  fresh  water 
from  penetrating  to  the  oil  or  gas-bearing  rock,  and  the  gas 
and  oil  from  escaping  therefrom.  (90  v.  24,  par.  2;  2  General 
Statutes  1910,  §  6312.) 

§  3.     Failure  of  owner  to  comply. 

If  such  owmer  or  operator  fails  to  comply,  or  inefficiently 
complies  with  the  next  preceding  section,  the  owner  of  the 
land  upon  which  such  well  is  situated  shall  forthwith  comply 
therewith.  If  all  the  persons  heretofore  named  fail  to  so  fill, 
or  inefficiently  so  fill  such  well,  any  person,  after  wi'itten 
demand  therefor  to  any  of  such  persons,  may  enter,  take  pos- 
session of  such  well  and  fully  comply  with  such  section.  (90 
V.  24,  par.  2;  2  General  Statutes  1910,  §  6313.) 

§  4.     Costs  and  expenses. 

The  reasonable  co.st  and  expense  of  so  filling  such  well  shall 
forthwith  be  paid  by  such  owner  or  operator,  and  on  his 
default,  by  the  owner  of  the  land.  The  amount  of  sneh  cost 
and  expense  shall  be  a  lien  upon  the  fixtures,  machinery  and 


1006  OIL   AND    GAS. 

leasehold  interest  of  the  owner  and  operator  and  upon  the 
interest  of  tlie  landowner  in  the  land  upon  which  the  well  is 
situated,  and  may  be  removed  and  enforced  against  the  owner 
or  operator  and  the  landowner  in  the  order  named.  (90  v.  24, 
par.  2 ;  2  General  Statutes  1910,  §  6314.) 

§  5.     Confinement  of  natural  gas  in  well  until  utilized. 

A  person,  co-partnership  or  corporation,  in  possession  as 
owner,  lessee,  agent  or  manager  of  a  well  producing  natural 
gas,  in  order  to  prevent  the  gas  wasting  by  escape,  shall  shut 
in  and  confine  the  gas  therein,  within  ten  days  after  pene- 
trating the  gas-bearing  rock,  until  such  time  as  it  is  utilized 
for  light,  fuel  or  power  purposes.  (90  v.  25,  par.  3;  2  General 
Statutes  1910,  §  6315.) 

§  6.     Does  not  apply  to  oil  well. 

The  provisions  of  the  next  preceding  section  shall  not  apply 
to  an  oil  well.  (90  v.  25,  par.  3;  2  General  Statutes  1910, 
§  6316.) 

§  7.    Flambeau  light  is  prohibited. 

A  person,  co-partnership  or  corporation  shall  not  use  natural 
gas  for  illuminating  purposes  on  flambeau  lights;  but  "jumbo" 
burners  or  other  burners  consuming  no  more  gas  than  such 
"jumbo"  burners  may  be  so  used.  A  person,  co-partnership 
or  corporation  consuming  natural  gas  with  such  burners  in 
the  open  air  or  in  or  around  derricks,  shall  turn  it  off  not  later 
than  eight  o'clock  in  the  morning  of  each  day  such  lights  or 
burners  are  used,  and  shall  not  turn  on  or  relight  it  between 
the  hours  of  eight  o'clock  a.  m.  and  five  o'clock  p.  m.  (92  v. 
78,  par.  4;  2  General  Statutes  1910,  §  6317.) 

§  8.     Proviso. 

The  next  preceding  section  shall  not  prohibit  the  burning 
of  flambeau  lights  within  the  derrick  of  a  drilling  well  or  for 
lighting  the  streets  of  cities  and  villages.  (92  v.  78,  par.  4;  2 
General  Statutes  1910,  §  6318.) 


APPENDIX   B.  1007 


§  9.     Penalty. 


A  person,  co-partnersliip  or  corporation  violating:  any  pro- 
vision of  this  chapter  shall  be  liable  to  a  penalty  of  one  hun- 
dred dollars,  to  be  recovered,  with  costs  of  suit,  in  a  civil 
action  in  the  name  of  the  State  in  the  county  in  which  the  act 
was  committed  or  omitted.  Such  suit  may  be  brought  at  the 
instance  of  a  resident  of  this  State  without  security  or  lia- 
bility for  costs.  Such  penalty  shall  be  paid  one-half  into  the 
school  fund  of  the  county  in  Avhich  such  suit  is  brought  and 
one-half  to  such  person  at  whose  instance  such  suit  was 
brought.     (90  v.  25,  par.  5;  2  General  Statutes  1910,  §6319.) 

LEASES. 

§1.     Leases  of  natural   gas  and  oil   lands   to  be   recorded. 

§2.     Validity  of  unrecorded  leases. 

§3.     Parties  defendant  in  suits  to  cancel  leases. 

§  1.     Leases  of  natural  gas  and  oil  lands  to  be  recorded. 

All  leases  and  licenses  and  assignments  thereof,  or  of  any 
interest  therein,  given  or  made,  for,  upon,  or  concerning  lands 
or  tenements  in  this  State,  whereby  any  right  is  given  or 
granted  to  operate,  or  to  sink  or  drill  wells  thereon  for  natural 
gas  and  petroleum  or  either,  or  pertaining  thereto,  shall  be 
filed  for  record,  forthwith,  and  recorded  in  such  lease  record, 
without  delay,  and  not  be  removed  until  recorded.  (R.  S. 
§  4112a;  2  General  Statutes  1910,  §8518.) 

§2.     Validity  of  unrecorded  leases. 

No  such  lease  or  license  shall  have  any  force  or  validity 
until  it  is  filed  for  record  as  aforesaid,  except  as  between  the 
parties  thereto,  unless  the  person  claiming  thereunder  is  in 
actual  and  open  possession.  (R.  S.  §  4112a;  2  General  Statutes 
1910,  §8519.) 

§3.    Parties  defendant  in  suits  to  cancel  leases. 

The  plaintiff  in  an  action  to  cancel  such  lease  or  license, 
or  in  any  way  involving  it,  shall  only  be  required  to  make 
the  person   or  persons   defendants,   so   far   as   such   lease   or 


1008  OIL    AND    GAS. 

license  may  be  involved,  wlio  claim  tliereunder  and  are  in 
possession  as  heretofore  stated,  and  those  who  then  appear 
of  record,  or  by  the  files  in  such  office,  to  own  or  have  an 
interest  in  such  lease  or  license,  fully  and  finally  to  adjudicate 
and  determine  all  questions  made  or  involved  therein  concern- 
ing it.  If  there  be  no  person  in  possession  and  claiming  as 
heretofore  specified,  and  no  record  or  writing  or  file  as  hereto- 
fore stated  and  required,  then  so  far  as  such  lease  or  license 
is  involved,  it  will  only  be  necessary  to  make  the  original  lessee 
or  licensee  defendant,  fully  and  finally  to  adjudicate  and  de- 
termine all  (|uestions  made  or  involved  concerning  such  lease 
or  license.     (R.  S.  §  4112a;  2  General  Statutes  1910,  §8520.) 

GAiS   AND    OIL   WELI^. 

§1.  Operator  sliall  mako  map  of  coal,  gas  and  oil  lands. 

§2.  Lessor   shall   make  map  of  coal,  gas  or  oil  lands. 

§3.  Casing  and  sealing  of  wells. 

§4.  Sealing  of  abandoned  wells. 

§5.  Forfeiture  for  non-compliance  with  law. 

§6.  Penalty. 

§  1.     Operator  shall  make  map  of  coal,  gas  and  oil  land. 

Upon  notice  from  the  chief  inspector  of  mines,  or  from  a  dis- 
trict inspector,  each  person,  firm  or  corporation,  engaged  in 
drilling  or  exploring  for  natural  gas  or  oil  upon  land  from 
which  coal  is  being  mined,  shall  make  an  accurate  map  thereof, 
showing  the  boundaries  of  each  tract  of  land  drilled  upon,  the 
buildings  and  all  monuments  found  upon  the  premises.  Each 
well  shall  be  plainly  marked  by  a  name,  number  of  letter,  and 
located  whenever  possible  with  reference  to  some  well-defined 
and  lasting  monument.  Such  map  shall  contain  a  sworn  state- 
ment of  the  person,  firm  or  corporation  operating  such  oil  or 
gas  wells  that  it  is  a  true  representation  of  the  property. 
Within  sixty  days  after  such  notice,  a  copy  of  such  map  shall 
be  filed  in  the  office  of  the  chief  inspector.  (R.  S.  §  306-1 ;  1 
General  Statutes  1910,  §  943.) 

§  2.     Lessor  shall  make  map  of  coal,  gas  or  oil  land. 

Before  mining  for  coal,  each  person,  firm  or  corporation 
leasing  land  for  such  purposes,  upon  which  gas  or  oil  wells 


APPENDIX    B.  1009 

have  been  drilled  to,  or  below  any  seams  or  veins  of  such  coal, 
shall  make,  or  cause  to  be  made,  and  file  in  the  office  of  the 
chief  inspector  of  mines  such  a  map  as  is  desired  in  the  pre- 
ceding section.     (R.  S.  §  306-2 ;  1  General  Statutes  1910,  §  944.) 

§  3.     Casing  and  sealing  of  wells. 

If  a  person,  firm  or  corporation  sinks  a  well  for  gas  or  oil 
through  a  mine  in  which  coal  or  other  mineral  is  being  mined, 
the  person  drilling  such  well  shall  drill  it  to  a  depth  of  not 
less  than  ten  feet  below  the  vein  of  coal  or  other  mineral,  case 
such  hole  and  seal  it  upon  the  outside  of  the  casing  with 
suitable  material  to  the  level  of  the  coal  floor.  Each  vein  of 
mineral  coal  being  mined,  pierced  by  such  well,  shall  be  sealed 
in  the  same  manner.  (R.  S.  §  306-3;  1  General  Statutes  1910, 
§  945.) 

§  4.     Sealing  of  abandoned  wells. 

Before  abandoning  or  ceasing  to  operate  a  well  drilled  for 
oil  or  gas,  which  passes  through  a  vein  of  mineral  coal,  and 
before  drawing  the  casing  therefrom,  the  OAvner  of  such  well 
shall  seal  it  by  driving  in  such  well  to  a  depth  of  not  less  than 
ten  feet  below  the  floor  of  tlie  lowest  coal  measure,  a  round, 
seasoned,  wooden  plug  at  least  three  feet  in  length,  and  equal 
in  diameter  to  the  diameter  of  the  well  at  that  point.  On  the 
top  of  such  plug  he  shall  fill  at  least  seven  feet  of  sediment 
or  drillings,  or  cement  and  sand.  Upon  abandoning  or  ceasing 
to  operate  a  gas  or  oil  well  which  passes  through  any  gas  or 
oil-bearing  rock  lying  above  the  coal  measures,  the  owner  of 
such  well  or  his  agent  shall  drive  to  a  point  as  near  as  possible 
to  the  top  of  the  coal  vein  a  dry  wooden  plug  not  less  than 
two  feet  in  length,  and  equal  in  diameter  to  the  diameter  of 
the  hole.  On  the  top  of  such  plug,  he  shall  fill  at  least  five  feet 
of  sediment  or  drillings,  or  cement  and  sand,  as  a  mine  inspec- 
tor shall  direct.    (R.  S.  §  306-4 ;  2  General  Statutes  1910,  §  946.) 

§  5.    Forfeiture  for  non-compliance  with  law. 

Each  person,  firm  or  corporation,  failing  to  comply  with 
any  of  the  provisions  of  the  preceding  four  sections,  sliall  be 
subject  to  a  forfeiture  of  not  less  than  one  hundred  nor  more 


1010  OIL   AND    GAS. 

than  two  hundred  dollars,  to  be  recovered  by  action  in  the 
name  of  the  State,  and  on  collection  paid  into  the  court  of 
common  pleas  of  the  county  wherein  any  such  well  is  located 
or  of  Franklin  county.  (R.  S.  §  406-5;  2  General  Statutes  1910, 
§947.) 


§  6.     Penalty. 

Whoever  violates  any  provisions  of  such  four  sections  shall 
be  fined  not  less  than  fifty  dollars,  nor  more  than  two  hundred 
dollars,  or  be  imprisoned  not  less  than  ten  days  nor  more  than 
thirty  days,  or  both.     (2  General  Statutes  1910,  §  948.) 

OKLAHOMA. 

[Taken  from   Snyder's  Compiled  Laws,   §§4809-4855.] 

ARTICLE     I.  Cas  pipe  lines. 

II.  Oil,  pipe  lines,  etc. 

III.  Use  and  preservation. — Inspection. 

IV.  Inspection   of  oils. 

ARTICLE  I. 

GAS   PIPE   LINES. 

§4809.  Domestic  corporations. 

§4810.  Same. — Charter    for. — stipulation. 

§4811.  Foreign  cor[)orati<)n,   prohibited. 

§4812.  Denied  right  of  eminent  domain,  except  when. 

§4813.  Construction  of  gas  lines,  how. 

§4814.  Inspector  to  direct. — ^Expenses  how  paid. 

§4815.  Regulation  of  pressure. 

§4816.  Charter  forfeited,  when. — Receiver  appointed. 

§4817.  Lines  constructed  for  public  sale,  inspected  first. 

§4818.  Pipe  lines  permitted,  when. 

§4819.  Repeal. 

AN  ACT  regulating  the  laying,  constructing  and  maintaining  and  opera- 
tion of  gas  pipe  lines  for  the  transportation  of  natural  gas  within 
the  State  of  Oklahoma,  defining  tlie  modes  of  procedure  for  the  exer- 
cise of  the  right  of  eminent  domain  for  such  purposes,  providing  for 
the  inspection  and  supervision  of  the  laying  of  such  pipe  lines  and 
limiting  the  gas  pressure  therein,  and  providing  penalties  for  the 
violation  thereof. 


APPENDIX   B.  101  1 

§  4809.     Domestic  corporations. 

Any  firm,  co-partnorsliip,  association  or  coiuliination  of  indi- 
viduals may  become  a  body  corporate  under  the  laws  of  this 
State  for  the  purpose  of  producing,  transmitting  or  trans- 
porting natural  gas  to  points  within  this  State  by  complying 
with  the  general  corporation  laws  of  the  State  of  Oklahoma, 
and  with  this  Act.     (L.  1907-8,  p.  586.) 

§  4810.     Same. — Charter  for. — Stipulations. 

No  corporation  organized  for  the  purpose  of,  or  engaged 
in  the  transportation  or  transmission  of  natural  gas  within 
this  State  shall  be  granted  a  charter  or  right  of  eminent  do- 
main, or  right  to  use  the  highways  of  this  State  unless  it  siiall 
be  expressly  stipulated  in  such  charter  that  it  sliall  only  trans- 
port or  transmit  natural  gas  through  its  pipe  lines  to  points 
within  this  State;  that  it  shall  not  connect  with,  transport  to, 
or  deliver  natural  gas  to  iiulividuals,  associations,  co-partner- 
ships, companies  or  corporations  engaged  in  transporting  or 
furnishing  natural  gas  to  points,  places,  or  persons  outside  of 
this  State.     (L.  1907-8,  p.  586.) 

§  4811.     Foreign  corporations — prohibited. 

Foreign  corporations  formed  for  the  purpose  of,  or  engaged 
in  the  business  of  transporting  or  transmitting  natural  gas  by 
means  of  pipe  lines,  shall  never  be  licensed  or  permitted  to 
conduct  such  business  within  this  State.     (L.  1907-8,  p.  586.) 

§  4812.     Denied  right  of  eminent  domain — except  when. 

Xo  association,  combination,  copartnership  or  corporation 
shall  have  or  exercise  the  riglit  of  eminent  domain  within  this 
State  for  the  purpose  of  constructing,  or  maintaining  a  gas  pipe 
line  or  lines  within  this  State,  or  shall  ])e  permitted  to  take 
private  or  public  property  for  their  use  within  this  State, 
unless  expressly  granted  such  power  in  accordance  with  this 
Act.     (L.  1907-8,  p.  587.) 

§  4813.     Construction  of  gas  lines — how. 

The  laying,  constructing,  building  and  maintaining  of  gas 
pipe  line  or  lines  for  the  transportation  or  transmission  of  nat- 


1012  OIL   AND    GAS. 

ural  gas  along,  over,  across  or  through  the  highways,  roads, 
bridges,  streets,  or  alleys  in  this  State,  or  of  any  county,  city, 
municipal  corporation,  or  any  other  private  or  public  premises 
Avithin  this  State  is  hereby  declared  an  additional  burden  upon 
said  highway,  bridge,  road,  street  or  alley,  and  any  other  pri- 
vate, or  public  premises  may  only  be  done  when  the  right  is 
granted  by  express  charter  from  the  State  and  shall  not  be 
constructed,  maintained,  or  operated  until  all  damages  to  ad- 
jacent owners  are  ascertained  and  paid  as  provided  by  law. 
(L.  1907-8,  p.  587.) 

§  4814.     Inspector  to  direct. — Expenses — how  paid. 

All  pipe  lines  for  the  transportation  or  transmission  of  nat- 
ural gas  in  this  State  shall  be  laid  under  the  direction  and  in- 
spection of  proper  persons  skilled  in  such  business  to  be  desig- 
nated by  the  chief  mine  inspector  for  such  duty,  and  the  ex- 
penses of  such  inspection  and  supervision  shall  be  borne  and 
paid  for  by  the  parties  laying  and  constructing  such  pipe  lines 
for  the  transportation  or  transmission  of  natural  gas.  (L. 
1907-8,  p.  587.) 

§  4815.     Regulation  of  pressure. 

No  pipe  line  for  the  transportation  or  transmission  of  natural 
gas  shall  be  subjected  to  a  greater  pressure  than  three  hun- 
dred pounds  to  the  square  inch,  except  for  the  purpose  of 
testing  such  lines,  and  gas  pumps  shall  not  be  used  on  any 
gas  pipe  line  for  the  transportation  or  transmission  of  natural 
gas  or  used  (on  or)  in  any  gas  well  within  this  State.  (L. 
1907-8,  p.  587.) 

§  4816.     Charter  forfeited — when. — Receiver  appointed. 

Any  corporation  granted  the  right  under  the  provisions  of 
this  Act  to  exercise  the  right  of  eminent  domain,  or  use  the 
highways  of  this  State  to  construct  or  maintain  a  gas  pipe 
line  or  lines  for  the  transportation  or  transmission  of  natural 
gas  to  points  within  this  State,  which  shall  transport  or  trans- 
mit any  natural  gas  to  a  point  outside  of,  or  beyond  this  State, 
or  shall  connect  with  or  attempt  to  connect  with  or  threaten 
to  connect  with  any  gas  pipe  line  furnishing,  transporting,  or 


APPENDIX   B.  1013 

transmitting  gas  to  a  point  outside  of,  or  beyond  this  State, 
shall,  by  each  or  all  of  said  acts,  forfeit  all  right  granted  it 
or  them  by  the  charter  from  the  State,  and  said  forfeiture 
shall  extend  back  to  the  time  of  the  commission  of  said  act  or 
said  acts  in  violation  of  this  Act;  and  such  act  or  acts  shall 
of  themselves  work  a  forfeiture  of  any  and  all  rights  or  any 
and  everj'  kind  and  character  which  may  be  or  may  have  been 
granted  by  the  State  for  the  transportation  or  transmission  of 
natural  gas  within  this  State,  and  all  property  of  said  cor- 
poration and  all  the  property  at  any  time  belonging  to  said 
corporation,  at  any  time  used  in  the  construction,  maintain- 
ing or  operation  of  said  gas  pipe  line  or  lines  shall,  in  due 
course  of  law,  be  forfeited  to  and  be  taken  into  the  possession 
of  the  State  through  its  proper  officer  and  in  said  action  there 
shall  be  a  right  to  the  State  of  the  appointment  of  a  receiver, 
either  before  or  after  the  judgment,  to  be  exercised  at  the 
option  of  the  State,  and  the  officers  taking  possession  of  said 
property  shall  immediately  disconnect  said  pipe  line  or  lines 
at  a  proper  point  in  this  State  from  any  pipe  line  or  lines  going 
out  of,  or  beyond  the  State.  And  said  property  shall  be  sold 
as  directed  bj''  the  court  having  jurisdiction  of  said  proceed- 
ings, and  the  proceeds  of  said  sale  shall  be  applied,  first  to 
the  payment  of  the  cost  of  such  proceedings,  and  the  remainder, 
if  any,  paid  into  the  school  fund  of  the  State,  and  said  charter 
under  which  said  act  or  acts  were  committed  shall  be  revoked, 
and  no  charter  for  the  transportation  or  transmission  of  nat- 
ural gas  shall  never  (ever)  be  granted  to  any  corporation  hav- 
ing among  it  (its)  stockholders  any  person  who  was  one  of  the 
stockholders  of  said  corporation  whose  charter  has  or  may 
have  been  forfeited  as  aforesaid,  and  if  any  sueli  charter  shall 
have  been  granted,  and  thereafter  a  person  shall  become  a 
stockholder  thereof  who  was  one  of  the  stockholders  of  the 
corporation  whose  charter  has  been  or  may  have  been  for- 
feited, as  herein  provided,  the  charter  of  said  corporation,  one 
of  whose  stockholders  is  as  last  named,  shall  therefore  be  for- 
feited and  revoked  :  Provided,  That  any  person  who  may  be 
denied  the  right  to  become  a  stockholder  as  above  prescribed 
may  be  granted  the  right  to  become  such  stockholder  l)y  the 
Corporation  Commission,  wlien  sucli  person  shows  to  such 
commission  that  he  was  not  a  party  to  the  former  violation  of 
this  Act.     (L.  1907-8,  p.  587.) 


1014  OIL   AND   GAS. 

§  4817.     Lines  constructed  for  public  sale — inspected  first. 

No  pipe  lines  for  the  transportation  or  transmission  of  nat- 
ural gas  shall  be  laid  upon  private  or  public  property  when 
the  purpose  of  such  line  is  to  transport  or  transmit  gas  for 
sale  to  the  public  until  the  same  is  properly  inspected  as  pro- 
vided in  this  Act ;  and  before  any  gas  line  company  shall  fur- 
nish or  sell  gas  to  tlie  public,  it  shall  secure  from  the  inspector 
(a  certificate)  showing  that  said  line  is  laid  and  constructed 
in  accordance  with  this  Act,  and  under  the  inspection  of  the 
proper  ofiRcer,  provided,  that  nothing  in  this  Act  shall  be  con- 
strued to  prevent  persons  drilling  for  oil  and  gas  from  laying 
surface  lines  to  transport  or  transmit  gas  to  wells  which  are 
being  drilled  within  this  State,  and  further,  provided,  that 
factories  in  this  State  may  transport  or  transmit  gas  through 
pipe  lines  for  their  own  use  for  factories  located  wholly  within 
this  State,  upon  securing  the  right  of  way  from  the  State, 
over  or  along  the  highways  and  from  property  owners  to  their 
lands.     (L.  1907-8,  p.  589.)    . 

§  4818.     Pipe  lines  permitted — when. 

That  no  person,  firm,  or  association,  or  corporation  shall  ever 
be  permitted  to  transmit  or  transport  natural  gas  by  pipe  lines 
in  this  State,  or  in  this  State  construct  or  operate  a  pipe  line 
for  the  transmission  of  natural  gas,  except  such  persons,  firms, 
associations,  or  corporations  be  incorporated  as  in  this  Act 
provided,  except  as  in  section  9  of  this  Act  (4817)  ;  and  pro- 
vided, further,  that  all  persons,  firms,  corporations,  associa- 
tions and  institutions  now  doing  the  business  of  transporting 
or  transmitting  natural  gas  in  this  State  and  otherwise  com- 
plying with  this  Act  are  hereby  permitted  to  incorporate  under 
the  provisions  of  this  Act  within  ten  days  after  the  passage 
and  approval  of  the  same.     (L.  1907-8,  p.  589.) 

§  4819.— Repeal. 

All  Acts  and  parts  of  Acts  in  conflict  with  this  Act  are 
hereby  repealed.     (L.  1907-8,  p.  589.) 


APPENDIX   B.  1015 

ARTK'LH    II. 

OIL,   PIPE   LINKS,   ETC. 

§4820.  All  business  relating  to  petrolouni  liniiti'd  l)y  this  Act. — Exception. 

§4821.  Eminent  domain. — 'Conditions. 

§4822.  Common  purchaser. — Duties. — Who  exemi)t. 

§482.3.  Common  carrier  of  petroleum,  discrimination  by. 

§4824.  Non-acceptors  of  this  Act  must  dispose  of  pnjpi'rty. 

§4825.  Acceptance  of  Act  condition  precedent. 

§4820.  Benefits  of  Act  conferred  on  wliom. — Eminent  domain. 

§4827.  Extended  time  for  filing  plats. 

§4828.  Penalties  imposed. 

§4829.  Evidence. 

§4830.  Suspension   of   punitive   provisions. 

§4831.  Extension  of  time,  when. 

AN  ACT  to  regulate  all  corporations,  associations,  and  persons  engaged  in 
this  State,  in  the  business  of  carrying  crude  petroleum,  or  its  products 
through  pipe  lines;  to  regulate  operators  of  oil  wells  and  refiners  of 
crude  petroleum  and  its  products,  regulating  the  purchasing  of  mineral 
oil  by  pipe  lines,  providing  punishments  for  violation  thereof,  and 
declaring  an  emergency. 

§  4820.     All  business  relating  to  petroleum  limited  by  this  Act. 
— Exceptions. 

Every  corporation,  joint  stock  company,  limited  co-partner- 
ship or  other  person,  now  or  hereafter  exercising  or  claiming 
the  right  to  carry  or  transport  crude  oil  or  petroleum,  or  any 
of  the  products  thereof,  by  or  through  pipe  line  or  lines,  for 
hire,  compensation  or  otherwise,  or  now  or  hereafter  exer- 
cising or  claiming  the  right  to  engage  in  the  business  of 
producing  crude  oil  or  petroleum,  or  of  refining  it,  or  manu- 
facturing any  of  its  products  thereof,  or  of  storing  crude  oil 
or  petroleum  now  or  hereafter  produced  by  it,  or  any  other 
person  or  persons,  or  now  or  hereafter  engaging  in  the  business 
of  buying,  selling  or  dealing  in  crude  oil  or  petroleum,  within 
the  limits  of  this  Rtate,  shall  not  have  or  possess  the  right  to 
conduct  or  engage  in  said  business  or  operations,  in  whole  or 
part,  as  above  described,  or  have  or  possess  the  right  to  locate, 
maintain  or  operate  the  necessary  pipe  lines,  fixtures  and 
equipment  thereunto  belonging,  or  used  in  connection  there- 
with, concerning  the  said  business  of  carrying  or  transporting 
crude  oil  or  petroleum  as  aforesaid,  on,  over,  along,  across, 
through,  in  or  under  any  present  or  future  highway,  or  part 


1016  OIL   AND    GAS. 

thereof,  within  this  State,  or  have  or  possess  tlie  right  of 
eminent  domain,  or  any  other  right  or  rights  concerning  said 
business  or  operations,  in  whole  or  in  part,  except  as  authorized 
by  and  subject  to  the  provisions  of  this  Act;  except,  further, 
and  only  such  right  or  rights  as  may  already  exist  which  are 
valid,  vested,  and  incapable  of  revocation  by  any  law  of  this 
State  or  the  United  States.  The  word  "petroleum,"  as  used 
herein,  means  all  crude  oil  and  its  manufactured  products,  not 
including  natural  gas.  (L.  1909,  S.  B.  168.  Took  effect  March 
27,  1909.) 

§  4821.    Eminent  domain. — Conditions. 

For  the  purpose  of  acquiring  necessary  right  of  way,  every 
such  person  is  hereby  granted  the  right  of  condemnation  by 
eminent  domain,  and  the  use  of  the  highways  in  this  State,  for 
the  purpose  of  transporting  petroleum  by  pipe  lines,  and  the 
location,  laying,  construction,  maintaining  and  operation 
thereof. 

Corporations  of  other  States  or  Territories,  or  of  the  United 
States,  otherwise  admissible  to  do  business  in  this  State,  may 
get  the  benefit  of  this  Act  upon  compliance  with  the  laws  and 
Constitution,  but  until  such  compliance  shall  have  no  rights 
in,  on,  or  under  the  highways. 

The  word  "person,"  as  used  in  this  Act,  means  any  natural 
person,  partnership,  or  association  of  persons,  or  any  corpora- 
tion organized  under  the  laws  of  the  State  of  Oklahoma.  (L. 
1909,  S.  B.  168.     Took  effect  March  27,  1909.) 

§  4822.     Common  purchaser. — Duties. — Who  exempt. 

Every  corporation,  joint  stock  company,  limited  co-partner- 
ship, partnership,  or  other  person,  now  or  hereafter  claiming 
or  exercising  the  right  to  carry  or  transport  crude  oil  or  petro- 
leum or  any  of  the  products  thereof,  by  pipe  line  or  pipe  lines, 
for  hire,  compensation,  or  otherwise,  within  the  limits  of  this 
State,  as  allowed  by,  and  upon  compliance  with  the  require- 
ments of  this  Act,  as  owner,  lessee,  licensee,  or  by  virtue  or 
any  other  right  or  claim,  which  is  noAV  engaged  or  hereafter 
shall  engage  in  the  business  of  purchasing  crude  oil  or  petro- 
leum therein,  shall  be  a  common  purchaser  thereof,  and  shall 
purchase  all  of  the  petroleum  in  the  vicinity  of,  or  which  may 


APPENDIX   B. 


1017 


be  reasonably  readied  by  its  pipe  lines,  or  gathering  branches, 
without  discrimination  in  favor  of  one  producer  or  one  person 
as  against  another,  and  shall  fully  perform  all  the  duties  of  a 
common  purchaser;  but  if  it  shall  be  unable  to  perform  the 
same,  or  be  legally  excusable  from  purchasing  and  transport- 
ing all  of  the  petroleum  produced,  then  it  shall  purchase  and 
transport  petroleum  from  each  person  and  prodiuH-r  ratably, 
in  proportion  to  the  average  daily  production,  and  sucli  com- 
mon purchasers  are  hereby  expressly  prohibited  from  dis- 
criminating in  price  or  amount  for  like  grades  of  oil,  or  facili- 
ties as  between  producers  or  persons ;  and  in  the  event  it  is 
likewise  a  producer,  it  is  hereby  prohibited  from  discriminating 
in  favor  of  its  OAvn  production,  or  storage,  or  production  or 
storage  in  which  it  may  be  interested  directly  or  indirectly  in 
whole  or  in  part,  and  its  own  production  and  storage  shall  be 
treated  as  that  of  any  other  person  or  producer. 

All  persons,  firms,  associations,  and  corporations  are  ex- 
empted from  the  provisions  of  this  Act  where  the  nature  and 
extent  of  their  business  is  such  that  the  public  needs  no  use  in 
the  same,  and  the  conduct  of  the  same  is  not  a  matter  of  public 
consequence,  and  for  this  purpose  the  district  courts  of  the 
State  and  the  corporation  commission  are  hereby  vested  with 
jurisdiction  to  determine  such  exemptions  in  any  action  or 
proceeding  properly  before  them,  as  prohibited  in  this  Act. 
(L.  1909,  S.  B.  168.     Took  eflfect  March  27,  1909.) 

§  4823.     Common  carrier  of  petroleum — discrimination  by. 

Every  corporation,  joint  stock  company,  limited  co-partner- 
ship, partnership  or  other  person,  now  or  hereafter  engaged 
in  the  business  of  carrying  or  transporting  crude  oil,  or  pe- 
troleum, or  any  of  the  products  thereof,  for  hire  or  compensa- 
tion or  otherwise,  by  pipe  line  or  pipe  lines  within  this  State, 
and  by  virtue  of  and  in  conformity  to,  any  valid  law  incapable 
of  revocation  by  any  law  of  this  State  or  of  the  United  States, 
or  by  virtue  of  and  in  conformity  to  the  provisions  of  this 
Act,  shall  be  a  common  carrier  thereof  as  at  common  law,  and 
no  such  common  carrier  shall  allow  or  be  guilty  of  any  unjust 
or  unlawful  discrimination,  directly,  or  indirectly,  in  favor  of 
the  carriage,  transportation,  storage  or  delivery  of  any  crude, 
stock  or  storage  oil,  or  any  products  thereof,  in  its  possession 


1018  OIL    AND    GAS. 

or  control,  or  in  which  it  may  he  interested,  directly  or  indi- 
rectly.    (L.  1909,  S.  B.  168.    Took  effect  March  27,  1909.) 

§  4824.     Non-acceptors  of  Act  must  dispose  of  property. 

It  shall  be  unlawful  for  any  corporation,  joint  stock  com- 
pany, limited  co-partnership,  partnership  or  other  persons,  now 
or  hereafter  engaged  in  the  business  of  carrying  or  transport- 
ing crude  oil  or  petroleum,  or  any  of  the  products  thereof,  for 
hire  or  compensation,  or  otherwise,  within  the  limits  of  this 
Act,  and  not  becoming  a  common  purchaser  as  defined  by,  and 
accepting  the  provisions  of  this  Act,  to  own  or  operate,  directly 
or  indirectly,  any  oil  wells,  oil  leases,  or  oil  holdings  or  in- 
terests in  this  State,  after  six  months  next  after  the  approval 
of  this  Act,  and  each  and  every  of  said  corporations,  joint 
stock  companies,  limited  co-partnership,  partnership  or  other 
person,  shall  divest  themselves  of  all  legal  or  equitable  owner- 
ship, interest  or  control,  directly  or  indirectly,  in  oil  well  or 
wells,  oil  leases  or  oil  holdings  or  interests  in  this  State.  (L. 
1909,  S.  B.  168.    Took  effect  March  27,  1909.) 

§  4825.     Acceptance  of  Act  condition  precedent. 

Before  any  corporation,  joint  stock  company,  limited  co- 
partnership, partnership  or  other  person,  shall  have,  possess, 
enjoy  or  exercise  the  right  of  eminent  domain,  right  of  way, 
right  to  locate,  maintain  or  operate  pipe  lines,  fixtures  or 
equipment  thereunto  belonging,  or  used  in  connection  there- 
with, as  authorized  by  the  provisions  of  this  Act,  or  shall 
have,  possess,  enjoy  or  exercise  any  right  (the  word  "right" 
in  this  connection  being  used  in  its  most  comprehensive  legal 
sense)  conferred  by  this  Act,  every  such  corporation,  joint 
stock  company,  limited  co-partnership,  partnership  or  other 
person,  shall  file  in  the  office  of  the  said  Corporation  Commis- 
sion a  proper  and  explicit  authorized  acceptance  of  the  provi- 
sions of  this  Act  and  the  Constitution  of  this  State,  and  in 
cases  of  pipe  lines  a  plat  showing  in  detail  the  points  within 
this  State  between  which,  and  the  route  along  which,  the 
trunk  line  or  trunk  lines  to  be  constructed,  the  intended  size 
and  capacity  thereof,  and  the  location  and  capacity  of  all 
purriping  stations,  gate  valves,  check  valves  and  connections 
and  appliances  of  all  kinds  used,  or  to  be  used,  on  said  trunk 


APPENDIX   B.  1010 

line  or  lines;  and  upon  demand  of  the  Corporation  Commis- 
sion the  proper  party  or  parties,  as  reciuired  l)y  said  commis- 
sion, shall  properly  file  a  plat  showing  in  detail  all  the  lines 
owned  and  operated  by  them  respectively,  with  full  and  ex- 
plicit information  as  to  their  capacity,  of  their  pumping 
stations,  gate  valves,  check  valves,  and  connections,  of  all 
kinds,  respectively  required  or  used  in  operation  thereof.  (L. 
1909,  S.  B.  168.    Took  effect  INIarch  27,  1909.) 

§  4826.     Benefits  of  Act  conferred  on  v^hom. — Eminent  domain. 

Every  domestic  pipe  line  company  in  this  State  is  hereby 
given  authority  to  build,  construct,  lay  and  maintain  oil  pipe 
lines  over,  under,  across,  or  through  all  highways,  bridges, 
streets  or  alleys  in  this  State  or  any  public  place  therein  under 
the  supervision  of  the  inspector  of  oil  and  gas  wells  and  pipe 
lines  as  to  where  and  how  in  said  highways,  bridges,  streets, 
alleys  and  public  places  said  pipe  lines  shall  be  laid,  subject 
to  the  control  of  the  local  municipalities,  as  to  how  the  business 
of  distribution  in  that  municipality  shall  be  conducted,  and 
subject  to  responsibility  as  otherwise  provided  by  law  for  any 
negligent  injury  thereby  caused. 

All  persons,  natural  or  artificial,  except  foreign  corporations, 
shall  have  the  right  of  eminent  domain,  and  any  right  or  priv- 
ilege hereby  conferred,  when  necessary  to  make  effective  the 
purposes  of  this  Act.  and  the  rights  thereby  conferred.  Foreign 
corporations  organized  under  the  laws  of  any  other  State,  or 
the  United  States,  and  doing  or  proposing  to  do  l)usinoss  in 
this  State,  and  which  sliall  have  become  a  body  corporate 
pursuant  to  or  in  accordance  with  the  laws  of  this  State,  and 
which,  as  hereby  provided,  shall  have  registered  its  acceptance 
of  the  terms  hereof,  shall  receive  all  the  benefits  provided  by 
this  Act.     (L.  1909,  S.  B.  168.    Took  effect  March  27,  1909.) 

§  4827.     Extended  time  for  filing  plats. 

Upon  a  sworn  statement  of  the  necessities  which  would  jus- 
tify a  judicial  continuance,  the  Corporation  Commission  is 
authorized  to  extend  the  time  for  the  filing  of  the  said  plats, 
not,  however,  to  exceed  sixty  days.  (L.  1909,  S.  B.  168.  Took 
effect  March  27,  1909.) 


1020  OIL   AND   GAS. 

§  4828.     Penalties  imposed. 

iVny  person,  co-partuership,  or  corporation,  its  agent  or  em- 
ployee, violating  any  of  the  provisions  of  this  Act,  or  any  order 
of  the  competent  courts  of  this  State,  or  the  Corporation  Com- 
mission, pursuant  to  the  jurisdiction  conferred  by  this  Act, 
shall  upon  conviction  thereof,  be  fined  a  sum  of  not  less  than 
one  thousand  dollars,  nor  more  than  five  thousand  dollars,  or 
imprisonment  for  not  less  than  six  months,  nor  more  than  one 
year,  or  by  both  such  fine  and  imprisonment  for  each  and 
every  violation  of  this  Act;  but  in  case  the  monthly  runs  or 
takings  or  transportations  of  oil  shall  average  so  as  to  be  with- 
out discrimination,  as  herein  provided,  the  transaction  or  trans- 
actions of  any  particular  day,  week,  or  portion  of  a  month 
shall  be  disregarded ;  and  the  competent  court  of  the  county 
in  which  the  omission  of  commission,  which  is  a  violation  of 
this  Act,  has  occurred,  shall  have  jurisdiction  of  any  action 
under  the  penal  code  for  the  punishment  thereof;  and  that  said 
penalties  shall  not  be  exclusive  of  civil  liability. 

Whenever  the  operation  of  a  valid  order  of  a  competent 
court  or  the  Corporation  Commission  is  duly  suspended,  ac- 
cording to  law,  the  punitive  provisions  of  this  Act  shall  like- 
wise be  suspended  in  their  operation  as  to  the  transactions 
adjudicated  in  said  court,  and,  further,  any  court  having  juris- 
diction of  an  action  brought  by  the  State  to  punish  for  a 
violation  under  the  terms  of  this  Act  shall  not  impose  a  pun- 
ishment therefor  greater  than  five  hundred  dollars  against 
either  a  person,  or  corporation,  if  it  finds  from  the  evidence 
that  the  violation  of  any  of  the  provisions  of  this  Act,  or  of 
the  order  of  any  competent  court  or  of  the  Corporation  Com- 
mission, in  any  proceedings  to  carry  out  the  provisions  thereof. 
(L.  1909,  S.  B.  168.    Took  effect  March  27,  1909.) 

§  4829.     Evidence. 

A  properly  certified  transcript  of  the  report  of  any  such 
corporation,  association,  or  person  shall,  as  against  the  maker 
or  makers  thereof,  be  prima  facie  evidence  of  the  truth  of  any 
matter  therein  contained.  (L.  1909,  S.  B.  168.  Took  efifeet 
March  27,  1909.) 


APPENDIX    B.  1021 

§  4830.     Suspension  of  punitive  provisions. 

Whenever  the  operation  of  the  order  of  such  court  or  Cor- 
poration Commission  is  duly  suspended,  according  to  law,  the 
punitive  provisions  of  this  Act  shall  likewise  bo  suspended  in 
their  operation  as  to  the  transaction  adjudicated  in  said 
courts.     (L.  1909,  S.  B.,  168.    Took  effect  ]March  27,  1909.) 

§4831.     Extension  of  time — when. 

For  good  cause  shown,  the  Corporation  Commission  is  au- 
thorized to  extend  the  time  within  which  this  Act  shall  operate 
as  to  any  particular  corporation,  association,  or  person  not  to 
exceed  nine  months  after  the  same  becomes  effective.  (L.  1909, 
S.  B.  168.    Took  effect  March  27,  1909.) 


ARTICLE    III. 

USE  AND  PRESERVATION— INSPECTION. 

§4832.  Gas  to  be  confined. — Proviso. 

§4833.  Permitting  leak  unlawful. 

§4834.  Certain  cases  prohibited. 

§4835.  Daji;ime  consxunption. 

§4836.  iSame.— Meter. 

§4837.  Polluting   streams. 

§4838.  Abandoned  wells  plugged. — Manner. 

§4839.  Chief  deputy  inspector  oil  and  gas. — Duties. 

§4840.  Deputy   to   supervise  plugging. 

§4841.  Same. — Duties  to  owner. 

§4842.  Certain  acts  prohibited. 

§4843.  Penalties    prescribed. 

§4844.  Eminent  domain  by   pipe-line  corporations. 

§4845.  Same. — Domestic  corporations. 

§4846.  Use   of    highways,    etc. — Supervisions. — Duties. 

§4847.  Repealing  clause. 

§4848.  Casing. 

§4849.  Well.s  abandoned   shall   be    plugged. 

§4850.  Injury  from  neglect  or  refusal  to  comply. 

§4851.  Violation  of  law. 

§4852.  Time  in  which   to  comply  with  this  Act. 

§4853.  Storm    burners. 

§4854.  Accidents. 

§4855.  Penalties. 


1022  OIL   AND   GAS. 

AN  ACT  to  regulate  the  use  and  preservation  o.  oil  and  gas  and  providing 
penalties  for  the  vioilation  thereof,  providing  for  an  inspector,  liis 
duties,  compensation  and  ajipropriation  tlierefor,  and  declaring  an 
emergency. 

§  4832.     Gas  to  be  confined. — Proviso. 

Any  person,  co-partnership,  or  corporation  in  possession, 
either  as  owner,  lessee,  agent  or  manager  of  any  well  pro- 
ducing natural  gas,  in  this  State  in  order  to  prevent  the  said 
gas  wasting  by  escape,  shall  immediately  after  this  Act  takes 
effect,  and  immediately  after  penetrating  the  gas-bearing  rock, 
in  any  well  hereafter  drilled,  shut  in  and  confine  the  gas  in 
said  well  until  and  during  such  time  as  the  gas  therein  shall 
be  utilized  for  lights,  fuel  or  power  purposes :  Provided,  This 
shall  not  apply  to  any  gas  well  operated  for  oil ;  provided,  also, 
that  when  in  the  course  of  drilling  gas  production  is  devel- 
oped, four  days'  free  time  shall  be  allowed  in  which  to  de- 
termine whether  the  well  shall  be  shut  and  saved  for  a  gas 
well  or  drilled  in  further  for  the  purpose  of  producing  oil. 
(L.  1909,  H.  B.  238.    Took  effect  March  27,  1909.) 

§  4833.     Permitting  leak  unlawful. 

It  shall  be  unlawful  for  any  person,  co-partnership,  or  cor- 
poration, either  as  owner,  lessee,  agent  or  manager  of  any  pipe 
line  in  this  State,  through  which  natural  gas  flows  from  wells 
utilized  for  the  production  of  gas  only,  to  allow  any  unneces- 
sary leak  or  waste  to  occur  from  said  line.  (L.  1909,  H.  B. 
238.    Took  effect  March  27,  1909.) 

§  4834.     Certain  uses  prohibited. 

It  shall  be  unlawful  to  use  natural  gas  for  illuminating 
purposes  in  what  are  known  as  flambeau  lights ;  but  nothing 
herein  shall  prohibit  the  use  of  "Jumbo"  burners  or  other 
burners  in  glass  globes  consuming  no  more  gas  than  such 
"Jumbo"  burners,  nor  the  burning  of  flambeau  lights  not  to 
exceed  four  in  number  within  or  near  the  derrick  of  any 
drilling  w^ell.     (L.  1909,  II.  B.     Took  effect  March  27,  1909.) 

§  4835.     Daytime  consumption. 

The  person,  persons,  firm,  company  or  corporations  consum- 
ing said  gas,  and  using  burners  in  open  air  or  in  or  around 


APPENDIX   B.  102:3 

derricks  shall  turn  ofF  said  gas  not  later  tlian  eight  o'clock  in 
the  morning  of  each  day  such  lights  or  burners  are  used,  and 
shall  not  turn  on  or  religlit  the  same  between  tiie  hours  of 
eight  o'clock  a.  m.  and  five  o'clock  p.  m.  (L.  lOOf),  IT.  R.  238. 
Took  effect  March  27,  1909.) 

§  4836.     Same.— Meter. 

No  gas  shall  be  used  or  burned  for  illuminating  purposes 
between  the  hours  of  eight  o'clock  a.  m.,  and  five  o'clock  p.  m.> 
unless  the  use  of  the  same  is  regulated  by  meter.  (L.  1909, 
H.  B.  238.    Took  effect  March  27,  1909.) 

§  4837.     Polluting  streams. 

No  inflammable  product  from  any  oil  or  gas  well  shall  be 
permitted  to  run  into  any  tank,  pool,  or  stream  used  for 
watering  stock;  and  all  waste  of  oil  and  refuse  from  tanks 
or  wells  shall  be  drained  into  proper  receptacles  at  a  safe 
distance  from  the  tanks,  wells  or  buildings,  and  be  imme- 
diately burned  or  transported  from  the  premises,  and  in  no 
case  shall  be  it  be  permitted  to  flow  over  the  land.  Salt  water 
shall  not  be  negligently  allowed  to  flow  over  the  surface  of 
the  land.     (L.  1909,  H.  B.  238.     Took  effect  March  27,  1909.) 

§  4838.     Abandoned  wells  plugged — manner. 

All  lessees  or  operators  drilling  or  operating  for  crude  oil 
or  natural  gas  within  the  State  of  Oklahoma  shall  immediately 
in  a  practical  and  workmanlike  manner  under  the  supervision 
of  the  oil  and  gas  inspector,  as  hereinafter  provided,  plug  all 
dry  or  abandoned  oil  and  gas  wells  in  wliicli  oil  or  gas-bearing 
stratum  has  been  found  in  the  following  manner :  Beginning 
at  the  bottom  of  the  hole,  same  shall  be  solidly  filled  with 
crushed  rock  or  sand  pumpings,  or  both,  to  a  point  of  twenty- 
five  feet  above  the  top  level  of  the  oil  or  gas-bearing  sand  ;  at 
that  point  a  wooden  plug  of  seasoned  pine  two  feet  in  length 
and  not  less  than  one-half  inch  in  diameter  less  than  the  inside 
diameter  of  the  hole  at  that  point  shall  be  placed;  thereafter 
the  hole  shall  be  filled  up  solidly  twenty-five  feet  farther 
with  a  substance  consisting  of  one-third  portion  of  cement 
and  two-thirds  portion  of  sand,  properly  mixed  with  water; 
thereafter,  another  wooden  plug  of  seasoned  pine  two  feet  in 


1024  OIL   AND    GAS. 

length  and  not  less  than  one-half  inch  in  diameter  less  than  the 
inside  diameter  of  the  hole  at  the  point  shall  be  placed;  there- 
after the  hole  shall  be  filled  up  solidly  twenty-five  feet  further 
Avitli  crushed  rock  and  said  sand  pumpings,  or  both;  and, 
Provided,  further,  that  all  such  wells  drilled  to  the  Mississippi 
Line  shall  be  plugged  above  the  Mississippi  Line  in  the  same 
manner  as  provided  for  herein  above,  as  to  the  plugging  of 
wells  in  the  upper  oil  and  gas-bearing  stratum,  all  abandoned 
wells  shall  immediately  be  closed  and  marked,  and.  Provided, 
further,  that  when  any  such  lessee  or  operator  removes  the 
derrick  from  and  around  such  wells,  he  shall  plug  such  wells 
in  some  good  and  substantial  manner,  at  least  ten  feet  below 
the  surface  and  fill  such  well  from  that  point  to  the  surface 
with  such  material  as  will  prevent  the  well  from  caving  before 
.final  abandonment.  (L.  1909,  H.  B.  238.  Took  effect  March 
27,  1909.) 

§  4839.     Chief  deputy  inspector  of  oil  and  gas. — Duties. 

The  Chief  Mine  Inspector  shall  appoint,  subject  to  removal 
by  him,  such  deputies  of  at  least  five  years'  practical  experi- 
ence in  operating  and  drilling  oil  and  gas  wells  and  who  is  not 
directly  or  indirectly  interested  in  the  production  of  oil  or 
gas  as  may  be  necessary  to  the  full  performance  of  the  duties 
required  by  law.  The  Chief  Mine  Inspector,  or  his  deputies, 
shall  personally  supervise  the  using  and  operating  of  natural 
gas  in  this  State,  and  the  proper  observance  of  the  laws  of  the 
State  dealing  with  the  drilling  and  production  of  oil  and  gas 
or  the  piping  or  storage  or  purchase  or  use  thereof  within  this 
State.  Said  Chief  Mine  Inspector  shall  designate  one  of  his 
deputies  to  be  chief  deputy  inspector  of  oil  and  gas  wells  and 
pipe  lines,  and  all  duly  appointed  deputies  shall  reside  at  a 
convenient  place  for  the  performance  of  their  duties,  and  a 
written  notification  of  their  residence  shall  be  kept  on  file  in 
the  office  of  the  Chief  Mine  Inspector;  the  chief  deputy  in- 
spector of  oil  and  gas  wells  and  pipe  lines  shall  receive  a 
compensation  not  to  exceed  two  thousand  dollars  per  annum 
and  traveling  and  maintenance  expenses  while  in  the  per- 
formance of  his  duties,  and  all  other  deputies  so  duly  ap- 
pointed shall  receive  as  compensation  not  to  exceed  five  dollars 
per  day  and  their  actual  traveling  and  maintenance  expenses 


ArrExnix  b.  1025 

Avhile  in  the  performance  of  their  duties,  to  be  appropriated 
out  of  the  receipts  of  tiie  gross  revenue  taxes  levied  aud  col- 
lected upon  the  production  of  gas  and  oil  and  the  storage  and 
carriage  thereof.  And  for  the  purpose  of  said  compensation 
the  sum  of  ten  thousand  dollars  or  so  much  tiiereof  as  may  be 
necessary  is  hereby  appropriated  out  of  said  gross  receipts 
named  to  cover  the  period  from  this  time  to  and  including  the 
30th  of  June,  1911.  (L.  1909,  II.  B.  238.  Took  effect  i\larch 
27,  1909.) 

§  4840.     Deputy  to  supervise  plugging. 

"Whenever  it  becomes  necessary  to  plug  any  well  as  required 
by  law,  the  lessee  or  operator  thereof  shall  at  once  notify,  in 
writing,  the  inspector  of  gas  and  oil  wells  at  the  office  of  the 
Chief  Mine  Inspector  or  by  personal  written  notification  to 
the  inspector  of  gas  and  oil  wells  at  his  residence,  whereupon 
said  inspector,  or  his  deputy,  shall  repair  to  said  well  and 
supervise  the  plugging  thereof.  (L,  1909,  H.  B.  238.  Took 
effect  March  27,  1909.) 

§  4841.     Same. — Duties  of  owner. 

Upon  the  arrival  of  said  inspector,  or  his  deput}^  at  the  well 
to  be  plugged,  the  lessee  or  operator  thereof  shall  furnish  the 
inspector  a  record  of  the  drilling  of  said  well  verified  under 
oath,  showing  a  true  and  correct  log  of  the  well.  (L.  1909, 
H.  B.  238.    Took  effect  March  27,  1909.) 

§  4842.     Certain  acts  prohibited. 

It  is  hereby  declared  to  bo  unlawful  for  any  person  or  per- 
sons maliciously  to  set  fire  to  any  gas  or  oil  escaping  from 
wells,  broken  or  leaking  mains,  pipes,  valves,  tanks  or  other 
appliances,  used  by  any  person,  company  or  corporation  in 
conveying  gas  or  oil,  or  to  interfere  in  any  manner  with  the 
wells,  pipes,  mains,  gate  boxes,  valves,  stop-cocks,  or  other 
appliances,  machinery  or  property  of  any  person,  company, 
or  corporation  engaged  in  furnishing  gas  or  oil  unless  em- 
ployed by  or  acting  under  the  authority  and  direction  of  any 
such  person,  company  or  corporation  owning  or  operating  said 
gas  or  oil  lines  or  the  proper  legal  authorities.  (L.  1909, 
H.  B.  238.    Took  effect  March  27,  1909.) 


1026  OIL   AND    GAS. 

§  4843,     Penalties  prescribed. 

Any  person,  co-partnership,  or  corporation  violating  any  of 
the  provisions  of  this  Act,  shall  upon  conviction  thereof,  be 
fined  in  any  sum  not  less  than  twenty-five  dollars,  nor  more 
than  five  hundred  dollars,  in  any  court  having  competent  juris- 
diction in  the  county  in  which  the  act  shall  have  been  com- 
mitted or  omitted,  or  by  being  imprisoned  for  not  less  than 
thirty  days  nor  more  than  ninety  days,  or  by  both  such  fine 
and  imprisonment.  The  amount  of  said  penalty,  when  col- 
lected shall  be  paid  one-half  into  the  public  road  fund,  of  the 
county  in  which  said  suit  shall  have  been  brought,  and  one- 
half  to  the  informer  in  said  action.  (L.  1909,  H.  B.  238.  Took 
effect  March  27,  1909.) 

§  4844.     Eminent  domain   by  pipe  line   corporation. — Condi- 
tions. 

Before  any  gas  pipe  line  corporation  shall  acquire  any  right 
of  way,  or  exercise  right  of  eminent  domain  within  this  State, 
or  construct  any  pipe  lines  for  the  transportation  of  gas,  it 
shall  file  in  the  office  of  the  Corporation  Commission  a  plat 
showing  in  detail  the  points  in  this  State,  between,  and  the 
route  along  which  its  trunk  line  is  proposed  to  be  constructed, 
the  intended  size  and  capacity  thereof,  and  the  location  and 
capacity  of  all  pumping  stations,  gate  valves,  check  valves  and 
connections  of  all  kinds  on  said  trunk  lines ;  and  upon  the 
demand  of  the  Corporation  Commission  they  shall  file  a  plat 
showing  in  detail  all  the  lines  owned  or  operated  by  them,  with 
full  information  as  to  their  capacity  and  size,  location  and 
capacity  of  their  pumping  stations,  gate  valves,  check  valves 
and  connections  of  all  kinds  in  existence.  (L.  1909,  H.  B.  238. 
Took  effect  March  27,  1909.) 

§  4845.     Sajne. — Domestic  corporations. 

All  domestic  gas  pipe  line  corporations  in  this  State  are 
hereby  authorized  to  build  and  operate,  and  for  that  purpose 
to  acquire,  whether  by  purchase  or  the  exercise  of  eminent 
domain,  sites  for  the  erection  of  pumping  stations  in  this 
State  wherever  the  same  may  be  necessary,  due  consideration 
being  had  for  the  size,  capacitj'-,  pressure,  facilities  and  powers 
of  all  other  gas  pipe  line  corporations  and  gas  consumers  and 


APPENDIX    B.  1027 

gas  producers,  in  the  same  gas  district  which  may  be  affected 
by  the  use  of  said  pumps.  (L.  1909,  II.  B.  238.  Took  effect 
March  27,  1909.) 

§  4846.     Use  of  highways,  etc. — Supervision. — Duties. 

Every  domestic  gas  pipe  line  corporation  in  this  State  is 
hereby  given  authority  to  build,  construct  and  maintain  gas 
pipe  lines,  over,  under,  across  or  through  all  highways,  bridges, 
streets  or  alleys  in  this  State,  or  any  public  place  therein  under 
the  supervision  of  the  inspector  of  oil  and  gas  wells  and  i)ipe 
lines  as  to  where  and  how  in  said  highways,  bridges,  streets, 
alleys  and  public  places  said  pipe  lines  shall  be  laid,  subject 
to  the  control  of  the  local  municipalities  as  to  how  the  business 
of  distribution  in  that  municipality  shall  be  conducted,  and 
subject  to  responsibility  as  otherwise  provided  by  law.  Pro- 
vided, however,  that  whenever  any  gas  pipe  line  crosses  the 
land  or  premises  of  any  one  outside  of  a  municipality,  said 
corporation,  shall  upon  request  of  the  owner  of  said  premises 
connect  said  premises  with  a  pipe  line  and  furnish  to  said 
consumer  at  the  same  rate  as  charged  in  the  nearest  city  or 
town.     (L.  1909,  H.  B.  238.     Took  effect  March  27,  1909.) 

§  4847.     Repealing  clause. 

All  Acts  and  parts  of  Acts  in  conflict  herewith  are  hereby 
repealed.     (L.  1909,  II.  B.  238.     Took  effect  I\Iarch  27,  1909.) 

XoTE. — TIio  fnllowinfT  sections  of  Chapter  20,  L.  100.5,  relate  in  part, 
semble,  to  the  matters  provided  for  in  some  of  the  foregoing  sections  of  this 
article,  e.  g.,  as  to  plugging,  and  are  perhaps  pro  tanto  superseded. 

AX  ACT  to  protect  and  regulate  the  drilling  and  operation  of  oil  and  gas 
wells  in  Oklahoma  Territory. 

§  4848.     Casing. 

The  owner  or  operator  of  any  well  put  down  for  the  pur- 
pose of  exploring  for  or  producing  oil  or  gas,  shall,  before 
drilling  into  the  oil  or  gas-bearing  rock,  encase  the  well  with 
good  and  sufficient  casing,  and  in  such  manner  as  to  exclude 
all  water  from  above  from  penetrating  the  oil  or  gas-bearing 
rock.  Should  any  well  l)e  put  down  through  the  first  into  a 
lower  oil  or  gas-bearing  rock  the  same  shall  be  cased  in 
such  manner  as  to  exclude  all  fresh  or  salt  water  from  both 


1028  OIL   AND    GAS. 

upper  or  lower  gas-bearing  rocks  penetrated.      (L.   1905,   p. 
309.) 

§4849.     Wells  abandoned  shall  be  plugged. 

The  owner  of  any  well,  when  about  to  abandon  or  cease 
operating  the  same,  for  the  purpose  of  excluding  all  fresh  or 
salt  water  from  penetrating  the  oil  or  gas-bearing  rocks,  and 
before  drawing  the  casing,  shall  fill  the  well  with  sand  or 
rock  sediment  to  the  depth  of  ten  feet  above  the  top  of  each  oil 
or  gas-bearing  rock,  and  drive  therein  a  round,  tapered,  sea- 
soned wooden  plug  at  least  two  feet  in  length,  and  in  diameter 
equal  to  the  full  diameter  of  the  well  below  the  casing,  and 
immediately  upon  drawing  the  casing  shall  fill  in  on  top  of 
such  plug  with  sand  or  rock  sediment  to  the  depth  of  five  feet, 
and  again  drive  into  the  well  a  round  wooden  plug  three  feet  in 
length,  the  lower  end  tapering  to  a  point,  and  to  be  of  the 
same  diameter  at  the  distance  of  eighteen  inches  from  the 
smaller  end  as  the  diameter  of  the  well  above  the  point  at 
which  the  casing  rested  and  the  plug  is  driven ;  and  after  such 
plug  has  been  driven,  the  well  shall  be  filled  with  sand  or  rock 
sediment  to  the  depth  of  not  less  than  twenty  feet.  (L.  1905, 
p.  310.) 

§  4850.     Injury  from  neglect  or  refusal  to  comply. 

Whenever  any  person  may  be  injured  by  the  neglect  or  refusal 
to  comply  with  the  provisions  of  section  2  of  this  Act  (4849), 
it  shall  be  lawful  for  such  person,  after  notice  to  the  owner, 
lessee,  or  caretaker  of  the  premises  upon  which  such  well  is 
located,  to  enter  upon  and  fill  up  and  plug  such  well  in  the 
manner  herein  provided,  and  thereupon  to  recover  the  expense 
thereof,  from  the  person  or  persons  whose  duty  it  was  to  plug 
or  fill  up  such  well  in  like  manner,  as  debts  of  such  amounts 
are  recoverable,  and  shall  have  a  lien  upon  the  fixtures  and 
machinery  and  leasehold  interests  of  the  owner  or  operator 
of  such  well.     (L.  1905,  p.  310.) 

§  4851.     Violation  of  law. 

Any  person  violating  the  provisions  of  section  2  of  this  Act 
(4849),  shall  be  deemed  guilty  of  a  misdemeanor  and  upon 
conviction   thereof  shall   be   sentenced   to   pay   a   fine   of  not 


APPENDIX  n.  1029 

more  than  one  thousand  dollars,  or  to  undergo  an  imprison- 
ment for  a  period  not  exceeding  six  months,  or  both  such  fine 
and  imprisonment,  at  the  discretion  of  the  court.  Such  fine, 
when  collected,  to  go  to  the  county  school  fund  of  such  county 
in  which  such  well  may  be  located.     (L.  1905,  p.  310.) 

§  4852.     Time  in  which  to  comply  with  this  Act. 

That  any  person,  co-partnership  or  corporation  in  posses- 
sion, either  as  owner,  lessee,  agent  or  manager  of  any  well 
producing  natural  gas  in  order  to  prevent  the  said  gas  from 
wasting  by  escape,  shall  within  ten  days  after  this  act  takes 
effect  and  thereafter  within  ten  days  after  penetrating  the 
gas-bearing  rock  in  any  well  drilled,  shut  in  and  confine  the 
gas  in  said  well  until  and  during  such  time  as  the  gas  therein 
shall  be  utilized  for  light,  or  fuel,  or  steam  power:  Provided, 
that  this  section  shall  not  apply  to  any  well  that  is  operated 
for  oil,  when  the  production  of  oil  has  a  greater  available 
market  value  than  the  production  of  gas  therefrom,  or  during 
the  process  of  drilling  with  reasonable  diligence,  or  when  oil 
is  found  in  a  lower  strata  of  sand  the  well  is  operated  as  an 
oil  well  and  the  gas  from  the  upper  strata  of  said  well  is  cased 
off.     (L.  1905,  p.  311.) 

§  4853.     Storm  burners. 

That  it  shall  be  unlawful  for  any  person,  co-partnership  or 
corporation  to  use  natural  gas  for  illuminating  purposes  other 
than  in  what  is  known  as  storm  burners,  or  other  burners  con- 
suming more  gas  than  such  storm  burners,  and  any  one  using 
such  gas  in  the  open  air,  or  in  or  around  derricks,  shall  turn 
off  said  gas  not  later  than  eight  o'clock  in  the  morning  of 
each  day  such  lights  are  burning  or  used,  and  shall  not  turn 
on  or  relight  the  same  between  the  hours  of  eight  o'clock  a.  m., 
and  five  o'clock  p.  m.     (L.  1905,  p.  311.) 

§  4854.     Accidents. 

After  the  lapse  of  the  period  of  ten  days,  unavoidable  acci- 
dents excepted,  from  the  bringing  in  of  any  oil  or  gas  well, 
each  and  every  day  that  said  well  or  wells  are  allowed  to  go 
uncontrolled  or  uncared  for,  as  directed  by  this  statute,  shall 
be  treated  as  a  separate  offense.     (L.  1905,  p.  311.) 


1030  OIL   AND   GAS. 

§  4855.     Penalty  for  violation. 

Any  owner  or  operator  or  person  who  shall  violate  any  of 
the  provisions  of  sections  5  or  6  of  this  Act  (4852  and  4853), 
shall  be  guilty  of  a  misdemeanor,  and  shall  be  fined  in  a  sum 
not  exceeding  five  thousand  dollars  for  each  and  every  offense, 
w^hich  fine,  when  collected,  shall  be  paid  to  the  school  fund 
of  the  county  in  which  the  well  is  situated.     (L.  1905,  p.  312.) 

ONTARIO  (CANADA). 

PLUGGING  GAS  AND  OIL  WELLS. 

§   1.  Natural  gas  not  to  be  allowed  to  escape  from  unused  wells. 

§   2.  Inspector  to  notify  owners  to  confine  gas,  and  upon  default,  himself 

shall  confine  it. 

§  3.  Plugging  abandoned  wells. 

§  4.  Plug  to   be   inserted  in  well. 

§  5.  Inspector,  upon  complaint,  to  examine  abandoned  well  and  plug  it. 

§   6.  How  expenses  to  be  recovered  by  inspector. 

§  7.  Penalty  for  violation  of  this  Act. 

§  8.  Inspectors  to  be  appointed. 

§  9.  Duties  of  inspectors. 

§10.  Inspectors  may  make  regulations  with  consent  of  minister. 

§11.  Declaration  to  be  made  by  certain  persons  respecting  such  wells. 

§12.  Repealing  section. 

AN  ACT  to  prevent  the  wasting  of  natural  gas   and  to  provide  for  the 
plugging  of  all  abandoned  wells. 

Assented  to,  20th  April,   1907. 

[Statutes,   1907,   p.   331.] 

HIS  MA.JESTY,  by   and  with   the   advice  and  consent  of  the  Legislative 
Assembly  of  the  Province  of  Ontario,  enacts  as  follows: 

§  1.    Natural  gas  not  to  be  allowed  to  escape  from  unused 

wells. 

1.  Any  person  in  possession,  whether  as  owner,  lessee, 
agent  or  manager  of  any  well  in  which  natural  gas  has  been 
found,  shall,  unless  such  gas  is  utilized  within  two  weeks  from 
the  completion  of  such  well,  in  order  to  prevent  such  gas  from 
wasting  by  escape,  confine  the  same  in  such  well  until  such 
time  as  said  gas  is  utilized ;  but  this  section  shall  not  apply  to 
any  well  while  it  is  being  operated  as  an  oil  well. 


APPENDIX   B.  1031 

§  2.     Inspector  to  notify  owners,  etc.,  to  confine  gas,  and  upon 
default  shall  himself  confine  same. 

2.  AYhenever  tlie  owner  or  any  person  in  possession  of  or 
having  the  control  of  any  well  in  which  gas  has  been  found, 
fails  to  comply  with  the  provisions  of  section  1  hereof  within 
the  time  therein  mentioned,  the  inspector  appointed,  as  herein- 
after provided,  shall  notify  such  person  in  writing  to  cause 
such  gas  to  be  so  confined,  and  in  case  of  the  failure  of  such 
person  to  comply  with  such  notice  within  ten  days  from  the 
receipt  thereof  the  inspector  shall  enter  upon  the  lands  upon 
which  such  well  is  situate  and  either  by  himself,  his  agents 
or  employees  shall  cause  such  gas  to  be  shut  in  and  confined  in 
such  well. 

§  3.     Plugging  abandoned  wells. 

3.  "Whenever  any  well  which  has  been  drilled  for  the  pur- 
pose of  exploring  for  oil  or  gas  is  afterwards  abandoned  it 
shall  be  the  duty  of  the  owner  or  the  person  in  possession  or 
control  of  such  well,  and  of  every  person  engaged  or  employed 
in  removing  the  casing  from  or  in  plugging  such  well,  and 
every  person  engaged  or  employed  in  removing  the  casing 
from  or  in  plugging  such  well,  or  in  any  work  constituting  an 
abandonment  of  such  well,  to  plug  or  plug  and  cement  said 
well  in  such  manner  as  to  prevent  any  fresh  or  salt  water  or 
other  injurious  substance  from  entering  the  oil  or  gas-bearing 
rock  either  from  above  or  below  such  rock. 

§  4.     Plug  to  be  inserted  in  well. 

4.  In  every  such  case  of  abandonment,  in  addition  to  any 
other  work  necessary  to  the  proper  plugging  of  such  well  in 
compliance  with  the  provisions  of  the  next  preceding  section 
or  of  any  regulations  made  by  an  inspector  in  the  manner  liero- 
inafter  provided,  there  shall  be  inserted  in  sncli  well  a  round 
and  slightly  tapering  plug  of  seasoned  wood,  not  less  than 
three  feet  in  lengtli  and  of  sncli  diameter  as  to  enable  it  to  be 
firmly  driven  and  to  fit  tightly  at  the  point  where  the  casing 
was  made  to  rest. 


1032  OIL   AND    GAS. 

§  5.    Inspector  upon  complaint  to  examine  abandoned  well  and 
plug  same. 

5.  Whenever  any  person  notifies  the  inspector  in  writing 
that  any  property  in  which  lie  is  interested,  situate  in  the 
A'icinity  of  any  such  abandoned  well,  is  injuriously  affected 
by  the  failure  to  plug  any  such  well  as  in  the  next  preceding 
section  j)rovi(h'd,  the  inspector  shall  examine  such  abandoned 
well  and  ascei'tain  Avhether  it  has  been  properly  plugged 
according  to  the  provisions  of  this  Act,  and  in  case  the  inspec- 
tor determine  that  such  well  has  not  been  properly  plugged 
within  the  meaning  of  this  Act  he  shall  serve  a  notice  on  the 
owner  thereof  or  upon  any  person  having  the  control  thereof, 
or  upon  any  person  who  was  engaged  or  employed  in  the  work 
of  removing  the  casing  from,  or  in  plugging  such  well,  or  in 
any  work  which  constituted  an  abandonment  of  such  well,  or 
may  serve  such  notice  on  all  of  said  persons,  which  notice  shall 
require  such  well  to  be  plugged  within  ten  days  from  the 
receipt  of  such  notice,  and  shall  specify  the  method  and  man- 
ner to  be  followed  in  the  plugging  thereof,  and  unless  within 
said  ten  days  such  well  is  plugged  according  to  the  directions 
contained  in  said  notice,  the  inspector  either  by  himself,  his 
agents  or  employees  shall  plug  or  cause  such  well  to  be  plugged 
properly,  according  to  the  provisions  of  this  Act. 

§  6.    How  expenses  to  be  recovered  by  inspector. 

6.  The  expense  incidental  or  occasioned  by  the  examina- 
tion and  plugging  of  any  abandoned  well  or  by  the  confining 
or  shutting  in  of  the  gas  from  any  well  by  the  inspector  under 
the  provisions  of  this  Act  shall  be  paid  to  the  inspector  within 
ten  days  after  notice  in  writing  of  the  completion  of  the  work 
and  the  amount  of  such  expenses  shall  have  been  given  to  the 
owner  or  other  person  having  control  of  any  such  well,  and 
upon  failure  to  pay  the  same  within  such  time  the  inspector 
shall  give  written  notice  of  such  failure  to  pay  to  the  clerk  of 
the  municipality  in  which  such  well  is  situate  and  of  the 
amount  payable,  and  the  council  of  such  municipality  shall 
thereupon  pay  to  the  inspector  such  expenses  and  the  same 
shall  be  added  to  the  taxes  upon  any  property  of  the  owner 
of  such  well,  whether  such  well  is  situate  upon  such  property 
or  not,  unless  the  mineral  rights  in  the  land  upon  which  such 


APPENDIX  B.  10;i;i 

well  is  situate  have  been  severed  or  reserved  from  sucli  land 
in  which  case  the  said  expenses  sliall  be  atUled  to  any  taxes 
chargeable  against  the  reserved  rights  in  the  land  upon  which 
such  well  is  situate  or  against  any  other  property  of  the  owner 
of  such  reserved  mineral  i-ights,  and  such  expenses  shall  be 
placed  upon  the  collector's  roll  of  the  municipality  and  may  be 
levied  and  collected  in  the  same  manner  as  other  taxes  are 
levied  and  collected. 

§  7.     Penalty  for  violation  of  this  Act. 

7.  Any  person  found  guilty  of  a  violation  of  sections  1,  3, 
4  or  11  of  this  Act  shall,  upon  summary  conviction,  incur  a 
penalty  of  not  less  than  $10,  and  not  more  than  $100,  in 
addition  to  any  costs  and  expenses  which  he  may  be  liable  to 
pay  under  the  provisions  of  section  6  of  this  Act ;  but  this 
section  shall  not  aiTect  any  right  of  action  for  damages  for 
injuries  arising  out  of  any  matter  or  thing  for  which  this 
section  provides  a  penalty. 

§  8.    Inspectors  to  be  appointed. 

8.  An  inspector  or  inspectors  may  be  appointed  hy  the 
Lieutenant-Governor  from  time  to  time  to  enforce  the  pro- 
visions of  this  Act,  and  assigned  to  such  district  or  districts 
as  he  may  deem  proper.  Each  inspector  shall  give  such  se- 
curity as  the  IMinister  of  Lands,  Forests  and  Mines  shall 
require  for  the  performance  of  his  duties  and  the  payment 
over  of  all  moneys  received  by  him. 

§  9.     Duties  of  inspectors. 

9.  It  shall  be  the  duty  of  every  such  inspector  to  see  that 
the  provisions  of  this  Act  are  complied  with,  to  keep  a  record 
of  all  work  done,  notices  given,  proceedings  taken  and  moneys 
received  or  paid  out  by  him  under  the  provisions  of  this  Act. 
He  shall  have  authority  to  engage  such  agents  or  employees 
as  he  may  deem  necessary  from  time  to  time  to  carry  out  the 
requirements  of  this  Act,  and  shall  also  be  empowered  from 
time  to  time  and  at  all  times  by  himself,  his  servants  or  em- 
ployees to  enter  upon  any  lands  or  property  upon  which  any 
wells  are  being  or  have  been  drilled,  and  to  make  such  exami- 
nations,  inspection   and   inquiries   as   may   be   necessary    for 


1034  OIL   AND    GAS. 

carrying  into  effect  the  provisions  of  this  Act ;  and  no  action 
or  other  proceeding  shall  lie  against  any  such  inspector,  his 
agents  or  employees  for  any  matter  or  thing  done  by  him  or 
them  under  the  provisions  of  this  Act. 

§  10.     Inspectors  may  make  regulations  with  consent  of  Min- 
ister. 

10.  Whenever  the  conditions  of  any  locality  make  it  de- 
sirable in  the  opinion  of  the  inspector,  he  may,  subject  to  the 
sanction  of  the  Minister  of  Lands,  Forests  and  Mines,  make 
special  regulations  respecting  the  manner  of  plugging  aban- 
doned wells  in  such  locality  in  addition  to  or  in  substitution 
for  the  method  directed  to  be  followed  in  this  Act.  Such 
regulations  may  be  made  to  apply  to  the  whole  or  any  portion 
of  the  district  in  which  such  inspector  is  assigned,  and  may  be 
promulgated  in  such  manner  as  the  said  Minister  shall  direct, 
but  shall  not  go  into  effect  until  after  the  lapse  of  six  weeks 
from  the  first  publication  thereof. 

§  11.     Declaration  to  be  made  by  certain  persons  respecting- 
such  wells. 

11.  The  inspector  may  by  notice  in  writing  delivered  to  any 
person  w^ho  had  charge  or  control  of  the  removal  of  casing  or 
plugging  or  abandonment  of  any  well,  or  who  was  engaged 
or  employed  in  removing  the  casing  from  or  in  plugging  any 
such  well  or  in  any  work  constituting  an  abandonment  of  such 
well,  require  such  persons  within  ten  days  from  the  receipt  of 
such  notice  to  furnish  a  statutory  declaration  respecting  such 
abandoned  well  to  said  inspector ;  and  such  person  shall  within 
said  ten  days  furnish  said  declaration  to  the  inspector,  either 
by  delivering  the  same  into  his  hands  or  by  mailing  by  regis- 
tered post  to  his  address ;  and  such  declaration  shall  identify 
such  well  and  shall  set  out  in  detail  the  precise  manner  of  and 
the  material  and  tools  used  in  plugging  the  same ;  and  any 
person  violating  the  provisions  of  this  section  without  suffi- 
cient cause  or  excuse  shall  incur  the  penalty  provided  by 
section  7  of  this  Act. 

§  12.     Repealing  section. 

12.  Chapters  276  and  277  of  the  Revised  Statutes  of  On- 
tario, 1897,  and  amending  Acts  are  hereby  repealed. 


APPENDIX    B.  1035 

PENNSYLVANIA. 

OIL  AKD  GAS  WELLS. 

[Purdon's  Digest,   13th  edition,  3342-3345.] 

§   I.  Oil  wells  to  be  plugged. 

§  2.  Penalty   for  omission. 

§  3.  Powers  of  adjoining  owners  in  case  of  neglect. 

§  4.  How  abandoned  oil  wells  to  be  plugged. 

§  5.  Penalty  for  neglect. 

§  6.  Powers  of   adjoining  owners. 

§  7.  How  abandoned  gas  wells  are  to  be  plugged. — Description  of  lilling. 

§  8.  Penalty. 

§  9.  Owners  of  land  adjacent  may  plug. 

§10.  Plugging  abandoned  wella 

§11.  Penalty. 

§12.  Person  injured  may  plug  well  and  recover  expense. 

§13.  Repealing  clause. 

§14.  Liability  of  joint  owners  for  labor  and  materials. 

§15.  Rights  of  joint  owners  paying  pro  rata  share. 

§16.  Repealing  clause. 

§17.  Wilful  injury  to  oil  and  gas  wells. — Penalty. 

§  1.     Oil  wells  to  be  plugged. 

All  owners  and  operators  of  oil  lands  within  this  common- 
wealth shall  in  all  practical  manner  plug  their  oil  wells,  at 
proper  depth,  with  wood  and  sediment,  in  a  manner  sufficient 
to  exclude  all  fresh  water  from  oil-bearing  rock,  and  to  prevent 
the  flow  of  oil  and  gas  into  fresh  water.  (Act  May  16,  1878; 
P.  L.  56,  §  1.) 

§  2.     Penalty  for  omission. 

Any  person  found  guilty  of  violating  the  provisions  of  this 
Act  shall  be  fined  in  any  sum  not  less  than  twenty  nor  more 
than  one  hundred  dollars  for  each  and  every  offense,  which 
shall  be  paid,  one-half  to  the  informer  and  the  other  half  to 
the  school  district  in  which  the  offense  is  committed ;  which 
shall  be  collected  as  fines  of  like  manner  are  by  laAv  collected. 
(Act  May  16,  1878;  P.  L.  56,  §  2.) 

§  3.     Powers  of  adjoining  owners  in  case  of  neglect. 

"Whenever  the  owner  of  any  well  has  abandoned  the  same 
or  does  not  reside  in  the  county  in  which  it  is  situated,  any 


1036  OIL    AND    GAS. 

person  owning  property  adjoining  may  enter  in  and  take  pos- 
session of  any  oil  well,  for  the  purpose  of  carrying  out  the 
provisions  of  the  first  section  of  this  Act,  where  the  owner  has 
refused  or  neglected  to  plug  said  well,  so  as  to  shut  off  the 
fresh  water,  as  provided  in  section  first,  at  the  expense  of  the 
owner.     (Act  I\Iay  26,  1878 ;  P.  L.  56,  §  3.) 

§  4.    How  abandoned  oil  wells  to  be  plugged. 

Whenever  any  well  shall  have  been  put  down  for  the  pur- 
pose of  exploring  for  and  producing  oil,  upon  abandoning  or 
ceasing  to  operate  the  same,  the  owner  or  operator  shall,  for 
the  purpose  of  excluding  all  fresh  water  from  the  oil-bearing 
rock,  and  before  drawing  the  casing,  fill  up  the  well  with  sand 
or  rock  sediment  to  the  depth  of  at  least  twenty  feet  above 
the  third  sand  or  oil-bearing  rock,  and  drive  a  round,  seasoned 
wooden  plug  at  least  two  feet  in  length,  equal  in  diameter  to 
the  diameter  of  the  well  below  the  casing,  to  a  point  at  least 
five  feet  beloAv  the  bottom  of  the  casing,  and  immediately  after 
the  drawing  of  the  casing,  shall  drive  a  round  wooden  plug 
into  the  well,  at  the  point  just  below  where  the  lower  end  of 
the  casing  shall  have  rested,  w^iich  plug  shall  be  at  least  three 
feet  in  length,  tapering  in  form,  and  to  be  of  the  same  diameter 
at  the  distance  of  eighteen  inches  from  the  smaller  end,  as  the 
diameter  of  the  well  below  the  point  at  which  it  is  to  be 
driven;  [and]  after  it  has  been  properly  driven,  shall  fill  in 
on  top  of  same  with  sand  or  rock  sediment,  to  the  depth  of  at 
least  five  feet.     (Act  June  10,  1881 ;  P.  L.  110,  §  1.) 

§  5.     Penalty  for  neglect. 

Any  person  who  shall  violate  the  provisions  of  this  Act 
shall  be  liable  to  a  penalty  of  two  hundred  dollars,  one-half 
to  be  for  the  use  of  the  informer,  and  one-half  to  the  use  of 
school  district  in  which  such  well  may  be  situated,  to  be 
recovered  as  debts  of  like  amount  are  by  law  recoverable. 
(Act  June  10,  1881  ;  P.  h.  100,  §  2.) 

§  6.     Powers  of  adjoining  owners. 

Whenever  any  person  or  operator  shall  neglect  or  refuse 
to  comply  with  the  provisions  of  section  1  of  this  Act,  the 
owner  of,  or  operator  upon  any  land  adjoining  that  upon 
which  such  abandoned  well  may  be,  may  enter,  take  posses- 


APPENDIX   B.  10.37 

sion  of  said  abandoned  well,  and  plug  the  same  as  provided 
by  this  Act,  at  the  expense  of  the  owner  or  operator  whose 
duty  it  may  be  to  plug  the  same.     (Act  June  10,  1881,  §  3.) 

§  7.    How  abandoned  gas  wells  are  to  be  plugged. — Descrip- 
tion of  filling. 

Whenever  an}-  Avell  shall  have  been  put  down  on  lands  of 
any  person,  or  corporation,  for  the  purpose  of  exploring  for 
or  producing  gas,  upon  abandoning  or  ceasing  to  operate  the 
same,  the  person,  or  corporation,  drilling  or  owning  the  well, 
shall,  before  drawing  the  casing,  fill  up  the  well  with  sand, 
or  rock  sediment,  to  the  depth  of  at  least  twenty  feet  above  the 
gas-bearing  rock,  and  drive  a  seasoned  wooden  plug,  at  least 
two  feet  in  length,  equal  in  diameter  to  the  diameter  of  the 
well  below  the  casing,  to  a  point  at  least  five  feet  below  the 
bottom  of  the  casing,  and,  immediately  after  the  drawing  of 
the  casing,  shall  drive  a  round  wooden  plug  into  the  w^ell,  at 
the  point  just  below  wdiere  the  lower  end  of  the  casing  shall 
have  rested,  which  plug  shall  be  at  least  three  feet  in  length, 
tapering  in  form,  and  to  be  of  the  same  diameter  at  the  dis- 
tance of  eighteen  inches  from  the  small  end  of  the  diameter  of 
the  well  below  the  point  at  Avhich  it  is  to  be  driven.  After  the 
plug  has  been  properly  driven,  there  shall  be  filled  in  on  the 
top  of  the  same,  sand  or  rock  sediment,  to  the  depth  of  at 
least  five  feet.     (Act  June  23,  1885 ;  P.  L.  145,  §  2.) 

§  8.     Penalty. 

Any  person  who  shall  violate  the  provisions  of  the  pre- 
ceding section,  shall  be  liable  to  a  penalty  of  two  hundred 
dollars,  to  be  recovered  as  debts  of  like  amount  are  by  law 
recoverable.     (Act  June  25,  1885;  P.  L.  145,  §  3.) 

§  9.     Owners  of  land  adjacent  may  plug. 

Whenever  any  person  shall  neglect,  or  refuse  to  comply 
with  the  provisions  of  this  Act,  Avith  regard  to  plugging  wells, 
any  owner  of  lands  adjacent,  or  in  the  neighborhood  of  such 
unplugged  well,  may  enter  and  take  possession  of  said  aban- 
doned well,  and  plug  the  same,  as  provided  by  this  act,  at  the 
expense  of  the  person,  or  company,  whose  duty  it  may  have 
been  to  plug  the  same.     (Act  June  23,  1885 ;  P.  L.  145,  §  4.) 


1038  OIL    AND    GA.S. 

§  10.     Plugging  abandoned  oil  wells. 

Upon  tlie  al)andonment  or  ceasing  to  operate  or  use  any- 
well  which  shall  have  been  drilled  for  oil  or  gas,  it  shall  be 
the  duty  of  tlie  person  or  persons  interested  in  such  well,  to 
plug  the  same  so  as  to  completely  shut  off  and  prevent  the 
escape  of  all  water  therefrom  which  may  be  impregnated  with 
salt  or  other  substances  which  shall  render  such  water  unfit 
for  use  for  domestic,  steam-making  or  manufacturing  purposes, 
and  in  such  manner  as  to  prevent  water  from  any  such  well 
injuring  or  polluting  any  spring,  water  well  or  stream  which 
is  or  may  be  used  for  the  purpose  aforesaid.  (Act  May  26, 
1891;  P.  L.  122,  §1.)        , 

§  11.     Penalty. 

Any  person  violating  the  provisions  of  this  Act  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  sentenced,  upon 
conviction  thereof  to  pay  a  fine  of  not  more  than  one  thousand 
dollars,  or  to  undergo  an  imprisonment  for  a  period  not  ex- 
ceeding six  months,  or  both,  or  either,  at  the  discretion,  of  the 
court.     (Act  May  26,  1891;  P.  L.  122,  §  2.) 

§  12.    Person  injured  may  plug  well  and  recover  expense. 

Whenever  any  person  may  be  injured  by  neglect  or  refusal 
to  comply  with  the  first  section  of  this  Act,  it  shall  be  lawful 
for  such  person,  after  notice  to  the  owner  or  lessee  of  the 
premises  upon  which  such  well  is  located,  to  enter  upon  and 
fill  up  and  plug  such  well  in  the  manner  directed  by  the  first 
section  hereof,  and  thereupon  to  recover  the  expense  thereof 
from  the  person  or  persons  whose  duty  it  was  to  plug  and  fill 
up  said  well,  in  like  manner  as  debts  of  such  amounts  are 
recoverable.     (Act  May  26,  1891;  P.  L.  122,  §  3.) 

§  13.     Repealing  clause. 

All  Acts  and  parts  of  Acts  inconsistent  herewith  are  hereby 
repealed.     (x\ct  May  26,  1891;  P.  L.  122,  §4.) 

§  14.     Liability  of  joint  owners  for  labor  and  material. 

From  and  after  the  passage  of  this  Act  any  person  or  persons 
performing  labor  of  any  kind  whatever,  or  furnishing  material 


ArPENDIX   B.  1039 

for,  upon  or  about  any  (Irilliiip.  pumping:  or  producing  oil  or 
gas  well  shall  have  the  right  to  bring  suit  in  assutnpsil  against 
any  joint  owner,  joint  teiumt  or  tenant  in  common  holding 
an  interest  in  and  operating  such  drilling,  pumping  or  pi-o- 
ducing  oil  or  gas  well,  to  recover  from  such  joint  owner,  joint 
tenant,  or  tenant  in  common,  the  pro  rata  share  due  and 
owing  by  such  joint  owner,  joint  tenant,  or  tenant  in  common 
for  anj^  labor  done,  or  materials  furnished,  in,  upon  or  about 
such  drilling,  pumping  or  producing  oil  or  gas  well,  and  the 
interest  of  such  joint  owner,  joint  tenant,  or  tenant  in  com- 
mon shall  be  subject  to  levy  and  sale  upon  any  execution 
issued  to  enforce  collection  of  any  claim  under  this  Act,  after 
judgment  obtained  by  due  process  of  law.  (Act  IMay  6,  1891 ; 
P.  L.  41,  §1.) 

§  15.     Rights  of  joint  owners  paying  pro  rata  share. 

Any  joint  owner,  joint  tenant  or  tenant  in  common,  paying 
the  pro  rata  share  of  the  necessary  expenses  of  any  drilling, 
producing  or  pumping  oil  or  gas  well  for  any  other  joint 
owner,  joint  tenant  or  tenant  in  common  holding  an  interest 
in  and  operating  such  drilling,  pumping  or  producing  oil  or 
gas  well  shall  have  or  possess  all  the  rights  of  action,  as  pro- 
vided in  the  first  section  of  this  Act,  to  the  same  extent  as  is 
given  hereby  to  the  person  or  persons  performing  the  said 
labor  or  furnishing  such  materials :  Provided,  That  no  joint 
owner,  joint  tenant  or  tenant  in  common  shall  be  required  by 
this  Act  to  pay  any  share  of  the  expense  of  operations  com- 
menced and  carried  on  Avithout  his  authority  or  consent.  (Act 
May  6,  1891;  P.  L.  41,  §2.) 

§  16.     Repealing  clause. 

All  acts  or  parts  of  acts  inconsistent  wnth  the  provisions  of 
this  Act  be  and  the  same  are  hereby  repealed.  (Act  IMay  G, 
1891;  P.  L.  41,  §3.) 

§  17.     Willful  injury  to  oil  and  gas  wells. — Penalty. 

•  If  any  person  shall  willfully  and  maliciously  injure  any  well 
sunk  for  the  production  of  oil,  or  gas,  or  water,  or  any  tank 
intended  or  used  for  the  storage  of  oil,  or  gas,  or  water,  or  any 
line  of  pipe  intended  or  used  for  the  transportation  of  oil  or 


1040  OIL   AND    GAS. 

gas,  or  water,  or  any  machinery  connected  with  such  wells, 
tanks  or  lines  of  pipes,  he  shall  be  guilty  of  a  misdemeanor, 
and  upon  being  thereof  convicted,  shall  be  sentenced  to  pay  a 
fine  not  exceeding  one  thousand  dollars,  and  undergo  impris- 
onment, not  exceeding  three  years,  or  both,  or  either,  at  the 
discretion  of  the  court.     (Act  June  23,  1885;  P.  L.  145,  §1.) 

OIL  IVnNING  COMPANIES. 

§1.  Surviving  cotonants  and  executors  joininj,'  in  application  for  charter. 

§2.  Consolidation  of  oil  mining  companies. 

§3.  Corporate   name. 

§4.  Power  of  directors  to  consolidate. 

§5.  Oil  mining  companies  dealing  in  stock  and  bonds  of  other  companies. 

§6.  Dissolution  of  corporations  for  mining  petroleum. 

§  1.     Surviving  co-tenants  and  executors  joining  in  application 
for  charter. 

The  provisions  of  an  Act  to  enable  joint  tenants,  tenants  in 
common  and  adjoining  owners  of  mineral  lands  in  this  com- 
monwealth to  develop  the  same,  passed  the  21st  day  of  April, 
1854,  and  the  supplements  thereto,  be  and  the  same  are  hereby 
extended  to  raining  for  carbon  oils,  manufacturing,  refining 
and  selling,  or  conveying  the  same  to  market.  (Act  May  1, 
1861;  P.  L.  438,  §1.) 

§  2.     Consolidation  of  oil  mining  companies. 

The  provisions  of  the  Act,  entitled  "An  Act  relating  to  rail- 
road companies,"  passed  May  16th,  Anno  Domini  1861,  and 
the  supplement  thereto,  entitled  "A  further  supplement  to 
an  Act,  entitled  'An  Act  relating  to  railroad  companies,'  passed 
May  16th,  Anno  Domini  1861,"  which  supplement  was  ap- 
proved the  23d  day  of  March  Anno  Domini  1865,  be  and  the 
same  are  hereby  extended  to  oil  and  other  mining  companies. 
(Act  April  18,  1897;  P.  L.  90,  §  2.) 

§  3.     Corporate  name. 

Any  two  or  more  oil  or  other  mining  companies  which  shall, 
according  to  the  provisions  of  said  recited  Acts,  agree  to 
merge  or  consolidate  their  rights  and  privileges  granted  to 
them  under  the  laws  of  this  commonwealth,  are  hereby  author- 


APPENDIX    B.  1041 

ized  to  assume  such  name  as  tlie  l)oar(l  of  directors  selected 
by  the  joint  action  of  the  joint  action  of  said  companies  may 
designate,  and  also  to  fix  the  amount  of  the  capital  stock  of 
said  company  after  the  consolidation,  and  designate  the  time 
and  places  of  meeting  of  the  board  of  directoi-s:  Provided, 
That  immediately  after  said  consolidation  sliall  liave  been  ef- 
fected, it  shall  be  the  dutj'-  of  said  company  to  certify  to  the 
secretary  of  the  commonwealth  the  name  of  said  company  and 
the  amount  of  its  capital  stock.  (Act  April  18,  1867;  P.  L. 
90,  §2.) 

§  4.    Power  of  directors  to  consolidate. 

It  shall  be  lawful  for  the  president  and  directors,  or  majority 
thereof  of  any  oil  or  other  mining  company,  agreeing  or  de- 
sirous of  accepting  the  provisions  of  this  Act,  to  make  such 
merger  and  consolidate  in  manner  and  form  as  hereinbefore 
provided.     (Act  April  18,  1897;  P.  L.  90,  §3.) 

§  5.     Oil  mining  companies  dealing  in  stock  and  bonds  of  other 
companies. 

Corporations  incorporated  under  the  provisions  of  the  Act, 
entitled  "An  Act  to  provide  for  the  incorporation  and  regula- 
tion of  certain  corporations,"  approved  April  29th,  Anno 
Domini  1874,  for  the  purpose  of  mining  for  petroleum,  may 
subscribe  for,  purchase,  hold  and  dispose  of  stock  and  bonds 
of  any  other  corporation  incorporated  under  the  said  act  for 
the  same  purpose,  and  may  also  subscribe  for,  purchase,  hold 
and  dispose  of  stocks  and  bonds  of  any  corporation  incorpo- 
rated under  the  provisions  of  the  act,  entiled  "An  Act  to 
provide  for  the  incorporation  and  regulation  of  natural  gas 
companies,  approved  the  29th  day  of  May,  Anno  Domini  1885. 
And  may  also  subscribe  for,  purchase,  hold  and  dispose  of 
stocks  and  ])onds  in  any  corporations  of  other  States  incorpo- 
rated for  similar  purposes:  Provided,  That  the  amount  of  such 
stock  held  by  any  corporation,  together  with  the  amount  of  its 
capital  stock,  shall  not  exceed,  in  the  aggregate,  the  amount 
to  which  the  capital  of  such  corporations  is  limited  by  the 
39th  section  of  the  Act  to  which  this  is  supplemental.  (Act 
May  3,  1889;  P.  L.  76,  §1.) 


1042  OIL   AND    GAS. 

§  6.     Dissolution  of  corporations  for  mining  petroleum. 

Whenever  any  corporation  organized  for  tlie  purpose  of 
mining  for  petroleum  or  other  products  and  marketing  the 
same,  and  owning  real  estate  in  any  county  in  this  comirion- 
wealtli,  shall  have  been  in  existence  for  the  period  .of  thirty 
years  or  longer  and  for  the  period  of  ten  years  or  more  prior 
to  the  passage  of  this  Act  shall  not  have  been  engaged  in  the 
business  of  such  mining,  nor  have  earned  and  distributed  to 
the  shareholders  thereof  any  dividends  out  of  its  net  earnings, 
it  shall  be  the  duty  of  the  courts  of  common  pleas  of  any 
county  in  which  such  real  estate  may  be  situated,  upon  the 
petition  of  the  OAvner  or  owners  of  not  less  than  one-third  of 
the  capital  stock  of  any  such  corporation  and  after  personal 
notice  to  other  known  stockholders  resident  within  the  county, 
and  notice,  to  all  others  interested,  by  advertisement,  in  at 
least  one  newspaper  of  general  circulation  published  within 
the  county,  for  not  less  than  two  months,  if  the  facts  in  the 
petition  be  not  denied,  or,  if  denied,  shall  be  found  by  the 
court  to  be  true,  to  order  and  decree  a  dissolution  of  such 
corporation,  and  to  order  and  direct  the  sale  of  the  real  estate 
thereof  by  a  trustee  to  be  appointed  for  that  purpose,  and  to 
decree  distribution  of  the  proceeds  of  such  sales  to  and  among 
the  creditors  or  shareholders  entitled  thereto,  in  the  same 
manner  that  the  real  estate  of  other  dissolved  corporations  is 
•  now  sold  and  the  proceeds  thereof  distributed  under  the  dis- 
cretion of  said  courts.     (Act  March  27,  1903;  P.  L.  79,  §1.) 

PETHOLEUM. 

STORAGE  AND  TRANSPORTATION. 

[Purdon's  Digest,  13th  edition,  3505  to  3509.] 

§    1.  Transportation  and  storage  regulated. 

§   2.  No  receipts  for  oil  not  delivered. 

§  3.  Duplicate  receipts. 

§  4.  Receipts  not  to  be  reissued. 

§  5.  Receipts   to  be   surrendered  on   delivery. 

§  6.  Notice  to  be  given  before   issue  of  duplicate. 

§   7.  Receipts  to  be  canceled  on  surrender. 

§  '8.  No  oil   to  be  sr)ld   without  order. 

§   9.  ilonthly  statements,  posting. — Form. 

§10.  How  amounts  to  be  stated. 

§11.  Amount  of  balance  to  b*^  kept  on  hand. 


APPENDIX   B.  1043 

§12.  Punishment  for  violation. 

§13.  Selling  without  owner's   consent. 

§14.  Neglect  to  make  monthly  stiitements. 

§15.  Accepted  orders  and  certilicates  to  be  negotiable. 

§16.  Pipe-line   and    storage   compniiies   to   accept    Act   in   writing. — Access 

for  inspection  of  oil  and  books  and  tools. 

§17.  Examiner's    certificate. — Examiner's    powers. 

§18.  Appointment  of  examiners. — Pay. 

§19.  Powers   of   examiners. 

§20.  Duties  of  examiners. — Peports. 

§21.  Penalty   for  false   report. 

§22.  Refusal  of  access  a  misdemeanor. 

§23.  Ajipropriation  of  fines. 

§24.  Payment  of  expenses. 

§25.  Not  to  interfere  with  appointment  of  inspector, 

§  1.     Transportation  and  storage  regulated. 

Every  corporation,  company,  association,  person  or  persons 
who  are  noAV  engaged,  or  sliall  hereafter  engage  or  continue 
in  the  business  of  transporting  or  storing  crude  or  refined 
petroleum,  by  means  of  pipe  line  or  pipe  lines,  or  storage  ])y 
tanks,  shall  conduct  such  business  in  conformity  with  and  sub- 
ject to  the  provisions  of  this  Act.  (Act  May  22,  1878 ;  P.  L. 
1C4,  §1.) 

§  2.     No  receipts  for  oil  not  delivered. 

No  receipt,  certificate,  accepted  order  or  other  voucher  shall 
be  issued  or  put  in  circulation,  nor  shall  any  order  be  accepted 
or  liability  incurred  for  the  delivery  of  any  petroleum,  crude 
or  refined,  unless  the  amount  of  such  petroleum  represented 
in  or  by  such  receipt,  certificate,  or  accepted  order,  or  other 
voucher  or  liability,  shall  have  been  actually  received  by  and 
shall  then  be  in  the  tanks  and  lines,  custody  and  control  of  the 
corporation,  company,  association,  person  or  persons  issuing 
or  putting  in  circulation  such  receipt,  certificate,  accepted 
order  or  voucher,  or  incurring  such  liability.  (Acts  May  22, 
1878;  P.  L.  104,  §2.) 

§  3,     Duplicate  receipts. 

No  duplicate  receipt,  certificate,  accepted  order  or  other 
voucher  shall  be  issued  or  put  in  circulation,  or  any  liability 
incurred  for  any  petroleum,  crude  or  refined,  while  any  former 


1044  OIL   AND    GAS. 

liability  remains  in  force,  or  any  former  receipt,  certificate, 
accepted  order  or  other  vouclier  shall  be  outstanding  and 
uncancelled,  except  in  case  such  original  paper  siiall  have  been 
lost;  in  which  case  a  duplicate,  plainly  marked  "duplicate" 
upon  the  face,  and  dated  and  numbered  as  the  last  original 
was  dated  and  numbered,  may  be  issued.  (Act  May  22,  1878- 
P.  L.  104,  §  3.) 

§  4.     Receipts  not  to  be  reissued. 

No  receipt,  voucher,  accepted  order,  certificate,  or  written 
evidence  of  liability  of  such  corporation,  association,  company, 
person  or  persons,  on  which  petroleum,  crude  or  refined,  has 
been  delivered,  shall  be  reissued,  used  or  put  in  circulation. 
(Act  May  22,  1878;  P.  L.  104,  §  2.) 

§  5.     Receipts  to  be  surrendered  on  delivery. 

No  petroleum,  crude  or  refined,  for  which  a  receipt,  voucher, 
accepted  order,  certificate  or  liability  incurred,  shall  have  been 
issued  or  put  in  circulation,  shall  be  delivered,  except  upon  the 
surrender  of  the  receipt,  voucher,  order  or  liability  represent- 
ing such  petroleum,  except  upon  affidavit  of  loss  of  such  in- 
strument made  by  the  former  owner  thereof.  (Act  May  22, 
1878;  P.  L.  104,  §2.) 

§  6.     Notice  to  be  given  before  issue  of  duplicate. 

No  duplicate  receipt,  certificate,  voucher,  accepted  order,  or 
other  evidence  of  liability  shall  be  made,  issued  or  put  in 
circulation,  until  after  notice  of  the  loss  of  the  original,  and 
of  the  intention  to  apply  for  a  duplicate  thereof,  shall  have 
been  given,  by  advertisement,  over  the  signature  of  the  owner 
thereof,  in  at  least  four  successive  issues  of  a  daily  or  weekly 
newspaper  published  in  the  county  where  such  duplicate  is  to 
be  issued.     (Act  May  22,  1878;  P.  L.  104,  §  2.) 

§  7.     Receipts  to  be  cancelled  or  surrendered. 

Every  receipt,  voucher,  accepted  order,  certificate,  or  evi- 
dence of  liability,  when  surrendered,  or  the  petroleum  repre- 
sented thereby  delivered,  shall  be  immediately  cancelled,  by 
stamping  or  puncturing  the  same  across  the  face,  in  large  and 


APrENDIX  B.  1045 

legible  letters,  with  the  word  "cancelled,"  and  giving  the  date 
of  such  cancelhition ;  and  it  shall  then  be  filed  and  i)re.served 
in  the  principal  office  of  such  corporation,  association,  com- 
pany, person  or  persons.     (Act  i\Iay  22,  1877;  P.  L.  104,  §2.) 

§  8.     No  oil  to  be  sold  without  order. 

No  corporation,  association,  company,  or  the  officers  or  agents 
thereof,  or  any  person  or  persons  engaged  in  the  transporta- 
tion or  storage  of  petroleum,  crude  or  refined,  shall  sell  or 
incumber,  ship,  transfer,  or  in  any  manner  remove,  or  procure 
or  permit  to  be  sold,  incumbered,  shipped,  transferred,  or  in 
any  manner  remove  from  the  tanks  or  pipes  of  said  corpora- 
tion, association,  company,  person  or  persons  engaged  in  the 
business  aforesaid,  any  petroleum,  crude  or  refined,  without 
the  written  order  of  the  owner  or  owners  thereof.  (Acts  May 
22,  1878;  P.  L.  104,  §3.) 

§  9.     Monthly  statements,  posting. — Form. 

Any  corporation,  association,  company,  and  the  officers, 
agents,  managers  and  superintendents  thereof,  and  any  per- 
sons that  are  now  or  may  hereafter  be  engaged  or  continue 
in  the  business  of  transportation  by  pipe  lines,  or  storing  crude 
or  refined  petroleum,  shall,  on  or  before  the  tenth  day  of  each 
month,  make  or  cause  to  be  made,  and  posted  in  the  principal 
business  office  where  such  corporation,  company,  association, 
person  or  persons  is  or  are  or  may  be  engaged  in  business,  in 
an  accessible  and  convenient  place,  for  the  examination  thereof 
by  any  person  desiring  such  examination,  and  shall  keep  so 
posted  continuously  until  the  next  succeeding  statement  is  so 
posted,  a  statement  plainly  written  or  printed,  signed  by  the 
officer,  agent,  person  or  persons  having  charge  of  the  pipes 
and  tanks  of  said  corporation,  company,  association,  person  or 
persons,  and  also  by  the  officer  or  officers,  person  or  persons, 
having  charge  of  the  books  and  accounts  thereof,  Avhich  state- 
ment shall  show,  in  legible  and  intelligent  form,  tlie  following 
details  of  the  business: 

I.  Tlow  much  petroleum,  crude  or  refined,  was  in  the  actunl 
and  immediate  custody  of  such  corporation,  company,  asso- 
ciation, person  or  persons,  at  the  beginning  and  close  of  the 
previous  month,  and  where  the  same  located  or  held,  describ- 


1046  OIL   AND    GAS. 

ing  in  detail  the  location  and  designation  of  each  tank  or  place 
of  deposit,  and  the  name  of  the  owner; 

II.  How  niucli  petroleum,  crude  or  refined,  was  received 
by  such  corporation,  company,  association,  person  or  persons, 
during  the  previous  month : 

III.  IIow  much  petroleum,  crude  or  refined,  was  delivered 
by  such  corporation,  company,  association,  person  or  persons, 
during  the  previous  month  : 

IV.  IIow  much  petroleum,  crude  or  refined,  such  corpora- 
tion, company,  association,  person  or  persons,  were  liable  for 
the  delivery  or  custody  of,  to  other  corporations,  companies, 
associations  or  persons,  at  the  close  of  such  month ; 

V.  How  much  of  such  liability  was  represented  by  out- 
standing receipts  or  certificates,  accepted  orders  or  other 
vouchers,  and  how  much  was  represented  by  credit  balances. 

The  statements  so  required  to  be  made,  shall  also  be  sworn 
to  by  said  officers,  agent,  person  or  persons,  before  some  other 
officers  authorized  by  law  to  administer  oaths,  which  oath  shall 
be  in  writing,  and  shall  assert  the  familiarity  and  acquaintance 
of  the  deponent  with  the  business  and  condition  of  such  cor- 
poration, company,  association,  person  or  persons,  and  with 
the  facts  sworn  to,  and  that  the  statements  made  in  the  said 
report  are  true. 

VI.  That  all  the  provisions  of  this  Act  have  been  faithfully 
observed  and  obeyed,  during  the  said  previous  months.  (Act 
May  22,  1878;  P.  L.  106,  §5.) 

§  10.     How  amounts  to  be  stated. 

All  the  amounts  in  the  statements  required  by  this  Act,  when 
the  petroleum  is  handled  in  bulk,  shall  be  given  in  barrels  and 
hundredths  of  a  barrel,  reckoning  forty-two  gallons  to  each 
barrel ;  and  when  such  petroleum  is  handled  in  barrels  or  pack- 
ages, the  number  of  such  barrels  or  packages  shall  be  given; 
and  such  statements  shall  distinguish  between  crude  and  re- 
fined petroleum,  and  give  the  amount  of  each.  Act  May  22, 
1878;  P.  L.  106,  §6.) 

§  11.     Amount  of  balances  to  be  kept  on  hand. 

Every  corporation,  company,  association,  person  or  persons 
engaged  in  the  business  aforesaid,  shall,  at  all  times,  have  in 


APPENDIX    B.  1047 

their  tanks  and  pipes  an  amount  of  marketable  oil  etiual  io  the 
aggregate  outstanding  reeeipts,  accepted  orders,  certificates, 
vouchers,  acknowledgments,  evidences  of  liability,  and  credit 
balances  upon  the  books  thereof.  (Act  May  22,  1878;  P.  L. 
106,  §  6.) 

§  12.     Punishment  for  violation. 

Any  corporation,  company,  association,  person  or  persons 
who  shall  make  or  cause  to  be  made,  sign  or  cause  to  be  signed, 
issue  or  cause  to  be  issued,  put  in  circulation  or  cause  to  be 
put  in  circulation,  any  receipt,  accepted  order,  certificate, 
voucher,  or  evidence  of  liability,  or  shall  sell,  transfer  or  alter 
the  same,  or  cause  such  sale,  transfer  or  alteration,  contrary 
to  the  provisions  of  this  Act,  or  shall  do  or  cause  to  be  done 
any  of  the  acts  prohibited  by  the  second  section  of  this  Act, 
or  omit  to  do  any  of  the  acts  by  said  section  directed,  shall  be 
guilty  of  a  misdemeanor;  and  on  conviction  thereof,  shall  be 
sentenced  to  pay  a  fine  of  not  exceeding  one  thousand  dollars, 
and  undergo  punishment  not  less  than  ten  days  nor  exceeding 
one  year.     (Act  May  22,  1878;  P.  L.  106,  §  7.) 

§13.     Selling  without  owner's  consent. 

Any  corporation,  company,  association,  or  officer  or  agent 
thereof,  person  or  persons,  who  shall  sell,  incumber,  transfer 
or  remove,  or  cause  or  procure  to  be  sold,  transferred  or  re- 
moved, from  the  tanks  or  pipes  of  such  corporation,  company, 
association,  person  or  persons,  any  petroleum,  crude  or  re- 
fined, Avithout  the  written  consent  of  the  owner  or  owners 
thereof,  shall  be  guilty  of  a  misdemeanor;  and  ujion  conviction 
thereof,  shall  be  sentenced  to  pay  one  thousand  dollars,  and 
undergo  an  imprisonment  not  less  than  ninety  days  and  not 
exceeding  two  years.     (Acts  May  22,  1878;  P.  L.  106,  §  8.) 

§  14.     Neglect  to  make  monthly  statements. 

Any  corporation,  association,  company,  person  or  persons, 
engaged  in  the  business  of  transporting  by  pipe  lines,  or 
storing  petroleum,  crude  or  refined,  and  each  and  every  officer 
or  agent  of  such  association,  corporation,  company,  person  or 
persons,  who  shall  neglect  or  refuse  to  make  the  report  and 


1048  OIL   AND    GAS. 

statement  required  by  the  fifth  section  of  this  Act,  within  the 
time  and  in  the  manner  directed  by  said  section,  shall  forfeit 
and  pay  the  sum  of  five  hundred  dollars  for  each  day  after  the 
tenth  of  the  month  that  the  report  or  statement  required  by 
said  section  5  shall  remain  unposted  as  herein  directed.  (Act 
May  22,  1878;  P.  L.  106,  §9.) 

§  15.     Accepted  orders  and  certificates  to  be  neg-otiable. 

Accepted  orders  and  certificates  for  petroleum,  issued  by 
any  corporation  or  partnership  association  engaged  in  the 
business  of  transporting  and  storing  petroleum  in  this  State, 
shall  be  negotiable,  and  may  be  transferred  by  endorsement 
either  in  blank  or  to  the  order  of  another;  and  any  person 
to  whom  the  said  accepted  orders  and  certificates  shall  be  so 
transferred,  shall  be  deemed  and  taken  to  be  the  owner  of 
petroleum  therein  specified.  (Act  June  20,  1883;  P.  L.  127, 
§1.) 

§  16.  Pipe  lines  and  storage  companies  to  accept  Act  in  writ- 
ing.— Access  for  inspection  of  oil  and  books. — Use  of 
tools. 

Every  firm,  association  or  corporation  within  this  common- 
wealth, or  engaged  in  the  business  of  storing  or  transporting 
crude  or  refined  petroleum  by  means  of  pipe  lines,  shall,  on 
or  before  the  first  day  of  July,  next  ensuing,  and  every  firm, 
association  or  corporation  that  may  hereafter  engage  in  said 
business,  shall,  before  engaging  therein,  file  in  the  office  of 
the  secretary  of  the  commonwealth  a  writing  authorizing  any 
person  or  persons  who  may  be  appointed  to  inquire  into  the 
condition  of  such  firm,  corporation  or  association,  under  exist- 
ing law  or  this  Act,  or  any  law  that  may  be  hereafter  enacted, 
to  enter  upon  and  have  free  access  to  the  premises  of  such 
firm,  association  or  corporation,  whether  the  same  may  be  in 
this  or  some  other  State,  or  partly  in  this  and  partly  in  some 
other  State  or  States,  for  the  purpose  of  inspecting  and  group- 
ing the  petroleum,  crude  and  refined,  that  may  be  in  the  cus- 
tody of  said  firm,  association  or  corporation,  and  of  examining 
the  books,  accounts  and  papers  thereof,  relative  to  oil  in  its 
custody,  and  liability  therefor,  including  oil  owned  by  said 
firm,  association  or  corporation.     And  the  said  writing  shall 


ArrENDix  B.  104 'J 

extend  to  and  embrace  full  permission  to  use  the  tools,  ijiiple- 
ments  and  appliances  of  saiil  firm,  association  or  corporation, 
for  the  purposes  of  making  such  inspection  and  ^au^c,  and 
shall  grant  full  and  absolute  authority  for  the  business  hereof, 
and  shall  remain  good  and  valid  so  long  as  such  firm,  asso- 
ciation or  corporation  continues  to  do  business  in  this  State. 
(Act  July  5,  1883;  P.  L.  186,  §  1.) 

§17.     Examiner's  certificate. — Examiner's  powers. 

The  person  or  persons  who  may  be  appointed  under  any  law 
of  this  commonwealth,  to  make  such  examination,  gauge  and 
inspection,  shall  produce  to  the  secretary  of  the  commonwealth 
a  certificate,  attested  by  satisfactory  proof  of  his  or  their  ap- 
pointment as  such  examiner  or  examiners,  whereupon  the 
secretary  of  the  commonwealth  shall  issue  to  such  examiner 
or  examiners,  a  certified  copy  of  the  writing  aforesaid,  accom- 
panied by  a  certificate,  countersigned  by  the  governor,  that 
the  person  or  persons  therein  named  have  been  duly  appointed 
to  make  such  examination,  inspection  and  gauge  as  afore- 
said, and  to  exercise,  under  the  appointment  of  the  common- 
wealth the  authority  delegated  under  the  writing  aforesaid,  for 
a  period  therein  named,  which  shall  not  exceed  thirty  days; 
and  it  shall  be  the  duty  of  any  such  firm,  association  or  corpo- 
ration, upon  the  production  of  such  certificates  and  certified 
copy  aforesaid  to  any  of  its  officers  or  agents,  to  give  without 
delay,  to  such  examiner  or  examiners  free  access  to  its  offices, 
and  such  books,  papers,  accounts,  as  show  the  amount  of  oil 
in  its  custody,  and  for  which  it  is  liable,  including  oil  owned 
by  said  firm,  association  or  corporation,  and  its  tanks,  stations 
and  other  property,  and  to  furnish  information  regarding  the 
same.  But  if  such  firm,  association  or  corporation,  its  officers 
or  agents,  shall  refuse  or  deny  access  to  or  entry  upon  the 
premises  of  such  firm,  association  or  corporation,  or  shall  in 
anywise  hinder,  obstruct  or  prevent  said  examiner  or  exam- 
iners from  making  an  examination,  gauge  and  inspection  of 
the  books,  papers,  accounts  aforesaid,  and  of  the  tanks  and 
pipes  of  said  firm,  association  or  corporation,  or  shall  wil- 
fully withhold  information  regarding  the  same,  or  deny  the 
use  of  its  tools  and  appliances  for  the  purpose  of  making  such 
examination,   inspection  and  gauge,   such  refusal,  hindrance, 


1050  OIL   AND    GAS. 

denial  or  obstruction  shall  work  a  forfeiture  of  the  charter 
of  any  sucli  corporation  chartered  by  this  commonwealth,  or 
of  the  riglit  to  do  business  in  this  commonwealth  of  any  such 
firm  or  association  or  foreign  corj)oration  ;  and  in  such  case 
the  right  of  such  foreign  corporation  to  bring  suits  in  the 
courts  of  this  State  sliall  cease.  In  all  cases  where  the  tanks, 
pipes,  books,  offices,  accounts  and  petroleum  to  be  examined 
and  gauged  are  situated  in  this  State,  it  shall  only  be  necessary 
for  the  exaunner  or  examiners  to  produce  to  such  firm,  asso- 
ciation or  corporation,  or  to  any  of  its  officers  or  agents,  a 
certificate  of  the  court  or  other  lawful  authority,  appointing' 
liim  or  them,  showing  him  or  them  to  be  duly  accredited  and 
lawful  examiner  or  examiners,  (Acts  July  5,  1883;  P.  L. 
186,  §  2.) 

§18.    Appointment  of  examiners. — Pay. 

The  owners  of  oil  which  is  in  the  custody  of  any  such  firm, 
association  or  corporation,  not  less  in  the  aggregate,  than  two 
percentum  of  the  amount  of  oil  in  custody  of  such  firm,  asso- 
ciation or  corporation,  as  shown  by  its  last  preceding  monthly 
statement,  may,  at  any  time,  but  not  oftener  than  once  in 
three  months,  present  their  petition  to  the  court  of  common 
pleas  of  the  county  wherein  such  firm,  association  or  corpo- 
ration may  have  its  principal  office,  and  of  any  foreign  cor- 
poration, to  the  court  of  common  pleas  in  any  county  in  which 
said  corporation  may  be  doing  business,  or  to  any  law  judge 
of  said  court  in  vacation,  setting  forth,  under  oath,  their 
ownership,  as  aforesaid,  and  desire  for  the  appointment  of 
examiners  for  the  purposes  of  this  Act;  whereupon  the  court, 
or  any  judge  thereof  in  vacation,  shall  forthwith  appoint  such 
number  of  impartial,  disinterested  and  competent  persons  as 
may  be  necessary  not  exceeding  twenty-five,  as  examiners, 
one  of  whom  shall  be  designated  as  chief,  and  the  others  shall 
be  subordinates,  and  shall  fix  the  amount  of  their  compensa- 
tion, which  shall  not  exceed  five  dollars  per  day.  (Act  July 
5,  1883;  P.  L.  186,  §3.) 

§  19.     Powers  of  examiners. 

The  court  or  judge,  by  order,  shall  direct  and  empower 
such  examiners  under  the  supervision  of  their  chief,  to  imme- 


APPENDIX  B.  lO;')! 

diately  inspect  and  measure  all  the  petroleum,  crude  or  refined, 
in  the  custody  of  any  sucii  firm,  cori)oration  or  association, 
named  in  said  petition,  on  the  day  or  days  of  insi)ection,  and 
to  examine  the  books  of  such  firm,  association  or  corporation, 
relating  to  the  issue  and  cancellation  of  receipts,  certificates, 
accepted  orders,  vouciiers,  or  evidences  of  liability,  and  to  its 
accounts  with  persons,  companies  or  corporations  with  whom  it 
deals  in  the  receipt  or  delivery  in  crude  or  refined  petroleum. 
Such  examiners,  when  appointed,  shall  immediately  be  sworn, 
before  any  authorized  officer,  to  perform  liis  duties  with  fidel- 
ity and  according  to  law;  which  oath  shall  be  reduced  to 
writing,  signed  and  filed  Avith  the  prothonotary ;  and  they  shall 
then,  under  supervision  of  the  chief  examiner,  make  immediate 
examination,  gauge  and  inspection,  as  required  by  said  peti- 
tion and  order,  and  by  this  Act.  (Act  July  5,  1883;  P.  L. 
186,  §4.) 

§  20.     Duties  of  examiners. — Reports. 

Upon  the  completion  of  such  inspection,  examination  and 
measurement,  it  shall  be  the  duty  of  the  examiner  or  exam- 
iners, or  in  the  event  of  the  death,  resignation  or  declination, 
or  inability  to  act  of  any  of  them,  then  the  others  or  any  of 
them,  within  thirty  days  after  their  appointment,  to  make  to 
the  court  appointing  them  a  written,  signed  and  sworn  report 
of  such  examination,  inspection  and  measurement,  and  file  the 
same  of  record  with  the  prothonotary  thereof,  which  report 
shall  show : 

I.  IIow  much  merchantable,  and  also  how  much  unmer- 
chantable petroleum,  crude  or  refined,  they  found  in  the  tanks 
and  lines  of  such  firm,  association  or  corporation,  ami  where 
the  same  was  located  or  held,  by  description  of  tanks,  also 
the  percentage  of  merchantable  oil  mingled  with  the  B.  S. 
and  sediment. 

II.  For  the  custody  or  delivery  of  how  much  crude  or  re- 
fined petroleum  they  found  such  firm,  association  or  corpora- 
tion to  be  liable  at  the  same  date. 

III.  Plow  much  of  such  liability  Avas  represented  by  out- 
standing receipts,  accepted  orders,  certificates,  vouchers,  or 
evidences  of  liability,  and  how  much  by  credit  balances.  (Act 
July  5,  1883;  P.  L.  188,  §5.) 


1052  OIL   AND    GAS. 

§  21.     Penalty  for  false  report. 

Any  examiner  appointed  aforesaid,  who  shall  make  any 
false  examination,  inspection,  measurement  or  report,  or  shall 
make  known,  directly  or  indirectly,  to  any  person,  any  infor- 
mation he  may  become  possessed  of  in  the  course  of  his  exami- 
nations, inspections  or  measurements,  except  by  means  of  his 
report,  made  and  filed  in  accordance  with  this  Act,  or  who 
shall  receive,  directly  or  indirectly,  any  fee,  reward  or  benefit, 
or  the  promise  of  any  fee,  reward  or  benefit,  other  than  that 
provided  by  this  Act,  for  the  performance  or  non-performance 
of  any  duty  or  thing  contemplated  by  this  Act,  or  connected 
with  the  said  employment,  shall  be  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof,  shall  be  sentenced  to  pay  a  fine 
of  one  thousand  dollars,  and  to  imprisonment  not  less  than 
three  months,  or  more  than  two  years.  (Act  July  5,  1883; 
P.  L.  188,  §  6.) 

§  22.     Refusal  of  access  a  misdemeanor. 

Any  officer,  agent,  manager,  superintendent  or  employee  of 
any  such  firm,  corporation  or  association  as  aforesaid,  who 
shall  neglect  or  refuse,  after  demand  made,  to  give  to  any 
authorized  examiner  full  and  free  access  to  any  and  all  offices, 
pipes,  tanks,  accounts,  books  and  vouchers  as  aforesaid,  or 
deny  to  him  the  use  of  any  tools  or  appliances  as  required  by 
him  in  pursuance  of  his  appointment  and  this  Act,  shall  be 
guilty  of  a  misdemeanor,  and,  upon  conviction  thereof,  shall 
be  sentenced  to  pay  a  fine  not  exceeding  one  thousand  dollars, 
and  to  imprisonment  not  exceeding  one  year.  (Act  July  5, 
1883;  P.  L.  188,  §7.)        ' 

§  23.     Appropriation  of  fines. 

All  fines  recovered  from  any  person  under  this  Act,  and  all 
penalties,  shall  be  paid  to  the  proper  officer  for  the  use  of  the 
county  wherein  such  suit  is  brought  or  prosecution  instituted. 
(Act  July  5,  1883;  P.  L.  188,  §  8.) 

§24.     Payment  of  expenses. 

The  examiners  shall  also  file  with  their  report  an  itemized 
and  sworn  statement  of  the  entire  expenses  incurred  in  making 


APPENDIX   B.  -  1053 

such  examination,  inspection  and  gauge,  ineliuling  tlieii-  com- 
pensation, to  be  taxed  as  costs  in  other  cases,  and  if  allowed 
and  approved  by  the  court,  the  same  shall  he  paid  l>y  the  tiriii, 
corporation  or  association  named  in  the  i)etition  within  twenty 
days,  and  upon  failure  to  do  so,  judgment  may  be  entered 
forthwith  in  favor  of  the  persons  performing  the  services,  for 
the  amount  due  them,  and  against  said  firm,  corporation  or 
association,  upon  which  execution  may  at  once  issue.  (Act 
Julys,  1883;  P.  L.  188,  §9.) 

§  25.     Not  to  interfere  with  appointment  of  inspectors. 

Nothing  contained  in  this  Act  shall  be  construed  to  inter- 
fere with  any  law  authorizing  the  appointment  of  an  inspector 
of  oils.     (Act  July  5,  1883 ;  P.  L.  188,  §  10.) 

PIPE-LINE   COMPANIES. 

[Purdon's  Digest,   3533-3537.] 

§1.  Act  relating  to  manufacturing  companies  extended  to  companies  for 
the  transportation  and  storage  of  petroleum. 

§2.  May  change  location  of  pipes  or  construct  branches. — Certificate  of 
change. — Preference   of   pipe    lines. 

§3.     Act  of  1874  amended. — Pipe-line  comjmnies  to  be  recorded. 

§4.  Power  to  hold  real  and  personal  property. — To  acquire  right  of  way. 
— Municipal  license. — Crossing  railroads  and  canals. — How  fee 
acquired. — When  pipes  to  he  laid  underground. — Damage  by  leak- 
age.— How  tanks  to  be  protected. 

§5.     Proceedings  to  acquire  right  of  way. 

§  1.  Act  relating  to  manufacturing  companies  extended  to 
companies  for  the  transportation  and  storage  of  pe- 
troleum. 

The  provisions  of  an  Act  relating  to  corporations  for  mechan- 
ical, manufacturing,  mining  and  quarrying  purposes,  approved 
July  18,  1863,  and  the  supplements  thereto,  be  and  the  same 
are  hereby  extended  to  the  transportation  and  storage  of 
petroleum  in  the  counties  of  Venango,  Warren,  Forest,  Arm- 
strong, Clarion,  Butler,  Crawford  and  Erie ;  and  that  any 
company  organized  for  such  purposes,  under  the  provisions 
of  said  Act,  shall  have  the  right  to  transport,  store,  insure  and 
ship  petroleum,  and  for  that  purpose  lay  down,  construct  and 
maintain  pipes,  tubing,  tanks,  oiflces  and  such  other  machinery, 


1054  OIL   AND   GAS. 

devices  or  requirements  as  may  be  necessary,  and  to  enter 
upon,  use  and  occupy  such  lands  as  may  be  requisite  for  the 
purposes  of  the  company  and  for  rights  of  entry  upon  lands, 
rights  of  way  and  the  use  of  material  necessary  for  the  con- 
struction, maintenance  and  operation  of  pipes  and  fixtures 
as  aforesaid,  they  sliall  be  entitled  to  all  the  rights  and  priv- 
ileges, and  be  subject  to  all  the  limitations  and  restrictions  of 
railroad  companies,  as  contained  in  the  Act  relating  to  railroad 
companies,  approved  February  19,  1899,  and  the  supplements 
thereto :  Provided,  however,  That  nothing  herein  contained 
shall  be  construed  to  authorize  the  construction  of  any  rail- 
road.    (Acts  March  12,  1872;  P.  L.  22,  §  1.) 

§  2.     May  change  location  of  pipes  or  construct  branches. — 
Certificate  of  change. — Preference  of  pipe  lines. 

Any  company  organized  under  the  provisions  of  this  Act 
may  at  any  time  change  the  location  of  the  whole  or  any 
part  of  their  pipes,  or  construct  a  branch  or  branches  from 
any  point  or  points  on  the  main  line,  to  any  other  point  or 
place  within  the  counties  aforesaid ;  but  before  doing  so,  a 
majority  of  the  directors  of  said  company  shall  make,  or  cause 
to  be  made,  a  certificate  in  writing,  setting  forth  the  proposed 
change,  particularly  setting  forth  the  routes  and  termini,  and 
have  the  same  acknowledged  before  a  notary  public,  and 
recorded  in  the  same  manner  as  shall  be  provided  in  the  orig- 
inal articles  of  the  association :  Provided,  That  no  line  of  pipe 
shall  be  laid,  under  the  authority  of  this  act,  within  five  miles 
of  the  State  line  for  the  purpose  of  carrying  oil  out  of  the 
State;  and  that  the  owners,  producers  and  shippers  of  all  oil 
intended  for  Philadelphia,  Baltimore  and  New  York,  using 
pipe  lines  laid  under  this  Act,  shall  give  the  preference  to  the 
lines  of  road  traversing  the  greatest  distance  in  this  State,  at 
the  same  rates  for  transportation.  (Acts  March  12,  1872; 
P.  L.  22,  §2.) 

§3.     Act  of  1874  amended. — Pipe  line  companies  to  be  re- 
corded. 

[Companies  may  be  incorporated  for]  the  carrying  on  of 
any  mechanical,  mining,  quarrying  or  manufacturing  business, 
including  all  of  the  purposes  covered  by  the  provisions  of  the 


APPENDIX   B.  1055 

Act  of  the  general  assembly,  entitled  "An  Act  to  encourage 
manufacturing  operations  in  this  commonwealth,"  approved 
April  7,  1849,  and  entitled  "An  Act  relating  to  corporations 
for  mechanical,  manufacturing,  mining  and  quarrying  pur- 
poses," approved  July  18,  1863,  and  the  several  supplements 
to  each  of  said  Acts,  including  the  incorporation  of  grain  ele- 
vators, storage  warehouse  and  storage  yard  companies ;  and 
also  including  the  storage  and  transportation  of  water,  with 
the  right  to  take  rivulets  and  land,  and  erect  reservoirs  for 
holding  water  and  excluding  the  distilling  or  manufacture  of 
intoxicating  liquors,  and  companies  may  be  organized  under 
this  Act,  having  the  right  to  transport,  store,  insure  and  ship 
petroleum,  and  for  that  purpose  to  lay  down,  construct  and 
maintain  pipes,  tubing,  tanks,  offices,  and  such  other  ma- 
chinery, devices  or  arrangements  as  may  be  necessary  to  fully 
carry  out  that  right ;  and  also  with  the  right  to  enter  upon, 
take  and  occupy  such  land  and  other  property  as  may  be 
requisite  for  the  purposes  of  such  corporations.  (Acts  March 
12,  1872;  P.  L.  23,  §3.) 

§  4.  Power  to  hold  real  and  personal  property. — To  acquire 
right  of  way. — Municipal  license. — Crossing  railroads 
and  canals. — How  fee  acquired. — When  pipes  to  be  laid 
underground. — Damages  by  leakage. — How  tanks  to  be 
protected. 

All  companies  incorporated,  or  hereafter  to  be  incorporated, 
under  the  provisions  of  the  Act  to  wiiieh  this  is  a  supplement, 
for  the  purpose  of  tiie  transportation  and  storage  of  oil,  by 
means  of  pipe  lines  and  tanks,  for  the  public,  shall  have  the 
power  to  take,  hold,  purchase  and  transfer  such  real  and  per- 
sonal property  as  the  purposes  of  the  corporation  may  require, 
not  exceeding  the  amount  limited  by  the  charter,  together 
with  the  right  to  appropriate  and  take  lands,  easements  and 
rights  of  way  for  locating  and  constructing  steam  pumps, 
tanks,  pump  houses  and  offices,  and  laying  down  its  pipes  or 
tubes,  connections  and  trenches  from  any  point  or  points  in 
any  of  the  counties  in  which  petroleum  is  produced,  to  any 
railroad,  canal,  navigable  river,  port  or  city  within  this  com- 
monwealth, and  for  all  necessary  purposes  of  the  corporation, 
including  right  to  cross  railroads,  and  the  right  to  appropriate 


1056  OIL   AND    GAS. 

a  right  of  way  and  locate  its  pipes  and  tubes  upon  and  over, 
under  and  across  any  lands,  waters,  streams,  rivulets,  roads, 
turnpike  roads,  canal  or  other  public  highway,  not,  however, 
passing  through  any  burying  ground  or  place  of  public  wor- 
ship, or  any  warehouse,  mill,  manufactory,  store  or  dwelling- 
house  without  the  consent  of  the  owner :  Provided,  That  when 
said  pipe  line  is  located  through,  over,  under,  upon  the  streets, 
lanes,  alleys  or  highways  within  the  corporate  limits  of  any 
city  or  borough,  the  consent  of  the  municipal  authorities  to 
said  location  shall  be  first  had  and  obtained ;  which  consent 
said  municipal  authorities  are  hereby  empowered  to  give  upon 
terms  to  be  agreed  upon  by  said  city  or  borough  authorities 
and  said  corporation :  And  provided,  further,  In  case  said  pipe 
lines  cross  any  railroad  or  canal,  the  same  shall  be  located 
under  or  above  the  same,  so,  however,  as  not  to  interfere  with 
the  use  of  the  same:  Provided,  further.  That  corporations  or- 
ganized under  this  Act  and  its  supplements,  shall  not  take  a 
fee  on  any  lands  acquired  under  any  of  its  provisions,  except 
such  as  are  actjuired  by  actual  purchase,  and  that  upon  the 
abandonment  for  the  purposes  of  transporting  oil,  any  lands 
taken  by  any  company  organized  under  the  act  to  which  this 
is  a  supplement  and  its  supplements,  said  lands  so  taken,  other- 
wise than  by  actual  purchase,  shall  revert  to  the  original 
owners  or  their  successors:  And  provided,  further,  That  any 
pipe  line,  so  laying  its  pipes  under  the  provisions  of  this  Act, 
in  occupying  any  lands  cleared  and  used  for  agricultural  pur- 
poses, shall  bury  the  same  at  least  24  inches  below  the  surface, 
and  if  any  line  of  pipe  shall  be  laid  over  or  through  waste  or 
woodland,  which  shall  afterwards  be  changed  from  waste  or 
woodland  to  farming  land,  then  it  shall  be  the  duty  of  the 
pipe  line  company  to  immediately  bury  the  pipe,  to  the  depth 
of  at  least  24  inches  as  aforesaid :  Provided,  That  all  pipe  lines 
shall  be  laid  above  the  flood  lines  or  beneath  the  bed,  in  cross- 
ing creeks  or  rivulets :  And  provided,  further,  That  any  com- 
pany laying  a  pipe  line  under  the  provisions  of  this  Act  shall 
be  liable  for  all  damages  occasioned  by  leakage,  breaking  of 
pipes  or  tanks:  Provided,  further,  That  all  tanks  erected  for 
the  storage  or  transportation  of  oil,  shall  be  protected  and 
surrounded  by  ditches  and  embankments,  so  that,  in  case  said 
tanks  should  break  or  be  broken,  the  oil  stored  cannot  damage 
adjoining  property.     (Acts  June  2,  1883 ;  P.  L.  62,  §  2.) 


APPENDIX   B.  1057 

§  5.     Proceedings  to  acquire  right  of  way. 

In  all  cases  mIicii  under  the  provisions  of  this  Act,  said  cor- 
poration is  permitted  to  take  lands  or  j>roperty  for  the  public 
purposes  of  said  corporation,  or  to  acquire  right  of  way  [or]  ease- 
ment, for  the  purpose  of  locating  its  pipes  or  branches  over, 
upon,  under  or  across  any  lands,  streams,  rivulets,  roads,  turn- 
pike roads,  railroads,  canals  or  other  highways  and  the  said 
corporation  cannot  agree  with  the  owner  or  owners  of  any 
such  lands,  road,  turni)ike  road,  railroad,  canal  or  other  high- 
way or  franchise,  for  the  compensation  proper  for  the  dan;- 
age  done,  or  likely  to  be  done  to  or  sustained  by  any  such 
owner  or  owners  of  said  waters,  streams,  land,  road,  turnpike 
road,  railroad,  land  or  other  highways,  which  such  corpora- 
tion may  enter  upon,  use  in  pursuance  of  the  authority  herein 
given,  or  by  reason  of  the  absence  or  legal  incapacity  of  any 
such  owner  or  owners,  no  such  compensation  can  be  agreed 
upon,  the  court  of  common  pleas  of  the  proper  county,  on  appli- 
cation thereto  by  petition,  either  by  said  corporation,  or  the 
owner  or  owners,  or  any  one  in  behalf  of  either,  shall  appoint 
seven  discreet  and  disinterested  freeholders,  residents  of  the 
proper  county,  and  appoint  a  time,  not  less  than  twenty  days, 
nor  more  than  thirty  days  thereafter,  for  said  viewers  to  meet 
at  or  upon  the  premises,  where  the  damages  are  alleged  to  be 
sustained,  or  the  property  taken,  of  which  time  and  place  ten 
days'  notice  shall  be  given  by  the  petitioner  to  the  said  viewers 
and  the  other  party ;  and  the  said  viewers,  or  any  five  of  them, 
having  been  first  duly  sworn  or  affirmed,  faithfully,  justly  and 
impartially  to  decide  and  to  make  a  true  report  concerning  all 
matters  and  things  to  be  submitted  to  them,  in  relation  to 
which  they  are  authorized  to  inquire  in  pursuance  of  the  pro- 
visions of  this  Act,  and  having  viewed  the  premises,  they  shall 
estimate  and  determine  the  quantity,  quality  and  value  of  said 
lands,  streams,  property,  easement,  franchise  or  rights  of  way 
so  taken,  and  shall  award  to  the  owner  or  owners  thereof  just 
compensation  for  the  property  taken,  injured  or  destroyed  by 
the  construction  or  enlargement  of  such  pipe  lines,  works  and 
improvements;  which  compensation  shall  be  paid  or  secured 
as  hereinafter  provided,  before  such  taking,  injury  or  de- 
struction :    Provided,  That  for  any  subsequent  injury,  taking 


1058  OIL   AND    GAS. 

or  destruction  of  property,  the  owner  or  owners  of  the  prop- 
erty taken,  injured  or  destroyed,  shall  have  the  right  to 
recover  full  compensation  for  such  taking  injury  or  destruc- 
tion, and  an  action  for  any  subsequent  injury  or  taking  or 
destruction  of  property,  may  be  brought  within  the  county  in 
which  the  corporation  defendant  may  have  its  principal  place 
of  business,  and  service  may  be  made  upon  the  president,  sec- 
retary or  other  officer  in  charge  of  said  principal  office,  to  have 
the  same  effect  as  if  the  said  corporation  defendant  was  resi- 
dent within  the  proper  county,  and  make  report  thereof  to  the 
said  court ;  and  if  any  damages  be  awarded,  and  the  report  be 
confirmed  by  the  said  court,  judgment  shall  be  entered  there- 
on; and  if  the  amount  thereof  be  not  paid  within  thirty  days 
after  the  entry  of  such  judgment,  execution  may  then  issue 
thereon,  as  in  other  cases  of  debt,  for  the  sum  so  awarded. 
And  the  costs  and  expenses  incurred  shall  be  defrayed  by  the 
corporation ;  and  each  of  said  viewers  shall  be  entitled  to  two 
dollars  and  fifty  cents  per  day,  for  each  day  necessarily  em- 
ployed in  the  performance  of  the  duties  herein  prescribed,  to 
be  paid  by  such  corporation.  In  all  cases  when  the  parties 
cannot  agree  upon  the  amount  of  damages  claimed,  or  by 
reason  of  the  absence  or  legal  incapacity  of  such  owner  or 
owners,  no  such  agreement  can  be  made,  either  for  lands, 
streams,  waters,  water  rights,  franchises,  rights  of  way,  the 
corporation  shall  tender  a  bond,  with  at  least  two  sufficient 
sureties,  to  the  parties  claiming  or  entitled  to  any  damages,  or 
to  the  attorney  or  agent  of  any  person  absent,  or  to  the  guard- 
ian or  committee  of  any  one  under  legal  incapacity,  the  con- 
dition of  which  shall  be,  that  the  said  corporation  will  pay 
such  amount  of  damages  as  the  party  shall  be  entitled  to 
receive,  after  the  same  shall  have  been  agreed  upon  by  the 
parties,  or  assessed  in  the  manner  provided  for  by  this  Act: 
Provided,  That  in  case  the  party  or  parties  claiming  damages 
refuse,  or  do  not  accept  the  bond  tendered,  the  corporation 
shall  then  gjve  the  party  a  written  notice  of  the  time  when 
the  same  will  be  presented  for  filing  in  court,  and  thereafter 
the  said  corporation  may  present  said  bonds  to  the  court  of 
common  pleas  of  the  county  where  the  lands,  streams,  waters, 
rivulets,  roads,  railroads,  turnpike  roads,  canals  or  other  high- 
ways are;  and  if  the  sureties  and  the  amount  of  the  bond  be 


APPENDIX    B.  lUo'J 

approved,  the  bond  shall  be  filed  in  said  court,  for  the  benefit 
of  those  interested,  and  recovery  may  be  had  tiiereupon  for 
the  amount  of  damages  assessed,  if  the  same  be  not  paid  or 
cannot  be  made  by  execution  on  the  judgment  in  the  issue 
formed  to  try  the  (juestion.  The  viewers  provided  for  in  this 
section  may  be  appointed  before  or  after  the  entry  for  con- 
structing said  work;  and  after  the  filing  of  the  bond  herein 
provided  for,  and  upon  the  report  of  the  said  viewers,  or  any 
three  of  them  being  filed  in  said  court,  either  party,  within 
thirty  days,  may  file  his,  her  or  their  appeal  from  said  report 
to  said  court.  After  such  appeal,  either  party  may  put  the 
cause  at  issue  in  the  form  directed  by  said  court,  and  the  same 
shall  be  tried  by  said  court  and  a  jury,  and  after  final  judg- 
ment, either  party  may  have  a  writ  of  error  thereto  from  the 
supreme  court,  in  the  manner  prescribed  in  other  cases ;  the 
said  court  shall  have  power  to  order  what  notices  shall  be 
given  of  the  proceedings,  and  may  make  all  such  orders  con- 
nected with  the  same,  as  may  be  deemed  requisite ;  if  any  ex- 
ceptions be  filed,  with  any  appeals,  to  the  proceedings,  the 
same  shall  be  speedily  disposed  of,  and  if  allowed,  a  new  view 
shall  be  ordered ;  and  if  disallowed,  the  appeal  shall  proceed 
as  before  provided:  Provided,  further.  That  when  the  term 
"owner"  is  used  in  the  foregoing  section  to  this  Act,  or  in  this 
Act  in  reference  to  any  effort  to  agree  with,  or  to  the  tender 
of  a  bond  to,  or  service  of  notice  upon  the  owner  of  road, 
railroads,  turnpike  roads,  canals  or  other  highways,  the  same 
shall  be  taken  to  mean  the  officers  in  charge  of  said  road,  rail- 
road, turnpike,  well,  canal  or  other  public  highways,  on  whom 
service  of  process  could  be  made  in  any  action  at  law  or  in 
equity:  Provided,  That  all  companies  organized  under  this 
act.  shall  have  their  terminus  in  Pennsylvania.  (Acts  June  2, 
1883;  P.  L.  63,  §3.) 

NATURAL  GAS  COMPANIES. 

Note. — By  Act  of  May  29,  1885,  P.  L.  20.  natural  gas  companies  nray  be 
formed  to  furnish  light  and  heat.  The  Act  is  a  long  one.  By  Act  of  May 
11,  1897,  P.  L.  51,  such  companies  are  given  the  powers  of  eminent  domain. 
The  two  Acts  may  bo  found  in  Purdon's  Digest,  1.3th  edition,  pp.  3219  to 
3227.  Only  the  following  sections  are  of  public  interest,  as  aside  from  the 
method  of  incnrf)oratinn  and  powers  of  ominont  domain: 


1060  OIL   AND    G.iS. 

PLUGGING    WELLS. 

§   1.  OonsuiTiors  ontitlod   to   be    furnishod  gas. 

§20.  Abandoned   wells  to   be   plugged. 

§21.  Penalty. 

§22.  Owners  of  adjacent  lands  may  plug  well. 

§  1.     Consumers  entitled  to  be  furnished  gas. 

The  transportation  and  supply  of  natural  gas  for  public 
consumption  is  hereby  declared  to  be  a  public  use,  and  it 
shall  be  the  duty  of  corporations,  organized  or  provided  for 
under  this  Act,  to  furnish  to  consumers  along  their  lines  and 
witliin  their  respective  districts  natural  gas  for  heat  or  light 
or  other  purposes  as  the  corporation  may  determine.  (Act 
May  11,  1897;  P.  L.  51,  §1.) 

§  20.     Abandoned  wells  to  be  plugged. 

Whenever  any  well  shall  have  been  put  down  on  lands  of 
any  company  authorized  by  this  Act  for  the  purpose  of  ex- 
ploring for,  or  producing  gas,  upon  abandoning  or  ceasing  to 
operate  the  same  the  company  shall,  before  drawing  the  casing, 
fill  up  the  well  with  sand  or  rock  sediment  to  the  depth  of  at 
]east  twenty  feet  above  the  gas-bearing  rock,  and  drive  a 
round,  seasoned,  wooden  plug,  at  least  two  feet  in  length,  equal 
in  diameter  to  the  diameter  of  the  well  below  the  casing,  to  a 
point  at  least  five  feet  below  the  bottom  of  the  casing,  and 
immediately  after  the  drawing  of  the  casing  shall  drive  a 
round,  wooden  plug  into  the  well  at  the  point  just  below 
where  the  lower  end  of  the  casing  shall  have  rested,  which 
plug  shall  be  at  least  three  feet  in  length,  tapering  in  form,  and 
to  be  of  the  same  diameter  at  the  distance  of  eighteen  inches 
from  the  smaller  end  of  the  diameter  of  the  well  below  the 
point  at  which  it  is  to  be  driven.  After  the  plug  has  been 
properly  driven  there  shall  be  filled  in  on  top  of  the  same  sand 
or  rock  sediment  to  the  depth  of  at  least  five  feet.  (Act  May 
29,  1885;  P.  L.  36,  §20.) 

§  21.     Penalty. 

Any  company  which  shall  violate  the  proceedings  of  the 
preceding  section  shall  be  liable  to  a  penalty  of  two  hundred 
dollars,  to  be  recovered  as  debts  of  like  amount  are  by  law 
recoverable.     (Act  May  29,  1885;  P.  L.  36,  §  21.) 


APPENDIX  n.  1061 

§  22.     Owners  of  adjacent  lands  may  plug  well. 

Whenever  any  company  shall  neglect  or  refuse  to  comply 
with  the  provisions  of  this  Act  with  regard  to  plugging  wells, 
any  owner  of  lands  adjacent,  or  in  the  neighborhood  of  such 
unplugged  well,  may  enter  and  take  possession  of  said  aban- 
doned well  and  plug  the  same,  as  provided  by  this  Act,  at  the 
expense  of  the  company  whose  duty  it  may  have  been  to  plug 
the  same.     (Act  May  29,  1885 ;  P.  L.  36,  §  22.) 

TAXATION. 
A  JOINT  RESOLUTION. 

Providing  for  the  issuing  of  an  invitation  to  neigliboring  States 
to  a  conference  with  respect  to  the  taxing  of  oil,  gas  and  bituminous 
coal. 

Be  it  Resolved  (if  the  House  of  Representatives  concur),  That  the 
Governor  of  the  Commonwealth  be  requested  to  issue  an  invitation  to  the 
States  of  Ohio,  West  Virginia  and  Maryland,  to  participate  in  a  joint 
conference  with  this  State  upon  the  subject  of  a  tax  of  the  same  amount 
to  be  laid  by  such  State  upon  oil,  gas,  and  bituminous  coal,  and  uixm 
the  method  of  lajing  the  same;  and 

Be  it  Further  Resolved,  That  upon  the  Governor  of  the  Commonwealth 
receiving  from  the  Governors  of  the  States  of  Ohio,  West  Virginia  and 
^Nlarjiand,  an  indication  of  the  willingness  of  their  respective  States  to 
participate  in  such  conference,  the  Governor  be,  and  he  is  hereby  authorized, 
to  appoint  three  delegates  to  meet  and  confer  with  delegates  from  all  those 
States  when  the  same  shall  be  designated,  at  a  time  and  place  to  be 
mutually  agreed  upon;   and 

Be  it  Fv/rther  Resolved,  That  the  expensesi  of  such  delegates  to  be 
paid  out  of  a  sum  to  be  appropriated  in  the  general  appropriation  bill, 
and  be  drawn  from  the  State  treasury  upon  the  warrant  of  the  chairman  of 
the  delegation,  who  shall  be  designated  as  such  by  the  Governor.  (Ajjproved 
June   19,   1911.) 

TENNESSEE. 

PLUGGING  WELLS. 

§1.  Encasing   well. 

§2.  Abandoned   wells  to  be   filled  up. 

§3.  Prevent   waste  of  gas. 

§4.  Owners  of  adjoining  lands  may  stop  wells,  when. 

§5.  Owner    defined. 

§6.  Penalty. 

§7.  Equity  courts  may   hear  complaints. 

§8.  Emergency. 


1062  OIL   AND    GAS. 

SENATE  BILL  No.   140. 

AN  ACT  to  regulate  tlio  drilling,  maintenance,  and  operation  of  wells 
for  the  production  of  oil,  gas,  salt  water,  or  mineral  water,  requiring 
the  same  to  be  plugged  when  abandoned  or  not  operated,  prohii)iting 
the  waste  of  natural  gas,  and  inijjosing  penalties  and  providing  rem- 
edies for  neglect  or  refusal  to  case,  plug,  or  shut  in  wells. 

[Acts  1905,  p.  789.] 

§  1.     Encasing  wells. 

1.  Be  it  enacted  by  tlie  General  Assembly  of  the  State  of 
Tennessee,  That  when  any  well  shall  be  drilled  for  the  pro- 
duction of  petroleum  oil,  natural  gas,  salt  water  or  mineral 
water,  it  shall  be  the  duty  of  the  owner  thereof,  before  drilling 
said  well  into  the  oil  and  gas  sand,  to  encase  such  well  with 
good  and  sufficient  wrought  iron,  steel,  or  metal  casing  in 
such  manner  as  to  exclude  and  shut  out  all  surface  water,  salt 
water,  or  fresh  water,  and  to  prevent  the  same  from  reaching 
or  penetrating  said  oil  and  gas  sand. 

§  2.     Abandoned  wells  to  be  filled  up. 

2.  Be  it  further  enacted,  That  it  shall  be  the  duty  of  any 
owner  of  any  well  drilled  for  any  of  the  purposes  mentioned  in 
the  first  section  of  this  Act,  before  abandoning  or  ceasing  to 
operate  the  same  and  before  drawing  the  casing  therefrom,  to 
fill  up  the  well  with  sand  or  rock  sediment  to  a  depth  of  at 
least  fifty  feet  above  the  top  of  the  oil  or  gas-bearing  sand  or 
rock,,  and  drive  a  round,  seasoned  wooden  plug  at  least  three 
feet  in  length,  equal  in  diameter  to  the  diameter  of  the  well 
below  the  casing,  to  a  point  at  least  five  feet  below  the  bottom 
of  the  casing;  and  immediately  after  drawing  the  casing, 
except  in  regions  where  the  well  caves  after  the  withdrawal 
of  the  casing,  shall  drive  a  round,  seasoned  plug  at  a  point 
just  beloAV  where  the  lower  end  of  the  casing  rested;  which 
plug  shall  be  at  least  three  feet  in  length,  tapering  in  form, 
and  of  the  same  diameter  at  the  distance  of  eighteen  inches 
from  the  smaller  end  as  the  diameter  of  the  hole  below  the 
point  at  which  it  is  to  be  driven.  After  the  plug  has  been 
properly  driven,  there  shall  be  filled  in  on  top  of  the  same, 
sand  or  rock  sediment  to  the  depth  of  at  least  fifty  feet  above 
the  top  of  the  oil  or  gas-bearing  sand  or  rock. 


APPENDIX   B.  1063 

§  3.     Prevent  waste  of  gas. 

3.  Be  it  further  enacted,  That  it  shall  be  the  duty  of  any 
owner  of  any  well  producinjj:  gas,  to  prevent  tlie  waste  of  said  gas 
by  escape  and  within  the  time  hereinafter  limited,  to  shut  in  and 
confine  the  same  in  said  well,  or  in  the  pipe  or  pipe  lines  con- 
nected therewith.  Said  gas,  with  respect  to  any  well  hereto- 
fore drilled,  shall  be  so  shut  in  within  ninety  days  after  the 
approval  of  this  Act,  and  with  respect  to  any  well  hereafter 
drilled  or  completed,  shall  be  shut  in  \vithin  ninety  days  after 
■the  said  well  shall  reach  the  lowest  oil  and  gas  sand  defined  or 
recognized  in  the  gas  or  oil  district  in  which  said  well  is 
situated;  but  if  any  such  well  in  the  course  of  drilling  shall 
pass  through  any  oil  and  gas  sand  which  produces  gas  above 
the  said  last  or  loAvest  oil  and  gas  sand,  then  the  drilling  of 
said  well  to  the  last  or  lowest  oil  and  gas  sand  shall  be  prose- 
cuted with  reasonable  diligence,  so  that  any  waste  of  gas  from 
the  said  upper  sand  shall  not  continue  longer  than  shall  be 
reasonably  necessary.  Provirlfd,  linwever,  that  this  section  of 
this  Act  shall  not  apply  to  any  w^ell  producing  both  oil  and 
gas  from  the  same  sand,  or  to  any  w-ell  while  it  is  being 
operated  as  an  oil  w'ell,  or  to  any  well  drilled  more  than  five 
years  before  the  passage  of  this  Act. 

§  4.     Owners  of  adjoining  lands  may  stop  wells — when. 

4.  Be  it  further  enacted,  That  if  the  owner  of  any  such  well 
shall  neglect  or  refuse  to  cause  said  well  to  be  plugged  or 
shut  in  pursuant  to  the  provisions  of  the  second  and  third 
sections  of  this  Act  for  a  period  of  thirty  days  after  a  written 
notice  so  to  do  (which  notice  may  be  served  personally  upon 
such  owner,  or  may  be  posted  in  a  conspicuous  place  at  or  near 
the  well),  it  shall  be  lawful  for  the  owner  or  operator  of  any 
adjacent  or  neighboring  lands  to  enter  upon  the  premises 
where  said  well  is  situated  and  cause  the  same  to  be  plugged, 
if  it  be  an  abandoned  well,  or  shut  in  if  not  abandoned,  pur- 
suant to  the  provisions  hereof;  and  the  reasonable  cost  and 
expense  incurred  in  so  doing  shall  be  paid  by  the  owner  of 
said  Av^ll  and  may  be  recovered  as  debts  of  like  amount  are  by 
law  recoverable. 


1064  OIL   AND   GAS. 

§  5.    Owner  defined,  etc. 

5.  Be  it  furtlier  enacted,  That  the  term  "owner,"  as  herein 
used  with  reference  to  any  well,  shall  lueuii  and  include  each 
and  every  person,  persons,  co-partnership,  partnersiiip,  asso- 
ciation or  corporation  owning,  managing,  operating,  control- 
ing,  or  possessing  said  well  as  principal  or  i)rincipals;  and  the 
terms  "oil  and  gas  sand"  or  "sand"  as  herein  used,  shall  mean 
and  include  any  bed,  seam,  or  stratum  of  rock,  sand,  or  other 
material  which  produces,  yields,  or  contains  in  quantity  suffi- 
cient to  be  utilized,  petroleum  oil  and  natural  gas,  or  either 
of  them. 


§  6.     Penalty. 

6.  Be  it  further  enacted,  That  any  person  or  persons,  co-part- 
nership, partnership,  association,  or  corporation  violating  any  of 
the  provisions  of  this  Act  shall  be  liable  to  a  penalty  of  one  hun- 
dred dollars,  to  be  recovered  with  costs  of  suit  in  any  civil  action 
to  be  brought  in  the  name  of  the  State  of  Tennessee,  in  any 
Circuit  Court,  and  such  action  may  be  brought  at  the  instance 
and  upon  the  relation  of  any  citizen  of  the  State. 

§7.    Equity  courts  may  hear  complaints. 

7.  Be  it  further  enacted,  That  aside  from  and  in  addition  to 
the  imposition  of  any  penalties  under  this  Act,  it  shall  be  the 
duty  of  any  Chancery  Court  in  the  exercise  of  its  equitable 
jurisdiction,  to  hear  or  determine  any  bill  or  bills  in  equity 
which  may  be  filed  to  restrain  the  waste  of  natural  gas  in 
violation  of  this  Act,  and  to  grant  relief  by  injunction  or 
by  other  decrees  or  orders,  in  accordance  with  the  principals 
and  practice  in  equity.  The  complaint  in  such  bill  shall  have 
sufficient  standing  to  maintain  the  same  if  he  shall  aver  and 
prove  that  he  is  interested  in  the  lands  situated  within  the 
distance  of  one  mile  from  said  well,  either  as  an  owner  of 
such  land  in  fee  simple,  or  as  an  owner  of  leases  thereof,  or  of 
rights  therein  for  the  production  of  oil  and  gas  or  either  of 
them. 


APPENDIX    U.  1UG5 

§  8.    Emergency. 

8.  Be  it  further  enacted,  That  tliis  Act  take  effect  from  and 
after  its  passage,  the  public  welfare  reciuiring  it.  (Passed 
April  7,  1905.) 

TEXAS. 
pipp:  lines. 

§1.  Object    of    incorporation. 

§2.  Manner  of  incorporation. 

§3.  Powers. 

§4.  Exercise  of  eminent  domain. 

§6.  Borrovvinj^  money. — Mortgages. 

§6.  Discrimination    unlawful. 

§7.  Emergency. 

SENATE   BILL  No.   332. 

AN  ACT  to  provide  for  the  organization  of  corporation."?  for  the  purpose 
of  the  storage  and  transportation,  and  purchase  and  sale  of  oil,  gas, 
salt,  brine  and  other  mineral  solutions;  to  provide  the  manner  and 
method  of  organizing  such  corporations;  to  prescribe  the  rights, 
powers,  privileges  and  duties  of  such  corjxjrations ;  to  authorize  such 
corporations  to  conduct,  operate  and  maintain  pipe  lines,  tanks,  pump 
stations,  buildings,  machinery,  apparatus  and  devices  as  may  be 
necessary;  to  own  and  occupy  lands,  easements,  buildings  and  struc- 
tures; to  empower  such  corporations  to  condemn  lands  and  other 
property  for  the  uses  and  purposes  of  such  corporations,  and  to 
provide  the  methods  therefor;  issue  stock  and  bonds  and  to  borrow 
money  and  mortgage  its  franchise  and  property. 

[Acts   1899,   p.   202.] 
BE  IT  ENACTED  by  the  Legislature  of  the  State  of  Texas: 

§  1.     Object  of  incorporation. 

1,  Any  number  of  persons,  not  less  than  three,  may  organ- 
ize themselves  into  a  corporation  for  the  purpose  of  storing, 
transporting,  buying  and  selling  of  oil  and  gas,  salt,  brine  and 
other  mineral  solutions  in  this  State, 

§2.     Manner  of  incorporation. 

2.  The  manner  and  method  of  organizing  such  corporations 
shall  be  the  same  as  provided  by  law  for  the  organization  of 


1066  OIL    AND    GAS. 

private  corporations  in  Chapter  2,  Title  21,  of  the  Revised 
Civil  Statutes  of  the  State,  and  the  provisions  of  this  Act  shall 
apply  to  all  corporations  already  organized  for  any  of  the 
purposes  of  this  Act. 

§  3.    Powers. 

3.  Such  corporations  shall  have  power  to  store  and  trans- 
port oil  and  gas,  brine  and  other  mineral  solutions,  and  to 
make  reasonable  charges  therefor;  to  buy,  sell  and  furnish 
oil  and  gas  for  light,  heat  and  other  purposes;  to  lay  down, 
construct,  maintain  and  operate  pipe  lines,  tubes,  tanks,  pump 
stations,  connections,  fixtures,  storage  houses,  and  such  ma- 
chinery, apparatus,  devices  and  arrangements  as  may  be  neces- 
sary to  operate  such  pipes  and  pipe  lines  between  different 
points  in  this  State ;  to  own,  hold,  use  and  occupy  such  lands, 
rights  of  way,  easements,  franchises,  buildings  and  structures 
as  may  be  necessary  to  the  purpose  of  such  corporation. 

§  4.     Exercise  of  eminent  domain. 

4.  Such  corporation  shall  have  the  right  and  power  to  enter 
upon,  condemn  and  appropriate  the  lands,  rights  of  way,  ease- 
ments and  property  of  any  person  or  corporation,  and  shall 
have  the  right  to  lay  its  pipes  and  pipe  lines  across  and  under 
the  public  road  or  under  any  railroad,  railroad  right  of  way, 
street  railroad,  canal  or  stream  in  this  State,  and  to  lay  its 
pipes  and  pipe  lines  across  or  along  and  under  any  street  or 
alley  in  any  incorporated  city  or  town  in  this  State,  with  the 
consent  and  under  the  direction  of  the  board  of  aldermen  or 
city  council  of  such  city  or  town.  The  manner  and  method  of 
such  condemnation  shall  be  the  same  as  is  provided  by  law 
in  the  case  of  railroads :  Provided,  That  such  pipe  or  pipe  lines 
shall  not  pass  through  or  under  any  cemetery,  church  or  col- 
lege, schoolhouse,  residence,  business  or  storehouse,  or  through 
or  under  any  building  in  this  State,  except  by  the  consent  of 
the  owner  or  owners  thereof:  And  provided  further,  That  all 
such  pipes  and  pipe  lines,  when  same  shall  pass  through  or 
over  the  cultivated  or  improved  lands  of  another,  shall  be  well 
buried  under  ground  at  least  twenty  inches  under  the  surface, 
and   such    surface   shall    be   properly   and   promptly   restored 


APPENDIX   B.  10G7 

by  such  corporation  unless  otluTwiso  consoutetl  to  l)y  tlif  owner 
or  owners  of  such  land:  Provided,  further,  That  it"  such  pipe 
or  pipe  line  shall  be  laid  over  or  along  any  uncultivated  or 
improved  lands  of  another,  and  such  lands  shall  thereafter 
become  cultivatetl  or  improved,  such  pipes  or  pipe  lines  shall 
be  buried  by  said  corporation  as  hereinbefore  provided,  within 
a  reasonable  time  after  notice  by  the  owner  of  such  lands,  or 
his  agent,  to  said  corporation  or  any  agent  thereof;  and  pro- 
vided further,  that  whenever  such  pipe  or  pipe  line  shall  cross 
any  public  road  or  highway,  railroad,  street  railroad,  or  street 
or  alley,  the  said  pipes  and  pipe  lines  shall  be  so  buried  and 
covered  as  not  to  interfere  with  the  use  and  occupancy  of 
such  road,  highway,  street  or  alley  by  the  public,  or  use  and 
occupancy  of  such  railroad  or  street  railroad  by  the  owner 
or  owners  thereof;  and  provided,  further,  that  such  pipe  line 
so  laid  shall  not  exceed  eight  inches  in  diameter. 

§  5.     Borrowing  money. — Mortgage. 

5.  Such  corporation  shall  have  the  right  to  borrow  money 
to  issue  stock  and  preferred  stock,  to  mortgage  its  franchise 
and  property  to  secure  the  payment  of  any  debt  contracted 
for  any  of  the  purposes  of  such  corporation,  and  sliall  possess 
all  the  rights  and  powers  of  corporation  for  profit  in  this 
State  wherever  the  same  may  be  applicable  to  corporation  of 
this  character. 

§  6.     Discrimination  unlawful. 

6.  It  shall  be  unlawful  for  any  corporation  organized  under 
this  Act  to  discriminate  against  any  person,  corporation,  firm, 
association,  or  place  in  charge  for  such  storage  or  transporta- 
tion or  in  the  service  rendered ;  but  shall  receive,  store  or 
transfer  oil  and  gas  for  any  person,  corporation,  firm,  or  asso- 
ciation upon  equal  terms,  charges  and  conditions  with  all  other 
persons,  corporations,  firms,  associations  for  like  service. 

§  7.    Emergency. 

7.  The  near  approach  of  the  close  of  the  present  session  of 
the  Legislature,  the  crowded  condition  of  the  calendar,  and 


1068  OIL    AND    GAS. 

the  importance  of  this  legislation,  create  an  emergency  and  an 
imperative  public  necessity  authorizing  the  suspension  of  the 
constitutional  rule  requiring  bills  to  be  read  on  three  several 
days,  and  that  this  Act  take  effect  and  be  in  full  force  from 
and  after  its  passage,  and  it  is  so  enacted. 

(Note. — Tlie  enrolled  bill  shows  that  the  foref^oinp  Act  passed  the 
Senate  by  a  two-thirds  vote — yeas,  20,  nays  3 — and  passed  the  House 
of  Representatives  by  a  two-thirds  vote — yeas  91,  nays  0.) 

Approved  May  15,   1809. 

Takes  effect  May   15,   1899. 

PLUGGING  WELLS. 

§1.     ^Vlien  well   must  he   abandoned. 

§2.     Superintendent  of  well,   appointment  by  court — Powers. 

§3.     Penalties. 

WELLS— OIL,    GAS    AND    WATER— REGUT^TING    THE    DRILLING, 
OPERATION  AND  ABANDONMENT   OF. 

HOUSE  BILL  No.  G18. 

AN  ACT  to  amend  an  Act  entitled  "An  Act  to  regulate  drilling,  operation 
and  abandonment  of  petroleum  oil,  natural  gas  and  mineral -water 
wells,  and  to  prevent  certain  abuses  connected  therewith,"  approved 
March  29,  1899,  by  adding  thereto  §§7,  8,  9  and  10,  and  declaring 
an  emergency. 

[Acts   1905,  p.   228.] 

Section  1.  Be  it  enacted  by  the  Legislature  of  the  State  of 
Texas:  That  an  Act  of  the  Legislature  of  Texas,  approved 
March  29,  1899,  entitled  "An  Act  to  regulate  drilling,  opera- 
tion and  abandonment  of  petroleum  oil,  natural  gas  and  min- 
eral water  wells,  and  to  prevent  certain  abuses  connected 
therewith,"  be  amended  by  adding  thereto  sections  7,  8,  9 
and  10,  to  read  as  follows  [this  amends  or  adds  to  the  pre- 
ceding statute]  : 


§  1.     When  well  must  be  abandoned, 

7.     If  any  person  or  persons  in  this  State  in  boring  any  well 
or  wells  for  oil,  gas  or  mineral  waters  shall  pierce  any  cap- 


APPENDIX   B.  lOG!) 

rock  or  other  geological  i'ormaliou  in  such  manner  as  to 
cause  a  flow  of  salt  water  or  fresh  water  injurious  to  any  oil 
well  or  wells  already  bored,  or  to  any  oil,  or  gas  deposits,  and 
which  shall  or  may  probably  result  in  the  injury  of  such  oil 
or  gas  field  or  to  such  gas  or  oil  wells  already  bored,  such 
person  or  persons  shall,  if  the  flow  of  water  cannot  be  cased 
off,  immediately  abandon  all  work  upon  such  well  and  plug 
and  fill  up  the  same  in  such  manner  and  with  such  materials 
as  will  stop  the  flow  of  said  water;  and  it  shall  be  unlawful 
for  any  well  owner,  or  person  boring  any  such  well  to  remove 
the  casing  from  the  well  drilled  until  the  flow  of  water  shall 
be  stopped  either  by  casing  off  or  plugging  such  well.  Pro- 
vided, however,  that  the  provisions  of  this  section  shall  only 
apply  where  such  cap-rock  or  other  formation  is  pierced  at  a 
depth  below  the  horizon  at  which  oil  or  gas  has  already  been 
discovered.  Provided,  further,  that  if  any  well  shall  be  aban- 
doned from  any  cause,  the  same  shall  be  securely  plugged  and 
sealed. 


§  2.     Superintendent  of  well,  appointment  by  court. — Powers. 

8.  The  district  courts  of  each  county  in  this  State,  and 
the  judges  thereof,  in  vacation,  shall  have  jurisdiction  to 
enforce  the  provisions  of  this  Act,  and  they  are  hereby  author- 
ized and  empowered,  either  in  term  time  or  in  vacation,  upon 
the  application  of  any  person  or  persons,  interested  either  as 
land  owners,  lessees  of  land  or  as  well  owners,  in  its  discretion 
to  appoint  some  suitable  person  or  persons  as  superintendent 
of  such  oil  or  gas  field  and  to  ref|uire  of  such  person  a  bond, 
the  amount  thereof  to  be  fixed  by  the  court,  conditioned 
that  such  superintendent  shall  obey  and  carry  out  the  rules, 
regulations,  orders  and  decrees  which  may  be  from  time  to 
time  prescribed  and  entered  by  said  court  for  tiu^  protection 
of  such  oil  or  gas  field  and  the  persons  employed  Ihcfciii.  from 
fire  or  other  causes  likely  to  be  injurious  to  the  properties  and 
operations  in  such  field,  and  with  power  and  authoi-ity  to 
enforce  under  the  orders  of  said  court,  a  strict  compliance  by 
all  persons  with  all  the  requirements  of  the  laAvs  of  this  State 
governing  the  boring  and  operation  of  oil  or  gas  wells  in 


1070  OIL   AND    GAS. 

oil  or  gas  fields,  and  said  courts  are  autliorizcd  and  empowered 
to  make  from  time  to  time  such  rules  and  regulations  for  the 
government  of  such  oil  and  gas  fields  and  the  operations  car- 
ried on  therein,  and  the  handling  of  the  oil  or  gas  products 
as  may,  in  the  discretion  of  the  court,  be  necessary  or  requisite 
for  the  protection  of  the  severri  interests  in  said  oil  and  gas 
field  from  fire  and  other  probable  injurious  cause.  Provided, 
however,  that  the  court  may  require  of  the  persons  who  apply 
for  the  appointment  of  a  superintendent  of  any  oil  or  gas  field 
or  other  protective  order  proper  security  for  the  payment  of 
any  and  all  costs  of  court,  including  the  salaries  of  any  super- 
intendents, or  necessary  employes  under  him,  as  well  as  for 
such  other  costs  and  expenses  as  may  be  necessary  to  be 
expended  in  the  protection  of  such  oil  or  gas  field  and  the 
enforcement  of  the  orders  of  said  courts. 

§  3.    Penalties. 

9.  That  any  person  or  persons,  co-partnership,  corporation 
or  association  of  persons,  violating  any  of  the  provisions  of  this 
Act,  or  who  shall  fail  or  refuse  to  obey  any  order  or  decree, 
rule  or  regulation,  made  or  promulgated  by  said  district  courts 
requiring  any  Act  to  be  done  or  omitted  shall  be  liable  to 
penalty  of  not  less  than  five  hundred  dollars  nor  more  than 
five  thousand  dollars,  to  be  ascertained  by  the  verdict  of  the 
jury  of  the  court  trying  the  cause,  said  sum  to  be  recovered. 
with  the  costs  of  suit  in  a  civil  action  brought  for  that  pur- 
pose in  the  name  of  the  State  of  Texas,  in  any  court  of  com- 
petent jurisdiction,  in  the  county  in  which  the  Act  complained 
of  shall  have  been  committed  or  omitted,  and  such  suit  may 
be  brought  at  the  instance  of  any  resident  of  the  State  of 
Texas,  without  security  or  liability  for  costs,  and  the  amount 
of  said  penalty  when  collected  shall  be  paid  into  the  school 
fund  of  the  county  in  which  said  suit  is  brought.  Provided, 
however,  that  such  suit  may  be  brought  at  the  instance  of 
either  the  district  attorney  or  the  county  attorney  of  the 
county  in  which  the  act  w^as  committed  or  omitted. 

Became  a  law  ]\Iay  9,  1905. 


AIM'KNDIX    B.  1071 

UNITED    STATES. 

§1.     Entry    and    patenting   of    lanils    conUiining    petroleum    under    placer 

mininpr  laws. 
§2.     Mining  laws  extended  to  .saline  lands. 
§3.     Assessments  on  oil    mining  claims. 
§4.     Wdthdrawal  of  public  land  in  certain  cases. 
§5.     Title  to  oil  lands. 

§  1.     Entry  and  patenting  of  lands  containing  petroleum  under 
the  placer  mining  laws. 

Any  person  authorized  to  enter  lands  under  the  mining  laws 
of  the  United  States  may  enter  and  obtain  patent  to  lands  con- 
taining petroleum  or  other  mineral  oils,  and  chiefly  valuable 
therefor  under  the  provisions  of  the  laws  relating  to  placer 
mineral  claims:  Provided,  That  lands  containing  such  petro- 
leum or  other  mineral  oils  which  have  heretofore  been  filed 
upon,  claimed  or  improved  as  mineral  but  not  yet  patented, 
may  be  held  and  patented  under  the  provisions  of  this  act  the 
same  as  if  such  filing,  claim,  or  improvement  were  subsequent 
to  the  date  of  the  passage  hereof.  (Act  of  Congress  approved 
February  11,  1897.) 

§  2.    Mining  laws  extended  to  saline  lands. 

All  unoccupied  lands  of  the  United  States  containing  salt 
springs,  or  deposits  of  salt  in  any  form,  and  chiefly  valuable 
therefor,  are  hereby  declared  to  be  subject  to  location  and 
purchase  under  the  provisions  of  the  law  relating  to  placer 
mining  claims:  Provided,  That  the  same  person  shall  not  lo- 
cate or  enter  more  than  one  claim  hereunder.  (Act  of  Congress 
approved  January  31,  1901.) 

§  3.     Assessments  on  oil  mining  claims. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  Assembled,  That 
where  oil  lands  are  located  uiider  the  provisions  of  title  thirty- 
two,  chapter  six.  Revised  Statutes  of  the  United  States,  as 
placer  mining  claims,  the  annual  assessment  labor  upon  such 
claims  may  be  done  upon  any  one  of  a  group  of  claims  lying 
contiguous  and  owned  by  the  same  person  or  corporation,  not 


1072  OIL   AND    GAS. 

exceeding  five  claims  in  all :  Provided,  That  said  labor  will 
tend  to  the  development  or  to  determine  the  oil-bearing  char- 
acter of  such  contiguous  claims.  (Approved  February  12, 
1903.) 

AN  ACT  to  authorize  the  President  of  the  United   States  to  make  with- 
drawals of  public  lands  in  certain  cases. 

§  4.     Withdrawal  of  public  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America,  in  Congress  assembled.  That  the 
President  may,  at  any  time  in  his  discretion,  temporarily 
withdraw  from  settlement,  location,  sale,  or  entry  any  of  the 
public  lands  of  the  United  States  including  the  District  of 
Alaska  and  reserve  the  same  for  water  power  sites,  irrigation, 
classification  of  lands,  or  other  public  purposes  to  be  specified 
in  the  orders  of  withdrawals,  and  such  withdrawals  or  reserva- 
tions shall  remain  in  force  until  revoked  by  him  or  by  an  Act 
of  Congress. 

That  all  lands  withdrawn  under  the  provisions  of  this  Act 
shall  at  all  times  be  open  to  exploration,  discovery,  occupation, 
and  purchase  under  the  mining  laws  of  the  United  States,  so 
far  as  the  same  apply  to  minerals  other  than  coal,  oil,  gas,  and 
phosphates:  Provided,  That  the  rights  of  any  person  who,  at 
the  date  of  any  order  of  withdrawal  heretofore  or  hereafter 
made,  is  a  bona  fide  occupant  or  claimant  of  oil  or  gas-bearing 
lands,  and  who,  at  such  date,  is  in  diligent  prosecution  of  work 
leading  to  discovery  of  oil  or  gas,  shall  not  be  affected  or 
impaired  by  such  order,  so  long  as  such  occupant  or  claimant 
shall  continue  in  diligent  prosecution  of  said  work :  And  pro- 
vided further.  That  this  Act  shall  not  be  construed  as  a  recog- 
nition, abridgement,  or  enlargement  of  any  asserted  rights 
of  claims  initiated  upon  any  oil  or  gas-bearing  lands  after 
any  withdrawal  of  such  lands  made  prior  to  the  passage  of  this 
Act :  And  provided  further.  That  there  shall  be  excepted  from 
the  force  and  effect  of  any  withdrawals  made  under  the  pro- 
visions of  this  Act  all  lands  which  are,  on  the  date  of  such 
withdrawal,  embraced  in  any  lawful  homestead  or  desert-land 
entry  heretofore  made,  or  upon  which  any  valid  settlement  has 
been  made  and  is  at  said  date  being  maintained  and  perfected 
pursuant  to  law ;  but  the  terms  of  this  proviso  shall  not  con- 


APPENDIX   B.  1073 

tinue  to  apply  to  any  particular  tract  of  land  unless  llio  cnfry- 
man  or  settlor  shall  continue  to  comply  with  the  law  uuth'r 
which  the  entry  or  settlement  Avas  made:  And  jd-ovidcd 
further,  That  hereafter  no  forest  reserve  shall  be  created,  nor 
shall  any  additions  be  made  to  one  heretofore  createtl  within 
the  limits  of  the  States  of  Oregon,  Washington,  Idaho,  ^Ion- 
tana,  Colorado  or  AVyoming,  except  by  Act  of  Congress. 

That  the  Secretary  of  the  Interior  shall  report  all  such  with- 
drawals to  Congress  at  the  begiiniing  of  its  next  regular  ses- 
sion after  the  date  of  the  withdrawals. 

Approved,  June  25,  1910. 

AN  ACT  to  protect  the  locators  in  good  faitli  of  oil  and  gas  lands  who  shall 
have  affected  an  actual  discovery  of  oil  or  gas  on  the  public  lands  of  the 
United  States,  or  their  successors  in  interest. 

§  5.    Title  to  oil  lands. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
in  no  case  shall  patent  be  denied  to  or  for  any  lands  heretofore 
located  or  claimed  under  the  mining  laws  of  the  United  States 
containing  petroleum,  mineral  oil,  or  gas  solely  because  of  any 
transfer  or  assignment  thereof  or  of  any  interest  or  interests 
therein  by  the  original  locator  or  locators,  or  any  of  them,  to 
any  qualified  person  or  persons,  or  corporation,  prior  to  dis- 
covery of  oil  or  gas  therein,  but  if  such  claim  is  in  all  other 
respects  valid  and  regular,  patent  therefor  not  exceeding  one 
hundred  and  sixty  acres  in  any  one  claim  shall  issue  to  the 
holder  or  holders  thereof,  as  in  other  cases :  Provided,  how- 
ever, That  such  lands  were  not  at  the  time  of  inception  of 
development  on  or  under  such  claim  withdrawn  from  mineral 
entry. 

Approved,  ]March  2,  1911. 

LANDS    ON    INDIAN   RESERVATIONS. 

REGULATIONS  GOVERNINCx  THE  LEASING  OF  TRIBAL  I^NDS  FOR 
MINING  PURPOSES. 

The  proviso  of  section  3  of  the  Act  of  Congress  approved 
February  28,  1891  (26  Stat.  L.,  795),  reads: 

"That  where  lands  are  occupied  by  Indians  who  have  bought 
and  paid  for  the  same,  and  which  lands  are  not  needed  for 


107-4  OIL   AND    GAS. 

farming  or  agricultural  purposes,  and  are  not  desired  for  indi- 
vidual allotments,  the  same  may  be  leased  by  authority  of  the 
Council  speaking  for  such  Indians,  for  a  period  not  to  exceed 
ten  years  for  mining  purposes,  in  such  (piantities  and  upon 
such  terms  and  conditions  as  the  agent  in  charge  of  such 
reservation  may  recommend,  subject  to  the  approval  of  the 
Secretary  of  the  Interior." 

1.  The  lands  authorized  to  1)e  leased  are  lands  occupied 
by  Indians  who  have  "bought  and  paid  for  the  same;"  "lands 
acquired  by  treaty,  by  the  payment  of  money  or  exchange  of, 
or  surrender  of,  other  property  or  possessions." 

2.  Lands  withdrawn  from  the  public  domain  by  executive 
order,  for  the  use  of  the  Indians,  are  not  subject  to  lease  for 
mining  purposes. 

3.  Selection  of  tribal  lands  for  mining  purposes  must  be 
made  with  the  consent  of  the  tribal  council  of  the  reservation, 
subject  to  the  approval  of  the  Secretary  of  the  Interior. 

4.  If  the  Indians  of  a  reservation  wish  to  lease  their  sur- 
plus lands  for  mining  purposes,  the  superintentent  in  charge 
of  the  reservation  should  submit  the  question  to  the  Indian 
Office.  The  first  step  necessary  to  be  taken,  in  case  the  surplus 
lands  are  subject  to  lease,  is  the  authorization  of  the  tribal 
council.  Application  should  be  made  to  the  Commissioner  of 
Indian  Affairs  for  authority  to  negotiate  with  the  tribe  or 
tribes  of  the  reservation  for  mining  privileges. 

5.  Leases  must  be  executed  in  quadruplicate  and  signed 
by  the  lessee  and  business  council  of  the  tribe  or  tribes,  and 
submitted  to  the  Indian  Office  for  approval  of  the  Secretary 
of  the  Interior. 

6.  The  action  of  the  council  authorizing  the  leasing  must 
be  reduced  to  writing  and  properly  signed  and  authenticated. 
A  certified  copy  of  so  much  of  the  council  proceedings  as  relate 
thereto  must  be  attached  to  each  lease  and  made  a  part  thereof. 

7.  The  term  of  the  lease  shall  not  be  for  more  than  ten 
years. 

8.  Without  special  permission  of  the  Secretary  of  the  In- 
terior, which  may  be  o))tained  only  wlien  the  conditions  of 
mining  or  operation  are  very  exceptional. 

(A)  No  lease  on  d^^posits  of  the  nature  of  lodes  or  veins, 
containing  ores  of  gold,  silver,  copper,  lead,  zinc  or  other  use- 


APPENDIX   B.  1075 

fill  metals,  sliall  be  granted   for  less  tlian  20  acres,  nor  for 
more  than  640  acres. 

(B)  No  lease  for  beds  of  placer  gold,  gypsum,  phosphate, 
asphaltum,  iron  ores,  or  other  useful  minerals  other  than  coal, 
oil,  and  gas  shall  be  granted  for  less  than  40  acres,  nor  for 
more  than  960  acres. 

(C)  Xo  lease  for  coal,  oil,  or  gas  shall  be  granted  for  less 
than  40  acres,  nor  for  more  than  4,800  acres. 

9.  The  area  covered  b.y  a  lease  shall  be  in  a  reasonably 
compact  body  and  shall  conform  to  the  system  of  the  Public 
Land  Surveys,  except  that  leases  covering  lode  ground  may 
consist  of  one  or  more  adjoining  parallelograms  1,500  feet  in 
length  by  600  feet  in  width  as  provided  for  by  the  U.  S.  mining 
laws.  No  lease  under  these  regulations  shall  convey  extralat- 
eral  rights,  and  no  coal  lease  shall  have  a  length  exceeding  one 
mile  long  the  outcrop. 

10.  No  person  or  association,  and  no  association  of  which 
each  member  is  not  individually  qualified,  shall  be  permitted 
to  hold  an  additional  lease  of  any  of  the  classes  above  enumer- 
ated, unless  he  is  paying  royalty  on  actual  production  on  all 
of  the  leases  of  the  same  class  he  is  then  holding. 

11.  There  shall  be  no  limit  to  the  number  of  producing 
leases  any  individual  or  company  may  hold,  except  that  the 
maximum  areas  shall  not  exceed  those  specified  in  classes  A, 
B  and  C  of  paragraph  8. 

12.  Each  lessee  shall  file  with  the  officer  in  charge  of  the 
reservation  an  annual  report  in  duplicate  within  twenty  days 
after  the  close  of  each  calendar  year,  showing  the  character 
and  value  of  the  development  work  performed  in  that  year, 
such  report  to  be  verified  by  affidavit  of  the  lessee  or  his  rep- 
resentative in  charge  of  the  work. 

REGULATIONS  GOVERNING  THE  LEASING  OF  INDIAN  ALLOTTED 
LANDS  FOR  IVUNING  PURPOSES. 

A  provision  in  the  Act  of  March  3,  1909  (35  Stat.  L.,  781- 
783),  reads: 

"That  all  lands  allotted  to  Indians  in  severalty,  except  allot- 
ments made  to  members  of  the  Five  Civilized  Tribes  and  Osage 
Indians  in  Oklahoma,  may  l)y  said  allotee  be  leased  for  mining 
purposes  for  any  term  of  years  as  may  be  deemed  advisable 


1076  OIL   AND    GAS. 

by  the  Secretary  of  the  Interior;  and  the  Secretary  of  the 
Interior  is  hereby  authorized  to  perform  any  and  all  acts  and 
make  such  rules  and  regulations  as  may  be  necessary  for  the 
I)ui'pose  of  carrying  the  provisions  of  this  paragraph  into 
full  force  and  effect." 

1.  Allotments  of  lands  are  regarded  as  made  when  ap- 
proved by  the  Secretary  of  the  Interior. 

2.  Application  should  be  made  to  the  Commissioner  of 
Indian  Affairs  through  the  superintendent  or  other  officer  in 
charge  of  the  reservation  for  authority  to  negotiate  with  indi- 
vidual allottees  for  mining  privileges,  and  no  application  for 
mining  leases  will  be  considered  by  the  Indian  Office  unless 
specific  permission  has  first  been  granted  by  it  for  negotiating 
for  such  leases  with  the  individual  Indian  allottees  whose  lands 
are  sought  to  be  leased,  and  a  showing  made  as  to  character 
and  financial  ability  of  the  applicant  to  carry  on  the  work  of 
mining. 

3.  Leases  must  be  executed  in  quadruplicate  and  signed  by 
the  principals  thereto,  and  submitted  to  the  Indian  Office  for 
approval  of  the  Secretary  of  the  Interior. 

The  superintendent  or  other  officer  in  charge  of  the  reserva- 
tion may  act  for  minors  in  all  lease  matters,  and  also  for 
allottees  who  are  non  compos  mentis.  Where  the  lessor  is  a 
minor  the  lease  must  show  his  age.  No  lease  of  a  minor's 
land  shall  extend  beyond  minoritj^  except  that  when  several 
heirs  own  the  land  the  lease  may  run  until  the  majority  of 
the  youngest  minor  heir,  not,  however,  to  exceed  twenty 
years. 

4.  The  term  of  any  lease  shall  not  exceed  twenty  years  from 
the  date  of  the  lease. 

5.  No  individual,  corporation,  company  or  association  shall 
hold  under  leases  for  mining  purposes,  Indian  lands  in  any 
one  State  or  Territory  in  excess  of  the  following  areas : 

(A)  On  deposits  of  the  nature  of  lodes  or  veins,  containing 
ores  of  gold,  silver,  copper,  lead,  zinc,  or  other  useful  metals, 
nor  more  than  640  acres. 

(B)  For  beds  of  placer  gold,  gypsum,  asphaltum,  phos- 
phate, iron  ores,  or  other  useful  minerals  other  than  coal,  oil, 
and  gas  not  more  than  960  acres. 

(C)  For  coal,  oil,  or  gas  not  more  than  4,800  acres. 


ArPExnix  n.  1077 

REGL'LATIONS     APPLYINC.     TO    THE     LEASING     OF     TRIBAL     OR 
ALLOTTED  I>ANDS  FOR  MINING  PURPOSES 

1.  Each  lessee  is  reciuired  to  furnish  -svilli  eacli  lease,  to  he 
filed  at  the  time  the  lease  is  presented,  a  Ixnid  for  $1,000,  -with 
two  or  more  satisfactory  securities  or  with  a  surety  comi)any 
duly  authorized  to  execute  bonds,  and  to  increase  such  bond, 
on  thirty  days'  notice,  to  a  sum  double  the  amount  of  royalty 
payable  in  any  half  period,  whenever  the  royalty  exceeds  $500. 
This  bond  shall  be  for  the  payment  of  all  rents  and  royalties 
and  for  the  faithful  carrying  out  of  all  other  conditions  of  the 
lease  and  for  the  observance  of  existing  regulations  and  of 
any  regulations  that  may  be  hereafter  made. 

2.  Lessees  shall  not  assign  their  leases  or  any  part  therein 
or  thereunder,  or  any  part  thereof,  and  shall  not  sublet  the 
said  premises  or  any  part  thereof  without  the  consent  in 
writing  first  obtained  from  the  Secretary  of  the  Interior,  and 
the  lessees  shall  not  permit  any  person  or  persons  to  have 
possession  of  said  premises  or  any  part  thereof,  save  and 
except  those  rightfully  entitled  thereto,  pursuant  to  the  con- 
ditions set  forth  in  the  law,  regulations,  and  lease. 

3.  Any  lease  may  be  surrendered  and  canceled  with  the 
approval  of  the  Secretary  of  the  Interior,  but  all  royalties, 
rentals,  and  other  obligations  due  and  accrued  up  to  the  date 
application  for  cancellation  is  made,  must  be  paid  and  dis- 
charged before  such  application  Avill  be  considered. 

4.  The  rate  royalty  shall  be  subject  to  readjustment  at  the 
end  of  each  five  years  at  such  equitable  rate  conforming  to  the 
prevailing  commercial  practice  as  the  conditions  at  that  time 
shall  justify. 

5.  Lessees  shall  pay  on  each  lease  annually,  in  advance,  a 
rent  of  fifteen  cents  per  acre  for  the  first  year  or  fraction 
thereof,  up  to  December  31  ;  forty  cents  per  acre  for  the  second 
year,  and  seventy-five  cents  for  the  third  and  each  succeeding 
year. 

Under  leases  of  Class  A  there  shall  be  expended  annually  on 
development  work,  a  sum  which,  with  the  annual  rental,  shall 
amount  to  not  less  than  $5  per  acre. 

Under  leases  of  Class  B  there  shall  be  expended  annually  on 
development  work,  a  sum  which,  with  the  annual  rental  shall 


1078  OIL   AND    GAS. 

amount  to  not  less  than  $100,  for  each  lease  of  160  acres  or 
fraction  thereof. 

All  sums  paid  as  rental  in  any  one  year  shall  be  credited 
after  production  begins  on  the  royalty  for  that  year. 

6.  For  substances  other  than  gold,  silver,  copper,  lead, 
zinc,  tungsten,  coal,  asphaltum  and  allied  substances,  oil  and 
gas,  the  lessee  shall  pay  (|narter]y  a  royalty  of  not  less  than 
10  per  cent,  of  the  value,  at  the  nearest  shipping  point,  of  all 
ores,  metals,  or  mineral  marketed. 

7.  For  gold,  silver,  copper,  lead,  zinc  and  tungsten,  the 
lessee  shall  pay  (luarterly  a  royalty  of  not  less  than  10  per  cent, 
to  be  computed  on  the  gross  value  of  the  ores  as  shown  by 
reduction  returns  after  deducting  freight  and  treatment 
charges.  Duplicate  reduction  returns  shall  be  filed  by  the 
lessee  with  the  superintendent  or  other  officer  in  charge  of  the 
reservation  from  which  the  ores  are  taken,  within  twenty  days 
after  the  reduction  of  the  ores,  and  the  royalties  shall  be  paid 
to  the  superintendent  or  other  officer  in  charge  within  ten  days 
after  the  ending  of  the  quarter  within  which  such  returns  are 
made. 

8.  For  coal,  the  lessee  shall  pay,  quarterly,  a  royalty  of  not 
less  than  10  cents  per  ton  of  2,000  pounds,  mine  run,  or  coal' 
as  taken  from  the  mine,  including  what  is  commonly  called 
"slack." 

9.  For  asphaltum  and  allied  substances,  the  lessee  shall  pay, 
quarterly,  a  royalty  of  not  less  than  10  cents  per  ton  of  2,000 
pounds  for  crude  material  or  60  cents  per  ton  for  refined 
products. 

10.  For  oil,  the  lessee  shall  pay  a  royalty  of  not  less  than 
121/4  per  cent,  of  the  gross  proceeds  of  the  oil  procured,  and 
payment  shall  be  made  at  the  time  of  sale  or  removal  of  oil 
from  the  premises  where  produced. 

11.  For  gas,  the  lessee  shall  pay  no  less  than  $100  per  year 
for  each  well.  Where  the  lessee  desires  to  retain  the  gas-pro- 
ducing privilege  of  any  well  but  not  to  utilize  the  well  for 
commercial  purposes,  he  shall  pay  an  annual  rental  of  $50  in 
advance,  beginning  from  the  date  of  discovery  of  gas,  and  to 
be  paid  within  thirty  days  therefrom. 

12.  The  royalties  on  all  products,  except  gas,  coal,  oil,  gold, 
silver,  lead,  zinc,  copper,  and  tungsten  shall  be  based  on  sworn 


APPENDIX    U.  lUT'J 

quarter!}^  reports,  and  slinll  ho  paid  within  twenty  days  after 
the  close  of  each  quarter. 

13.  The  lessee  shall  keep  books  of  account  showing  the 
amount  of  ore  shipped,  or  oil  or  other  mineral  substances,  sold, 
or  treated,  and  showing  also  the  amount  of  money  received 
from  the  sale  of  ores,  oil,  etc.  The  books  of  the  lessee  shall  be 
open  to  inspection,  examination,  and  verification  by  any  officer 
of  the  Interior  Department  assigned  to  such  duty  by  the  Sec- 
retary of  the  Interior,  and  it  is  distinctly  understood  that  Ihe 
duly  authorized  agents  of  the  Government  shall  l)e  permitted 
freely  to  make  transcripts  of  all  the  accounts  and  other  books 
of  the  lessee. 

14.  All  royalties  or  payments  due  under  leases  issued  under 
these  regulations  shall  be  paid  to  the  superintendent  or  other 
officer  in  charge  of  the  reservation  in  cash  or  by  certified  check, 
or  other  suitable  form  of  exchange. 

15.  A  duplicate  of  all  mill  and  smelter  returns  shall  be 
furnished  the  Government  by  the  mill  owner  or  owner  of  the 
smelter  treating  ore  from  any  lease  under  these  regulations, 
and  duplicate  returns  of  all  pipe  line  runs  of  oil  or  other 
shipments  shall  also  be  furnished  the  Government  and  notice 
shall  be  given  the  superintendent  or  other  officer  in  charge  of 
the  reservation  that  he  may  be  present  when  oil  is  taken  by 
pipe  line  companies  or  other  purchasers.  The  lessee  or  his 
representative  shall  actually  be  present  when  oil  is  taken  by 
such  companies  and  the  lessee  shall  be  responsible  for  the 
correct  measurment  and  report  of  oil  so  run  and  taken. 

16.  Lessees  shall  file  quarterly  reports,  accompanied  by 
maps  and  diagrams  when  necessary,  within  twenty  days  after 
the  close  of  each  quarter,  with  the  officer  in  charge  of  the 
reservation  and  the  Commissioner  of  Indian  Affairs  showing 
the  extent,  character,  and  location  of  all  development  work 
and  mining  operations,  such  quarterly  reports  to  be  in  the 
form  of  sworn  statements  by  the  lessee  or  superintendent  in 
charge  of  the  work. 

17.  Lessees  shall  report  discovery  of  oil  and  gas  within  ten 
days  after  said  discovery. 

18.  In  mining  operations  the  lessees  shall  keep  the  mine 
well  and  sufficiently  timbered  at  all  points  where  necessary  in 
accordance  Avith  good  mining  practice,  and   in  such  manner 


1080  OIL   AND    GAS. 

as  may  be  necessary  to  the  proper  preservation  of  the  property 
leased,  and  safety  of  the  workmen,  compatible  with  economical 
mining. 

19.  On  expiration  of  the  term  of  a  lease,  or  when  a  lease 
is  surrendered,  the  lessee  shall  deliver  to  the  lessor  the  leased 
ground  with  the  mine  workings  in  good  order  and  condition 
and  bondsmen  will  be  held  for  such  delivery  in  good  order  and 
condition,  unless  relieved  by  the  Secretary  of  the  Interior  for 
cause.  It  shall,  however,  be  stipulated  that  the  machinery 
necessary  to  operate  the  mine  is  the  property  of  the  lessee,  but 
that  it  may  be  removed  by  liim  only  after  the  condition  of  the 
property  has  been  ascertained  by  inspection  by  the  Secretary 
of  the  Interior  or  his  authorized  agents. 

20.  To  prevent  waste,  each  lease  for  oil  or  gas  will  contain 
a  covenant  that  the  lessee  will,  in  a  practical  and  workman- 
like manner,  plug  all  dry  and  abandoned  wells  at  a  proper 
depth  or  depths  in  a  manner  satisfactory  to  the  Secretary  of 
the  Interior,  or  his  authorized  agents,  that  the  lessee  will 
further  prevent  the  waste  of  oil  or  gas,  and  that  if  he  fails  to 
stop  such  waste  or  plug  such  dry  or  abandoned  wells,  the  Sec- 
retary of  the  Interior  may  cause  these  acts  to  be  performed 
at  the  expense  of  the  lessee  or  his  bondsmen,  with  or  without 
cancellation  of  lease,  as  he  may  deem  wise,  and  lessees  are 
not  permitted  to  locate  either  tanks  or  wells  within  less  than 
200  feet  of  the  boundary  line  of  the  land  covered  by  his  lease 
nor  of  any  building  used  as  a  dwelling,  granary,  or  shelter  for 
stock,  except  where  actually  necessary  to  offset  wells  upon 
adjoining  tracts.  Lessees  may  be  required  to  drill  and  operate 
wells  to  offset  producing  wells  on  adjoining  tracts  within  200 
feet  of  the  dividing  line. 

21.  It  is  expressly  stipulated  that  any  duly  authorized 
agent  of  the  Government  shall  be  permitted  from  time  to  time, 
and  at  all  times  during  the  life  of  the  lease,  freely  and  without 
notice  to  enter  upon  and  in  all  parts  of  the  leased  premises, 
and,  if  desired,  take  with  him  the  local  mine  inspector  and 
such  mining  experts  as  may  be  necessary  for  the  purpose  of 
inspection  and  examination  thereof,  with  a  view  of  ascer- 
taining whether  or  not  the  terms  and  conditions  of  the  agree- 
ment are  being  faithfully  complied  with,  and  to  know  that  the 
mine  is  operated  in  workmanlike  manner  as  required  by  the 


APPENDIX    B.  1081 

lease,  and  in  compliance  with  tlio  law  of  the  State  or  Terri- 
tory in  which  the  mine  is  situated. 

22.  The  Secretary  of  the  Interior  may,  in  his  discretion, 
cancel  any  lease,  if  the  mining  operations  are  conducted 
wastefully  and  without  regard  to  good  mining  practice. 

Failure  to  faithfully  observe  and  perform  any  obligation 
arising  out  of  or  under  the  provisions  of  these  regulations, 
shall  subject  the  lease  to  cancellation  at  the  discretion  of  the 
Secretary  of  the  Interior,  and  on  the  violation  of  any  of  the 
conditions,  covenants,  and  agreements  made  with  the  Govern- 
ment and  allottee  by  the  lesssee,  the  lease  at  the  option  of  the 
Secretary  of  the  Interior  shall  expire,  and  the  Government 
agents,  employees  and  representatives  may,  without  notice  or 
demand,  enter  upon  the  leased  premises  or  any  part  thereof, 
and  dispossess  the  lessee,  his  employees,  agents  and  representa- 
tives and  all  persons  occupying  the  same,  with  or  without 
force,  and  with  or  without  process  of  law,  and  without  preju- 
dice to  any  other  lawful  remedy  or  remedies. 

WEST    VIRGINIA. 

PROTECTION"  OF  OIL  OR  GAS  WELLS. 

§L  Casing. 

§2.  Clo>iing    wells  or  abandoning  or  ceasing  operation. 

§3.  Preventing  waste  of  gas. 

§4.  Rights  of  adjacent  owner  or  operator. 

§5.  Definitions. 

§6.  Penalties. 

§7.  Jurisdiction  of   Circuit    Court. — Restraining  waste. 

[Code  of  West  Virginia,  1906.] 

§  1.     Casing. 

Tliat  when  any  well  shall  be  drilled  for  the  production  of 
petroleum  oil,  natural  gas,  salt  water  or  mineral  water,  it 
shall  be  the  duty  of  the  owner  thereof,  before  drilling  said 
well  into  the  oil  and  gas  sand,  to  encase  such  well  with  good 
and  sufficient  wrought  iron,  steel  or  metal  casing  in  such 
manner  as  to  exclude  and  shut  out  all  surface  water,  or  fresh 
water,  and  to  prevent  the  same  from  reaching  or  penetrating 
said  oil  and  gas  sand.     (Acts  1891,  c.  106;  Act  1897,  c.  58.) 


1082 


OIL   AND    GAS. 


§  2.     Closing-  wells  or  abandoning  or  ceasing  operation. 

It  shall  be  the  duty  of  the  owner  of  any  well  drilled  for  any 
of  the  purposes  mentioned  in  the  first  section  of  this  Act,  before 
abandoning  or  ceasing  to  operate  the  same  and  before  drawing 
tlie  casing  therefrom,  to  fill  up  the  well  with  sand  or  rock  sedi- 
ment to  a  depth  of  at  least  fifty  feet  from  the  top  of  the  oil  or 
gas-bearing  sand  or  rock,  and  drive  a  round,  seasoned  wooden 
plug,  at  least  three  feet  in  length,  equal  in  diameter  to  the 
diameter  of  the  well  below  the  casing,  to  a  point  at  least  five 
feet  below  the  bottom  of  the  casing,  and  immediately  after 
withdrawing  the  casing,  except  in  regions  where  the  well  caves 
after  the  witlidrawal  of  the  casing,  shall  drive  a  round,  sea- 
soned w^ooden  plug  at  a  point  just  below  where  the  lower  end 
of  the  casing  rested;  which  plug  shall  be  at  least  three  feet 
in  length,  tapering  in  form,  and  of  the  same  diameter  at  the 
distance  of  18  inches  from  the  smaller  end,  as  the  diameter 
of  the  hole  below  the  point  at  which  it  is  to  be  driven.  After 
the  plug  has  been  properly  driven  there  shall  be  filled  in  on 
the  top  of  the  same,  sand  or  rock  sediment  to  the  depth  of  at 
least  fifty  feet  above  the  top  of  the  oil  or  gas-bearing  sand  or 
rock. 

§  3.    Preventing  waste  of  gas. 

It  shall  be  the  duty  of  any  owner  of  any  well  producing  gas, 
to  prevent  the  waste  of  said  gas  by  escape,  and  within  the 
time  hereinafter  limited,  to  shut  in  and  confine  the  same  in 
said  well  or  in  the  pipes  or  pipe  lines  connected  therewith. 
Said  gas  with  respect  to  any  well  heretofore  drilled  shall  be 
so  shut  in  within  ninety  days  after  the  approval  of  this  Act, 
and  with  respect  to  any  well  hereafter  drilled  or  completed, 
shall  be  shut  in  within  ninety  days  after  the  said  well  shall 
reach  the  lowest  oil  and  gas  sand  defined  or  recognized  in  the 
gas  or  oil  district  in  which  said  well  is  situated ;  but  if  any 
such  well  in  the  course  of  drilling  shall  pass  through  any  oil 
and  gas  sand  which  produces  gas  above  the  said  last  or  lowest 
oil  and  gas  sand,  then  the  drilling  of  said  well  to  the  last  or 
lowest  oil  and  gas  sand  shall  be  prosecuted  with  reasonable 
diligence,  so  that  any  waste  of  gas  from  the  said  upper  sand 
shall  not  continue  longer  than  shall  be  reasonably  necessary: 


APPENDIX   B.  1083 

Provided,  however,  Tliat  this  section  of  tliis  Act  sliall  not  apply 
to  any  well  ])i'oducin^  both  oil  and  ^as  from  the  same  sand, 
or  to  any  well  while  it  is  being  operated  as  au  oil  well.  (Acts 
1891,  c.  106;  Acts  1897,  e.  58.) 

§  4.     Rights  of  adjacent  owner  or  operator. 

If  the  owner  of  any  such  well  shall  neglect  or  refuse  to 
cause  said  well  to  be  plugged  or  shut  in  pursuant  to  the  pro- 
visions of  the  second  and  third  sections  of  this  Act  for  a 
period  of  twenty  days  after  a  written  notice  so  to  do  (which 
notice  may  be  served  personally  upon  any  such  owner,  or  may 
be  posted  in  a  conspicuous  place  at  or  near  the  well),  it  shall 
be  lawful  for  the  owner  or  operator  of  any  adjacent  or  neigh- 
boring lands  to  enter  upon  the  premises,  where  said  well  is 
situated  and  to  cause  the  same  to  be  plugged  if  it  be  an 
abandoned  well,  or  shut  in  if  it  be  not  abandoned,  pursuant 
to  the  provisions  hereof;  and  the  reasonable  cost  and  expense 
incurred  in  so  doing  shall  be  paid  by  the  owner  of  said  well, 
and  may  be  recovered  as  debts  of  like  amount  are  by  law 
recoverable.     (Acts  1891,  c.  106;  Acts  1897,  c.  58.) 

§  5.    Definitions. 

The  term  "owner,"  as  herein  used,  with  reference  to  any 
well,  shall  mean  and  include  each  and  every  person,  persons, 
co-partnership,  partnership,  association  or  corporation  own- 
ing, managing,  operating,  controlling  or  possessing  said  well 
as  principal  or  principals,  or  as  lessees,  contractors,  employees, 
or  agents  of  such  principal  or  principals;  and  the  terms  "oil 
and  gas  sand,"  or  "sand,"  as  herein  used,  shall  moan  and 
include  any  bed,  seam,  or  stratum  of  rock  or  other  material 
which  produces,  yields,  or  contains  in  quantity  sufficient  to  be 
utilized,  petroleum  oil  and  natural  gas  or  either  of  them.  (Act 
1891,  c.  106;  Act  1897,  c.  58.) 

§  6.     Penalties. 

Any  person  or  persons,  co-partnership,  partnership,  asso- 
ciation or  corporation  violating  any  of  the  provisions  of  this 
Act  shall  be  liable  to  a  penalty  of  one  hundred  dollars,  to  be 


1084  OIL   AND   GAS. 

recovered  with  costs  of  suit  in  a  civil  action  to  be  brought 
in  the  name  of  the  State  of  West  Virginia,  in  any  circuit 
court,  and  such  action  may  be  brought  at  the  instance  and 
upon  the  relation  of  any  citizen  of  the  State.  (Acts  1891,  c. 
106;  Acts  1897,  c.  58.) 

§7.     Jurisdiction  of  circuit  courts. — Restraining  waste. 

Aside  from  and  in  addition  to  the  imposition  of  any  pen- 
alties under  this  Act,  it  shall  be  the  duty  of  any  circuit  court 
in  the  exercise  of  its  equitable  jurisdiction,  to  hear  and  de- 
termine any  bill  or  bills  in  equity  which  may  be  filed  to  restrain 
the  waste  of  natural  gas  in  violation  of  this  Act,  and  to  grant 
relief  by  injunction  or  by  other  decrees  or  orders,  in  accord- 
ance with  the  principle  and  practice  of  equity.  The  plaintiff 
in  such  bill  shall  have  sufficient  standing  to  maintain  the  same 
if  he  shall  aver  and  prove  that  he  is  interested  in  the  lands 
situated  within  the  distance  of  one  mile  from  said  well,  either 
as  owner  of  such  land  in  fee  simple,  or  as  an  owner  of  leases 
thereof  or  of  rights  therein  for  the  production  of  oil  and  gas, 
or  either  of  them.     (Acts  1891,  c.  106;  Acts  1897,  c.  58.) 

OIL  LEASES. 

§  1.     Statute  of  limitations. 

That  any  person  or  persons,  in  presumable  possession  of 
land,  claiming  title  under  a  lease  of  the  same  for  the  purpose 
of  operating  for  oil  or  minerals,  and  who  may  have  continu- 
ously remained  in  possession  for  the  space  of  three  years,  and 
have  bored  for,  and  in  good  faith  expended  money  in  such 
boring  and  operating,  shall  be  entitled  to  plead  such  facts  in 
law,  and  said  facts  shall  be  a  bar  to  any  action  at  law  or  in 
equity,  instituted  to  establish  title  to  recover  possession  of 
said  lease,  or  to  recover  the  profits  received  therefrom:  Pro- 
vided, That  nothing  in  this  Act  contained  shall  be  so  construed 
as  to  authorize  a  tenant  to  set  up  as  a  bar  to  a  recovery  an 
adverse  possession  against  his  landlord,  and  that  this  Act 
shall  not  affect  any  suit  brought  within  twelve  months  after 
the  passage  of  this  Act.    (Acts  1872-3,  c.  61 ;  Code  1906,  §  3498.) 


APPENDIX  n.  1085 

ElVnNENT  DOJMAIN. 

Under  the  chapter  (Code  1906,  §§2207  to  2229),  concerning 
the  acquisition  of  hinds  by  corporations  for  rights  of  way, 
occurs  this  section : 

§  29.     Corporations  for  transportation  of  natural  gas,  water, 
etc. 

That  a  company  organized  for  the  purpose  of  transporting 
natural  gas,  petroleum  or  water,  necessary  for  use  in  carrying 
out  the  provisions  of  this  Act  in  piping  and  transporting 
natural  gas  and  petroleum  or  for  boring  for  the  same,  through 
tubing  and  pipes,  may  enter  upon  any  land  for  the  purpose 
of  examining  and  surveying  a  line  for  its  tubing  and  pipes,  and 
may  appropriate  so  much  thereof  as  may  be  deemed  necessary 
for  the  laying  down  of  such  tubing  and  piping,  and  for  the 
erection  of  tanks  and  the  location  of  stations  along  such  line, 
and  the  erection  of  such  buildings  as  may  be  necessary  for 
the  purpose  aforesaid ;  such  ap])ropriations  shall  be  made  and 
conducted  in  accordance  with  the  law  providing  for  com- 
pensation to  the  owners  of  private  property  taken  for  pu])lic 
use :  Provided,  That  no  dwelling-house,  yard  or  garden,  shall 
be  taken  for  such  purpose,  nor  shall  any  oil  tank,  gas  or  oil 
pipe  line  be  erected  or  laid  within  100  feet  of  any  occupied 
dwelling-house  without  the  consent  of  the  owner  thereof.  And 
so  far  as  the  rights  of  the  public  therein  are  concerned,  the 
county  commissioners,  as  to  public  roads,  and  the  council  of 
any  municipal  corporation,  as  to  streets  and  alleys,  in  their 
respective  jurisdiction  may  subject  to  such  regulations  and 
restrictions  as  they  may  prescribe,  grant  to  such  company  the 
right  to  lay  such  tubing  and  piping  therein:  Provided,  however, 
The  right  to  appropriate  for  any  of  the  purposes  herein  above 
specified  shnll  pot  include  or  extend  to  the  erection  of  any  tank, 
station  or  building,  or  lands  thereof,  or  to  more  than  one 
continuous  line  of  pipe  or  tubing,  or  land  therefor,  in  or 
through  a  municipal  corporation  without  the  council  first  con- 
sents thereto;  and  all  excavations  shall  be  well  filled  by  such 
company  and  so  kept  by  it,  in  all  cases.  Such  company  shall, 
for  the  purpose  of  transporting  natural  gas,  oils  and  water,  be 


1086 


OIL   AND   GAS. 


considered  and  held  to  be  a  common  carrier,  and  subject  to  all 
the  duties  and  liabilities  of  such  carriers  under  the  laws  of  this 
State.     (Acts  1891,  c.  113.) 

Note. — By  Act  1882,  ch.  9G  (Cmle  190<5,  §2232),  a  mining,  manufac- 
turing, oil,  salt  or  internal  improvement  company,  may  lay  out  a  town 
not  to  include  more  than  640  acres,  at  or  near  their  works,  and  sell  lots 
therein.  Under  Acts  1883,  ch.  58  (Code  190(5,  §2292),  companies  may  be 
formed  for  the  transportation  of  "oil  or  other  fluids." 

TRANSPORTATION  OF  PETROLEUM  OR  OTHER  OILS  OR  LIQUIDS. 
[Taken  from  Code  of  190G,  §§  2829  to  2851.] 

§2829.     Persons  and  companies   subject   to   provisions  of  Act. 

§2830.  Duty  to  receive  for  transportation. — 'Connections  with  tanks  or 
receptacles. — Delivery. 

§2831.  Insj^ection. — Grading  and  measurement  before  transportation. — Re- 
ceipts.— Deductions  for  waste. 

§2832.     Charge  for  transportation. 

§2833.     Chrrge  for  storage. 

§2834.  Inspection  and  measurement  before  transportation. — Receipts. — 
Contents. — Deductious    for    w^aste. — Delivery. — Liability    for    loss. 

§2835.     Charge  for  transportation  and  delivery. 

§2836.  Seme. — Time  for  commencement  of  charge. — Deductions  for  waste 
and  evaporation. 

§2837.     Discrimination  prohibited. 

§2838.     Penalties. — Damages  for  excessive  charges. 

§2839.     Lien  for  charges. 

§2840.     Negotiability  of  accepted  orders  and  certificates. 

§2841.  Receipts,  certificates,  etc. — Unauthorized  issuance. — Duplicates. — 
Surrender. — I^ss. — Cancellation. 

§2842.     Sale,  incumbrance,  etc.,  without  consent  of  owner. 

§2843.     Monthly  statements. 

§2844.  Same. — Specifications  of  amounts. — Duty  to  keep  on  hand  oil  equal 
to  aggregate  outstanding  receipts,  etc. 

§2845.  ■    Penalties    for   unauthorized   issuance   of    receipts,   etc. 

§2846.     Penalties  for  unauthorized  sales,  incumbrances,  etc. 

§2i847.     Penalties  for  failure   to   make   reports. 

§2848.     Examination   of   companies. 

§2849.     Oflfenses  by  examiners. 

§2850.     Same. — Refusal    to   fumisli   information,    etc. — Penalties. 

§2851.     Repeal. 


§2829.     Persons  and  companies  subject  to  provisions  of  Act. 

1.     Every  person,  corporation  or  company  now  engaged,  or 
who   shall   hereafter   engage    or   continue   in    the   business   of 


APPENDIX    B.  1087 

transporting  or  storing  petroleum,  by  means  of  pipe  line  or 
lines  or  storage  by  tanks,  shall  be  subject  to  the  provisions  of 
this  Act  and  shall  conduct  such  business  in  conformity  here- 
with;  and  the  word  "company"  whenever  used  in  this  Act 
shall  be  construed  to  include  persons  and  corporations.  (Acts 
1879,  c.  27;  Acts  1891,  c.  44.) 

§  2830.     Duty  to  receive  for  transportation. — Connections  with 
tanks  or  receptacles. — Delivery. 

2.  Any  company  heretofore  or  hereafter  organized  for  the 
purpose  of  transporting  petroleum  or  other  oils  or  liquids  by 
means  of  pipe  line  or  lines,  shall  he  required  to  accept  all 
petroleum  offered  to  it  in  merchantable  order  in  ([uantities  of 
not  less  than  two  thousand  gallons  at  the  wells  where  the  same 
is  produced,  making  at  its  own  expense  all  necessary  connec- 
tions with  the  tanks  or  receptacles  containing  such  petroleum, 
and  to  transport  and  deliver  the  same  at  any  delivery  station, 
within  or  without  the  State,  on  the  route  of  its  line  of  pipes 
which  may  be  designated  by  the  owners  of  the  petroleum  so 
offered.     (Acts  1870,  c.  27 ;  Acts  1891,  c.  44.) 

§  2831.     Inspection, — Grading-  and  measurement  before  trans- 
portation.— Receipts. — Deductions  for   waste. 

3.  All  petroleum  of  a  gravity  of  thirty-five  degrees  Beaume 
or  under,  at  a  temperature  of  sixty  degrees  Fahrenheit,  offered 
for  transportation  by  means  of  pipe  line  or  lines,  shall,  before 
the  same  is  transported,  as  provided  by  section  2  of  this  Act, 
be  inspected,  graded  and  measured  at  the  expense  of  the  pipe 
line  company,  and  the  company  accepting  the  same  for  trans- 
portation shall  give  to  the  OAvner  thereof  a  receipt  stating 
therein  the  number  of  barrels  or  gallons  so  received,  and  the 
grade,  gravity  and  measurement  thereof,  and  within  a  reason- 
able time  thereafter,  upon  demand  of  said  owner  or  his  as- 
signs, shall  deliver  to  him  at  the  point  of  delivery  a  like  quan- 
tity and  grade  or  gravity  of  petroleum  in  merchantable  con- 
dition as  specified  in  said  receipt;  except  that  the  company 
may  deduct  for  waste  one  per  centum  of  the  amount  of  petro- 
leum specified  in  such  receipt.  (Acts  1879,  c.  27;  Acts  1891, 
e.  44.) 


1088  OIL    AND    GAS. 

§  2832.     Chaxge  for  transportation. 

4.  The  charge  for  receiving,  transporting  and  delivering 
petroleum  of  the  gravity  of  thirty-five  degrees  Baume  or 
under,  at  a  temperature  of  sixty  degrees  Fahrenheit,  by  means 
of  pipe  line  or  lines  shall  not  exceed  one  cent  per  barrel  of 
forty-two  gallons  per  mile ;  Provided,  That  if  said  rate  should 
amount  for  the  whole  distance  transported  to  less  than  ten 
cents  per  barrel,  then  the  sum  of  ten  cents  per  barrel  may  be 
charged ;  and,  provided,  that  if  the  distance  be  over  twenty 
miles  and  not  more  than  thirty  miles,  one-half  cent  per  barrel 
may  be  charged  for  every  mile  over  twenty  miles;  and  pro- 
vided, further,  that  if  the  distance  be  over  thirty  miles,  the 
maximum  charge  shall  not  exceed  twenty-five  cents.  (Acts 
1879,  c.  27;  Acts  1891,  c.  44.) 

§  2833.     Charge  for  storage. 

5.  Any  company  engaged  in  storing  petroleum  of  a  gravity 
of  thirty-five  degrees  Baume  or  under,  at  a  temperature  of 
sixty  degrees  Fahrenheit,  by  means  of  tanks,  shall  be  per- 
mitted to  charge  for  storage  one  cent  per  barrel  per  month  or 
part  of  a  month,  unless  the  same  is  removed  within  fifteen 
d?ys  from  the  date  when  said  oil  is  received  into  the  custody 
of  such  company,  and  shall  be  allowed  for  evaporation  and 
waste  one-half  of  one  per  centum  of  the  oil  per  month  unless 
removed  within  thirty  days  from  the  date  of  the  receipt  of 
such  petroleum ;  but  no  company  engaged  in  the  business  of 
storing  petroleum  of  tlie  gravity  of  thirty-five  degrees  Baume 
or  under,  at  a  temperature  of  sixty  degrees  Fahrenheit,  shall 
charge  for  storage  any  amount  in  excess  of  that  authorized 
by  this  section.     (Acts  1879,  c.  27 ;  Acts  1891,  c.  44.) 

§  2834.  Inspection  and  measurement  before  transportation. — 
Receipts. — Contents. — Deductions  for  waste. — De- 
livery.— Liability  for  loss. 

6.  All  petroleum  of  a  gravity  exceeding  thirty-five  degrees 
Baume  at  a  temperature  of  sixty  degrees  Fahrenheit,  offered 
for  transportation  by  means  of  pipe  line  or  lines,  shall  be  in- 
spected and  measured  at  the  expense  of  the  company  trans- 


APPENDIX    B. 


1089 


porting  the  same,  before  the  same  is  transported;  and  the 
company  accepting  the  same  for  transportation,  shall  give  to 
the  owner  thereof,  or  to  the  person  in  charge  of  the  well  or 
wells  from  wliich  such  petroleum  has  been  produced  and  run,  a 
ticket  signed  by  its  ganger,  stating  the  number  of  feet  and 
inches  of  petroleum  which  were  in  the  tank  or  receptacle  con- 
taining the  same  before  the  company  began  to  run  the  contents 
of  said  tank,  and  the  numl)er  of  feet  and  inches  of  petroleum 
which  remained  in  the  tank  after  said  run  was  completed; 
and  all  deductions  made  for  water,  sediment  or  the  like,  shall 
be  made  at  the  time  such  petroleum  is  measured  ;  and  within 
reasonable  time  there^after  said  company  shall,  upon  demand, 
deliver  from  the  petroleum  in  its  custody  to  the  owner  thereof, 
or  to  his  assignee,  at  such  delivery  station  on  the  route  of  its 
line  of  pipes  as  he  may  elect,  a  quantity  of  merchantable 
petroleum,  equal  to  the  quantity  of  petroleum  run  from  said 
tank,  or  receptacle,  which  shall  be  ascertained  by  coinjiutation ; 
except  that  the  said  company  transporting  said  petroleum  may 
deduct  for  evaporation  and  waste  two  per  centum  of  the 
amount  of  petroleum  so  run,  as  shown  by  said  run  ticket ;  and 
except  that  in  case  of  loss  of  any  petroleum  while  in  the  cus- 
tody of  said  company  caused  by  fire,  lightning,  storm  or  other 
like  unavoidable  cause,  such  loss  shall  be  born  pro  rata  by 
all  the  owners  of  such  petroleum  at  the  time  thereof.  But 
said  company  shall  be  liable  for  all  petroleum  that  is  lost 
while  in  its  custody  by  the  bursting  of  pipes  or  tanks,  or  by 
leakage  from  pipe  or  tanks;  and  it  shall  also  be  liable  for  all 
petroleum  lost  from  tanks  at  the  w-ells  where  produced  before 
the  same  has  been  received  for  transportation,  if  such  loss  be 
due  to  faulty  connections  made  to  said  tanks ;  and  said  com- 
pany shall  be  liable  for  all  petroleum  lost  by  the  overflow  of 
any  tanks  with  which  pipe  line  connections  have  been  made, 
if  such  overflow  be  due  to  the  negligence  of  such  company; 
and  for  all  the  petroleum  lost  by  the  overflow  of  tanks  with 
which  pipe  line  connections  should  have  been  made  under 
the  provisions  of  this  Act,  but  were  not  so  made  by  reason  of 
negligence  or  delay  on  the  part  of  said  company.  (Acts  1879, 
c.  27;  Acts  1891,  c.  44.) 


1090  OIL    AND    GAS. 

§  2835.     Charge  for  transportation  and  delivery. 

7.  Any  company  engaged  in  transporting  petroleum  of  a 
gravity  exceeding  thirty-tive  degrees  liauiiie  at  a  temperature 
of  sixty  degrees  Fahrenheit,  by  means  of  pipe  line  or  lines, 
may  charge  for  receiving,  transporting  and  delivering  such 
petroleum  not  to  exceed  twenty  cents  i)cr  barrel  for  eacli  barrel 
of  forty-two  gallons:  Provided,  however,  if  where  the  point 
of  delivery  is  without  this  State,  more  than  twenty  cents  per 
barrel  be  charged,  then  there  shall  be  cliarged  no  greater  sum 
than  ten  cents  per  barrel  for  receiving  such  oil  and  trans- 
porting the  same  that  part  of  the  distance  which  is  within  this 
State.     (Acts  1891,  c.  44.) 

§2836.     Same. — Time  for  commencement  of  charge. — Deduc- 
tions for  waste  and  evaporation. 

8.  Any  company  engaged  in  transporting  or  storing  pe- 
troleum of  a  gravity  exceeding  thirty-five  degrees  Baume  at  a 
temperature  of  sixty  degrees  Fahrenheit,  by  means  of  pipe 
line  or  lines  and  tanks,  shall  make  no  charge  for  storing  said 
petroleum  until  after  the  expiration  of  the  month  following 
that  in  which  the  oil  was  run  and  received  into  custody.  But 
it  may  charge  for  storing  said  petroleum  of  a  gravity  exceeding 
thirty-five  degrees  Baume  at  a  temperature  of  sixty  degrees 
Fahrenheit,  or  every  day  after  the  expiration  of  the  month 
following  that  in  which  said  oil  shall  have  been  run  and  re- 
ceived into  custody,  not  to  exceed  one-fortieth  of  one  cent  per 
barrel  of  forty-two  gallons  for  each  day  thereafter  said  oil 
shall  continue  to  remain  in  its  custody.  Any  such  company 
shall  make  no  charge  for  water,  sediment,  waste  and  the  like  in 
transporting  or  storing  any  petroleum  after  the  same  has  been 
gauged  or  measured,  before  the  run  of  same  is  made,  except 
the  two  per  centum  for  waste  and  evaporation  hereinbefore 
mentioned.     (Acts  1891,  c.  44.) 

§  2837.     Discrimination  prohibited. 

9.  No  company  engaged  in  transporting  or  storing  petro- 
leum by  means  of  pipe  line  or  lines  and  tanks  shall  charge, 
demand  or  receive  from  any  corporation,  company,  associa- 
tion, person  or  persons  a  greater  or  less  rate  for  the  trans- 


APPENDIX   B.  101)1 

portation  or  storage  of  petroleum  tlian  it  charges,  receives  or 
demauds  from  any  other  corporation,  company,  association, 
person  or  persons  for  the  transportation  or  storage  of  petro- 
leum of  like  gravity;  and  any  shift,  device  or  subterfuge  made 
or  attempted  for  the  purpose  of  avoiding  the  provisions  of  this 
section  shall  be  void.     (Acts  1879,  c.  27 ;  Acts  1891,  c.  44.) 

§  2838.     Penalties. — Damages  for  excessive  charges. 

10.  Any  company,  its  officers  or  agents,  willfully  violating 
any  of  the  provisions  of  sections  two,  three,  four,  live,  six, 
seven,  eight  or  nine,  of  this  Act,  or  charging  for  any  of  the 
services  provided  for  in  any  of  said  sections,  an  amount  in 
excess  of  that  authorized  by  said  sections,  shall  be  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  fined  not 
less  than  one  hundred  dollars,  nor  more  than  one  thousand 
dollars,  and  shall  moreover  be  liable  to  the  party  aggrieved  for 
all  damages  sustained  by  him  by  reason  of  such  excessive 
charges.     (Acts  1891,  c.  44.) 

§2839.     Lien  for  charges. 

11.  Any  company  engaged  in  transporting  or  storing  pe- 
troleum, shall  have  a  lien  upon  said  petroleum  until  all  charges 
for  transportation  and  storing  said  petroleum  are  paid.  (Acts 
1879,  c.  27;  Acts  1891,  c.  44.) 

§  2840.     Negotiability  of  accepted  orders  and  certificates. 

12.  Accepted  orders  and  certificates  for  petroleum,  issued 
by  any  company  engaged  in  the  business  of  transporting  and 
storing  petroleum  in  this  State,  by  means  of  pipe  line  or  lines 
and  tanks,  shall  be  negotiable,  and  may  be  transferred  by 
endorsement,  either  in  blank  or  to  the  order  of  another,  and 
any  person  to  whom  the  said  accepted  orders  and  certificates 
shall  be  so  transferred,  shall  be  deemed  and  taken  to  be  the 
owner  of  the  petroleum  therein  specified.  (Acts  1879,  c.  27 ; 
Acts  1891,  c.  44.) 

§  2841.     Receipts,   certificates,  etc. — Unauthorized  issuance. — 
Duplicates. — Surrender. — Loss. — Cancellation. 

13.  No  receipt,  certificate,  accepted  order  or  other  voucher, 
shall  be  issued  or  put  in  circulation,  nor  shall  any  order  be 


10'J2  OIL    AND    GAS. 

accopted  or  lial)ility  iiieurrod  for  the  delivery  of  any  petro- 
leum, crude  or  reHiu'd,  unless  the  amount  of  such  j)etroleum 
represented  in  or  l)y  sueh  receipt,  certificate,  accepted  order, 
or  other  voucher  or  liability,  shall  have  been  actually  received 
by  and  shall  then  be  in  the  tanks  and  lines,  custody  and  con- 
trol of,  the  company  issuing  or  putting  in  circulation  such 
receipt,  certificate,  accepted  order  or  voucher,  or  written 
evidence  of  liability.  No  duplicate  receipt,  certificate,  accepted 
order  or  other  voucher  shall  be  issued  or  put  in  circulation, 
or  any  liability  incui'red  for  any  petroleum,  crude  or  refined, 
while  any  former  liability  remains  in  force,  or  any  former 
receipt,  certificate,  accepted  order  or  other  voucher  shall  be 
outstanding  and  uncancelled,  except  such  original  paper  shall 
have  been  lost,  in  Avhich  case  a  duplicate  plainly  marked 
"duplicate"  upon  the  face,  and  dated  and  numbered  as  the 
lost  original  was  dated  and  numbered,  may  be  issued.  No 
receipt,  voucher,  accepted  order,  certificate  or  written  evidence 
of  liability  of  such  company  on  which  petroleum,  crude  or 
refined,  has  been  delivered,  shall  be  re-issued,  used  or  put  in 
circulation.  No  petroleum,  crude  or  refined,  for  which  a  re- 
ceipt, voucher,  accepted  order,  certificate  or  liability  incurred, 
shall  have  been  issued  or  put  in  circulation,  shall  be  delivered, 
except  upon  the  surrender  of  the  receipt,  voucher,  order  or 
liability  representing  such  petroleum,  except  upon  affidavit 
of  loss  of  such  instrument  made  by  the  former  holder  thereof. 
No  duplicate  receipt,  certificate,  voucher,  accepted  order  or 
other  evidence  of  liability,  shall  be  made,  issued  or  put  in 
circulation  until  after  notice  of  the  loss  of  the  original,  and 
of  the  intention  to  apply  for  a  duplicate  thereof,  shall  have 
been  given  by  advertisement  over  the  signature  of  the  owner 
thereof  in  at  least  four  successive  issues  of  a  daily  or  weekly 
newspaper  published  in  the  county  where  such  duplicate  is  to 
be  issued.  Every  receipt,  voucher,  accepted  order,  certificate 
or  evidence  of  liability,  when  surrendered,  or  the  petroleum 
represented  thereby  delivered,  shall  be  immediately  cancelled 
by  stamping  and  punching  the  same  across  the  face  in  large 
and  legible  letters  with  the  word  "cancelled,"  and  giving  the 
date  of  such  cancellation ;  and  it  shall  then  be  filed  and  pre- 
served in  the  principal  office  of  such  company  for  the  period 
of  six  years.     (Acts  1879,  c.  27 ;  Acts  1891,  c.  44.) 


APPENDIX   B.  lU'j;i 

§  2842.     Sale,  incumbrance,  etc.,  without  consent  of  owner. 

14.  No  company,  its  officers  or  agents,  or  any  person  or 
persons  engaged  in  tlie  transportation  or  storage  of  petroleum, 
crude  or  refined,  sliall  sell  or  encumber,  ship,  transfer,  or  in 
any  manner  remove  or  procure  or  permit  to  be  sold,  encum- 
bered, shipped,  transferred,  or  in  any  manner  removed  from 
the  tanks  or  pipes  of  said  company  engaged  in  the  business 
aforesaid,  any  petroleum,  crude  or  refined,  without  the  written 
order  of  the  owner  or  owners  thereof.     (xVcts  1891,  c.  44.) 


§  2843.     Monthly  statements. 

15.  Every  company  now  or  hereafter  engaged  in  the  ])usi- 
ness  of  transporting  by  pipe  lines,  or  storing  crude  or  refined 
petroleum  in  this  State,  shall,  on  or  before  the  tenth  day  of 
each  month,  make  or  cause  to  be  made  and  posted  in  its  prin- 
cipal business  office  in  tliis  State  in  an  accessible  and  con- 
venient place  for  the  examination  thereof  by  any  person  de- 
siring such  examination,  and  shall  keep  so  posted  continuously 
until  the  next  succeeding  statement  is  so  posted,  a  statement 
plainly  written  or  printed,  signed  by  the  officer,  agent,  person 
or  persons  having  charge  of  the  pipes  and  tanks  of  said  com- 
pany, and  also  by  the  officer  or  officers,  person  or  persons, 
having  charge  of  the  books  and  accounts  thereof,  which  state- 
ment shall  show  in  legible  and  intelligent  form  the  following 
details  of  the  business : 

First. — IIow  much  petroleum,  crude  or  refined,  was  in  the 
actual  and  immediate  custody  of  such  company  at  the  begin- 
ning and  close  of  the  previous  month,  and  where  tlie  same  was 
located  or  held;  describing  in  detail  the  location  and  designa- 
tion of  each  tank  or  place  of  deposit,  and  the  name  of  its 
owner. 

Second. — IIow  much  petroleum,  crude,  or  refined,  was  re- 
ceived by  such  company  during  the  previous  month. 

Third. — IIow  much  petroleum,  crude  or  refined,  was  deliv- 
ered by  such  company  during  the  previous  month. 

Fourth. — For  how  much  petroleum,  crude  or  refined,  such 
company  was  liable  for  the  delivery  or  custody  of  to  other 
corporations,  companies  or  persons  at  the  close  of  the  month. 


1094  OIL    AND    GAS. 

Fifth. — How  iiLucli  of  such  liability  was  represented  by  out- 
standing receipts  or  certificates,  accepted  order  or  other 
vouchers,  and  how  much  was  represented  by  credit  balances. 

Sixth. — That  all  the  provisions  of  this  Act  have  been  faith- 
fully observed  and  obeyed  during  the  said  previous  month. 

The  statement  so  required  to  be  made  shall  also  be  sworn  to 
by  said  officers,  agent,  person  or  persons  before  some  officer 
authorized  by  law  to  administer  oaths,  which  oath  shall  be  in 
writing,  and  shall  assert  the  familiarity  and  acquaintance  of 
the  deponent  with  the  business  and  condition  of  such  company, 
and  with  the  facts  sworn  to,  and  that  the  statements  made 
in  the  said  report  are  true.     (Acts  1891,  c.  44.) 

§  2844.  Same. — Specifications  of  amounts. — Duty  to  keep  on 
hand  oil  equal  to  aggregate  outstanding  receipts, 
etc. 

16.  All  amounts  in  the  statements  required  by  this  Act, 
when  the  petroleum  is  handled  in  bulk,  shall  be  given  in  barrels 
and  hundredths  of  barrels  reckoning  forty-two  gallons  to  each 
barrel,  and  when  such  petroleum  is  handled  in  barrels  or 
packages,  the  number  of  such  barrels  or  packages  shall  be 
given,  and  such  statements  shall  distinguish  between  crude 
and  refined  petroleum,  and  give  the  amount  of  each.  Every 
company  engaged  in  the  business  aforesaid,  shall  at  all  times 
have  in  their  pipes  and  tanks  an  amount  of  merchantable  oil 
equal  to  the  aggregate  of  outstanding  receipts,  certificates,  ac- 
cepted orders,  vouchers,  acknowledgments,  evidences  of  lia- 
bility and  credit  balances,  on  the  books  thereof.  (Acts  1891, 
c.  44.) 

§  2845.     Penalties  for  unauthorized  issuance  of  receipts,  etc. 

17.  Any  company,  its  officers  or  agents,  who  shall  make  or 
cause  to  be  made,  sign  or  cause  to  be  signed,  issue  or  cause  to 
be  issued,  put  in  circulation  or  cause  to  be  put  in  circulation, 
any  receipt,  accepted  order,  certificate,  voucher  or  evidence 
of  liability,  or  shall  sell,  transfer  or  alter  the  same,  or  cause 
such  sale,  transfer  or  alteration,  contrary  to  the  provisions  of 
this  Act,  or  shall  do  or  cause  to  be  done,  any  of  the  acts  pro- 
hibited by  the  thirteenth  section  of  this  Act,  or  omit  to  do 


APPENDIX   B.  1095 

any  of  the  acts  of  said  section  directed,  shall  be  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  he  sentenced  to 
pay  a  fine  of  not  exceeding  one  thousand  dollars,  and  undergo 
imprisonment  not  less  than  ten  days  nor  exceeding  oiu-  year. 
(Acts  1891,  c.  44.) 

§  2846.     Penalties  for  unauthorized  sales,  incumbrances,  etc. 

18.  Any  company,  its  officers,  or  agents,  who  shall  sell,  en- 
cumber, transfer  or  remove,  or  cause  or  procure  to  be  sold, 
transferred  or  removed  from  the  tanks  or  pipes  of  such  com- 
pany, any  petroleum  crude  or  refined,  without  the  wi'itten  con- 
sent of  the  owner  or  owners  thereof,  shall  be  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  sentenced  to  pay 
a  fine  of  one  thousand  dollars  and  undergo  an  imprisonment 
of  not  less  than  ninety  days  and  not  exceeding  one  year.  (Acts 
1891,  c.  44.) 

§  2847.     Penalties  for  failure  to  make  reports. 

19.  Any  company  engaged  in  the  business  of  transporting 
by  pipe  lines  or  storing  petroleum,  crude  or  refined,  and  each 
and  every  officer  or  agent  of  such  company  who  shall  neglect 
or  refuse  to  make  the  report  and  statement  re<|uii'ed  by  the 
fifteenth  section  of  this  Act,  within  the  time  and  the  manner 
directed  by  said  section,  shall  forfeit  and  pay  the  sum  of  one 
thousand  dollars,  and  in  addition  thereto  the  sum  of  five  hun- 
dred dollars  for  each  day  after  the  tenth  day  of  the  month 
that  the  report  and  statement  required  by  said  section  fifteen 
shall  remain  unposted  as  therein  directed.     (Acts  1891,  c.  44.) 

§  2848.     Examination  of  companies. 

20.  The  holder  of  any  receipts,  certificates,  accepted  orders, 
or  other  vouchers  or  evidences  of  liability,  or  the  owners  of 
oil  in  the  custody  of  any  such  company  described  and  referred 
to  in  this  Act,  to  an  amount  not  less  in  the  aggregate  than 
ten  thousand  barrels  of  petroleum,  crude  or  refined,  may  at 
any  time  present  their  petition  to  the  circuit  court  of  any 
county  wherein  such  company  may  be  engaged  in  the  business 
or  have  its  principal  office,  or  to  any  judge  of  said  court  in 
vacation,  setting  forth  under  oath,  their  ownership  as  afore- 


1096  OIL   AND    GAS. 

said  and  desire  for  tlie  appointment  of  examiners  for  the  pur- 
poses of  this  section;  and  upon  siich  petitioners  giving  bonds 
to  be  approved  by  the  court  or  by  the  judge  granting  the 
order,  that  they  will  pay  all  expenses  and  costs  that  may 
accrue  in  the  proceedings,  the  court,  or  any  judge  thereof,  in 
vacation,  shall  forthwith  appoint  such  number  of  impartial, 
disinterested  and  expert  persons  as  may  be  asked  for  in  said 
petition,  as  examiners,  and  shall  fix  the  amount  of  their  com- 
pensation;  and  the  court  or  judge  by  order,  sluill  direct  and 
empower  such  examiners  to  immediately  inspect  and  measure 
all  the  petroleum,  crude  or  refined,  in  the  custody  of  any  such 
company  named  in  the  said  petition,  on  the  day  of  such  inspec- 
tion, and  to  examine  the  books  of  said  company  relating  to  the 
issue  and  cancellation  of  receipts,  certificates,  accepted  orders, 
vouchers,  or  evidences  of  liability,  and  to  its  open  accounts 
with  persons,  companies  or  corporations  with  whom  it  deals 
in  the  receipt  and  delivery  of  crude  or  refined  petroleum.  Such 
examiners  when  so  appointed  shall  each  immediately  be  sworn 
before  any  authorized  officer  to  perform  his  duties  with  fidelity 
and  according  to  law,  which  oath  shall  be  reduced  to  writing, 
signed  and  filed  with  the  clerk,  and  they  shall  then  make 
immediate  inspection,  examination  and  measurement,  as  re- 
quired by  said  petition  and  order  and  by  this  Act.  And  it 
shall  be  the  duty  of  each  and  every  such  company,  its  officers, 
agents  and  employees,  to  give  immediately  upon  request  of  any 
such  authorized  examiners,  all  the  information  demanded  in 
said  petition  and  required  by  this  act  to  be  reported,  and  also 
full  access  to  the  offices,  tanks,  pipes,  books  and  accounts  of 
such  company.  Upon  the  completion  of  such  inspection,  meas- 
urement and  examination,  it  shall  be  the  duty  of  the  examiner 
or  examiners,  or  in  the  event  of  death,  resignation,  declination 
or  inability  to  act  of  any  of  them,  then  the  others,  or  any  of 
them  Avithin  ten  days  after  their  appointment  to  make  the  court 
appointing  them,  a  written,  signed  and  sworn  report  of  such 
examination,  inspection  and  measurement,  and  file  the  same  of 
record  with  the  clerk  thereof,  which  report  shall  show: 

First. — ITow  much  merchantable  and  also  how  much  un- 
merchantal)le  petroleum,  crude  or  refined,  they  found  in  the 
tanks  and  lines  of  such  company,  and  where  the  same  was 
located  or  held  by  description  of  tanks. 


APPENDIX    B.  1007 

Second. — For  the  custody  or  delivery  of  how  much  crude 
or  refined  petroleum  they  found  such  company  to  be  liable  at 
the  same  date. 

Third. — How  much  of  such  liability  was  represented  by  out- 
standing receipts,  and  how  much  by  credit  balances.  (Acts 
1891,  c.  44.) 

§  2849.     Offenses  by  examiners. 

21.  Any  examiner  so  appointed  as  aforesaid,  who  siiall  make 
any  false  examination,  inspection,  measurement  or  report,  or 
shall  make  known  directly  or  indirectly  to  any  person  any  in- 
formation he  may  become  possessed  of  in  the  course  of  his 
examination,  inspection  or  measurement,  except  by  means  of 
his  report  made  and  filed  in  accordance  with  this  Act,  or  Avho 
shall  receive  directly  or  indirectly  any  fee,  reward  or  benefit, 
or  the  promise  of  any  fee,  reward  or  benefit,  other  than  that 
provided  by  this  Act,  for  the  performance  or  non-performance 
of  any  duty  or  thing  contemplated  by  this  Act,  or  connected 
with  his  said  employment,  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  sentenced  to  pay  a  fine  of 
one  thousand  dollars,  and  may  at  the  discretion  of  the  court,  be 
confined  in  jail  not  to  exceed  one  year.     (Acts  1891,  c.  44.) 

§  2850.     Same. — Refusal  to  furnish  information,   etc. — Penal- 
ties. 

22.  Any  officer,  agent,  manager,  superintendent,  or  em- 
ployee of  any  company  engaged  in  the  transportation  by  pipe 
lines  of  petroleum,  crude  or  refined,  or  the  storage  thereof, 
who  shall  refuse  or  neglect  after  demand  made  to  give  to  any 
authorized  examiner  full  and  free  access  to  any  and  all  offices, 
pipes,  tanks,  accounts,  books  and  vouchers  required  by  him  in 
the  pursuance  of  his  appointment  and  this  Act,  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  sen- 
tenced to  pay  a  fine  of  not  exceeding  one  thousand  dollars,  and 
may  at  the  discretion  of  court  be  confined  in  jail  not  to  exceed 
one  year.     (Acts  1891,  c.  44.) 

§  2851.     Repeal. 

23.  All  Acts  and  parts  of  Acts  inconsistent  with  the  provi- 
sions of  this  Act  are  hereby  repealed.     (Acts  1891,  c.  44.) 


1098  OIL   AND    GAS. 

WYOMING. 

PLUGGING  WELLS. 

§L  Oil  and  gas. — Waste. 

§2.  Plugging  aiiaiidoiicd  wells. 

§3.  Penalty. 

§4.  Rights  of  adjoining  owners. 

§5.  Adjoining  owners  may  plug  abandoned  wells. 

§6.  A{)plication. 

§  1.     Oil  and  gas. — Waste. 

It  sliall  be  unlawful  for  any  person,  firm  or  corporation 
having  possession  or  control  of  any  natural  gas  or  oil  well, 
whether  as  a  contractor,  owner,  lessee,  agent  or  manager,  to 
allow  or  permit  the  flow  of  gas  or  oil  from  any  such  well  to 
escape  into  the  open  air,  without  being  confined  within  such 
well  or  proper  pipes,  or  other  safe  receptacle  for  a  longer 
period  than  thirty  (30)  days  next  after  gas  or  oil  shall  have 
been  struck  in  such  well.  And  thereafter  all  such  gas  or  oil 
shall  be  safely  and  securely  confined  in  such  well,  pipes  or 
other  safe  and  proper  receptacles. 

§  2.     Plugging  abandoned  wells. 

"Whenever  any  well  shall  have  been  sunk  for  the  purpose  of 
obtaining  natural  gas  or  oil  or  exploring  for  the  same,  and 
shall  be  abandoned  or  cease  to  be  operated  for  utilizing  the 
flow  of  gas  or  oil  therefrom,  it  shall  be  the  duty  of  any  person, 
firm  or  corporation  having  the  custody  or  control  of  such  well 
at  the  time  of  such  abandonment  or  cessation  of  use,  and  also 
of  the  owner  or  owners  of  the  land  wherein  such  well  is  sit- 
uated, to  properly  and  securely  stop  and  plug  the  same  as  fol- 
lows: If  such  well  has  not  been  "shot"  there  shall  be  placed 
in  the  bottom  of  the  hole  thereof  a  plug  of  well-seasoned  pine 
wood,  the  diameter  of  which  shall  be  within  one-half  inch  as 
great  as  the  hole  of  such  well,  to  extend  at  least  three  feet 
above  the  salt  water  level,  where  salt  water  has  been  struck ; 
where  no  salt  water  has  been  struck  such  plug  shall  extend 
at  least  three  feet  from  the  bottom  of  the  well.  In  both  cases 
such  wooden  plugs  shall  be  thoroughly  rammed  down  and 
tightened  by  the  use  of  drilling  tools.  After  such  ramming 
and  tightening  the  hole  of  such  well  shall  be  filled  on  top  of 


APPENDIX    D.  101)9 

such  plug  with  finely  broken  stone  or  sand.  Mliich  shall  l)e 
placed  and  well  rammed  to  a  point  at  least  four  feet  above  tbe 
gas  or  oil-bearing  rock,  on  top  of  this  stone  or  sand  tlici-f  sliall 
be  placed  another  wooden  plug  at  least  live  feet  long  with 
diameter  as  aforesaid,  which  shall  be  thorougldy  rammed  and 
tightened.  In  case  such  well  shall  have  been  "shot"  tiie 
bottom  of  the  hole  thereof  shall  be  tilled  with  a  pi-oper  and 
sufficient  mixture  of  sand,  stone  and  dry  cement,  so  as  to  form 
a  concrete  up  to  a  point  at  least  eight  feet  above  the  top  of  the 
gas  or  oil-bearing  rock  or  rocks  and  on  top  of  this  filling  shall 
be  placed  a  wooden  plug  at  least  six  feet  long,  with  a  diameter 
as  aforesaid,  which  shall  be  properly  rammed  as  aforesaid. 

§  3.     Penalty. 

Any  person  violating  any  of  the  provisions  of  this  chapter 
shall  be  deemed  guilty  of  a  misdemeanor  and  be  punishable 
by  a  fine  of  not  more  than  five  hundred  dollars,  and  all  such 
fines  when  so  collected  shall  be  paid  into  the  treasury  of  the 
county. 

§  4.     Rights  of  adjoining  owners. 

Whenever  any  person  or  corporation  in  possession  or  con- 
trol of  any  well  in  which  natural  gas  or  oil  has  been  found 
•shall  fail  to  comply  with  the  provisions  of  this  chapter,  any 
person  or  corporation  lawfully  in  possession  of  lands  situated 
adjacent  to  or  in  the  vicinity  or  neighborhood  of  such  well  may 
enter  upon  the  lands  upon  which  such  well  is  situated  and  take 
possession  of  such  well  from  which  gas  or  oil  is  allowed  to 
escape  in  violation  of  the  provisions  of  Section  3556,  and  pack 
and  tube  such  well  and  shut  in  and  secure  the  flow  of  gas  or 
oil,  and  maintain  in  a  civil  action  in  any  court  of  competent 
jurisdiction  in  this  State  against  the  owner,  lessee,  agent  or 
manager  of  said  well,  and  each  of  them  jointly  and  severally 
to  recover  the  cost  and  expense  of  such  tubing  and  packing, 
together  with  attorney's  fees  and  costs  of  suit.  This  shall  ha 
in  addition  to  the  penalties  provided  by  Section  3558. 

§  5.     Adjoining  owners  may  plug  abandoned  wells. 

"Whenever  any  person  or  corporation  sliall  a])nndon  or  cease 
to  operate  any  natural  gas  or  oil  well,  and  shall  fail  to  comply 


1100  OIL   AND    GAS. 

with  the  provisions  of  Section  3057,  any  person  or  corporation 
lawfully  in  possession  of  lands  adjacent  to  or  in  the  vicinity  or 
neighl)orhood  of  such  well  may  enter  upon  the  lands  upon 
which  such  well  is  situated  and  take  possession  of  such  well, 
and  plug  and  fill  the  same  in  the  manner  provided  by  Section 
3557,  and  may  maintain  a  civil  action  in  any  court  of  compe- 
tent jurisdiction  of  this  State  against  the  person,  persons  or 
corporation  so  failing,  jointly  and  severally,  to  recover  the 
costs  and  expense  of  such  plugging  and  filling,  together  with, 
attorney's  fees  and  costs  of  suit.  This  shall  be  in  addition 
to  the  penalties  provided  by  Section  3558. 

§  6.     Application. 

The  provisions  of  this  chapter  shall  not  apply  to  wells  in. 
existence  on  February  21,  1905. 

STATE  GEOLOGIST. 

§1.  Appointment. 

52.  Geiifral    duties. 

53.  Fees. 
§4.  Reports. 

§  1.     Appointment. 

There  shall  be  a  State  geologist  of  the  State  of  Wyoming, 
who  shall  be  appointed  by  the  governor  by  and  with  the  con- 
sent of  the  Senate.  He  shall  hold  his  office  for  the  term  of  six 
years  or  until  his  successor  shall  have  been  appointed  and 
qualified. 

§  2.     General  duties. 

It  shall  be  the  duty  of  the  State  geologist  to  make  reports 
on  mining  property  where  a  proper  certificate  has  been  pre- 
sented showing  sufficient  development  and  upon  the  payment 
of  fees  hereinafter  prescribed,  and  his  reports  shall  be  in  such 
form  as  is  usually  required  of  mining  exchanges,  for  the  pur- 
pose of  obtaining  a  working  capital,  provided  that  such  prop- 
erty shall  be  deemed  by  tbo  State  geologist  of  sufficient  value 
to  warrant  favorable  report.  It  shall  be  the  duty  of  the  State 
geologist  to  collect  official  information  relating  to  the  various 


APPENDIX   B.  1101 

mines  and  mining  projects  of  the  State  and  to  publish  and 
circulate  such  information  as  he  may  deem  advisable  for  ad- 
vertising the  mineral  wealth  of  the  State  and  also  to  take  any 
steps  which  would  be  likely  to  advance  the  development  of  the 
mining  industry.  It  shall  be  the  further  duty  of  the  State 
geologist  to  examine  free  of  charge  all  specimens  of  rock  or 
mineral  formation,  and  to  iiatne  and  classify  such  specimens  so 
far  as  it  be  in  his  power,  without  an  assay,  and  to  make  returns 
to  the  person  sending  the  same.  He  shall  ex-officio  perform  the 
duties  of  inspector  of  mines  until  otherwise  provided  by  law. 

§  3.    Fees. 

For  the  examination  of  and  report  on  any  mining  prospect, 
undeveloped  oil  or  coal  land  or  other  form  of  mineral  deposit, 
as  recognized  under  the  United  States  mining  laws,  the  State 
geologist  shall  charge  a  minimum  fee  of  $25,  with  a  further 
fee  of  $25  per  day  for  any  detailed  examination  and  report 
on  any  mine,  oil  or  coal  land  or  other  mineral  deposit:  Pro- 
vided, That  the  State  geologist  sliall  find  that  said  mine,  oil 
or  coal  land  or  other  mineral  deposit  shall  be  a  producing 
mine,  oil  or  coal  land  or  other  mineral  deposit,  or  be  in  shape 
to  produce  ore,  oil,  coal  or  other  minerals  at  a  profit  to  the 
owner  or  lessees.  The  State  geologist  sliall  exercise  a  sound 
discretion  in  fixing  the  amount  of  fees  for  eacli  examination, 
and  his  decision  shall  ])e  final,  said  fees  to  be  paid  in  advance 
by  the  person  or  persons  requesting  sucli  examination.  The 
State  geologist  shall  state  in  full  in  the  official  record  of  each 
report,  the  reason  for  each  charge,  and  shall  pay  over  to  the 
State  treasurer  on  the  first  day  of  each  month  all  funds  that 
may  come  into  his  hands  by  reason  of  the  duties  of  his  office. 

§  4.     Record  reports. 

It  shall  be  the  duty  of  the  State  geologist  to  keep  a  book 
with  proper  index,  alphabetically  arranged,  in  which  he  shall 
record  all  reports  made  by  him,  giving  the  name  of  the  mine 
owner,  the  name  of  the  mine,  where  situated,  kind  of  mine, 
whether  gold,  silver,  copper  or  other  mineral. 


ADDENDUM. 


Note. — The  following  aio  ca.ses  puljlislitd  after  January  1,  1912,  and 
before  July  1,  I!)  12.  The  .sectional  numbers  used  are  those  corresponding  to 
those   in   the  body  of   tlie  book. 

§  18.     Oil  and  gas  a  mineral. 

Oil  and  gas  are  "minerals"  within  the  meaning  of  a  statute 
recognizing  a  right  of  action  by  a  tenant  in  common  against 
a  co-tenant  in  sole  possession  for  a  share  of  the  profits  where 
minerals  are  lield  in  common.^ 

1  :McTntosli  V.  Ropp    (Pa.),  82  Atl.  949. 

§  20.     Ownership  in  earth. 

Oil  and  gas  while  in  the  earth  are  not  the  subject  of  owner- 
ship distinct  from  the  soil,  and  the  grant  of  the  oil  and  gas, 
therefore,  is  a  grant,  not  of  the  oil  or  gas  that  is  in  the  ground, 
but  of  such  part  as  the  grantee  may  find,  and  passes  nothing 
except  the  right  to  explore  for  the  same  under  the  terms  of 
such  contract.^ 

1  Frank  Oil  Co.  v.  Belleview  Gas  &  Oil  Co.  (Okl.),  119  Pac.  260;  Osborn 
V.  Arkansas,  etc.,  Oil  &  Gas  Co.   (Ark.),  146  S.  W.  122. 

§  57.     Legal  interest  of  lessee  in  various  leases — Digest. 

A  lease  and  demise  of  land  for  a  fixed  term  with  a  right  to 
develop  the  premises  for  oil  or  gas  gives  an  interest  in  the 
land.^ 

1  Chandler  v.  Hart  (Cal.),  119  Pac.  516;  Osborn  v.  Arkansas,  etc.,  Oil 
&  Gas  Co.    (Ark.),  146  S.  \V.   122. 

§  76.     Description  of  leased  premises. 

An  oil  lease  described  the  premises  as  30  acres  of  land,  being 
the  unsold  portion  of  the  J.  50-acre  tract.  It  provided  that 
if  the  lessees  became  interested  in  any  adjoining  lands,  and 
drilled  a  well  or  wells  within  250  feet  of  the  30  acres  leased, 

1102 


ADDENDUM.  1103 

they  would  drill  a  woll  on  the  leased  land  adjacent  to  the  wells 
drilled  on  the  adjoining  land.  It  was  liekl  that  the  lease  only 
covered  a  single  tract  of  30  acres,  and  did  not  include  a  strip 
of  adjoining  land  erroneously  excluded  from  a  i)ri()r  con- 
veyance to  others.* 

Where  a  lease  of  oil  land  contained  an  ambiguity  as  to 
whether  it  was  limited  to  a  single  30-acre  tract,  or  included 
any  and  all  unsold  portions  of  a  50-acre  tract,  it  was  held  that 
parol  evidence  was  admissible  to  explain  the  ambiguity,- 

iGilmore  v.  O'Neil   (Tex.  Civ.  App.),  139  S.  W.  1162. 
2Gilmore  v.  O'Noil    (Tex.  Civ.  Ajip.),  13<J  S.  W.  11G2. 

§  78.     Construction  of  lease. 

An  oil  and  gas  lease  is  construed  most  strongly  against  the 
lessees  and  in  favor  of  the  lessors.* 

1  Frank  Oil  Co.  v.  Bolloview  Cas  Co.  (Okl.),  lin  Vac.  200;  Ciiandler  v. 
Hart  (Cal.),  119  Pac.  51(i;  Barnsdall  Oil  Co.  v.  Leahy,  195  Fed.  731. 

§  85.     Lease  need  not  be  signed — Deed. 

The  lessee  need  not  sign  the  lease  in  order  to  be  bound  by 
its  terms  and  performance  of  conditions  on  his  part.* 
1  Chandler  v.  Hart   (Cal.),   119  Pac.  51G. 

§  96.    When  work  must  begin — Title  defective. 

Where  a  person,  at  the  time  he  sunk  an  oil  well  on  certain 
land  in  controversy,  in  good  faith  believed  he  had  title  thereto, 
and  by  the  expenditure  of  $11,000  produced  oil  of  the  value  of 
$29,563.85  before  his  right  to  the  land  was  determined  against 
him,  it  was  held  that  he  was  entitled  to  reimbursement  for  the 
amount  expended  in  improvements  out  of  the  proceeds  of  the 
oil.' 

iGilmore  v.  O'Noil    (Tpx.  Civ.  App.),  139  S.  W.  1162. 

§  103.     Injunction — Quieting  title. 

A  lessee  or  sub-lessee  may  protect  his  rights  by  an  injunc- 
tion.* 

1  Chandler  v.  Hart  (Cal.).  119  Pac.  .516;  Parnsdall  Oil  C^.  v.  Tx>ahy,  19.5 
Fed.   731. 


1104  OIL   AND    GAS. 

§  109.     Boundaries — Location  of  well — Reservation  of  space. 

The  term  "eiiltivated  enclosure,"  used  in  an  oil  lease  in  which 
the  lessee  can  not  bore  wells,  includes  those  made  after  as 
well  as  those  which  were  in  existence  at  the  date  of  the  lease. 
An  enclosure  which  contains  a  cultivated  tract  and  an  uncul- 
tivated tract  is  a  cultivated  enclosure,  and  the  lessee  may  not 
prospect  or  bore  wells  on  the  former,  but  he  may  do  so  on  the 
latter  if  his  operations  do  not  unnecessarily  interfere  with 
the  use  of  the  cultivated  tract  for  agricultural  purposes. 
Between  the  cultivator  of  the  land  and  the  lessee,  he  who  first, 
by  an  open  and  notorious  act  in  good  faith  commences  and  with 
diligence  proceeds  to  subject  an  uncultivated  tract  to  his  use, 
has  the  superior  right  to  it.  His  subsequent  acts  relate  back 
to  the  initiation  of  his  proceedings.^ 

iBarnsdall  Oil   Co.  v.  Leahy,  195  Fed.  731. 

§  110.     Selection  of  site  of  wells. 

Where  an  oil  lease  provides  that  all  oil  wells  must  be  located 
at  a  point  satisfactory  to  both  parties,  but  the  only  violation 
of  the  lease,  or  dissatisfaction  averred  in  a  bill  to  restrain  the 
drilling  of  a  well,  referred  to  the  wrongful  drilling  of  the  well 
on  a  portion  of  the  tract  reserved  to  the  grantor,  an  indefinite, 
unexplained  and  arbitrary  dissatisfaction,  not  specifically 
averred  in  the  bill,  can  not  be  relied  upon  to  show  error  in 
refusing  an  injunction.^ 

1  Owens  V.  American  Nat.  Gas  Co.    (Pa.),  81  Atl.  544. 

§  120.     Eviction — Ejectment. 

If  the  lease  gives  a  subsisting  estate  in  the  premises,  and  it 
is  sublet  in  part,  the  person  to  whom  it  is  sublet  may  bring 
an  action  against  the  lessee  for  possession  of  that  part  sublet 
to  him.' 

1  Chandler  v.  Hart    (Cal.),   119  Pac.  616. 

§  137.     Abandonment. 

A  failure  for  ten  years,  on  the  part  of  a  lessee  holding  a 
vested  right  to  produce  oil  from  land,  to  enter  on  the  premises 


I 


ADDENDUM.  1105 

and  imdertako  a  fulfillmpnt  of  the  implied  povenants  of  tht» 
lease,  wliieli  obligate  him  to  operate  the  proi)erty,  during  all 
of  which  time  an  adjoining  well  is  producing  oil  and  pre- 
sumably draining  the  neglected  premises,  sufficiently  evinces 
an  intention  of  the  lessee  to  abandon  his  riglits  in  tlie  premises. 
His  laches  are  so  great  a  court  of  equity  will  not  aid  him.^ 

1  Harris  v.  Michael    (W.  Va.),  73  S.  E.  934. 

§  145.     Payment  of  rental  instead  of  developing  premises. 

A  lessee  has  all  of  the  day  on  which  rents  become  due  to 
make  payment,  and  his  lease  is  not  forfeited  by  a  "thirty  days' 
notice"  given  on  the  afternoon  of  the  day  the  rents  become 
due.^ 

1  Nelson  v.  Scott   (Kan.),   121  Pac.  746. 

§  158.     Notice  of  election  to  declare  a  forfeiture. 

Notice  of  forfeiture  of  an  oil  and  gas  lease  given  to  the 
former  manager  of  the  assignee  of  the  lease  after  the  lease 
had  passed  into  the  hands  of  a  receiver,  is  unavailing.^ 

Where  a  lease  provides  for  a  notice  of  forfeiture,  there  can 
be  no  forfeiture  until  the  notice  is  given. - 

A  lease  of  land  for  a  specified  term  to  develop  land  for  oil 
and  gas,  on  specified  conditions  which  have  not  been  broken, 
is  not  forfeited  by  a  mere  failure  of  the  lessee  to  develop  and 
extract  oil  or  gas,  unless  the  right  of  forfeiture  is  reserved  on 
that  ground,  either  expressly  or  by  necessary  implication.'' 

1  Young  V.  Scott   (Kan.),   110   Pac.  873. 

2  Young  V.  Scott   (Kan.),  119  Pac.  873. 

3  Chandler  v.  Hart   (Cal.),   119  Pac.  516. 

§  159.     Waiver  of  forfeiture — Title  defective. 

The  acceptance  of  a  periodical  rent  after  it  is  due  and  when 
the  lessor  has  a  right  to  declare  a  forfeiture  for  non-payment 
of  rent  on  time,  will  not  preclude  the  lessor  from  declaring  a 
forfeiture  for  a  subse(|uent  non-payment  of  rent,  and  he  may 
refuse  to  accept  it  when  tendered,  and  claim  a  forfeiture.' 

1  Frank  Oil  Co.  v.  Belleview  Gas  &  Oil  Co.   (Okl.),   119  Pac.  260. 


IICG  on.    ANO    GAS. 

§  178.     Payment  of  rent  will  not  prevent  forfeiture  for  neglect 
to  develop. 

As  a  rule,  the  lessee  has  his  option  to  pay  rent  or  jxTinit 
his  lease  to  be  forfeited,  and  at'lcr  it  has  been  forfeited  for  a 
failure  to  pay  rent,  he  cannot  then  insist  on  paying  rent  and 
revive  his  lease.' 

1  Frank  Oil  Co.  v.  Bolleview  Gas  &  Oil  C^.   (Okl.),  110  Pac.  260. 

§  186.     Suit  to  cancel  lease  for  non-development  of  territory. 

AVhere  the  lessee  drilled  for  oil  wells,  and  capped  them 
because  he  claimed  he  could  not  operate  them  at  a  profit,  it 
was  held  that  after  five  years  from  their  development  the 
lessor  was  entitled  to  have  the  lease  canceled.' 

1  Collins  V.  Mt.  Pleasant  Oil  &.  Gas  Co.,  85  Kan.  483;   118  Pac.  54. 

§  193.     Lessor — Lessee — Subletting. 

A  lessee  of  oil  lands,  giving  the  lessee  a  subsisting  estate  for 
years,  may  assign  the  lease  or  sublet  the  premises.' 
1  Chandler  v.  Hart    (Cal.),  119  Pac.  51G. 

§  194.     Interest  assignee  secures. 

When  a  lessee  segregates  the  lease  by  assigning  to  another 
all  rights  thereunder  as  to  a  distinct  parcel  of  land,  a  discovery 
of  oil  on  the  part  assigned  will  give  the  lessee  a  vested  right 
to  produce  oil  on  the  part  retained,  though  he  has  taken  no 
possession  of  that  part.' 

1  Harris  v.  :Michael    (W.  Va.),  73  S.  E.  934. 

§  268.     Life  tenant  must  account  for  waste. 

In  an  action  by  a  remainderman  for  his  share  of  the  profits 
of  mining  operations  under  a  lease  by  the  life  tenant,  the 
measure  of  damages  must  depend  largely  upon  the  peculiar 
circumstances,  but  compensation  is  the  usual  rule,  and,  as 
between  tenants  in  common,  such  compensation  may  be  figured 
by  the  fair  market  value  of  the  minerals  in  place,  on  the  basis 
of  the  royalty  to  be  obtained  for  the  privilege  of  removing 
the  mineral  in  view  of  all  the  circumstances.' 

1  Mcintosh  V.  Ropp    (Pa.),  82  Atl.  949. 


ADDENDUM.  1107 

Where  the  life  tenant  of  hind  leases  the  rip^ht  to  mine  oil  and 
gas,  and  the  lease  is  ratified  by  one  of  two  i-eiuaindernien,  tlic 
lease  is  in  effect  a  sale,  and  an  action  hy  tlie  other  remaindci-- 
nian  ag:ainst  the  lessee  for  his  share  of  the  profits  of  the  iiiiiiiii^ 
operations  must  be  regarded  as  based  on  a  developiiu-nt  of  the 
land  by  a  tenant  in  common,  and  a  claim  of  a  co-tenant  for 
his  share  of  tiie  proceeds,  and  in  such  a  case  the  fact  that  the 
operations  were  carried  on  by  third  parties  under  a  lease  will 
not  make  the  defendants  trespassers  nor  cause  them  to  be 
regarded  otiier  than  as  co-tenants.^ 

2  Mcintosh   V.  Ropp    (Pa.),  82  Atl.   049. 

§  270.     To  whom  rent  payable. 

If  the  lessor  sell  the  leased  premises,  making  no  reservation 
of  the  royalties  of  oil,  the  purchaser  is  entitled  to  them.' 

lOsborn  v.  Arkansas,  etc.,  Oil  &  Gas  Co.    (Ark.),   14-0  S.  W.   122. 

§  377,     Allowing  oil  to  escape  from  pipe  line. 

If  a  pipe  line  over  another's  land  break,  wlien  its  breaking 
could  have  been  prevented,  though  caused  by  an  extraordinary 
flood,  the  ow'ner  is  liable  for  whatever  damages  the  escaping 
oil  causes.^ 

iMcMTirray  v.  Prairie  Oil  &  Gas  Co.    (Mo.  App.),  119  Pac.  463. 

§  388.     Inspection — Tests. 

A  statute  re(|uiring  illuminating  oils  to  be  inspected  is  valid, 
and  is  not  a  regulation  of  interstate  commerce.^ 
1  Red  "C."  Oil  M.fg.  Co.  v.  Board   (U.  S.),  32  Sup.  Ct.  Kcp.  152. 

§  407.     Power  to  make  contract. 

Under  the  Kentucky  statutes  a  municipality  may  purchase, 
construct  or  operate  a  lighting  plant.^ 
iSwann  v.  City  of  Murray    (Ky.),  142  S.  W.  244. 

§  411.     Bids  for  lighting — Damages. 

A  bond  given  by  a  gas  company  to  a  municipality  condi- 
tioned to  carry  out  the  franchise  provisions,  and  i)rovi(ling 
that  a  certain  sura  will  be  considered  as  li<iuidated  damages, 


1108  OIL   AND    GAS. 

is  valid,  and  the  damages  assessed  will  be  those  so  fixed  in  the 
bond  witiiout  evitlence  of  the  amount  of  the  damages  sus- 
tained/ 

'Commencement  of  work  on  a  gas  plant  in  a  municipality 
under  a  franchise  cannot  be  treated  as  part  performance  of 
the  grantee's  obligation  to  commence  operations  within  a  year, 
where  the  work  was  abandoned  l)efore  any  part  of  the  real 
object  of  the  enterprise  was  accomplished.^ 

Liability  of  the  grantee  of  a  municipal  gas  franchise  on  a 
bond  given  to  secure  commencement  of  the  operation  of  the 
plant  within  a  year  is  not  affected  on  his  abandonment  of  the 
franchise  because  gas  is  being  supplied  through  a  competitor, 
since  the  city  and  its  inhabitants  are  entitled  to  the  benefit  of 
the  competition  between  two  plants.'' 

1  Grayson  v.  Marshall    (Tex.  Civ.  App.).  145  S.  W.  1034. 

2  Grayson  v.  jMarshall    (Tex.  Civ.  App.),  145  S.  W.  1034. 

3  Grayson  v.  Marshall   (Tex.  Civ.  App.),  145  S.  W.  1034. 

§  434.     Lamps — Posts. 

A  provision  that  the  grantee  of  the  franchise  should,  if 
directed  by  the  city,  install  and  maintain  street  lamps  at  such 
places  as  should  be  selected  by  the  authorities  at  a  specified 
rate,  does  not  obligate  the  city  to  allow  the  grantee  to  furnish 
any  number  of  lights,  the  matter  of  establishing  and  locating 
the  lights  being  optional  with  the  city.^ 

1  Grayson  v.  Marshall    (Tex.  Civ.  App.),  145  S.  W.  1034. 

§  441.     Legislature  may  authorize  monopolistic  grants. 

In  Texas  its  constitution  prohi])its  the  granting  of  an  exclu- 
sive franchise.  But  this  will  not  relieve  a  gas  company  from 
liability  on  its  bond  conditioned  that  it  will  put  a  plant  in 
operation  within  a  year,  where  the  city  grants  a  second 
franchise  to  another  compan3^' 

1  Grayson  v.  Marshall    (Tex.  Civ.  App.),   145  S.  W.   1034. 

§  455.     Exclusive  franchise  for  artificial  gas  does  not  exclude 
natural  gas. 

"Where  a  city,  which  had  granted  a  franchise  to  supply 
artificial  gas  to  the  city  and  its  inhabitants,  granted  another 


I 
I 


ADDENDUM.  1109 

franchise  to  a  natural  gas  company,  and  authorized  it  to 
make  arrangements  with  tlie  artificial  gas  company  for  tlie  use 
of  the  latter 's  mains,  reciting  in  the  authorization  that  such 
use  should  not  cause  a  forfeiture  of  the  artificial  gas  francliise, 
and  the  artificial  gas  company,  in  pursuance  of  such  authoriza- 
tion, leased  its  mains  to  the  natural  gas  company,  it  was  held 
that  the  city  was  estopped  to  claim  a  forfeiture  of  the  franchise 
of  the  artificial  gas  company's  franchise  on  account  of  the 
lease,  or  for  antecedent's  breaches  of  the  franchise  obligations.' 

1  Newport  v.  Municipal   Light  Co.    (Ky.),   145   S.   \V.   1107. 

§  457.     Gas  works  built  under  void  grant  or  franchise. 

In  an  action  by  a  municipality  to  forfeit  a  gas  company's 
franchise,  allegations  in  the  petition  that  the  company  had 
been  furnishing  gas  to  persons  and  corporations  outside  the 
city  ever  since  it  acquired  its  franchise,  which  provided  that 
no  gas  be  so  furnished,  was  held  too  vague  and  indefinite  to 
sustain  a  forfeiture.' 

1  Newport  v.  Municipal   Light  Co.    (Ky.),   145  S.  W.   1107. 

§  493a.    Tunnel  under  street. 

A  tunnel  under  a  street  is  a  "building,"  and  a  statute  for- 
bidding a  gas  company  to  lay  its  mains  through  any  "build- 
ing" prohibits  laying  its  mains  through  such  tunnel.' 

1  Schreder  v.  VVorthingtori  Gas  Co.,  105  L.  T.  670;  56  Sol.  J.  53;  28  T. 
L.   R.  34. 


§  519.     Right  to  purchase  plant  of  gas  company. 

When  a  city  exercises  its  right  to  purchase  a  company's  gas 
plant,  the  price  it  must  pay  is  the  value  of  the  commercial 
undertaking  of  the  company  as  a  going  concern,  not  only  the 
physical  apparatus  by  which  the  company  carried  on  its  b\isi- 
ness,  but  their  ]iowers  to  use  that  apparatus  for  the  jiurpose 
of  carrying  it  on.' 

1  Perth  Gas  Oo."v.  Perth  Corporation,  80  L.  J.  P.  C.  168;  [10111  A.  C. 
506;   105  L.  T.  266:  27  T.  L.  R.  526. 


1110  OIL  AND  GAS. 

§  529.     Extension  of  mains  or  pipes. 

It  is  tlu'  duty  of  a  gas  eompaiiy  to  extend  its  mains  where 
there  is  a  i)iiblic  need  of  them,  even  though  thereby  dividends 
on  preferred  stock  cannot  be  declared.' 

1  IJurk  V.  Ottawa  Cias  &  El.  Co.    (Kan.),   123   Pac.  857. 

§  534.     Damages  for  failure  to  supply  gas. 

In  an  action  against  a  gas  company  under  the  New  York 
statutes,  where  a  gas  company  justifies  its  discontinuance  of 
service  on  the  refusal  of  the  plaintiff  to  pay  an  existing  debt, 
the  gas  company  must  shoAV  the  debt  and  a  refusal  to  pay, 
and  the  i)laintitl'  is  not  bound  to  plead  a  willingness  to  keep 
the  tender  of  the  amount  due  good,  or  pay  the  money  into 
court.' 

1  Levine  v.  Brooklyn  Union  Gas  Co.,  131  N.  Y.  Supp.  255. 

§  519.     Prices  to  be  charged. 

In  its  franchise  a  gas  company  agreed  to  furnish  illuminating 
gas,  of  not  less  than  16  candle  power,  at  $1.10  per  1,000  cubic 
feet,  less  discount,  and  fuel  gas  at  452  heat  units  per  cubic 
foot,  at  $1.00  per  1,000  cubic  feet,  less  a  discount,  and  that,  in 
case  a  lower  rate  was  made  to  either  of  two  designated  towns, 
the  price  in  the  city  should  be  the  same  as  so  reduced.  At 
that  time  the  company  furnished  artificial  gas  to  those  two 
towns,  but  later  one  of  the  towns  granted  a  franchise  for 
natural  gas  at  greatly  reduced  rates.  Natural  gas  has  from 
5  to  7  candle  power  and  1,000  heat  units  per  cubic  foot.  It 
was  held  that  the  franchise  referred  only  to  artificial  gas,  and 
the  company  could  not  be  compelled  to  reduce  its  rates,  and 
the  city  could  not  compel  it  to  furnish  natural  gas  except 
pursuant  to  another  franchise.' 

1  Union  L.,  H.  &  P.  Co.  v.  Young   (Ky.),  142  S.  W.  692. 

§  544.     Recovering  back  overcharges. 

A  municipality  cannot  maintain  an  action  against  a  gas 
company  for  the  benefit  of  its  inhabitants  who  have  been  over- 
charged by  the  gas  company  for  gas  to  recover  back  for  them 
overcharges.' 

1  New-port  v.  Municipal  Light  Co.   (Ky.),  145  S.  W.  1107. 


i 


ADDENDUM.  1111 

§  548.     Injunction  to  prevent  cutting-  off  of  gas  supply — Rates. 

An  injunction  is  the  proper  rcnit'dy  to  jji-ovcnt  flic  hrcacli 
of  a  contract  of  a  natural  gas  company  with  a  consumer  by 
enjoining  it  from  shutting  olf  gas.  And  a  gas  eoiii]taiiy  may  he 
enjoined  from  disposing  of  substantially  all  its  i)roperty  in 
order  to  escape  compliance  with  its  contracts  and  1o  di'lVaud 
its  creditors,  and,  in  case  of  a  sale  to  another  natuial  gas 
company,  with  notice  of  existing  contracts  for  supplying  gas, 
the  purchaser  Avill  be  compelled  to  specitically  i)erform  the 
contracts.' 
1  People's  Nat.  Gas  Co.  v.  American  Nat.  Gas  Co.    (Pa.),  82  All.  935. 

§  561.     Extra  charge  for  meters  and  mixers. 

A  constructive  contract  to  pay  rental  on  gas  meters  for  a 
season,  not  to  exceed  four  months,  is  not  inconsistent  wuth  a 
statute  which  prohibits  any  charge  for  the  use  of  a  gas  meter 
during  any  portion  of  twelve  consecutive  months  if  the  con- 
sumer during  that  time  use  gas  to  the  value  of  a  specified  sum.' 

Where,  in  an  action  for  the  rent  of  two  gas  meters,  the  jury 
could  have  found  that  the  gas  season  for  the  defendant's 
houses  at  a  summer  resort  did  not  exceed  four  months  a  year, 
that  during  the  season  of  1908  the  meters  were  in  his  houses 
at  his  request,  that  previous  to  1908  he  was  notified  that  if  the 
amount  allow^ed  by  law  was  not  paid  the  meters  would  be 
removed,  that  he  did  not  expect  to  have  the  gas  turned  on, 
except  at  the  usual  season,  and  that  he  never  re(|uested  to 
have  it  turned  on  at  any  other  time,  nor  made  any  reply  to 
the  notice,  but  actively  used  the  meters  during  the  season  of 
1908,  without  protest,  it  was  held  that  there  was  an  assent  to 
the  terms  of  the  notice,  and  the  meters  were  used  thereunder, 
constituting  a  constructive  contract,  under  which  he  was 
liable.- 

1  Amesbury  &  S.  Gas  Co.  v.  Gibney   CMass.),  07  X.  E.  88. 

2  Amosbuiy  &  S.  Gas  Co.  v.  Gibney   (Mass.),  07  N.  E.  88. 

§  564.     Removal  of  meters. 

A  gas  company  is  not  liable  for  tli(>  use  of  abusiv(>  language 
by  its  servant  before  he  has  entered  a  house  to  remove  a  m(>ter, 
though  his  entrance  after  its  use  be  a  trespass.' 

1  Dol)bs  V.  Northern  Union  Gas  Co.,  132  N.  Y.  Supp.  702. 


1112  OIL  AND  GAS. 

Even  lliough  a  gas  company  lias  the  right  to  remove  a  gas 
meter  for  failure  to  pay  bills,  yet  it  has  no  right  to  break  down 
doors  iu  order  to  remove  it.- 

A  section  of  a  statute  gave  a  gas  company's  servant  a  right, 
upon  exhibiting  a  written  authoritj^  signed  by  its  president,  to 
enter  premises  to  inspect  and  examine  meters.  Another  sec- 
tion gave  it  authority  to  shut  ott'  gas  for  non-payment  of  bills 
and  to  enter  and  remove  the  meter.  It  was  held  that  the  last 
section  gave  an  absolute  right  to  enter  and  remove  the  meter 
for  failure  to  pay  for  gas  furnished  without  the  written 
authority  of  the  president.^' 

Where  rent  w^as  paid  after  a  gas  company's  servant  had 
left  the  company's  office  with  directions  to  remove  a  meter 
and  before  he  had  arrived  at  the  house,  his  entrance  to  remove 
it  was  held  to  be  a  mere  technical  trespass,  rendering  the 
comi)any  liable  only  for  nominal  damages.* 

2  Reod  V.  Xew  York  &  R.  Gas  Co.,  93  N.  Y.  App.  454 ;  87  N.  Y.  Supp. 
810;    Dobbs  v.   Northern   Union   Gas   Co.,    132   N.   Y.   Supp.   792. 

3  Dobbs  V.  Northern  Union  Gas  Co.,   132  N.  Y.  Supp.  792. 

4  Dobbs  V.  Northern  Union  Gas  Co.,  132  N.  Y.  Supp.  792. 


§  568.     Gas  chandeliers — Stoves — Meters,  etc. 

Gas  ranges  installed  in  kitchens  of  department  houses  under 
a  conditional  contract  of  sale,  under  the  New  York  lien  laws, 
pass  to  a  bona  fide  purchaser  on  foreclosure  of  a  mortgage 
on  the  building,  as  against  the  claim  of  the  seller.  In  the 
absence  of  a  contrary  intention,  they  are  fixtures.^ 

1  Central  Union  Gas  Co.  v.  Browning,  131   N.  Y.  Supp.  464. 


§  576.     Oil  and  gas  lease  fixtures. 

Where  it  was  found  thrt  w^ells  could  not  be  pumped  with 
profit,  it  was  held  that  the  lessee,  under  a  clause  in  his  lease 
permitting  him  to  remove  all  machinery  he  had  placed  on  the 
leased  premises,  could  remove  the  wa41  casing  on  termina- 
tion of  the  lease. ^ 

1  Collins  V.  Ml.  Pleasant  Oil  &  Gas  Co.,  85  Kan.  483;  118  Pac.  54;  Snow 
V.  Smith    (Vt.),  83  Ail.  269. 


ADDENDUM.  llli! 

§  602.     Degjee  of  care  required  of  a  gas  company. 

Where  a  gas  company  was  notified  by  a  patron  that  a  service 
pipe  was  leaking,  and  the  servants  discovered  the  leak,  hut 
took  no  steps  to  remedy  the  trouble,  it  was  held  that  it  wa.H 
guilty  of  negligence,  which  would  su{)port  a  recovery  for 
injuries  received  from  an  exi)losion  caused  by  the  leak.^ 

1  Louisville  Cas  Co.  v.   Frv    (Kv.),   145  S.  W.  748. 


§  617.     Notice  of  leaks. 

Where  a  gas  company  sends  one  of  its  servants  to  repair 
a  leak,  his  knoAvledge  concerning  the  leak  and  his  negligence 
in  repairing  it  are  both  imputable  to  the  company.  It  is  negli- 
gence in  a  gas  company  to  permit  its  gas  to  enter  into  a  build- 
ing when  it  knows  its  pipes  are  defective.  Even  though  it 
search  for  leaks  unsuccessfully,  yet  if  it  permits  gas  to  flow 
into  the  house  it  will  be  liable  for  all  damages  thereby  occa- 
sioned.^ 

Where  odors  aiul  other  indications  of  tlu'  escape  of  gas 
appeared  and  certain  persons  affected  called  the  gas  com- 
pany by  telephone,  making  complaint  thereof  and  asking  that 
someone  be  sent  to  investigate  the  matter,  ami  thereupon  a 
man  came  and  made  such  investigation,  evidence  of  these  facts 
were  held  competent,  because  tending  to  show  notice  to  the 
gas  compauy.- 

The  injured  person  is  not  bound  to  shoAV  by  what  means  the 
gas  was  ignited.  A  letter  by  the  mayor  of  the  city  to  tli3 
gas  company  calling  attention  to  numerous  explosions,  is  com- 
petent evidence  on  the  (|uestion  of  notice  to  the  company, 
although  the  locations  of  the  particular  defects  were  not  stated 
in  the  letter.'' 

The  testimony  of  the  superintendent  of  a  gas  company  that 
he  had  read  notices  in  the  newspaper  of  explosions  is  admi.s- 
sible  upon  the  question  of  notice  of  the  leakage.' 

1  Soutliorn  Indiana  Has  Co.  v.  T>nor    (Inil.  App.).  !t7  \.  E.  .5Sn. 
-  Luonfrenc  v.  Consuniprs'  L.,  H.  &  P.  Co.   (Kan.).   122  Pnr.  lf>32. 

3  T.ucn<ir(>no  v.  Consumers'  L.,  H.  &  P.  Co.   (Kan.).  122  Pae.  1032. 

4  Luen<rene  v.  Con<nnieis'  L..  If.  &  P.  Co.   (Kan.),  122  i*ae.  1(W2. 


1114  OIL  AND  GAS. 

§  635,     Injury  to  shade  trees — Shrubbery. 

In  an  action  against  a  gas  company  for  loss  of  sliade  trees, 
caused  by  negligent  leakage,  it  was  held  error  to  receive 
evidence  of  leakage  at  other  points  on  the  same  main,  which 
was  1,000  feet  long/ 

1  Fullerton  v.  Glen  Falls  &  El.  Light  Co.,  132  X.  Y.  Supp.  905. 

§  637.     Explosion  caused  by  act  of  third  person. 

A  gas  company  is  not  absolved  from  the  consequences  of  its 
negligence  in  permittijig  the  escape  of  gas,  causing  an  ex2)lo- 
sion  and  injury  in  a  particular  place,  merely  because  gas  also 
escaped  and  accumulated  in  the  same  place  through  the  negli- 
gence of  another  party.^ 

iLuengene  v.  Consumers'  L.,  H.  &  P.  Co.   (Kan.),  122  Pac.  1032. 

§  648.     Plaintiff  must  show  due  care  on  his  part — Contributory 
negligence. 

Not  every  exposure  of  one's  self  to  escaping  gas  will  prevent 
a  recovery.  A  recovery  was  allowed  where  gas  had  been 
escaping  for  several  months,  the  occupant  not  having  been 
familiar  with  the  use  of  gas  nor  aware  of  the  danger  of  an 
explosion.^ 
il^nisville  Cas  Co.  v.  Fry   (Kv.),  145  S.  W.  748. 

§  676.     Servant  of  city  injured  by  defective  gas  appliance. 

Where  an  employee  of  a  city  was  killed,  when  in  a  cistern 
belonging  to  the  city,  by  an  explosion  of  gas  that  had  escaped 
from  the  mains  of  a  gas  company,  and  the  explosion  was  occa- 
sioned by  another  employee  of  the  city  striking  a  match  to 
light  a  cigar,  tlie  city  was  held  liable,  on  the  ground  that  it 
had  not  furnished  a  safe  place  in  which  the  injured  employee 
was  put  to  work.^ 

1  Finson  v.  Topeka    (Kan.),   123  Pac.  723. 

§  678.     Sale  of  oil  below  fire  test,  explosion — Deception. 

If  an  oil  dealer  sell  oil  containing  a  large  percentage  of 
gasoline   (21  per  cent.)    or  kerosene  oil,  knowing  of  its  dan- 


ADDENDUM.  1115 

gerous  character,  and  fails  to  liav(»  it  cxainiiicd  hy  an  ('X|)t'rt 
oil  inspector,  lu'  will  l)e  resi)onsil)le  to  anyone  injiii'cd  hy  its 
explosion.' 

The  seller  of  oil  in  a  tank  on  his  promises  is  not  hoinid  to 
provide  a  safe  place  of  work  for  the  ('nii)loyi's  of  tiic  l»uyer 
engaged  in  removing  the  oil  at  night,  as  aft'ecting  liability  for 
their  death  from  an  explosion  of  the  oil ;  but  the  buyer  is 
bound  to  furnish  the  employes  Avith  a  safe  place  and  proper 
appliances,  including  proper  light.  Warning  given  the 
employes  of  the  vendee  by  a  representative  of  the  vendor  was 
held  admissible  to  show^  an  assumption  of  the  risk  by  the 
employes  and  possibly  upon  the  question  of  contributory  negli- 
gence in  the  use  of  a  lantern. - 

1  Chapman  v.  Pfarr   (Iowa),  132  N.  W.  957. 

2  Cooper  V.  Fidelity  Development  Co.,   131  N.  Y.  Supp.  457. 

§  682.     streets    rendered    dangerous    by    laying    gas    mains. 

"Where  a  horse  shied  and  fell  into  a  hole  in  the  street  made 
by  a  gas  company,  the  hole  being  unprotected,  the  company 
was  held  liable.^ 

1  Helena  Gas  Co.  v.  Rogers   (Ark.),   14G  S.  W.  473. 


§  707.     ' '  storing ' '— ' '  Keeping. ' ' 

Five  gallons  of  gasoline  were  brought  to  a  house  Avhile  the 
buyer  and  owner  was  out,  and  there  remained  one  hour  when 
he  discovered  it  and  directed  that  it  be  set  outside,  which  was 
done.     It  was  held  that  he  had  not  forfeited  his  policy.^ 

iClute  V.  Clinton^ille  Mut.   Fire  Ins.  Co.    (Wis.),   129  X.  W.  (iOl. 


§  720.     Waiver    by    knowledge    or    acquiescence    in    use    of 
building. 

Where  an  agent  of  insurer,  procuring  a  firo  policy  stipu- 
lating that  it  should  be  void  on  insurer  keeping,  using,  or 
allow'ing  gasoline  on  the  premises,  knew  at  the  time  of  the 
issuance  of  the  policy  that  gasoline  was  kept  on  the  premises 
for  the  needs  of  the  restaurant  conducted  thereon,  the  keeping 
on  the  premises  of  gasoline  for  such  needs  did  not  render  the 


11 IG  OIL  AND  GAS. 

policy  void,  but  its  issuance  carried  with  it  the  consent  of 
insurer  that  tlie  building  might  be  used  as  it  was  being  used 
at  the  time  of  the  issuance  of  the  policy.^ 

A  condition  in  a  policy  of  fire  insurance  prolnl)iting  the  use 
of  gasoline  for  lighting  purposes,  may  be  waived  by  an  agent 
of  the  company.^ 

1  American  Cent.  Ins.  Co.  v.  Cliancoy   (Tex.  Civ.  App.),  127  S.  W.  577. 

2  Merchants'  Ins.  Co.  v.  Oberman,  99  111.  App.  357. 


§  732.     Fixing  gross  earnings. 

A  law  permitting  the  taxation  of  the  gross  earnings  of  oil 
companies  is  constitutional.^ 

1  State  V.   Standard   Oil    Co.    (Okl.),   123  Pac.   40. 


§  739.    Product  in  pipe  line — Interstate  commerce. 

Modification    of    decree    restraining    the    enforcement    of   a 
state  law  forbidding  the  transportation  of  gas  out  of  the  state.^ 

1  Haskell  v.  Kansas  Natural  Gas  Co.,  32  Sup.  Ct.   Rep.  442. 


INDEX 


(References    are    to   sections.) 


Abandonment  — 

Acciuii'scrnce  in,  efFoct,  132,   13Gc 
Cancellation  of  lease,  p.  llOti. 
Cessure  of  operations,  140 

of  work  after  operations  begun,   141 
Distinction  between  abandonnient  and  forfeiture,  137. 
Expense  of  drilling  wells,  recovery,  137 
Extension  of  time,    140 

Failure  to  drill  wells  on  several  leased  premises,  129 
Forfeiture,  see 
Forfeiture  of  lease  works,  773,  805 

clause  concerning,  not  necessary  to  work  forfeiture,  138a 
Inability  to  complete  work,  173. 
Intent  to  abandon  necessary,   137 
Lessor  consenting  to,  effect,  181 
Mutual  mistake  or  legal  rights,  138b 
Non-productive  premises,    13S 
Partial  of  leased  premises,  ICi),  170 
Personal  privilege,  137 
Rent  falling  due  after  abandonment,   137 
Suit  to  cancel  lease,  186 
Surrender  of   leased   promises,    142 
Ten  years'  failure  to  develop,  p.  1104 
Temporary  suspensions  of  work,  effect,  140,  141 
Unprofitable  lease,  99 
Waiver  of  or  abandonment,   159,   IGO 
When  completed,  137 

Acceptance  — 

Of    fiancliise    is    necessary,    471 

Account  — 

Co-tenant  must  account  to  fellow  servant,  278,  279 

Effect  of  rendering,  251 

Power  of  court  of  eipiity  to  enforc(!  accounting  between  joint  owners, 

282 
Statute  of  Limitations  does  not  bar  right  to  an  accounting,  301 
Suit  to  recover  upon  account  rendered,  282 

1117 


1118  INDEX. 

(Refprcncos    urc    to   sections.) 

Ackuowlbd^mcnt  o£   L>caso  — 

Defective,  ellect,  H2 

Acquiescence  — 

Abandonment  of  damages  occasioned  by,  132 
Delay,  elTect,  131 

Action  — 

Assumpsit  to  recover  price  of  gas,  545 

Forfeiture  of  right  to  occupy  estate  enforced  by,  491 

Inspection  of  meter  to  secure,  555 

Remedies  of  lessor,  75(5   to  789 

of   lessee,  790 
Right  of  action  over  by  gas  company  against  ■wrongdoer,  656 
Suit,  see 

to  recover  for  gas  supplied,  432 

Administrator  — 

Power  to  execute  lease,  59,  258a 

Adulteration  — 

Of  oils,  may  be  prohibited,  390a 

Adverse  Possession  — 

Ejectment,  see 

Possession  of  surface  when  adverse  to  owner  of  oil  or  gas,  295  to  299 

Africa  — 

Oil  wells,  7 

Agent  — 

May  take  lease  after  forfeiture  of  his  principal's  lease,  89 

Alaska  — 

Oil  wells,  7 

Allegany   River  — 

Oil   springs  upon  known  to  French,  2 

Ancients  — 

Knew  of  petroleum,  1 

Appurtenances  — 

What  passes  as  such  on  convej'ance  of  leased  premises,  74 

Articles  of  Commerce  — 

Gas  and  oil  arc  such  articles,  350 


ixi)i;\.  llii) 

(Ilpforoncos    nro    to   scolloiis. ) 

Artificial  Gas  — 

Corporation  for   cannot  supply   natural  gas,   478,   742 
Gas,  see 
Natural  gas,  see 

Assignee  — 

Jiound  by  agreements  in  lease,  203 

Default,  assignee  cannot  take  advantage  of,  1&5 

Equitable,   in  possession  of  premises,   200 

Forfeiture  of  lease  may  declare,  152 

Interest  takes,  p.  1106 

Liable  to  his  assignor,  204  to  20!),  215 

Liability  on  covenants   in  lease  or  contract,  94,  7G7 

if  he  occupies  under  unassigned  lease,  208 

when  he  does  not  take  possession,  209,  211 
Notice   to   of   prior   lease,   G9 
Several  successive  assignees  liable  for  rents,  210 
Substitution  of  releases  lessee,  212 
Trustee's  liability,  217c 

Assignment  — 

Assignee  liable  upon  express  covenants  in  contract,  95 

Consent  to   of   ligliting  contract,   414 

Interest  assignee  secures,  p.  1106 

Lighting    contract    may    be    assigned,    414 

Rates  for  gas  fixed  in  assignment,  395 

Right  to  occupy  streets,  477 

Assignment  of  Lease  — 

Assignees  boiuid  by  agreements  in  lease,  95,  203 

Consent,   refusal   to  give,   1!)6 

Default  in  carrjing  out  terms  of  lease,   assignee  cannot  take  advan- 
tage of,  195 

Equitable  assignee  in  possession  of  premises,  200 

Interest  assignee  secures  in  lease,  194 

Judicial  sale,  effect,  199 

Lease,  see 

Lessee  may  make  of  lease,   193 

Lessor  may  make  of  lease,  193 

Liability  of  assignee,  extent,  203  to  206 
of  assignee   to   his   assignor,  215 
of  assignee  of  part  interest  in  lease,  207 
of  assignee  broadened  by  terms  of  assignment,  205 
to  assignee  when  not  taking  possession,  209,  210. 
if  he  occupies  under  unassigned  lease,  208 

Oil  in  tank  does  not  pass,  254 

Option  carries,  198 

Privity  of  estate,  203 


1120  INDEX. 

(References    nro    to   sections.) 

Assigmuent  of  Lease  —  Continued. 

Release    of    lessee    by    substitution    of    assignee,    212 
Royalties,    see 

may  be  assigned,  202 
Statute  of  Frauds,  elTect  upon,  !J4 
Several  successive  a-ssignees'  liability,  210 
Substitution  of  assignee  is  a  surrender,   143 
Sublessee,  see 

when  not  liable,  217 
Sublease  is  not  an  assignment,   197 
Surrender   of  lease,   1(58 
Unassignable,  when,  201 

Assignor  — 

Assignee  liable  to,  215 

Liable  on  account  of  lease  as  surety,  216 


Babylon  — 

Petroleum  used  by  ancients,  1 

Baku  — 

Oil  and  gas  wells  of,  1,  9 

Bankrnpt  — 

Oil   company  going  into  bankruptcy,   749 
Trustees  of  liable  for  gas  rents,  546 

Barbadoes  Tar  — 

Use  of  as  a  medicine,  14 

Benzine  — 

Exploding  when  used   in   paint,  675 

Bids  — 

On  ligliting  contracts,  41 

Bissell,   George   H. — 

Formed  first  oil  company,  5 
Secured  analysis  of  petroleum,  13 

Blanks  — 

In  lease,  80 

Boundary  Line  — 

Draining  premises  by  wells  on   adjoining  territory,    171,   172 
Drilling   wells   near   leased    premises,    101,    102 
Of  leased  premises,  109 

Protection  to  oil  or  premises,  101,  102,  112 
Wells  near  to  is  not  waste,  35 
to  protect,   112 


INPEX.  1121 

(Uefereucps    aro    to   Kt>cllonH.) 

Boundaries   of   City  — 

E\teiidinjjf,    right    of  gas  coinjiaiiy   in   lu-w    territory,  419 

Brands  — 

Use  of  false  brands  misleading  l■()nsumeri^,  C70 

Burden    of    Proof  — 

riaintiir  has   in  case  of   negligence,  GIO 

Burmali  — 

Oil  wells,  7 

C 

California  — 

Oil  wells  of,  2 

^Statutes  concerning  oil   and  gas,  pp.  944  to  947 

Canada  — 

Early  oil  wells,  2 

Gas   wells   situated    in   territory,   9 

Oil  wells,  7 

Statutes  concerning  oil  and  gas,  \)\).  1030  to  1035 

Candelabra  — 

Fixtures,   when   are,  5G8 

Care  — 

Leaks  and  explosions,   see 
Negligence,    see 

Cars  — 

Defective,   used   in   transportation   of  oil,   371,  372 

Caspian  Sea  — 

Oil  and  gas  found  near,  1,  8 

Csesar,    Julius  — 

Refers  to  natural  gas  spring  in  France,  8 

Cestuis   Que   Trustent  — 

When  trustee  of  lessee  liable,   213,  214 

Cbandelier  — 

Fixtures  are,  when,  5G8 

Charter  — 

Is  a  contract,  301 


1122  INDEX. 

(References    are    to   sections.) 

Chattel  Real  — 

A  lease  may  Iw,  51 

China  — 

Xatural  gas,  8 

Natives  used  petroleum  at  early  day,  1 

City  — 

'Municipality,  see 

Coal   Mines  — 

Drilling  gas  well   tlirough  to  lowor  strata,  3G9 
Laying  ))ipi>-lin('  alxjvc,   support,  368 

Colorado  — 

Statutes  concerning  oil  and  gas,  948 

Commerce  — 

(ias  or  oil   is  an  article  of  commerce,  40 

Common  Carriers  — 

Negligence  in  the  use  of  defective  cars,  371,  372 
Oil  shipped  on  trains  carrying  other  goods,  373 
Overcharges  for  carrying  oil,  351 
Passengers  injured  by  exploding  oil,   375 
Shippers  liability  to  servant  of  carrier,  374 

Common  Latv  — 

Rule,   566 

Composition  — 

Elements   of    petroleum   and    natural    gas,    11 

Consideration  — 

I^ease,   sufficient  amount  for^  66 
Option  must  have,  71 

Consolidation    — 

Gas  conijjanies  making   must  comply   with   their  several    grants,   485 

Constitution  — 

]nsj)ecting  oil,   ]).    1107 

Limit  upon  indebtedness  of  cities,  408,  409 

Rates,  .sec 

Regulation   of   transportation   of   oil   and   gas   does  not   prohibit,  350, 

352,  3533. 
Restrictions  on   monopolistic  grants,  441,   442,  443 
Taxing  gross  earnings,  pp.  1115,  1116 

Construction  — 

Of  the  provisions  of  lease,  78,  79,  219 


INDEX.  112^ 

(Uefeivnces    iiro   to  sections.) 

Consumer  — 

Aliuttiiig  property  only  cntitlod   t«  gas,  528 

Action  against  to  collect  price  of  gas,  545 

Classification   of   consumers,   543 

Common  law  does  not  require  gas  comjiany  to  furnish  gas,  524  ' 

Company  must  supply  line  consumers  with  gas,  525 

Contract,  special  for  supply  of  gas  may  make,  53!),  547,  548,  549 

Deposit  of  money  to  secure  pay  for  gas,  541 

Discriminating  between,  52'6,  527,  542 

Distress    to   collect   gas  bills,    546 

Extension  of  mains  or  pipes  in  order  to  furnish  with  gas,  52!) 

Failure  to   supply  with  gas,  531 

to  supply  with   natural  gas,   527 
Former  tenant,  present  tenant  not  liable  to  pay  his  gas  bills,  54G,  547 
Frost  preventing  company  from  supplying  gas,  534 
Gas   company,    see 

Heat,  furnishing  consumer  with  gas  for,  price,  542 
Inspection   of  his   premises,   530 
Limiting  liability  for  failure  to  supply  gas,  535 
Mandamus  to  comp<'l  company  to  furnish  gas,  531,  532 
Manufacturer,  ])rice  of  gas  to,  526 
Meter,  see 

Overcharge,  may  recover  back,  544 
Ownership   of   suply  pipe,  550 
Payment  in  advance  for  gas,  540,  541 
Penalties    for    failure    to    supply    gas,    533,    534 
Price  in  other  states  to  fix  price  at  home,  539,  544 

to  be  charged  for  gas,  539 
Rates,    see 

Receiver  of  liable  for  gas  bills,  547 
Right  of  consumer  to  discontinue  use  of  gas,  549 
Rules,  see 

must  obey,   537 

need   not   obey    illegal    rules,   537,    538 
Shutting  off  supply  for  neglect  to  pay  for  gas,  547 

meaning  of  in  contract,   744 
Supply  of  gas   furnished   only  to   abutter,   528 
Turning  on  and  oil'  gas,  may  not,  531 

Contract  for   Lease  — 

Damages   for  breach  of,  294 

Exclusive  right  to  oil   or  gas,   90 

Effect  of   taking   possession  of  land,   under,   292 

Indefinite,  effect,  290 

Interest  in  land  may  give,  52 

Merged  in  conveyance  of  premises,  65 


1124  INDEX. 

(Rofprcncos    are    to   sections.) 

Contract  for  Lease  —  Continued. 

Not    often    drawn    in    controversy,    289 

Rescission  for   fraud,    14() 

Surface  of  ground,   right  to  oil,   77 

Unilateral,  what  is,  50 

What  is  a   sufficient   writing  cnnc(>riiing,  291 

What   is  a   sufficient  consideration,   (iG 

Contract  for  Liighting  City  or  Toxrn  — 

Action  to   recover   for  gas  supplied   under,  432 

Additional  requirements  may  be  exacted  in  extension  of  tirae  for  com- 
pletion of  gas  works,  45(i 
Assessment  of  cost  of  gas   upon   abutting  property,  430 
Assignment  of  lighting  contract,  414 

effect,  94 
Bids   for   lighting,   411 
Breach  of   lighting  contract  by  city,   413 

damages,   413 
Changing,  city  cannot,  417 
Charter  to  furnish  is  a  contract,  391 
Cost  of  city  light,  out  of  what  paid,  426 
Dating  ahead,  402 
Discontinuing  use  of  gas,  410 

Exhaustion  of  light  appropriation,  no  defense,  42S 
Extending  gas  mains,  refusing  to  make,  437 
Extending  term  of  contract,   410 
Federal   question,   when   raises,   451 
Gas  furnished  without  contract,  418 
How  executed,  412 
Interest    upon    gas    bills,    433 
Lamps,    what  kind    to  be  used,   434 
Length  of  term  for  light,  409,  461 
Light,  see 

Mandamus  to  compel  auditing  of  city  bills,  431 
Monopolistic  clause  in  contract  does  not  avoid,  452 
Monopoly,  see 

Moonlight  schedule  for  light,  422 
Municipal   offices    interested    in,   effect,    439 
Municipality,  see 

New  territory,  contract  covers,  419 
Ordinance,  when  must  be  general,  460,  461 
Price   to  be   paid   for   light,   423,   425 
Rates  for   gas,   see 
Receiver  bound  by,  438 
Rescinding,   413,   415 
Revocation  of  monopolistic  franchise,  447 


INDEX.  11 -'J 

( Rpferencfs    arc    to   siftlons.) 

Contract  for  Lighting  City  or  Town  —  Cuntinuctl. 

Ppocial   iiiado  for  supply  of  }ias  at  fixed  price,  539,  547,  549 

Taxation,  exemption   from,  425 

Uncertainty,  421 

United  States      "vcinu'.  addiiij:  amount  to  cost  of  lij^ht,  435 

Void,  eflVct  of  receiving  lifr^'t  under,  421),  421 

Waiver  as  to  quality  of  gas  or  light  furnished,  43G 

Contractor  — 

Gas  company  may  be  liable  because  of  his  negligence,  G05,  681 
Liability  for  causing  leaks  in  gas  mains,  055 

Conversion  — 

Oil  in  tanks  or  pipe-lines,  4G 

Conveyance  — 

Appurtenances,  what  pass  by,  74 
Merges  contract  for  a  lease,  05 

Cooking   Oil  — 

Selling  when  adulterated,   751 

Corporations  —  . 

For  artificial  gas,  cannot  supply  natural  gas,  478,  742 

Co-OTS^ner  — 

Co-tenant,  see  , 

Partnership,  see 
Tenants   in  conmion,   see 

Co-tenants  — 

Accounting  between  for  oil  produced,  278,  279,  282 

Are  not  parties,  311 

Assignment  of  lease,  278 

Confidential  relations  between.  281,  312 

Expense  of  working  joint  property,  283 

Fidelity  relation  between,  288 

Injunction  by,  when  against  trespasser,  285 

Joint  tenant,  see 

Jurisdiction   of  equity   to   secure   accounting   between,   282 

Lease  may  grant  of  joint  property,  275 

License  may  grant  of  joint  property,  275 

ilay   operate    land    of   co-tenancy,    274 

Partnerships,   see 

Payment  of  rent  or  royalty  to  one  co-tonant,  287 

Purchased  by,  when  of  co-tenants'  interest,  2S1 

Receipt  of  rent  or  royalties,  287 

Suit  to  secure  an  accounting,  278,  279,  282 


I 


1126  INDEX. 

i 

(References    arc    to   sections.)  ■ 

Co-tenants  —  Continued. 

Surrender  of  premises,  one  tenant   may  make,  2S4,  286 
Tenants  in  common,  sec 

When   a   tenant    is  bound    by   liis   co-tenants'   act,    284 
^\"ith  owner  of  mineral,  280 

Councilman  — 

Interested  in  lighting  contract    effect  ujKjn  contract,  439 

Covenant  — 

Assignee  of  contract,  when  liable  upon,  95 
Breach  of  imjdied  covenant,  effect,  [)1 
Diligent  search  for  oil  or  gas  implied,   127 
Free  gas,  agreement  concerning  is  a  covenant,  92 
Implied  to   develop   territory,    104 

to  operate  territory  after  development,  151 

forfeiture  does  not  authorize,  92,   154,   157 
Personal,  what  are,  93 
Purchase  of  tools  and  machinery,   93 
Running  with  lands,  9'2 
Search  for  oil  or  gas  is  implied,  91,  127 
Uncertain,   will    nut   work    forfeiture,    165 
When  implied,  91 

Curiosity  Seeker  — 

Injured  by  explosion  of  oil,  376 

Curtesy  — 

Husband's  right  to  oil  or  gas  upon  premises,  264 

D 

Damages  — 

Acquiescing    in    abandonment    of    lease,    effect,    132 
Breach  of  contract  to  give  a  lease,  294 

to  furnish  light,  413,  415 
Ck)mpliance   with   terms   of   lease,    183 
Duty  of  owner  of  premises  to  prevent,  592 
Entire  leased  premises  must  be  developed,  104  to  107 
Failure   to   develop    premises,    104,    180 

to  deliver  lessor  his  share  of  oil,  231 

to  supply  gas,  533,   534 
Injunction  to  prevent  cutting  off  supply  of  gas,  548 
Instead  of  forfeiture,   192 

Limiting  liability   for   neglect  to   supply  gas,   535 
Measure    of    for    taking   oil    or    gas    illegally,   33,    108 

for  taking  right  of  way  for  pipe-line,  361  to  364 

for  breach  of  implied  covenant  to  develop  oil  land,  770 


INDEX.  1127 

(Referencj's    uri>    to   sections.) 

Damages  —  Continued. 

No<;lect  of  company  must  cause  damapo  to  vendor  it  liable,  604 

Occasioned  by  storin<f  or   l)rinf,'inju'  oil  on   land,  584 

Res  judicata,   107 

Sickness  occasioned  by   small   supply  of   gas,   534 

Dead  Sea  — 

Oil  found  upon  its  boundaries,  1 

Debt  — 

Constitutional   provisions  concerning,  408,  409 

Contract  for   light   does  not   create,   408,   409 

Liability  of  parties  for  debts  of  mining  partnership,  324,  325 

Deed  — 

Cimveyance,  see 

Quitclaim   deed  may  create  a  lease,   62 

Description  — 

Sufficiency  of  in  an  oil  lease  or  contract,  76 

Diligence  — 

Agreement  concerning  what   shall  be,   98 

Forfeiture  of  lease,  see 

Greater   required   in  developing  oil   than  coal   lands,   130 

Implied  covenant  to  search  for  oil  or  gas,  127 

Lease,  see 

Operating  premises,  degree  required,   97 

When   work   on   leased   premises   must   begin,   96 

Discriminations  — 

Failure  of  supply  of  natural  gas  does  not  authorize,  527 
Gas  company  cannot  make,   526,   527,   542 
In  care  of  meters,  563 

Distress  — 

To  collect  gas   rents,   546 

Assignment  in  mineral  lands,  273 

Right   of   widow    to   operate   wells   upon   lands   assigned   to    her,    261, 
262,  273 

Drake,  E.  L. — 

Dug   first   oil    well,    5 


1128  INDEX. 

(Refcrencps    nre    to   sections.) 


East  Liiverpool  — 

(liis    wells,    'J 

Ejectment  — 

Assignee  of  lease  maintaining,  217a 

lessee  may  maintain  to  recover  leased  premises,  20,  824 

Oil    to    recover,    27a 

When  lies,  p.  1104 

Election  — 

To  authorize  city  to   purchase  or  build  a  gas  plant,  517 

Electrolysis  — 

Expert  evidence  to  show  effect  of,  659 

Eminent  Domain  — 

Artificial    gas   companies,    power    to    use,    357 
Condemning  right  of  \vay  for  pipe-lines,  503 
Conferring  power  of  on  gas  or  oil  companies,  356-358 
Foreign   corporations  empowered  with   right  to  use,  357,  358 
^Measure  of  damages  in  taking  right  of  way  for  pipe-lines,  361  to  364 
Petition    to   condemn    pipe-line    right   of   way,   367 

England  — 

Natural  gas  wells,  8,  9 

Oil    wells,    7 

Refining   petroleum,    13 

Estoppel  — 

City,  when  may  be  to  control  validity  of  monopolistic  grant,  450 
Landow-ner,  to  remove  pipes  from  highway,  504 
Occupjang  streets  under  void  ordinance,  479 
When   lessor  may   be   estopped,    182 
\\hen  lessee  may  be  estopped,  84 

Eviction  — 

Eltect  upon   lease,    120,    IGl 

Erection  of  building  for  machinery   is  not,    120 

Relieves  lessee  from  liability  to  lessor,  241 

Evidence  — 

Care  on  part  of  gas  company  to  prevent  leaks,  658 
Electrolysis,  effect  on  gas  pipes,  659 
Expert,  to  show  effect  of  electrolysis,  659 
Inhalation  of  gas,   660,   661 
Leaks  and  explosions,  see 
Notice  of  leaks  in  gas  main,  620,  621.  622 

Presumption  of  negligence  arising  from  proof  of  explosions,  611,  612 
Undue  pressure  in  gas  pipes  at  other  places,  632 
Vegetation,  effect  of  escaping  gas  uixm,  662 


\ 


IXDKX.  112!) 

( Ileferenct's    urc    to   soctlons. ) 

Exception  — 

('i)ii.si(h'ratkon   for  t;raii(   of   a    pait  of   niincial,   245 

Distinction  between  an  exception  and   reservation,  302 

Keservation,    see 

Severance  of  mineral  l»y  means  of,  .'JOS 

Subject  to   liens  of  judgment,   307 

Exclusive    Contract  — 

Monopoly,  see 

Expenses  — 

Pf>crating  expense  first  paid,  when,  224,  &25 

Recovery  when  there  has  been  an  abandonment  of  forfeiture,  137 

Reimbui  scment    of    lessee    for    exjienses,    190 

Explosions  — 

Insurance  cases,  697,  698 

Leaks  and  explosions,  see 

Negligent,    663c 

Prospective  damages  occasioned  by  pipe-lines,  363 

Explosives  — 

rieading  to  show,  633o 
Sliipi)ing,    ()'.V3a 
Stove    polish,    G335 

P 
False  Brands  — 

Using  on  dangerous  oils,  670 

Firepot  — 

Injury  occasioned   by   exploding   gasoline    firepot,    669 

Fires    — 

Negligence,    see 

Pipe-line  occasioning,    363 

First    Oil    'Well — 

When   dug,    5 

Fixtures  — 

Agreement  concerning  may  make  them  personal  property,  567 

[Between    mortgagor    and   mortgagee,    571 

Candelabra,   568 

Chandeliers,  568         ~ 

Goal    and   mineral    lease   fixtures,    575 

Conveyance   of   premises,   effect   on    fixtures,   577 


1130  INDEX. 

(Keferenees    are    to   sectioDS.) 

Fixtures  —  Continued. 

Division  of  subject,  5G5 
das    burners,    570 
(liis  generators,  570 
Gas    machine,    570 
Gas  stoves,  5G8,  p.  1112 
Gasoliers,   5^8 

Injury   to    fi-eehold    b^-    removal,    5G7 
Innocent   purchaser  of   premises,   rights,   567 
Intent  to  constitute,  when  essential,  566 
Judicial    sale   of    premises,   effect   upon,    569 
•  Landlord  and  tenant  or  between,   573  ^ 

Machinery,  p.  1112 
Mixers,  508 
Mortgaging,  577 
Oil  and  gas  lease  fixtures,  576 
Pipes   in   house   for  gas,   570,  572,   573 
Pipe-lines,  579 
Public  policy,  566 

Removal  after  forfeiture  of  lease,   191,  7G0,  794 
Sources,  568 

Special   contract   controls,   578 
Trade   fixtures,   573,   574 
Vendee,  when  entitled  to,  570 

Flambeau  Burners  — 

Prohibiting  use,  28,  386 

Foreign    Corporation  — 

1  tight  to  exercise  powers  of  eminent  domain,  357,  358 

Forfeiture  — 

Action  to  declare  forfeiture  of  right  to  occupy  streets,  491 
IMonopolistic  contract   for   lighting  citj',   452,   454 
Right  to  occupy  streets,  490,  491 
WaiA-er  by  city  of  right  to   declare   a  forfeiture,  492 

Forfeiture    of  licase  — 

AhaiuloiniU'iit,    sec 

Abandonment,  forfeiture  clause  not  necessary  to  work  forfeiture,  138a 

works  forfeiture,  773,  805 
Acquiescence    in    delay    in    developing    premises,    131 
Actual  mining  operations  must  commence  within  a  reasonable  time,  133 
Assignee   of   lessor  may   declare  forfeiture,    152 

of  lessee  cannot  take  advantage  of  forfeiture  clause,  195 
Breach   of   implied   covenant,    91 
Cessure   of   work   after   opt^rations  begin,    141 
Clause   concerning   omitted,   effect,    156 


INDEX.  ii;u 

(Refcroncps    are    to  sections.) 

Forfeiture  of  Lease  —  Coutinxud. 

Court  of  equity  will   not  enforce,  7S9 

Covenant  uncertain,  effect,    liiS 

Damages  for  failure  to   develop   premises,    104  to   107 

for  non-compliancp  with  terms  of  lease,   1S.3 

instead  of   declaring   a    forfeiture,    1!>2 
Declaration  of  forfeiture  by  lessor,  notice,   l.j8,  771 
Defective,  landowner's  title  being,  pp.  IIU.'},  1105 
Diligence,  agreement  as  to  what  constitutes,  98 

in  beginning  work,  9^1 

in  operating  premises  after  forfeiture,  97 

required  in  developing  oil  lands,  130 

search  for  oil   required,    1.37 
Draining  leased   lands   by  wells   on   adjoining   premises,    171,    172 
Equity  will  not  enforce,  789 

Excavaiting  for  oil   means   bringing   it   to  surface,    17G 
Expense  of  drilling  wells,   recovery,    137 
Extension  of  time  of  lease,  131,  140 

Failure  to  operate  and  not  failure  to  develop,  1G2,  163 
Favorite  equity  when  will  promote  justice,  147,  148,  151 
Fixtures,  see 

and   machinery,    removal,    191 

when  forfeited,  574 
Heirs  may   declare,    152 

History  of  change  of  rule  giving  lessor  exclusive  right  to  declare,  149 
Holding   premises    for    speculative    jmrpose,    not    permitted,    128 
How  may  be   declared,   237,   238 
Implied  covenants  to  operate  premises,   151 

do  not  authorize  forfeiture,   154,   157 
Inability  to  complete  work,   effect,    173 
Lessee  cannot   insist  upon,    153,   155 

cannot  recover  premises  after  forfeiture  incurred,  189 
Lessor   can   only   declare,    148,    149,    151 
Lessor's    remedies   as    to,    756    to    789 
Liability  for  rent  after  forfeiture  incurred,  237  to  240 
Lien,    effect    upfm    premises,    334 
^lachinery,  removal,   191 
Mortgage   of   leasehold   may   work,    174 
Non-development  of  premises  where  no  time  is  fixed,   129 
Notice  of  election  to  declare,  158,  p.  1105 
Optional  with  lessor,  797 

with  lessee,   798 
Part  only   of    leased    premises,    169,    17<>,    189 

of   premises,   111,    112 
Paying  quantities,  see 

what    is    considered    to    be,    134,    135,    136 


I 


1132  IXDEX. 

(Ueferences    are    to   sections.) 

Forfeiture  of  Lease  —  ('onlinucd. 

Payment  of  rent,  wiion  will  prevent,   145,  pp.   1105,   1100 

when  will   not  prevent,    17S 
Production  of  gas  will  not  prevent  forfeiture  of  an  oil  lease,  164 
Question  of  intention,   184 

for  jury,   185 
Re-entry,    when   necessary,    166 
Reimbursement  of  lessee  for  expenses  incurred,  190 

Relief  from,   187,  806  M 

Royalty,    failure    to    pay,    effect,    177  ™ 

Rule  in  gas  or  oil  leases,  14S 

Stranger  cannot  avail  himself  of  a  forfeiture,  153 
Suit  to  cancel  lease,  186 
'Surface,  oil   mu.st  be   brought  to,    176 
Surrender   after   assignment,    168 
Time  to  avoid,   188 
Unavoidable  accident,  effect,   131 
Void,  in  lease,  means  voidable, 
Waiver,   159,   160,  80'3,  p.   1105 

by   accepting   rent,    IGOa,    1006 

declaration   after   waiver   made,   771 
Wells,    see 

must  be  drilled  to  prevent.  111,   112,  175 
Work,  when  must  be  completed,  175 

Forms  of  Leases  — 

See  Appendix 

France  — 

Xatural   gas  and  oil  wells,  7,  8 

Francliise  — 

Acceptance   of   necessarj',   471 

Assignment  of,  rates   for  gas   in  assignment,  395 

Change  of  use,  cannot  be  made,  478 

Consolidation  of  gas  company,   effect,   485 

Construction,  472,  473,  478 

EstopjK'l   to  contract,  479 

Forfeiture,  exclusive  franchise,  454 

of   right  to  occupy   streets,   491 

waiver  of  right  of  city  to  declare,  492 
Grant  of  right  to  occupy  street  before  company  is  organized,  482 
Length   of   grant,   483 
Monopoly,  see 

Nature  of  discussed,  469,  470 

Natural  gas  grant  does  not  authorize  the  use  of  artificial  gas,  478,  742 
New  territory,  474,  475,  476 


INDEX.  1133 

( Rcfort'noi'M    are    to   sections.) 

Franchise  —  Continued. 
Ordinance,  see 

Power   to  grant   not   property  of  city,   4(i7 
Rates,  franchise   not  considered   when   fixing,  400d 
Revocation  of   monopolistic   contract,   447 

wlien    may    be    made,    48!) 
Strictly    construed,    47"2,    47:5,    474 
Taxing,  731 
Termination  of  life  corjjoration   before  expiration   of   right   to  occupy 

streets,  484 
Town  becoming  a  city,  effect  ujjon  gas  company,  48G 
Void  ordinance,  effect  u])on  franchise,  479 
What  territory  it  extends  to,  474,  475,  476 

Fraud  — 

Avoids  contract  for  a  lease,   14G 
Co-tenant's    fraud    upon    fellow    tenant,    281,    288 
Fidelity    relations  between   co-tenants,   violating,    288 
Municipal    otlices    interested    in   city   contract,   effect,   439 
Partner's  fraud   upon  co-partners,   288,  312,   315 

Fredonia  — 

(jius  wells,   9 

Free    Gas  — 

'City  contract  for,  424 

Covenant  for  runs  with  leased  premises,  92 
Quantity  lessor  entitled  to  receive,  226,  547 
Royalty  in  gas  used  to  operate   leased  premises,   227 
When  part  of  rent,  225,  226 

Frencli  — 

JJiscovered  oil   in  Pennsylvania  at  early   date,  2 

Frost  — 

Breaking  pipes  and  occasioning  leaks,  624 

Entering  pipes,  no  defense  for  failure  to  furnish  gas,  534 


Galicia  — 

Oil    wells,     1,    7 

Gas  — 

Artificial   and  natural  gas  not  subject  to  same  statutes,  455,   742 
City  may   furnish   for  commercial   purposes,   512,   513,   515 
Company,   prices   it   may  charge  for  gas,   530 
Consumer,  see 

may  discontinue  use  of  gas,  549 
Cutting  off  when   leaking  into   house,   650 


1134  INDEX. 

(References    are    to   sections.) 

Gas  —  Co)itiiiucd. 

Dangerous  substance,  care   required   in  handling,  600  to  602 

Delivery   to   CDiisunier,    wlien   completed,    559 

Deposit  of  money  to  secure  payment  for,  541 

Discontinuing  use  of   by   city,   4H) 

Early  attempts  to  use  for  light,   17 

Escaping  into  house,  648,  649 

Heat,   price   to   be   paid   for   gas,   542 

Inlialation,   evidence   to  show,   (>(>(),   (iOl 

Larceny  of,  743 

License,  743 

Mandamus  to  compel  company  to  furnish,  531,  532 

■ 
Pleasuring,  557,   558  ■ 

by  oflicially  tested  meters,  557  ■ 

Meters,  see 

]\Iineral,  natural  gas  is,  p.  1102 

]\Iunicipality,  proftt  may  make  in  furnishing  its  customers,  515  ' 

Katural  gas,  see 

same  statutes  do  not  apply  to,  478 
Kecessary  of  life,  is  not,  748 
Ownership  in  earth,  p.  1102 
No   contract  for  gas   furnished,   418 
Payment  for,   in   defense  to   suit  on  account,  640,  541 
Poor  quality,  rescission  of  contract  for  gas,  415 
Pressure   in  pipes,   regulating,  383 
Price  to  be  charged,  539 
Quality,    415a 

Eentals  for  natural  gas  de\-eloped,   763 
Shutting  off  supply  for  failure  to  furnish  gas,  547 

meaning   as    used   in   contract,    744 
"^Shut  off,"  meaning,  744 
Taxing,   741 

Turning  off  and   on,   who   may,  531 
Unlawful   extraction   from   soil,   remedy,    774,   807 
Waiver  as  to  quality  of  gas  furnished   for  light,  436 
Waste   of  natural   gas,   786 

Gas  Box  — 

May  be   placed   in   streets,   498 

Use  of   in   sidewalk  occasioning   injury,  680 

Gas  Burners  — 

Are    fixtures,    570 

Gas   Company  in  Cities  and  To'tms  — 

Accepting    provisions    of    subsequent    ordinance,  effect  upon  rates,   396 
Assignment  of    franchise,   effect    ujion    rates,    395 


IXDEX.  ll'.i') 

(References    are    to   sections.) 

Gas  Company  in  Cities  and  Towns  —  Continued. 
Boiul  to  coiiijili'to  jilan.t,  p.  IIOS 
Building  imporft'ctly   constructed,    OS,"} 
Comniencenicnt  to  construct   plant,   p.    1108 
Conditions  of  grant,  must  perform,  472 
Consolidation,  effect,  4466,  485 
Consumer,  see 

must  be  furnished  gas,   525 
Curtailing   territory   occupied   by   gas  compan)',   443a 
Damages  for  failure  to  supply  gas.  p.  1110 

Disclosing  financial   condition  when   court  fixes  rates,   4006,  400c 
Dissolution,  753 

stock  extinguished,   753 
Duty  to  protect  the  public  and  its  patrons,  599 
Franchise,   acceptance   of   necessary,   471 

nature  of,  469,  470 

void,  gas  works  built  under,  457,  p.  1109 
Good  will  not  considered   in   fixing  rates,  400d 
Grant  to   occupy   streets   strictly  construed,  473 
Injunction  to  prevent  cutting  off  supply,  p.  1110 
Insurance  company,   liable  to,   725 
Lamp  posts,   p.   1108 
Leaks  and  explosions,  see 
Litigation,   supplying  gas  during,  406? 
IMandamus  U)   compel    furnishing  of  gas,  400/ 
Natural  gas  company  cannot  be  organized  under  artificial  gas  statutes, 

455,  742 
Parties  to  suit  to  enjdin  an  ordinance  concerning,  400»i 
Pressure,    excessive    in    pipes,    legislature    cannot    require,    400/ 
Purchasing  gas  of  another  company,  752 
Quasi  public  corporations,  401 
Rates  for  gas,  see 

Regulations    of    by    municipality,    309,    480 
Repairer  when  not  agent  of  gas  company,  055 
Right  of  action  over,  656 

Servant's  insolence  to  consumer,  pp.   1111,  1112 
Stock,    750 
Streets,  see 

Supplies   furnished   to,   liable,   747 
Taxing,   741 

Tunnel  under  surface  of  .street,  entering,  p.  1109 
Trust,  suppression   of  competitor,   755 
Unlawful  combinations,  may  not  make,  459 

Gas  Fitter  — 

Liable    for   occasioning    explosion,    657 
Plumber,  see 


113G  INDEX. 

(Refpronoos    are    to   sections.) 

Gas    Governor  — 

Injunction  to  restrain  use  of,  55.3 
Gas  Mains  — 

Extension,  when  company  must  make,  437,  p.  1109 

Natural  gas  mains  using  for  artificial  gas,   478,   742 

Not  an  additional   burden  on   fee,  5(M) 

Ordinance  necessary  to  authorize  placing  in  street,  460 

Pipes,  see 

Taxed    as    personal    property,    730 

Gas    Posts  — 

Leaving  in   street  after   franchise  has  ended,  499 

Gas    Works  — 

Bonds  to  construct,  p.  IIOS 

Building  under  void  grant  or  franchise,  457,  p.  1109 

City's  gas   plant,   733 

how  pay  for,  430 
Commencing  construction,  p.   1108 
Enjoining   construction,   595 
Extension  of  time  to  complete,  456 
How  city  may  pay  for,  430 

Imperfectly    constructed,    occasioning    injury,    683 
Lease   of   its   plant  by   city,   522 
Mortgaging,    348 

cannot   be    mortgaged,    339 
Municipality  may  own,  511,  512,  513 

may  take   stock   in   private  company,   518 

must  be  sole  proprietor,  518 
Nuisance,  see 

Option  of  city  to  purchase,  458 
Polluting  well  or  stream  near  by,  581 
Right   of   city   to   purchase   of   gas   company,   519 
Sale  by  city  of  its  plant,   521 
Taxing,    733 
Trustee  to  operate   city's   plant,  520 

Gasoliers  — 

Fixtures    are,    when,    568 

Gasoline  — 

Drawing  near  fire,  G8()b 

Exploding,  669 

Firepot   for   exploding,    669 

Leaks  and  explosions,  see 

Oil,  see 

Plant  out  of  order  exploding,  686o 


I 


INDEX.  li:J7 

(References    are    to   sections.) 

Germany  — 

Oil    wells,    7 

Good    Will  — 

Not  consideri'd  in  fixing  gas  rates,  400d 

Goveimment    Laiids  — 

Ivntn'    of  govoiiinu'nt   oil    luiuls,   45 

Grass  — 

Proof  of  effect  of  escaping  gas  on  growing  grass,  662 

Greek  Fire  — 

I'sL'd   by    ancients,    1 

Guardian  — 

Leasing  ward's  property,   57,  256 
When  may  not  drill  for  gas,  35 

Guest  — 

^lay  recover  damages  from  gas  company,  641 

H 

Hatiraiian    Islands  — 

Oil  wells,   7 

Heat  — 

Natural  gas  company  cannot  be  organized  under  statute  for  formation 

of  heating  companies,  39 
Price   to  be  paid  for  gas  for  heating  when  price  of  gas  for  light  is 

fixed,  542 

Heir  — 

Interest  of  in  gas  lease,  57 
May  declare  forfeiture,  152 
Rights   in   mining   partnership,   315 

Herodotus  — 

Speaks  of   petroleum,   1 

High-ways  — 

Acquiescence   in  use  of   for  pipes,   504 
Condeninati(m  of  right  of  way   in    for   pipes,   503 
Consent  of  city  to  lay  pipes  in,  when  not  necessary,  468 

of    county    to    lay    pi])cs    in,    506 
Control  of,  464 
Crossing   with   pipe-lino,   506 
Defined,  463 

Franchise  to  occupy  discusised,  469,  470 
Injuries  occasioned  by  laying  mains  therein,  682 
Natural  gas  beneath,  who  owns,  306 


1138  INDEX. 

(References    are    to   sections.) 

Highways  —  Continued. 

Oil  l>oneath,  who  owns,  300 

Pipes  laid   in  an  additional  hnrdon  on  fee,   502 
Removal    of    jjipes    from    unlawfully   laid    therein,    508,    509 
Re^'ocation   of  license  to  u.-^c   for    pipes,   507 
Streets,  see 

Surface  cannot  be  used  for  pipes,  510 
Use  of  for  private  purposes,  405 
for   pipe-lines,   360 

History  — 

Ancients  knew  of  petroleum,  1 
Early  wells  in  America,  2  to  6 

Homestead  — 

Husband  may  lease,  02 

Wife  must  sign  lease,   57,  258 


I 
Illinois  — 

Statute  concerning  oil  and  gas,  pp.  049  to  952 

Indebtedness  — 

City's  contract  for  light  does  not  create,  408,  409 

Income  — 

Defined,  224 

Incorporeal  Hereditaments  — 

License  to   drill   for  oil  may  be,   50,   63 

India  — 

Oil  wells,  7 

Indians  — 

Lease,  granting,  of   their  lands,  25Sh 

Statute   on  oil  and  gas,  concerning,  ]ii).  1071  to  1081 

Indiana  — 

Statutes  concerning  oil   and  gas,  ]>]).  952  to  975 

Indictment  — 

Obstructing  streets,  494 

Waste  of  natural  gas  or  oil,  598 

Infant  — 

Lease  of  oil  or  gas  land  cannot  make,   256 


1 


INDEX.  1139 

(Refcreucfs    ure    to   .sections.) 

Inflammable  Oils  — 

,)iuiiei;il    iiotifo   c-oiiconiiiig,    41 

Ingress  and  Egress  — 

Iviglil   111  liavo,  74 

Injunction  — 

Buildinji  of  gas  plant,  proventing,  595 

Commission   to    fix   gas    rates,    does    not    lie,    400f 

Cutting  oil'  supply  of  gas,  preventing,  p.   1110 

Gas  governor,  to  coni[jel   removal,  553 

Lessee  entitled  to  protect  leased  premises,  103,  p.   1103 

Mandattiry   to   compel   turning  on   of   gas,   548 

Nuisance,   restraining,   594,   595 

Ordinance,  to  prevent  passage  by  city  c<ninoil,   453 

Parties  to  suit  to  enjoin  enforcement  of  ordinance,  400?n. 

Pipes  protecting,   496 

Preventing  the  cutting  off  of  gas,  548 

Protecting  right  to  use  streets,  481 

Remainderman  may  lease,  273a 

Restricting  tlie  laying  of  pipes  in  street,  487 

Trespass,    adjoining   landowner   cannot   excuse,    88& 

Waste  of   natural   gas,   preventing,   28,   35,   598 

Inspection  — 

Company    may    ins])ect    premises    furnislied    with    gas,    530,    615 

Pipes  must  be  insjjected  by  gas  company,  615 

Right  of  company  to   make  of  premises,  590,   615 

Sta-te  may  require  of  oil,  388 
Inspector  — 

State  inspector  of  gas,  see  Taxes 
Insurance  — 

Benzine  and  burning  or  cliemical  oil,  694 

Cleaning  clothes  with  gasoline,  effect  on  insurance  policy,  718 

Conflict  between  rider  or  written  part  and  printed  part  of  rider,  688 

Contiguous   buildings,   what  are,   690 

Custom  may  control  terms  of  policy,  706 

Damages,  riglit  of  company  to  recover,   724 

Death  caused  by   iniialing  gas,  726 

Destroying   vermin   in   house   with   gasoline,   718 

Drug  store  keeping  explosive  oils,  713 

Exemption  clause  omitted,  697 

Explosions,   697,    698 

Extent  of  proliibited  use,  702 

Factory  using  gasoline,   712,  716 

Failure  to  disclose   tlie   use  of  oil,  699 

French  electric  fluid  equivalent  to  benzine,  694 

Furniture   store  using  oil  for  cleaning,  711 


1140  INDEX. 

(References    are    to   sections.) 

Inanrance  —  Continued. 

Gas  company  causing  fire  liable  to  insurance  company,  725 

Grocery    keeping   oil    for   sale,    709 

Hazard  not  increased,  policy  avoided,   700 

Hazardous   articles,   occasional    use,    703 

Implied  consent  to  make  use  of  prohibited  articles,  706 

Increase  of  risk,  704 

Inliaiiiig  gus   covi'icd   by    accident   or    life    policy,    720 

Judicial   notice  of  nature   of  oils,  41 

Keeping   oil,   meaning  of   term,  707 

Kerosene  oil,   wlicn   use   of   proliibited,   694 

use   of    for    lires,   G!l.5 
lamps,  filling  in  daytime,  694 

failure    to    extinguisli,    693 

time   to  extinguish,    ()92 
Laimdry   using  gasoline,   714 
Lights,   oil   used   for,   706 
Lubricating  oils,   keeping,   694,  719 
Machinery,  keeping  oil  for,  effect  on  policy,  694,  719 
Oil    for   illumination,   691 

u])on  premises, -694,  701,  p.  1115 

storing  on  premises,  what  is  not,  p.   1115 
Chvner  of  premises  must  violate  terms  of  policy  to  avoid  it,  696 
Paint  shop  using  oils  and  benzine,  711,  716 
'Painter  keeping  oils   and   using  them,   716,    717 
Patent  leather  factory  using  gasoline,  715 
Powder  exploding  and  causing  damages,  697 
Prohibited    Tise    not    occasioning    loss,    695 
Premises,    what    constitutes,    6SJ9 
Proof  of  custom  of  the  usual   practice,   705 
Release  by  the  insured  of  person  causing  loss,  724- 
Rider   conflicting  with    policy,    688 
Risk   increased,   effect,    704 
Rope  factory  using  oil  on  premises,   712,  716 
Store  keeping  oil  for  sale,   708 
"Storing,"  meaning  of  term,  707 
Tenant  violating  provisions   of  policy,    696 
Torch,   using  to   remove   paint   from   building,    717 
Use  of  oil  allowed,  701 
Wagon  shop  using  oil,  711 
Waiver  of   illegal   use  of   building,   720,   721 

acquiescing  in  prohibited  use  of  building,  721,  p.   1115 

adjusting  loss  or  accepting  proof  without  objection,  723 

receiving  proof  with  knowledge  of  j)roliibited  use,  722 
Watchmaker  using  oil,  710,  712 
Warranty  as  to  conditions  of  store.   700 
Writt<'n  parts  controls  printed  parts,  688 


I 


INDEX.  1141 

,'Refert'uces    are    to   sections.) 

Interest  — 

On  ovordiio   gas  hills,   433 
Oil    royalties  and   rents,  232 

Interstate    Commerce  — 

Oklahoma  (Iccision,  p.  IIIH 

Overcharges    by    carriers    of    oil,    351 

Transportation  of  oil  or  natural  gas,  350,  351,  352,  353,  384 

Ionian  Islands  — 

Oil  wells,  1,  7 

Italy  — 

Natural   gas  wells,  8 
Oil   wells,   7 


Japan  — 

Natural   gas,   8 
Oil  wells,  7 

Jesuits  — 

Refer   to   oil    springs   in  America,   2 

Joint    Lease  — 

By    separate    landowners,    86 

Joint   Tenancy  — 

Illustrations    of    in   mining   enterprises,   317 

Joint   Tenants  — 

Are  not   partners,   312 

Co-tenants,  see 

Payment   of   rents  or    royalties   to,   230 

Judgment  — 

Lieu   on    exception   or    reservation,   307 

Judicial  Notice  — 

Burning  fluid,   41 

Chemical  oil,  41 

Concerning  operation  of  oil  wells.  42 

Courts  take  of  properties  of  oil  and  gas,  41,  42,  382 

Taken  of  dangerous   properties  of  gas,   382 

Judicial    Sale  — 

Transfer  of  lease  by  sale,   109 


1142  INDEX. 

(References   are   to  sections.) 

Jury  — 

Contributory  negrligcnce  a  question   for  it,   G52 
Forfeiture   a   question    for   it,    184,    185 
Questions   for,   in   cases   of   negligence,   (552,    663 


K 

Kalm,  Peter  — 

Describes  oil   wells   in    Ohio   and   Pennsylvania,   2 

Kansas  — 

Statutes  concerning  oil  and  gas,  975  to  990 

Kentucky  — 

Earlj'   oil    springs,   2 

Statutes  concerning  oil  and  gas,  pp.  900  to  994 

Kenyon    College  — 

Gas  wells,   9 

Kerosene  — 

Judicial    notice    concerning,    41 

Kies,    Samuel   M.  — 

Sold    petroleum   as    a   medicine,    14 


I. 

Ladder  — 

Defective    injuring   servant,    686 

Lake  — 

Ownership  of   oil    and   gas   beneath,   306 

Lamps  — 

Extinguishing  pursuant  to  provision  in  insurance  policy,  692,  693 
What  kind  to  be  used  under  gas  contract,  434 

Lamp   Posts  — 

Defined,  434 
Removal,  434,  p.  1108 


INDEX.  1141} 

(References    are    to   sections.) 

Landlord   and   Tenant  — 

Contributory  nopliponce  of   tenant,   054 

Fixtures,  who  entitled  to,  573 

Right  of  action  against  tenant  for  damages  occasioned  by  gas  explosion, 

645 
Tenant,   see 

Landoxrner  — 

Remedy  when  oil   unlawfully  taken  from   his   land,   774 

Larceny  — 

Gas   a   subject   of   theft,   743 

Oil  in  earth,  26 

Oil    in    tanks    or    pipe-line,    46 

Leaks  and  Explosions  — 

Available  force  of  gas  company  to  prevent  leaks,  616 
Breaking  of   pipes   for   lack  of   support,   625 

occasioned  by  ordinary  use  of  streets,  623 
Burden  to  show  negligence  of  company,  010 
Calcium  carbide   exploding,  648 
Care  on  part  of  gas  company,  evidence  to  show,   658 

required  of  company  to  prevent,  599,  000,  pp.  1112,  1113 
Cellar,  gas   leaking  in,   648 

Child,  negligence  of  its  parents  may  defeat  its  cause  of  action,  053 
Company  misleading  plaintiff  as   to   the   extent  of   danger,   627 
Concerning  negligence  of  two  or  more  defendants,  605 
Contractor's    negligence,    655 

Contributory  negligence  of   jjlaintiff  defeats  his  cause   of  action,  648, 
p.  1114 

question  for  jury,   648,   652,   655 
Control   of  gas,  company  must  "maintain,   601 
Cutting  off  supply  of  gas  to  prevent  injury,  duty  of  pro{)erty  owner 

to  make,  650 
Deception  used  in  sale  of  dangerous  oil,  678 
Defective  barrels  used  in  shipping  oil,  374 
Degree  of  care  required  of  gas  company,  602  . 
Duty   of  gas  company  to   prevent   leaks,   599 

to  make   immediate   repairs,   016 
Evidence  in  cases  of  inlialing  gas,  000 

to   show  due  care  on   gas  company's   ])art,   658 

to  show  other  leaks,  621 

of  leaks,  622,  p.  1113 

of  undue   pressure   in   pipes  at  other   places,   632 

of  notice  to  gas  company  of  danger  to  mains,  626,  pp.    1112,   1113 

to  show   eileet   ujwn    growing   vegetation,    002 


1144  INDEX. 

(References    are    to   sections.) 

Leaks   and   Explosions  —  ('aiitinucd. 

Excavation   noar   pipo-line   causing  leaks,   625 

Ex|)ert  cTidcnce   to   sliow  edVct  of  electrolysis,    G50 

Exploding  tank  injuring  servant,  684 

Explosion   occasioned   by   violation   of   statute,   607 

Failure  of  company  to  discover  place  of  leakage,  613 

False   brands,    670 

Frost   occasioning   leak,    624 

Gasfitler  igniting  escaping  gas,  liability  of  gas  company,  638 

liability,  657 
Gas  following  supply  pipe  from  main,  629 

following  sewer,   629 

percolating   through   soil,   629 

turned   on   by   owner   or   stranger,    644 
Gasoline,    drawing   near   furnace   fire,    6866 

plant  out  of  order,  686c 

firepot  exploding,  669 
Guest  of  family  may  recover   damages  of  gas  company,   641 
Implied  warranty  in  sale  of  illuminating  oil,  679 
Inhalation  of  gas,  660,  661 
Insurance,  see 
Inspection  of  premises  to  prevent  leaks,  530 

to  detect  leaks,  615 
Inspector,  gas.  company  must  employ,  637 
Intervening  agency,  614 
Jury,   what   questions   are    for,    663 
Landlord's    right  of   action   against   tenant,   645 
Laying  gas  mains  on  bed  of  navigable  river,  608 
Ijessee's  negligence,  055 
Municipality   liable  for   damages  occasioned  by  it  in  operating  plant, 

628 
Neglect  of  gas  company  must  cause  damage  to  render  it  liable,   604, 

606 
Negligence  in  turning  off  gas,  644 

Negligently   permitting  oil  to  escape  upon   ground,   671 
Negligent  parent,  wife  or  servant,  653 
Night  watchman,  must  be  maintained  to  detect  leaks,  603 
Notice  of  leaks,  duty  of  company,  617,  618,  pp.  1112,  1113 

when  not  necessary  to  fix  gas  company's  liability,  619 
Oil  exploding  on  trains,  375,  376 

escaping  from  refinery  and  exijlnding,   072 
Overwhelming   disaster,    liability   of  gas   company,   609 
Owner  of  premises,  when  liable  to  injured  person,  647 

removing  from  j)reniises,  649 
Paint  exploding,  675 
Parent  or  wife's  neglect,  653 


INDEX.  1145 

(References    iire    to   mvIIodh.  ) 

Ijeaks   and  Explosions  —  Continued. 

i'lTson  oil  pn-iiiiscs  liy  liopnse  may  recrvvpr  damages,  040 

Plaint iir  must  sliow  clue  care  on  liis  i>ait,  U4H 

Pressure  of  gas,  undue,  efl'ect,  1)04 

Presumption  of  negligence  owing  from  proof  of  explosion,  (ill,  012 

Property  owner's  duty  to  notify  gas  comiiany  of  leak,  (i'Jii 

Question  of  negligence,  wlicii   f<ir  jury,  (id."} 

Removal  from   premises  to  escape  personal  injury,  (i41l 

Repairing  consumer's  i)ipes  or   fixtures,  gas   company-   undertaking  to 

make,  034 
Rescuer   injured  by  negligence  of  oil  or  gas  company,  0715 
Reversioner's  right  to  recover  damages,  054 
Sale  of  oil  below  fire  test,  078 

in  violation  of  statute,  followed  by  explosion,  077,  079 
Searching  for  leaks  with  lighted  candle,   051 
Servant  of   plaintifi's   neglect,   053 
Servant  of  gas  com])any  causing  explosion,  033 

of  oil  company  injured  by   defective  appliances,  070 
Sewer  gas  driven  into   house  by  escaj)ing  illuminating  gas,  030 

oil   escaping   into,   008 
Shade   trees   injured  by  escaping  gas,  035 
Shipping  explosives,  003o 
Shrubl)ery    injured   by   escaping   gas,   035 
Shutting  oir  gas  and  depriving  city  of  light,   609 
Stop-oock  on  street  line,  who  may  open,  613 
Stove  polish  exploding,  0036 
Stranger  turning  on  gas,  044 
Tank   exploding   injuring   servant,   684 
Tenant's    right    of    action    against    landlord,    040 

contributory  negligence  may  bar  his  landlord's  right  of  action,  684 
Third  person  causing  explosion,  037,  03S,  043,   p.    1114 
Undue  pressure   in  gas  mains  causing  leak,  031 
Withdrawal  of  gas  from  mains  without  notice,  030 

l<ease  of  Oil  or  Gas  Lands  — 

Abandonm<'nt,  urc 
Acceptance  necessary,  84 
Acknowledgment  of   defective,   82 
Administrator,    power    to   executes    00,    258rt 
,     Agent   of    lessee,    when    may    take    lease,    89 
Assignment  of  lease,  see 
Assignee  bound   by  terms   of   lease,    203 

having  a  prior  lease,  09 
Blanks    in    unfilled,    efi'ect,    80 
Boundaries  of,  how  determined,   109,  p.   1104 
Cancellation  by  suit  for  failure  to  develop,  180,  p.  1100 


1146  INDEX. 

(Rcrpronci's    arc    to   spctlons.) 

Liease  of  Oil  or  Gas  Lands  —  Continued. 
Change  of  by  ]>arol  agrcenient,  83 
Chattel  real,  may  be,  51 
Conditional   oil   or   gas    lease,    53,   54 
Consideration,    78,    79,    756,    700 

by  court,  48 

may  be  ])urcliase  money,  24i& 

Avhat    is   sufficient,   G6,   756 
Construction,  48,  219,  p.  1103 
Co-tenant,    275 
Contract  for  not  many,  289 

damages  for  breach  of,   294 

giving  interest  in  real  estate,  52 

indefinite,   291 

specific  performance,  293 

what  is  sufficient  for  lease,  291 
Cutting  off  supj)ly  of  gas,   761 
Damages  for  failure  to  develop  premises,  104  to  106,  770 

measure  for  taking  oil  or  gas  illegally,   108 
Default  in  developing  lessee  cannot  take  advantage  of,  155,  237,  238 
Defective  title,  effect  or  forfeiture,  p.  1103 
Denial  of  tenancy,  effect,  122 
Description  of  premises  leased,  70,  p.  1102 
Development,    104   to    107,    130a,   760 
Digest  of  cases,   57a 
Diligence  required  of  lessee,  54,  90,  98,   130,   137 

in  beginning  work,  96 

in  operating  premises  after  development,  97,  140,  141 
Drainage  of  premises,   783,   784 
Duration  of  lease,   91 

of  ordinary  lease,   126 
Ejectment  in  favor  of  lessee,   120,  791,   824 
Entire    premises    must    be    developed,    104    to    106 
Estoppel,  wlien  lessee  estopped,  84 
Eviction  of  lessee  terminates,   120,   161 
Exclusive  right  of   lessee  to  oil  or  gas,  57,  90 
Excuse    for   not   drilling  test   wells,    112,    113,    114 
Execution  of  defective,  82 

how  must  be  made,  81 
Extent  of  territory  covered  by,  77  • 

Extension   of  time  may  amount  to   a  new  lease,   70 
Father  cannot  make   a  lease   of   child's   lands,   256 
First  oil    lease  executed   in  America,    16 
Fixtures,  see 

removal  from  premises,  575  to  579 
Forfeiture  by  breach  of  implied  covenant,  91 


INDEX.  1147 

(nofcronces    arc    to   sections.) 

Iiease  of  Oil  or  Gas  Lands  —  Cunlinuvd. 
Forfeituro  of  lease,  .trr 

by  mortgage  of   leasehold   premises,    174 

lessee  cannot  insist  upon,  155,   lf>5,  2:57,  238,  239 

waiver,    15ti,    IGO,   233 
Forms,  appendix,  .ire 
Fraud   and    rescission,    14G 
Free   gas    grant<'d    by    is   a   covenant,    92 

for  manufacturing  purposes,  13i3a. 
Guardian  leasing  ward's  oremises,  256 
Holding  for  speculative  purposes,  128 
Homestead,    how    leased,    57,   62,    258 

power  of  husband  to  lease,  62 
How  to  execute,  255  to  258 
Impairing   value    of  by    lessor,    100 

value  of,   100 

value  of  by  operating  on  adjoinrng  territorj',  101 
Implied   covenant  to    develop,   91 

breach,   7 OH 

covenant   to   search    for  oil   or   gas,    127 
Incorporeal   hereditiiment,  when  is,  50 
Indian   lands,   258b 
Infant  cannot  make,   256 
Ingress  and  egress  to  leased   premises,  74 
Injunction  to   protect   rights  of   lessee,    103 
Interest  of  lessee  in   various  leases,  57 
Joint,  given  by  separate  owners,  80 

remedy,   801,   820 
Joint   tenant's   remedy,    777,    810,   812 
Lessee's  rigiit  of  action  against  gas  company,  642 

purchasing  premises,   799 
Lex  loci  controls,  49 
License,  when  is,  50 

parol,  62 

when  is  not,  01 
Life  tenant  giving,  250,  780,  815 
Limitations,  250 
Married    woman,    00,    257 
Merger   in   fee,   65 
Mortgaging,  341  to  347 
Mutuality  wanting,  edect,  776 

Natural    gas,    lessee    not   entitled    to   under    oil    lease,    118,    119 
New  lease  may  become,  73 

effect  upon  rent  or  royalty,  2.'{0 
Non-development  of  premises  where  no   limit  is  fixed,   129 


1148  INDEX. 

(Rofcroncps    are    to   sections.) 

Lease   of  Oil  or  Gas  Lands  —  Continued. 
Notice  of  former  lease,  (i!>,  88 

of   former   license,   G2 

to  one  of  several  lessees  sufTicient,  87 
Oil  lease  docs  not  give  title  to  gas,   118,   119 
Oil,  unlawfully  extracting,  remedy,  774 
Operations  under,  when  must  In'gin,  !)(> 

failure  to  begin,  eflect,   1306,  757,  758,  709,  782,  816 
Option,  revocation,    17,   72 

to  declare  forfeiture,  707 

to  extend  term,   08 

to  pay  rent  or  drill  well,  73 

to    purchase    after    dovlopment,    67 

where   there   is   a  forfeiture  and   also  rental   clause,   764 
Oral  change  discharging  or  changing  rents,  247 
Owner  of  land  may  grant  a  lease,   255 
Parties  necessary  to  settle  controversy  over  lease,  823 
Partition  of  mineral  lands,  276,  277 
Parol,  change  of  written  lease  by  parol  agreement^  83 
Parol    lease   is  only   a  license,   62 
Paj'ing  quantities,  see 

as  used  in  a  lease,  134,  135,  136,  139 
Peculiarities  of   oil   leases,   47 
Personal  covenants  in,  what  are,  93 
Possession  of  premises,  lessee  cannot  recover  after  forfeiture  incurred, 

189 
Printed    form    as    evidence,    84 
Protecting  boundaries    of    lease,    91,    113 
Public  lands,  309 

Purchase  of  premises  by  lessee,  799 
Quieting  title  to  in   lessee,    103 
Railroad,   riglit  to  oil   under  track,  88a 
Receiver,   see 

when  will  be  appointed,  300,  775 
Renewal  by  payment  of  rent,  1306 
Rescission    for   fraud,    14<5 
Reimbursing  lessee  for  expenses,   190 

when  title   fails,   121 
Release  of  lessee  by  substitution  of  assignee,  212 
Remainderman,  see 
Rent,  see 
Rents,   lessee   must   pay,    180 

payment,    73,    242 
Reservation,  see 

Reservation   for   farming   purpose,   759,   793,   795 
around  buildings,  762 
of  gas  and  oil,  787 


INDEX.  ll"**-^ 

(Referonces    iirt'    to    sections.) 

Leaae  of  Oil  or  Gas  L.a.rxds  — Conliiiucd. 
Royalties,  sec 

Sale  of  oil  and  gas,  and  not  a  Ica.si',  5H 
Salt   water,    dovcloiiing,    784 
\Second  supersedes   first,   G9,  88 
Several  tracts  under  one  lease,  788,  8-21) 
Signing  by  lessee  not  necessary,  85,  p.   1UX3 
Specific   performance,   822 
Statute    of    Frauds,    concerning,    75,    291 
Subletting,  p.   HOG 
Substitution  of  tenants,  efi"ect,   143 
Surface  right  of  lessee  to  use,  77 
Surrender,    142,    168,   240,   799 
completion,   144a 
indefinite  description,  142a 
right  reserved,   144a,  766 
Taxing,  741 

Ten  acres  for  each  well,  769  , 

Tenant  by  curtesy,  260a.  '^ 

Tenants   for  life,  261   to  273 

from    y<'ar    to   year,   250,    260 
from  year   to  year,   lease  exists,  55 
from  year  to  year  or  at  will,  55 
Tenant  in  common,  777 

remedy,    812 
Tender  of  rent,  230a 

by  curtesy,   260a 
Term  fixed   in   lease,    120a 
Termination   by    failure    to   keep   terms   of   lease,    237 

when   occurs,    91 
Territory  covered  by  lease,  77,  78 
Test  well,  see 

depth,  113,   115 
Texas  lease,  consideration,  56 
Time  to  develop,  130a 

Title   to  oil   or   gas,  where   rests,   34,   53,   54 
Title  of  lessor  defective,  effect  or  forfeiture,  p.  1105 
Trespass,   775 

Trustee  of  lessee  is  not  a  cestui  que  tntstnit,  212,  214 
Uncertainty,    effect    upon    unconscionable    contract,    123 
Uncultivated  enclosure,  p.  1104 
Unilateral,  may  be,  56 
Unprofitable,  how  determined,  99 
may  be  abandoned,  99 
what  is,  99 
Waste   as   between   lessees,   35 


1150  INDEX. 

(References    nre    to   sections.) 

Iiease  of  Oil  or  Gas  Lands  —  Continued. 

Wells,  see 

contract  to  drill  in  vicinity,  125  ,  ■ 

diameter,    124  fl 

depth,  115 

dry   hole,   efTect   on   lease,   778,    813 

location  upon  premi.ses,   10!),   110 

locating  on  strangers'  land  hy  mistake,  116 

number  to  be  drilled.   111 

selection  of  site  for,   109,   110 

shooting,  117 

shooting,  when  may  bo  proliibited,  117 

when  need  not  be  drilled,   114 
Wife    should    join    in    husband's    loaso,    258 
Written   and   printed   clause    is   conflicting,    80 

Iiease  of  Gas  VTorks  — 

City  may  lease   its  gas  works   to   private   company,  522 

Ijeasehold  — 

Fixtures   situated  upon,   575  to  579 

Iiegislature  — 

Flambeau  lights  may  prohibit,  28,  38G 

Inspection  of  oil  may  require,   387 

^Monopoly,  see 

Monopolistic  contract  may  authorize,  441,  442,  443 

Plugging   wells,    may    require,    43 

Power  to  prevent  waste  of  natural  gas,   28 

to   regulate   use   of   gas   and   oil,   25 

to  control  production  of  gas,  382 

to   authorize   monopolistic  grants,   449 
Public   safety  may   protect,   382 
Pumping  gas,  may  regulate,  29 
Rates  for  gas,  when  may  change,  400  to  403 
Revocation    of   monopolistic    contracts,    447 
Transportation  of  oil  and  gas,   limiting,  40 

Use  of  the  word  "lease"  does  not   make  instrument  a  lease,  48 
Waste  of  natural  gas  may  prevent,  385,   386,  387 
Wells    near    boundary    line    of    lease,    regulating,    102 
May  require  them  to  be  plugged,  3S5 

Iiessee  — 

Breach  of  implied  covenant,  defined,  802 

Co-lessee    purchasing    leased    lands,    65 

Continuation    of   operations    after   expiration   of    term,    792 

Default  in  lease,  cannot  take  advantage  of,  155,  237,  238        ^ 


INDEX.  1151 

(Refcronces    arc    to   spctlons.) 

I<essee  —  Continued. 

Denying  tenancy,  effect,  122 

Diligence    required   of    to    develop    leased    premises,    54 

Draining  leutsed   premises  by  operations  on  adjoining  territory,   101 

Ejectment  may  maintain  for   jjrcniisos,  120 

Eviction,  effect,   IGl 

Explosion  causing,  655 

Forfeiture,  cannot  insist  upon,   155,  238,  239 

Interest  in  lease,  p.   1102 

Lease,  sec 

Liability  for  leaks  in  gas  mains,  655 

Purchasing  premises,  799 

Remedies,   760  to   824 

Rents   must  pay,  180 

Right  of  action  against  gas  company,  642 

Rival    lessee    claimants,    821 

Second,  remedy,  801 

Signing  lease,   need   not   do,   85 

Tax  must  pay,  when,  741 

Lessor  — 

Forfeiture,   see 

Lease,  see 

Option,  where  there  be  forfeiture  and  rental  clauses,  764 

Remedies,   756   to   789 

Taxes,   when   must  pay,   741 

When  estopi)ed,   182 

Ijex  liOci  — 

Law  of  governs         visions  of  lease,  49 

License  — 

Co-tenant   may  give,   275 

Definition  of,  and  illustrations,   02 

Dissolution  of  partnership  revokes,  64 

Exclusive  license  to  take  oil  or  gas,  90 

Grant  to  occupy  streets  with  gas  mains,  489 

Illustrations,  57 

Interest  in  land,   when   creates,  62 

I^ase    when   not   a    license,    31 

Notice  of   prior  lease,  62 

Parol,   62 

Personal  privilege,  when  is,  62 

Quitclaim   deed  may  create,   62 

Revoking  right  to   lay   pipe-line,  366 

when    cannot   be    done,    63,    64 
Sale  of  oil,  city  may  require  license  for,  389a 
When  creates  an  incorporeal  hereditament,  50 


1152  INDEX. 

(References    are   to   sections.) 
ItiexL  — 

Jiulfrnient  is  a  lien  on  a  reservation  or  excei)tion,  307 

^Mec'lianics'  Lien,  see 

Partner's,   for  money  advaiuod.   .32.'5 

Royalty   is   upon   assets  in    Iiands   of   receiver,   253 

Life  Tenant  — 

Accounting,  rule  as  to,   279 
Estoppel  of  remainderman,  272 
Exhausting  oil  or  gas,   271 
Lease  may  make,  256 

cannot,    815 
IMining,  p.   HOG 
New  wells,  may  not  drill,  2G3 
Remedy,   780,   815 

Reversioner  or  remainderman  opening  wells,  267 
Title  to  oil  illegally  severed  from  premises,  269,  270 
Waste,  must  account  for,  268,  p.  1106 
When  may   drill   well,   265 

Light  — 

Early  use  of  gas  for  lighting,  17 

liighting   Contracts  — 

Action  to  recover  for  gas  supplied,  432 

Appropriation  for,  when  necessary  to  render  contract  valid,  427 

As.sessing  costs  upon   ahutting  property,   430 

Assigning  ligliting  contract,  414 

Bids   for  lighting,  411 

Contract,  see 

city   cannot    change,   417 
Cost  of,  out  of  what  fund  paid,  426 
Dating   contract   ahead,   462 
Discontinuing  use  of  gas,  416 
Exempting  gas  company  from  taxation,  425 
Extension   of  gas  mains,   refusing   to   make,   437 
Extending  term   of   contract,   410 
Free  light,  424 

Furnishing  to  city   witliout   contract,   418 
How   executed,    412 

Indebtedness  for,  constitutional   limit  upon,  408,  409 
Interest  on  overdue  gas  bills,  433 
Lamps,  kind  to  be  used,  434 
Ivcngth  of  term  of  contract,  409,  461 
Mandamus  to  compel  auditing  of  light  bills,  431 
Monopoly,  see 
Moonlight    schedule,    422 
Municipality,  see 


i.N"i)i;y  1153 

(Refprencos    arc    to   soi-tlons.) 

liighting    Contracts  —  Contiiiuctl. 

New   territory,   contract   covers,   419 

Oflices  of  tlie  city  interested  in  contract,  otroct,  439 

Power  of  city   to  contract    for   light,  407 

Price  to  be  paid  for  gas,  42."^,  425 

Rates,  sec 

Receiver  bound  to  furnish,  438 

Rescission   of  contract   for  gas,  413,  415 

Term   for  light,   for   how   long  it   may   bo   made,   400,  4G1 

United  States  revenue  added  to  cost  of  gas,  435 

Void  contract   for  gas,  elFect  of  receiving  gas   under,  420 

Waiver  of  quality  of  gas,   43G 

Loss  — 

Implied   covenant   to  work  wells   at   a    loss,   91 

Xionisiana  — 

Statute  concerning  oil  and  gas,  pp.  905  to  1001 

liimatic  — 

Cannot  execute  a  lease  on  his  lands,  256 


M 

Macliiiiery  — 

Fixtures,  see 

Removal  after  forfeiture  of  lease,  191 

Malice  — 

Element  of  damages  in  boring  well,  32 

Mandamus  — 

Auditing  gas  bills,  to  secure.  431 

Insufficient  (luantity  of  natural  gas,  no  defense,  531 

Payment  of   bills,   to   compel,   431 

Permit  to  occupy  street,  to  secure,  480 

Subscribing  to  illegal   rules  and  regulations,  538 

To  secure  supply  of  gas,  531,  532,  53«,  400/ 

Marco   Polo  — 

Refers  to  natural  gas,  8 

Married    Woman  — 

Inteicst    ill    rescrvalioM,    308 

Should  join   her   liusliarid    in   lease  of  his  lands,  258 

When  may   lease  her  lands,  257,  GOl 


1154  INDEX. 

( KefertMices    are    to   soctlons. ) 

Master   and   Servant  — 

Appliances  defective,  injury  to  servant,  G7G,  G77,  G86 

Building  imperfectly  constructed,  083 

Ladder   defective,    680 

Negligence,   see 

Safe   place   in   which   to   work,   085 

Stop-cock,   failure   to  use,   GG6 

Tank  exploding,  684 

Mayor  — 

Interest  in  city  contract   for   light,   439 

Meclianic's  Liens  — 

Assignment  of  claims  caYries,  338 

Attorney  fees  covered  by  assignment  of  claims,  338 

Contract   necessary  to  establish,   328 

Custodian  entitled  to,  331 

Derrick,  lien  for  building,  330 

Description  of  land  in  notice,  337 

Foreman  entitled  to  take,  331 

Forfeiture  of  lease,  effect,  334 

For  what  labor  a  lien  may  be  obtained,  330 

For  what  material  furnished  a  lien  may  be  obtained,  329 

Labor  or  material  must  be  furnished  under  a  contract,  328 

Lubricating  oil  furnished  for  machinery,  327 

Machinery  for  leased  premises,  329 

Notice  of  claim  of  lien,  337 

Oil  refinery  subject  to,  334 

Oil  lease,  lien  on,  332a 

On  plant  of  public  gas  company,  339 

Overseer  entitled  to,  331 

ParafFme    works    subject   to,    340 

Pipe   furnished   for   well,    329 

hauling   for   use   in   well,   330 
Priority  of  liens,   336 

Retroactive  efTcct  of  mechanic  lien  laws,  335 
Superintendent   entitled   to,    331 
Tools   furnished   mine,    329 
Upon  what   interest  it  may  be  taken,  332 
Well,  drilling,  gives,  333 

Medicine  — 

Barbadoes  Tar,   14 
rctrnh'um  used  as,   14 

Merger  — 

^Mu'n  license   merged  in  fee,  65 


INDEX.  1155 

(Rcfcroncos    nri'    to   sections.) 

Meter  — 

Action    to    secure    ins])ection,    555 

Charging   rent  for  unless  a   certain   (juantity  of  gaa   is   used,  562 

Consumer,  see 

Control,    553 

Defined,  551 

Delivery   of  gas,   complete,   when   lias   ])as8ed   meter,   559 

Discrimination   in  use,   5G3 

E.\tra  charge  for,  561,  p.  1111 

Fixtures,   when    meters    are,    508 

Governor    to    control    supply    of    gas,    553 

Inspection   bj'   company,   555 

officiaJ,  556 

official   when   measurements   conclusive,   557 
Measurements  of  quantity   of  gas   used,   558 

officially   tested   meters,   557 
Number  company  must  furnish,  552 

Officially  tested  meters  conclusive  in  their  measurements,  557 
Removal,  564,  pp.  1111,  1112 
Eent  for  may  be  charged,  562,  564 
Rules  and  regulations  concerning,  560 
Taxing,  556 
Testing,  556 

Unreasonable  requirements,  554- 
Who   must  furnish,   552 

Mexico  — 

Oil   wells,    7 

Minerals  — 

Natural  gas  is  a  mineral,  29 

Oil  is  a  mineral,  2'9,  304 

Reservation  of   includes  oil   and  gas,  304 

Taxing,    741 

Mining  Laws  — 

Of   United   States,   309 

Mixer  —  ^ 

Defined,   221,   551 

Extra   charge    for,   56. 

Unreasonable    requirements   concerning,   554 

Who  must  furnish,  552 

Moldavia  — 

Oil    wells,    1,    7 


1156  iNnEx. 

(Ilorprciices    nrc    to   noctlons.) 

Monopoly  — 

Artificial  gas  contract  does  not  a])])!}'  to  natural  gas,  j).   110!) 

Construction  of  exclusive  grants,  446 

Dating  lighting  contract  ahead,  462 

Division  of  subject,  440 

Estoppel   to   contract,   450 

Exclusive    franchise    strictly    construed,    440 

for  artificial  gas  does  not  exclude  natural   gas,  455,  742 
Federal   question,   when   raises,   451 
Forfeiture  of  exclusive   franchise,   452,   454 
Gas  works  building  under  void  grant  or  franchise,  457 
Grant  to  company  does  not  prohibit  grant  to  individual,  446o 
Injunction  against   passage  of  ordinance,   453 
Legislature  cannot  rev/)ke,  447 

cannot   authorize,    449 

may  authorize,  441,  442,  443,  p.  1108 
Statute  to  authorize  exclusive  grant  necessary,  444,  449 
Streets,  see    ' 
Void,   when  clause  does  not  make,   452 

Mortgage  — 

Accounting  by   mortgagee   for   profits   received,   34G,   347 

Fixtures   may   take,    571,    577 

Leasehold    interest  may  be   mortgaged  by   lessee,   341 

May  work   a  forfeiture  of  lease,   174 

Miner  may  mortgage  premises,  341 

Mortgagee    in    possession,    346,    347 

Municipal  gas  plant  may  be  mortgaged,  348 

Owner  of  land  may  take  out  gas  and  oil  from  mortgaged  lands,  344, 

34,5 
Pennsylvania   statutes   concerning,   343 
Verbal  agreement  for,  342 
Waste,  344,  345 

connnittcd   by  mortgagee,  340,  347 

Municipality  — 

Action   against  to   recover  cost  of  gas,   432 

Appropriation   for   li;;ht,   wlien   necessary,   427 

Assessing   abutting  proi)erty    for   gas  (u-  light,   430 

Assignment    of    lighting    contract,    414 

Bids   for  lighting,  411 

iBreach    of    lighting    contract,    413 

Charter  granted  by  is  a  contract,  391 

City   agreeing   not   to    compete   with   gas   company,   448 

Competing  with  gas  company,  agreements  to  not  do  so,  448 

Competition  with  private  plant,  516 

Contract,    see 

for    light   cannot   be   changed.    417 


INDEX.  1157 

(References    are    to   sections.) 

Municipality  —  Continued. 

DilcL'iitiiij,'  of   jv)\vor   to  clianpo  gas   rates,   cannot   make,   404 

Discontinuing  use  of  gas,   41(i 

Election  to  uutliori/e  purcliuso  or  erection  of  gas  jjlant,  517 

Exempting  gas  company  from  taxation,  425 

Extending  Iwundaries  after  contract  made  for  giis,  419 

Extending  term  of  contract  for  light,   410 

Free  liglit,  424 

Gas  furnislied  witliout  contract,  418 

Gas  mains,   extending,  437 

Gas  works,  its  own  may  lease,  522 

owning,  611,  512,  513,  p.  1107 

purchasing,   519 
selling  its  own,  521 

sole    proprietor   must   be,    518 

statute  necessary  to  build,  wlien,  512,  513,  514 
How   executes   contract   for   light,   412 
Indebtedness,   constitutional    limit   upon,   408,    409 
Interest,   pays  on  overdue  bills,   433 
Lamps,   what  kind  must  use  under  contract,  434 
Lamp    posts,    434 

Length  of  term   for   ligliting  contract,   409 
Liability  in  operating  gas   plant,  028 
Light,  see 
Light,  exhaustion  of   appropriation,   428 

moonlight    schedule,    422 

quality   of    gas    or    light    furnished,    436 

out  of  what   fund   paid   for,   42G 

tax  to  pay  for,  429 
Mandamus,   see 

IVIandate   to  compel   auditing  of  bills,   431 
Monopoly,  see 
Moonlight   schedule,   422 
Oil,  turning  into   sewer,   liability,   6G8 
Police  power   cannot  abrogate,   3i)l 
Power   to  make   lighting  contract,   407 

to  change  rates  for  gas,  400 
Price  must  pay  for  light,  423,  424,  425 
Profit   may   make  on  gas   furnished,   515 
Rates  for  gas,  see 

fixing   in  ordinance  granting  fiauehise,  304 

in   annexed   territory,   405 

overcharge  to  private  consumer,  city  cannot  recover  back,  p.   1110 

power  to  fix,  400a 

regulating   after   ordinance   granted,    393 

statutory  authority  necessary   to  lix,  302 


1158  INDEX. 

(References    are    to   sections.) 

Municipality —  Continued. 

Received    bond    to    furnish    liglit   under    contract,    438 

Rescission    of    lightinjj    contract,    413,    415 

Regulating  gas  company,   99 

Rules  and  regulations,  may  adopt  for  gas  consumers,  523 

Shutting  off  gas,  when  may,  547 

Stock,  may  take  in  gas  plant,  518 

Streets,  see 

Tax  to  pay   for  or  support  gas   plant,  429 

Term   for  grant  not   fixed    in   ordinance   or   contract,   409a 

Town  becoming  city,  effect  on  gas  company,  486 

Trustee  for  gas  works,  520 

Void   contract,   gas  furnished   under,   effect,   420,   421 
Murrysville  — 

Gas  wells,  9 

N 

Naphtha  — 

A   dangerous  agency,   374,   375 
Sale   for   illuminating  oil,    liability,    678 
Natural  Gas  — 

Article  of  commerce,   40,   350 

Artificial  gas,  contract  concerning  does  not  relate  to  natural  gas,  455, 
742 

nor  a  statute,  742 
Damages  for  unlawfully  taking  from  well,  33 
Dangerous,  is,  382 
Early    Indications    in   America,    9 
Elements   in  composition,   12 
Failure  of  supply,  531 

right  of  gas  company  to  discriminate  between  customers,  526 
Flambeau  lights,  use  of  may  be  prohibited,  386 
Fugitive  nature,  21,  24,  25 
Gas,  see 

Gas  wells  not  synonymous  with  oil  wells,   118,  119 
Heat,  natural   gas   is  not,   39 
Highways,  ownership  of  gas   beneath,   306 
Illegal   severance  from  earth,  27 
Injunction  to  prevent  waste,   598 
Judicial   notice  of  nature  of,   41 
Lake,  title  to  gas.  beneath,  306 
I.rfirceny,    26 
Mineral,  is,  p.   1102 

Not  synonymous   with    oil,   37,   4i5(5,   742 
Origin,   10 
Ownership  in  ground,  20,  21,   22,  24,  25 

in  pipes  and  tanks,  26 


i 


INDEX.  1159 

(Rofoivncps    arp    to   soot  Ions.) 

Natural  Gas  —  Continued. 

Payiiu'iit    so   much    per    well,    2'23 

Payin<x    quantities,    what    is    considorod    to    he,    130 

Pressure    in   pipes,   reguhiting,    383 

Presumption    as    to    ownership    in    hind,    50,    00 

Prohibiting   transportation    l>eyond    state    lines,    20,    384 

Production   will    not    prevent    forfeiture    of   oil    lease,    104 

Pumping,   regulating,   20,   304 

Realty,  a  part  of,   10 

Reservation  of   minerals    includes,   304 

River,   ownership   of  gas   beneath,   300 

Sale   and   not   a   lease   of   gas   lands,   58 

Sea,  ownership  of  gas  beneath,  300 

Severance   from   realty,   26 

Tariff,   not    subject    to,    44 

Title   to,   lessee,   when   acquired,   34 

when  vests  in  owner  of  ground,  22 
Transportation,  350  to  354 
Volatile    substance,    when    is    not,    38 
Waste,  injunction  to   prevent,  28,  385,  386 

may  be  a  nuisance,  508 

prohibiting,   28,    385,    386 
When  found,  8,  9 

Who    entitled    to    under    oil    lease,    110 
Wild    animals,    compared    with    as    to    ownership,   21 

Nebraska  — 

Statute  concerning  oil  and  gas,  pp.  1001  to  1002 

Necessary  of  life  — 

Artificial    gas   is  not,    748 

Negligence  — 

Adulterated  cooking  oil,  selling,  751 
Benzine  used  in  paint  exploding,  675 
Care   required,    671 

evidence   to   sJiow,   658 

plaintiff  must   show  on   his   part,   648 
Carriers  of  oil,   negligence  of,  351 

Cliild,  negligence  of  its  parents  defeating  cause  of  action,  653 
City  employee  injured  by  gas  in  cistern,  p.   1115 
Clothes  soaked  in  oil,   674 

Company  misleading  plaintiff  as  to  extent  of  danger,  627 
Concurring  negligence   of  two   or  more   defendants,   605 
Contractor  occasioning  injury,  gas  company  liable,  605,  681 
Contributory    negligence    a    question    for    the    jury,    652 

of  tenant  may  bar   landlord's  right   of  action,   654 

by  plaintiff,  648,  p.  1114 


IIGO  INDEX. 

( lU'fereiices    are    to   sections.) 

Negligence, —  Continued. 

Danjjor    from    (>x]ilnilin;j;   oil,    37.^ 

Defective   cars   used    in    carrying  oil,   371,   372 

Degree  of  care  re<iuired  of  gas  conii)any,  601 

Duty    of    company    to    mai<e    immediate    rejjairs,    616 

Ex])loding  gasoline    firepot,    (Hi!) 

tank    injuring    servant,    684 
Explosions,  see 

False   brands   misleading   dealer,    670 

Fire  communicating  with   adjoining  house,  605,  671,  672 
Fire  on  railroad  communicating  with  refinery,  665 

kindling    with    coal    oil,    6860- 
Frightening  horse,  682,  p.  1115 
Gas  box  occasioning  injury,  680 
Gasfitter,    liability   of,    657 
Gasoline   plant  exploding,   669 
Ilegally   storing  oil   at   railroad   stations,   379 
Imperfectly  constructed  gas   building  occasioning  injury,  683 
Implied  warranty  in  sale  of  illuminating  oil,  679 
Inhalation  of  gas,  660 

evidence  to   show,   661 
Inspection   of   pipes   to   detect   leaks,   615 

right   (if   <'niiipany  to   inspect   premises,   615 

of  pipe-line,  378 
Intervening  agency,   614 

Jury,   when   question   of   negligence   submitted   to   them,   663 
Leaks  and  explosions,  see 
Master   and    servant,    see 

Minor  employee's   oil-soaked   clothes  catching   fire,   674 
Oil  escaping  from   pipe-line,  377,  672 

from   refinery,   672 

into  sewer,  008 
Pipes  used   witliont  knowledge  of  defects  in  them,  747 
Pleading   to    show   exi)losion,   663r 
Question   of   negligence,   when    for    jury,   663 
Kefinery  burned   by  railroad  company,  665 
Repairs,    duty   of    gas   company    to    make,    immediately,    616 
Hescuer   injured   by   negligence   of   oil   or   gas   company,   673 
Reversions,   when  may   recover   damages   caused   by  an   explosion,   654- 
Refinery  burned  by  railroad   company,   665 
Right   of  action    over   against  wrongdoer,    656 
Sale  of  naphtlia    for   ilitmiinating  oil,  077.   078 
Servant  of  company   injured  by  defective  appliances,   076 

entitled  to  safe  place  in  which   to  work,   685 
defective  ladder   injuring,   686 

of   purchaser   injured   by  exploding  oil,    677 


INDEX  1161 

(KofiTOiiri'S    iiri-    In    >irii(iii>.  ) 

Negligence  —  Conlinind. 

Sewer,  oil  escaping  into,  (idS 

Shipping    oil    on    trains    carrving    other    goods,    373 

explosive,   iWSa 
Shooting  wells,   607 

Statute   changing   rule   as   to    rciuleriiig   ((unpany    liable,   000 
Stop-cock,    failure    to    provitie,    (Ititi 
Storing  oil    in   \\:ircli()usc,   '.iSO 
Streets,  sec 

rendered    dangerous    iiy    laying    gas    mains,    G82 
Tank   exploding,    084 
Thief    setting    oil    on    lire,    381 
Vegetation,    eti'ect    of   escaping  gas    upon,    002 

New  York  — 

Fredonia   gas  well,   9 

Oil    spring    within    discovered    at    an    early    date,    3 

Statute  concerning  oil  ami  gas,  jip.   1(K)3  to  1004- 

Nexv  Zealand  — 

Oil    wells,    7 

Nineveh  — 

Asphalt    used    in    cementing   walls,    1 

Nitroglycerin  — 

Expk)diiig  in  oil  or  gas  well,  31 

Noisome   Smells  — 

When  a  nuisance,   58G,  5'87,  588 

Notice  — 

Change  of  gas  rates  by  city,  400 
Election  to  declare  forfeiture  of  lease,  158 
Evidence  of  other  leaks,   to  show,   021,   622 
to  company  of  danger  to  mains,  620,  622 
Improperly  recorded,  88 
Leaks    (of),  duty   to  prevent,   015  to  01!) 
Prior  lease,  69,  88 

Property  owner's  duty  to  notify  gas  conijiany  of  leaks,  620 
To  one  of  several  joint  lessees  sutlicient,  87 
Withdrawing  gas  from  mains  without  giving  notice,  030 

Nuisance  — 

Jiiockiiig  highway  or  street,  4'G5 

lousiness  lieing  authorized  by   State  is  no  defense,  591 
Damages  occasioned   by  storing  or  bringing  oil   on   land,   584 
Degree  of  annoyance  from  escajjing  gas,  (piestion   for  jury.  589 
Duty  of  owner  to   prevent   continuation   of   damages,   592 
Evidence  concerning,  593 


1162  INDEX. 

(References    are    to   sections.) 

Nuisance  —  Continued. 

Former  recovery,  when  a  har.  5!K5 

Gas  box   in  street  is  not.  4!)8 

Gas  or   oil    well    near   dwelling  house,   590 

Indictment   concerning,   597 

Injunction  to  prevent,  594,  595 

Jury   when    to    determine   question   of,   589 

Noisome  smells,  586,  587,  588 

Obstructing  street,  494 

Pollution  of  springs  or  well,  581,  582,  607 

Stream,  polluting,  582 

'Subterranean  waters,  jjolluting,  583 

Trees  and  vegetation  destroying,  585 

\Yell    polluted   with   gas,   and  yet  good   for   some   purposes,   607 

O 

Odors  — 

When  a  nuisance,  580,  587,  588 

Ohio  — 

Early   gas   wells,   9 

Early  oil  springs,  2,  4 

Statutes  concerning  oil  and  gas,  pp.  1004  to  1010 

Oil  — 

Adulteration,   prohibiting,  300a 

Contract    for    purchase,    745 

Deception   used   to   secure   sale  of    dangerous  oil,   678 

Depriving  surface  courses  of,  25a 

Escaping  from  pipe-line,  p.  1107 

Falsely  branding,   670 

Gasoline  fire,  part  exploding,  669,  p.  Ill 

drawing  near   fire,   6806 

plant  out   of  order,   686c 
Implied  warranty   in   sale   of   illuminating  oil,   678 
Injuring   land,  '686fZ 

Inspection  of,  State  may  require,  388,  p.  1107 
Leaks   and   explosions,   see 
Mineral  is,  p.  1102 
Negligence,   see 

Not  synonymous   in   statute  with  gas,  37 
Ordinance  maj^  regulate  storage,  389 
Ownership  in  earth,  p.  1102 
Paint   shop,   explosion    in,   675 
Petroleum,  see 

Sale  of  oil  of  low  fire  test,  explosion,  677,  678,  p.  1114 
Sewers,   oil   escaping   into,   668 


INDKX.  Ilti3 

( KefortMU'l's    nri'    in    si'<'tlon8. ) 

Oil  —  Continued. 

Tank  exploding  and   injurinjj  si-rvant,  (>84 
Taxinj;.  741 

Term  "tire  ])roof  oil"   is  not  a   trade  niari<.  7415 
United   States   may   not    proiiiiiit   sale   of,   3!)0 
Unlawfully  extraetin<;  from   land,  remedy,  774,  807 
Warranty   implied    in   sah',   ()7'.) 

Oil  Refinery  — 

Kseaping  oil   from,  exploding,  tJ7'2 
Negligence,  see 

Railroad  company  burning,  6G5 
Subject   to   mechanic's    lien,    340 

Oklahoma  — 

Statutes  concerning  oil  and  gas,  pp.   1010  to  1030 

Old  Testament  — 

Contains   reference   to   petroleum,    1 

Ontario  — 

Statute  concerning  oil  and  gas,  pp.  1030  to  1035 

Operations  on  Leased  Premises  — 

■Celerity   with  which   must   be   pushed,   96 

Cessure  after  work  begun,   140,   141 

Diligence  in  operating  leased  premises  after  development,  97 

Failure  to  operate  and  not  failure  to  develop,  02,   163 

Inability   to   begin   operations,    173 

Obligation  of  lessee  to  operate  premises  implied,   151 

Temporary  suspension  of,  efTect,   141 

When  must  be  begun,  96 

Option  — 

City   to  purchase  gas  works,  458 

Option   for  Lease  — 

Assignment  of  lease  carries,  198 

Consideration  for,  66,  67,  71 

Essence  of,  72 

Extension  of  lease,  68 

Leases,  see 

Payment  of   rent   instead  of  developing   premises,   145 

Purchase   of    land    after   development,    67 

Right  to  pay  rent  or  drill  well,   73 

Revocation,  71,  72 

Time  for   performance,  73 

What  is  an  option,  62 

When  must  be  general  in  the  regulation  of  street,  460 


1164  INDEX. 

(References    lire    to   sections.) 

Oral  Agreements  — 

Statute  of   Frauds   invalidates,   75,   76 
Written   lease  may  be  changed  by,  83 

Ordinances  — 

Enjoining  passage  of  by  city  eouneil,   453 
Rates   for  gas  fixed   by.  392.  3!i:5.   :V.U 

Orton,    Professor  — 

Tlieory  of  origin  of  petroleum  and  gas,   10 

Overcharge  — 

Recovering   back,    544 

Oxrnership  — 

Uil  and  natural  gas  in  earth,  19,  20,  21,  22,  23,  24,  25,  20,  27,  29 

P 
Paint  Shop  — 

Using   benzine    in,    for    painting   purposes,    insurance,   675 

Parol    Agreements  — 

Statute  of   Frauds  avoids   parol   leases,   75,   76 

Parsees  — 

Worshiped    natural    gas,    8 

Parties  — 

Necessary  parties   to   settle   controversy  over   lease,   823 

Partition  — 

May  be  made  of  mineral   lands,  270,  277 

When  does  not  lie,  30,  811 

Works   a   dissolution   of   mining   partnership,   320 

Partner  — 

Accounting  for  profits,  3266 

Community   of   interest,   312,   315 

Confidential   relations,   312 

Co-tenants,  see 

Dissolution  of  partncr^liip,  .■^20/* 

Each   partner   liable  for   all   partnership   debts,   325 

Incoming  partner  liable  for  debts,  324 

Lien   upon   partnership    assets,  323 

Promoters  and  prosnectors  are  not  partners,  318 

Royalty,   dividing,  326a 

Selection,   who  makes.  315 

Tenants  in  common  are  not  partners,  311,  316 


i 


INDEX.  1165 

(References    ore    to   Kectlons. ) 

Partnership    (Mining)  — 

Association   of   several   lessees    in    niininjj  enterprise,    Icpal    effect,    31«) 

Borrow inif  nionej',   power  of   partni-r   to  do  so,   '.i22 

Buying   supplies    for,    who   may,   322 

Debts  of,  partner  liable  for  all   partnership  debts,  325 

liability    of    incoming    partner    for,    324 
Dissolution   revokes   license,   ti4 

what  occasions,  31!) 
Duration  of  mining  partnership,   310 
Fidelity  relations  between   partners,  288 
Heir's  right  in  mining  property,  315 
Hiring  labor,  power   of  partner  to  do   so,   322 
Illustrations  of  what  make  mining   partnerships,  317 
Lien    of    individual    partners,    322 
Limited   partnerships,   320 

Majority   of  partners   control    mining  operations,  .321 
Mining   agreements   that    create   ordinary   partnerships,    313 

applicable   to   gas    and   oil    operations,   310 

associations   may    become    an   ordinary    partnership,    312 
'Partition  and  accounting  works  dissolution  of  partnership,  320 
Partners,   selection,   315 

Power  of  partners  in  mining  or  oil  enterprises,  322 
Presumption  of  equality  of  interest  of  partner,  319 
Remedies   of   partners,   809 
Sale   of    interest,   effect   on   partnership,    315 
Tenants  in  common  not   partners,  311 
Working  mine   together   creates   mining    partnership,   314 

Passengers  — 

On  train  injured  by  exploding  oil,  375 

Payments  — 

Application,    130 

Paying  Quantities  — 

Defined,   134,    135.    136,   700 

Discovery  of  oil  or  gas  in,   jirevents  forfeiture,  804 

How   determined.   772 

Who  determines.  772,  700 

Non-paying  well   terminates  lease,   136c 

Pennsylvania  — 

Karly  gas  wells,    9 

il/ortgaging  lease,  statute  concerning.   343 
Statute  concerning  oil  and  gas,  pp.  1035  (o  1001. 
Taxing  pipe-lines  and  petroleum,  740 


1166  IxVDEX. 

(References    are    to   sections.) 

Persia  —  If 

Oil   wells,  7 

Petroleum  — 

Article   of   commerce,   40,   350 

Composition,  II 

Damages  for  unlawfully  taking  from  well,  33 

Dangerous   agency   is  not,   372,   374 

Defective  barrels  used  in  shipping,  liability,   374 

Early  attempts  at  refining,  12 

at  transportation,    15 
Escaping   from   pipe-lines,   liability,    377 
P\igitive   nature,  21,  24,   25 
Highway,   ownership    of   Ix'neath,    306 
Illegally  severing  from  earth,  27 

storing  at   railroad   station,   379 
Ingredients,    1 1 

Judicial  notice  of  properties,  41 
Lake,  oil  beneath,  ownership,   306 
Larceny  of  when  in  pipe-lines,  46 

generally,  26 
IVIineral,  oil  is,  18,  p.  1102 
Origin,   10 
Ownership  in   ground,   20,  21,  22,   24,   25 

in  pipes  and  tanks,   26 

in  pipe-linos,  355 
Presumption    of   ownership    in   land,   59,    60 
Production  of,  will  not  prevent  forfeiture  of  gas  lease,   164 
Pumping,  30 

Sale  of  oil  lands  and  not  a  lease,  58 
Shipping  on  train  carrying  other  goods,  373 
Storing  in  warehouse,  negligence,  380 
Realty  is  a  part  of,  18 
Reservation  of  minerals  include,  304 
River,  beneath,  ownership,  306 
Sea,   beneath,  ownership,  306 
Severance  from  realty,  effect,  26 
Thief  setting  oil  on  fire,  negligence,  381 
Title  to  oil   in  tanks  or  pipe-lines,  46 

when  vests  in  owner,  22 

when  lessees  acquire,  34 
Transportation   with   defective   appliances,   371,   372 
Use  of  as  a  medicine,   14 

Waste  of  gas,  when  drawing  oil  from  well,  385 
Wild  animals  compared  with  wandering  nature  of,  21 


iNi)i:x.  11G7 

(References   arc   to  nectlons. ) 

FhUlip's  \Vell  — 

Where  drilled,   6 

Pipes  — 

Abutting  landowner  removing  pipes  from  iiiglnvay,  508 
Breaks  occiisioned  by  frost,  l>24 

by   ordinary   use  of   street,    G23 

from  lack  of  support,   liability   of  gas  company,   G25 
Changing  grade  of   streets,   493 
Condemnation  of   iiighway  for  pijjcs,  50."5 
Consent  of  county  authorities   to   lay   in   lii^rliway,  oOti 
Crossing  highway,  506 

Defective,  will  not  always  render  company   liable   for    leaks,   747 
Depth  at  which  should  be  laid  in  streets,  480 

Evidence  of  undue  pressure  in  places  other  tlian   place  of  leak,  <»32 
Excavations  near  pipe-line  causing  break,  lial>ility  of  gas  company,  G25 
Extension  of   mains  to  supply   customers  with   gas,   528,  52!) 
Fixtures,   when   are,   571,   572,  573 
Gas  mains,  see 

Injunction  to  restrain  laying  in  streets,  487 
Injuries  occasioned  by  laying  gas  pipes  in  streets,  682 

in    re])airing    streets,    41)6 
Inspection    of    pipes    required,    615 
In  streets,   not   an   additional    burden   on   fee,   500 
Laying  in  country  highway,  50^2  to  506 

in  navigable  river,  501 

in   streets,  consent  of  city   retpiired,   466,  468 
Notice  to  gas  company  of  danger  to  its  mains,  620 

of   leaks    in    pipes,    620,    621,    ()22 
Personal   property   of  gas  company,   57!) 
Removal,  when  unlawfully   laid   in  highway,  509 
Reivocation  of  license  to  use  highway,  507 
Street  unlawfully  laid  out,  pipes  laid  in,  488 
Support  of,   368,   497 
Supply    pipe,    ownership,    550 
Taxed   as  pers<:)nal   property,  730 
Undue  pressure  of  gas  causing  leaks,  631 
Use  of  surface  of   highway   or   street,   510 

Pipe-Lines  — 

Coal   mine  beneath,   support,   368,   407 

Conversion  of  oil   in,   46 

Crossing  right  of  way  of  railroad  c()nii)aiiy,  365 

Damages  occasioned  by   removal    from   right  of  way,  364 

Early  attempts  at  use  of,   15 

Eminent  domain  used    to   secure    right   of   way    for,   3.")(i,   35T.   358 


litis  INDEX. 

(Ri'rt>r»MifL's    are    to   sections.) 

Pipe-Lines  —  Cuntinucd. 

E.xchisivc   {jrniit    across   liuid,   cllVct,   S18 

Exemption  from  taxation   in    I'cnnsylvania,  740 

Inspoctinff,    378 

Laying  in   country   higliway,    3(50 

License   to  lay   pipe-lines,   revocation,  300 

Measure  of  damages  in  taking  right  of  way  for,  301  to  364 

Number  that  can  be  laid  in  right  of  way,  259 

Oil  escaping  from,  377,  p.   1107 

Ownership  of  oil   in  process  of  transportation,  355 

Personal    property   of   gas    company,    579 

Petition  to  secure  right  of  way  for,  307 

Pressure  in  of  gas  may  be  regulated,  383 

Removal,    579 

Support,    right   to,    308 

Use  in  transportation  of  gas  and  oil,   350  to  354 

Placer    Mining  — 

Laws  as  to,  309 

Pliny  — 

Pvofors  to  oil   springs,   1 

Plumber  — 

Causing  explosion,  liability  of  gas  company,  038,  057 
Gas  mains,  see 

Police  Po-wer  — 

Abandonment  in   fixing  rates  for  gas,   398 
Granting  a  charter  does  not  repeal  police  power,  391 
Inherent    power   to   regulate   gas   company,    399,   406 
Legislature   may   exercise,   382 
Rates,    fixing,    does    not    authorize,    406 
Regulation  of  transportation  of  oil  or  gas,   355 

Possession  — 

EfTect  of  taking  under  contract  for  lease,  292 

Premises  — 

Dffinod   in   insurance  cases,  089 

Presumptions  — 

Arising  from   proof  of  explosions.   Oil,  012 
Ownership  of  oil  or  gas  in  land,  59,  00 

Privity  of  Estate  — 

Possession   of   assignee,  203 


I 


INDEX.  11G9 

(Referencos    arc    to   scK;tlons.) 

Profits  — 

Dofinod,  224 

Promoters  — 

Are  Tidt    ])ai"tnprs,   318 

Prospectors  — 

Are    not    partners,    318 

Public    Lands  —  <> 

Loiatitms  and   entry  of  oil   and  gas   claims,  309 

Pumps  — 

Use  of  to  increase  flow  of  gas  or  oil,  29,  30 

Q 

Quieting    Title  — 

Title  of  lessee,  when  may  be,  103,  p.   1103 

Quo     Warranto  — 

Action,    sec 

Forfeiture   of   right   declared   by   to   occupy   streets,   491 


B 

Railroad  — 

Common  carriers,  see 

Crossing   right    of    way   with    pipe-line,    365 
Oil  or  gas  under  right  of  way,  88a 
Negligence,  see 

Rates  for  Gas  — 

Acceptance  of  provisions  of  subsequent  ordinance  that  changes   rates 

for  gas,  39G 
Action  to  recover  price  of  gas,  545 
Annexing  territory,  rate  for   such   territory,   405 
City  regulating   rate  after   franchise  granted,   393 
City  must  have  statutory  authority  to  fix  rates,  392,  400o 
Classification  of  customers,  543 
Collection   of,   how   made,   545 

by  distress,  546 
Consolidating  companies,   400^ 
Consumer,    see 

Delegation    of    power    to    determine,    cannot    be    done,    404 
Extra   charge   for   meters   and   mixers,   501 


1170  INDEX. 

(Rpfpronces    are    to   sections.) 

Rates    for    Gas — Continued. 

Fixed  by  city   in   its  con^^ont  to  assifjnment  of  franciiiso,  305 

in  ordinance  grantinjr  franciiise,  3!)4 
Fixing,  AOiUi,  4t>0?>,  4()()r. 

evidence   as    to.    4()0r/,   4006 

goo<l    will    not    considered,    400(Z 

legislature    fixing,    cannot   be    denied    rate    is   unreasonable,    400A; 
Government   tax    iiiny    i)o   added   to   price   of   gas,   561 
Maximum  rate  allowed  by  legislature,  400i 

Municipality  cannot  recover  overcharge  for  consumer,  p.  1110        , 
Notice    by    city    of    intention    to    change    rates,    400 
Overcharges,  can  be  recovered  back,  544,  p.  1110 
Police   powers  not  abrogated   in   fixing  rates,  406 

cannot  be  abandoned,  398 
Power  to   change,   400 
Practical    test,    400e 
Prices  to  be  charged  to  customers,  530,  542,  p.  1110 

in  other  states  fixing,  539.   542 
Prohibition   to  change   for   specified   time,   397 

Reasonable,  must  be,  when  changed  by  city  or  state,  401  to  403,  400a, 
4006,    400c 

evidence  to  show,  400« 
Refunding  amounts   illegally  collected,  400n 
Requiring  certain  quantity  per  month   to  be  used,  562 
Taxes  are  not   rates,   734 
Uniformity,    530,    543 
Unreasonable  cannot  be  demanded,  400/ 

Unlawful    combination    defeating    right    to    reasonable    rate,    400h 
When  may  be  changed  by  city  or  state,  401,  402,  403 

Ileal   Estate  — 

Contract  for  oil   may  give  an   interest   in   land,   52 

Lease,  see 

No  interest  in  land  vests  if  no  oil   or  gas  discovered,  53 

Oil   and   gas  a   part   of   land,    19 

Refinerj'^  burning,   665 

Receiver  — 

Liable  for  royalty  on  oil   he  takes  out,  253 

Light,    when    must   furnish,   438 

Lighting  contract,  when  may  rescind,  414,  415 

Tenants    in    common    of    oil     (for),    316 

Title  to  oil  lands  in  dispute,  300 

When  will  be  appointed  to  operate  gas  wells,  300,  775 

Re-Entry  — 

Release    of    premises    equivalent    t«,    167 
When  necessary  to  enforce  forfeiture,   166 


I 


( 


ixnKx.  1171 

( Uef ereiiees    uri-    tu    M-rtimi^.  > 

Refineries  — 

lUirnod  liy  noplificnt  act  of  railroad  cumpaiiy,  (!(>;") 

Early    rolineries,    13 

Porniittinj^  oil   to   esca|io   from    into   harlnir,    (i7"i 

Refining  — 

Early  attempts  at  refining  iH'trolt'iini,  13 

Regulations  — 

Tower  of  legislation  to  regulate  use  of  oil  and  natural  gaa,  25 
Rules,  see 

Reimbursement  — 

Iiisurance,    srr 

When  an  ojK'rator  entitled   to,    121 

Release  — 

Equivalent    to    a    re-entry.    ItiT 

Remainderman  — 

Injunction   may  maintain,  273a 
Mky  not  drill  wells,  267 
Remedy,  781 
When   estopped,   272 

Remedies    Cqncerning    Leases  — 

Amendments,    781 

Lessee's  790  to  824 

Lessors,   756   to   789  • 

Life  tenant,  780,  815 

Partners,  32(i/j 

Remainderman,  781 

Tenant  in  common,  777,  810,  812 

Rent  — 

Abandoning  lease,  falling  due  thereafter,   137 

Acceptance  a  waiver  of  forfeiture,  160(/j   1606 

Bank,   payable   in,   779,   814 

Oo-tenant  may  receive,  287 

Defined,  221,  222 

Eviction    releases    lessee    for    rent,    241 

Failure   of   oil,   rent   ceases,   248 

Free  gas,  225,  226 

Gas   developed,    763 

Instances   of   lessee's   liabilitj',   250 

Inter-dependent    conditions,    235 

Joint    lessors,    230 

Lessee   must    pay,    180 

cannot    avoid    hy    taking   advantage    of    forfeiture,    155,    238,    23f) 
Mining    rents    defined,    221 


1172  INDEX. 

(References    are    to   Kectlons.) 

Rent  —  Con  I  in  ucd. 

New   lease,  effect  upon,   230 

Oj)tion    to    pay    rent    or    drill    well,    73 

Oral  change  of  terms  of  lease,  247 

Owner  of  land  entitled  to,  p.   1100 

Payment  of    rent    if   well    is   not    drilled,   242 
effect  on  extension  of  lease,  7()«,  1306 
how    made    in    bank,    779,    814 
instead  of  developing  premises,   145,  p.   1105 
must  be  made,  although  no  oil  on  premises,   179 
will  not  prevent  forfeiture  for  neglect  to  develop,  178 

Preservation  of  right  to  explore  by  payment,   230a 

Renewal  of  lease  by  payment  of  rent,  130& 

Royalties,   see 

is  a  rent,  221 

Surrender  necessary  to  evade  liability  for,  240 

To   whom    payable,   230,    779,    797,    798,   814 

Various   kinds,   220 

Waiver  of  right  to  exact,  233 

When  due  for  failure  to  develop  land,  229 

Rescuer  — 

Injured    by    explosion,    673 

Reservation  — 

Around  buildings,  762,  793,  795 

Distinction    between  -and    an    exception,    302 

Exception,  see 

Farming  purposes,  759 

Of   all   minerals   includes  gas   and   oil,   304,   819 

Restriction  of   right  to   drill   for  oil,  305 

■Severance    of    mineral    by    use    of,    303 

Subject   to   lien   of  judgment,   307 

Ten  acres  around  well,   709 

What,   is  of   gas   and   oil,   35 

Wife's  interest  in,  308 

Reversioner  — 

:\Iay    drill   wells,   207 

Wlien  may  recover  damages  caused  by  an  explosion,  654 

River  — 

Laying  gas   pipes   in,  501,   608 
Oil   beneath,  306 

Royalties  — 

Abandonment,    royalties    falling    due    after,    137 
Accovmt    rendered,    251 
Assigned,   may  be,   202 


I 


INDKX.  1173 

(  U('fcr«'iici'8    are    to   Koctlons. ) 

Aoyalties  —  Coiiliitiicil. 

Co-tonant   may    rocoivo,   287 

Damagt's   for   failure   to  dfliver    to    lessor   his   sliaro,   231 

Defined,  221,   222 

Division,  32t)a. 

Failure  to   pay,  olFect,   177 

of   oil   rent,   ceases,   248 
Gas  or  oil   used   to  operate   leased   premises,   227 
How   collected,    252 
Income    defined,    224,    225 
Instances    of    lessee's    liability,    250 
Inter-dependent    conditions,    235 
Interest    on,    when    begins    to    run,    232,    2736 
Joint  lessors,  230 

Lessee  can  avoid  by  taking  advantage  of  forfeited  clause,  238,  239 
Lien,   occurring  during   receivership,   2^3 
JGnimum    production    allowed,    243 
New  lease,  effect  u])on,  230 
Option  to   pay  or  drill  well,  73 
Oral  change  of  terms  of  lease,  247 
Payment,  so  much  per  well,  223 
Percentage   of   profit   or   income,   224 
Purchase   money  for  premises,  when   is,   244 
To  whom   payable,   230 
Various   modes   of   fixing,  220 
Waiver  of  right  to,   233 
When  due,  228,  229 

Rules  — 

City    may    adopt    for    its    customers.    523 

Consumer,   see 

Gas  company  has  a  right  to  adopt  for  its  customers,  537 

Meter    regulations,    500 

Regulations,    see 

Removal  of  meter,  504 

Subscribing  to,  538 

S 

Sale  — 

Lease,  see 

Municipal  gas  works  may  be  sold  by  citj',  521 

Sardinia  — 

Oil   found   there,    1 

Sconces  — 

When   are    fixtures,    5G8 


1174  INDEX. 

(References    are   to  sections.) 

Scotland  — 

Oil   wells,   7 

Sea  — 

Ownership   of   oil   beneath,    306 

Seneca  — 

Oil    describes,  3 

Servant  — 

J]xplo(ling    tank    injuring,    684 

Injured  by  use  of  defective  ladder,  686 

Injured  by  defective  appliances,  676 

Purchaser  injured  by  exploding  oil,  677 

'Safe  place   in  wliicli    to   work,   is   entitled   to    685 

When    may   recover  for   injury,    666 

Seixrers  — 

Gas  driven  from  sewer  into  house  by  escaping  illuminating  gas,  636 
Gas  escaping  into   sewer   from  pipes   and  entering  house,   629 
Oil  escaping  into  sewers  and  causing  fire,  668 

Shade    Trees  — 

Escaping  gas  injuring,  6.3.5,   j).   1114 

Shutting    OflP   Gas  — 

^Meaning  of  when  used  in  contract,   744i 

Shrubbery  — 

Escaping   gas   injuring,    636 

Sickness  — 

Occasioned  by  failure  to  supply  gas,  liability..  534 

Side-walk  — 

Occupying   with    gas   pipes,    474 

Silliman,   Jr.,   Benjamin  —  '\^ 

Description  of  oil  springs,  3 

Smoke  — 

When    a    nuisance,    586 

South   America  — 

Oil   wells,   7 

Specific  Performance  — 

To  enforce  contract  for  lease,  293,  822 


INDEX.  117i! 

(References   are   to  tiectlons.) 

Spring    is  — 

An   oil    spring,   ':. 

Springs  — 

Pollution,  581 

State  — 

Waste  of  natural  gas  may  prevent,  598 

Statute  of  Frauds  — 

Assignment  of  contract,  94 
Contract    for    lease,    sufficiency,   291 
Decisions  concerning,   75 

Statute    of  Limitations  — 

Acquiring   right   to   oil   or   gas   Lj'   adverse   possession,   299 
no  bar  to  an  accounting,  301 

Statutes  Concerning  Oil  and  Gas  — 

California,  pp.  044  to  947 
Colorado,  p.  948. 
Illinois,  pp.  949  to  952 
Indiana,  pp.  952  to  975 
Kansas,  pp.  975  to  990 
Kentucky,  pp.  990  to  994 
Louisiana,  pp.  995  to  1001 
Nebraska,  pp.  1001  to  1002 
New  York,  pp.   1003   to   1004 
Ohio,  pp.  1004  to  1010 
Oklahoma,  pp.   1010  to  1030 
Ontario,  pp,  1030  to  1035 
Pennsylvania,  pp.  1035  to  1061 
Tennessee,  pp.  1061  to  10G5 
Texas,  pp.  1065  to  1070 
United  States,  pp.  1071  to  10<81 
West  Virginia,  pp.  1081  to  1097 
Wyoming,  pp.  1098  to  1101 

Stop-Cock  — 

Neglect  in  not  providing,  liability  of  gas  company,  665 
On  street,  who  ma.y  open,  613 

Stove  Polish  — 

Exploding,  603 b 

Stoves  — 

When  gas   stoves  arc   fixtures,  568 


1176  INDEX. 

(References    are   to  sections.) 

Streams  — 

Pollution   by   gas    works,   682 
Subterranean,    ]>olluting,    583 

Streets  — 

Change  of  grade,  effect  on  pipes,  493 

Change  of  use  of  franchise,  47'8 

Conditions  of   grant   to  use   street   must  be   performed,   472 

Consent  of  municipality  to   occupy   streets  is  necessary,   466 

when   not  necessary,    408 
Consolidation  of  gas  companies  occupying  streets,  485 
Control,  464 

Cutting  into  improved  pavements,  495 
Defined,  463 
Forfeiture  of  right  to  occupy,  490,  491 

waiver,    492 
Franchise,   see 

acceptance  of   grant,    471 

to  occupy,  disused,   469,   470 
Gas  boxes  in  street,  498 
Gas  posts  in  street,  499 
Grant  of  right  to   occupy  street   strictly  construed,   473 

before  company  organized,  482 
Highway,  see 

Indictment   for   obstructing,   495 
Injunction,  see 

to  restrain  laying  pipes,  487 

to  protect  company's  rights,  481 
Injury  to  pipes  in  repairing  streets,  496 

to   persons  occasioned  by  laying  gas  mains  therein,  682 
Length  of  time  of  grant  to  occupy,  483 
License   to   occupy,   489 
■Monopoly,   see 

Natural  gas  company  may  not  use  for  artificial  gas,  478 
New,  right  to  occupy,  475,   476 
Obstructing  with   pipes,   494 

Ordinance  granting  right  to  occupy  when  void,  effect,  479 
Ordinance  to  occupy  with  gas  mains,  460 
Permission  to  occupy   streets,  495 
Pipes,   see 

laying   in   streets,    406,    468 

not  an  additional   burden,   500 
Regulation  of  right  of  gas  company  to  occupy,  effect,  480 
Repairing,    495 

Revocation  of  grant  to  occupy,  48i9 
Right  to  grant  a  franchise  not  property  of  city,  467 


INDEX.  1177 

(Beferences    are    to  ooctlonR.) 

Streets  —  Continued. 

Sale  or   assignment  of   right   to   occupy,   477 

Sidewalk  a   part  of,  474 

Specification   of   in  grants,   474,   47ti 

Statute  necessary  to  autliori/x*  city  to  give  an  exclusive  grant,  444,  44.'> 

Support    of    gas    mains,    497 

Surface  of  cannot  be  used  for  pipes,  a  10 

Tearing  up,   494,   495 

Termination  of  life  of  corporation  before  expiration  of  franchise,  484 

Territory  annexed  to  another  city  after  grant  made,  475 

Town  becoming  a  city,  elTect  on  gas  company,  486 

Unlawfully  laid  out,  efTect  on  gas  company  occupying  with   its  mains, 

4SS 
Use    for    private    purpose    cannot    be    made,    4<)5 
What   streets   gas  company  may  occupy,  474,  476 

Sab-Lease  — 

Assignee   of   lease,   see 

Assignment    of    lease    is    not    a    sub-lease,    197 

Defined,  217,  p.  1106 

Sub-Lessee  — 

Assignee   of  lease,  see 
Liability  of  sub-lessee,  217 

Subterranean    Waters  — 

Polluting,  583 

Suit  — 

Action,   see 

Cancellation  of  part  of  lease,  186 

Forfeiture,    see 

Lease,    see 

Sumatra  — 

Oil   wells,    7 

Support  — 

Right  to  have  for  pipe-line,  3G8 

Surety  — 

When  assignor  of   lease   is   liable  on   account  of  lease,  216 

Surface  — 

Oil  must  be  brought   to  surface  to  comi)ly   with   terms  of  lease,   176 
Owner  of  mineral  not  co-teiitiut   with  owner  of  surface,  280 
Right    of    lessee    to    use,    77 


1178  INDEX. 

(References    are   to  .sections.) 

Surrender  — 

After   assignmont,   168 

Co-tenant  may  make  or  receive,  284,  286 

Involves   yielding   up  the    lease   or   premises,    142 

Necessary    to    evade    liability    for    rent    or    royalty,    154,    240 

Parol,   by,    may   be,    144 

Substitution  of  tenants  or  assignment  of  lease,  143 

When  necessary,  142,  144,  234 

Synonymous  — 

Gas  is  not  with  oil,  164 

Natural  gas  grant  has  no  application  t<i  artificial  gas  grant,  455 

Oil  lease  not  with  gas  lease,  37,  118,  119 

Statute  relating  to  artificial  gas  has   no   application  to   natural  gas, 

74i2,  478 

T 

Tables  — 

Composition   of  petroleum,    11 

of  gas,    12 

Tanks  — 

Assignment  of  lease  does  not  carry  oil  in,  254 
Exploding  tank  injuring  servant,  684 

Tank  Cars  — 

Use  of  defective  cars  in  transporting  oil,  371 
Use  of  in  transporting  oil,  351 

Tariff  — 

Natural  gas   not   subject  to  laws  of,   44 

Taxation  — 

Cost  of  inspecting  meters,   735 
Exemption    from    taxation,   729,   740 

of  municipality   from,   733 
Franchise,  731 
Gas  mains,   730 

Gross   receipts,    731,   pp.    1115,    1116 
Interstate   commerce,   739 
Leases,  741,   741a 
Municipality   exempted,   733 
Object  of  tax,  stating  in  statute,  736 
Product    in    pipe-lines,    739 
Rates   charged   consumers   are   not   taxes,   734 
•Stock,  valuing,  728,  729,  732 
Set-off,    738 
Surplus,   732 


INDEX.  11 ''"^ 

(BcfcroiuM's    an-    ti>   sivtions.) 

Taxes  — 

Athlinp  to  price  charffoil  for  gas.  501,  737 
Consideration  for  gas  contracts,  5l> 
Exemption    from    taxation,    72K,    740 

from   in   fixing  price  for  gas,  425 

of  municipalitiea  from  taxation,  I'.V.i 

of   property   of   manufacturing   coiniJany.    720 
Franchise,  owTiing,  735 

Gas  mains  of  city  plant  taxed  as   personal   property,  730 
Interstate   commerce    law   does   not    proliihit,    739 
leases   and   minerals,   741 
Lessees,   when   must   pay,   741 
Meters,  556 

cost  of,  735 
Object  of  tax,  when  must  be  stated  in  statute,   730 
Ohio  statute  void,  730 
Oil  in  pipe-line,  739 

Rates   for   gas  charged   consumers   are    not    taxes.   734 
Tax  to  pay  for  gas  or  to   sujjport  gas   plant,  429 
(Stock  and  valuation,  732 

when  exempt   from   tixxes,  728 
Surplus,    certificate   of,    taxing,    732 
United   States  revenue  adding  to  cost  of  gas,  737 

Ten-Acre    Reservation  — 

Around  well,   709 

Tenancy  — 

At   will,   55 

From  year  to  year,  55 

Tenant  — 

Contributory  negligence  of  may  bar  landlord's  right  of  action,  054 

Co-tenant  cannot  bind  his  fellow  tenant,  62 

Fixtures,    right   to,    573,    574 

Insurance  policy,  violating  its  provisions,  090 

Joint  lease   by   separate   landowners,   80 

Landlord    and    tenant,    see 

Right  of  action  against  landlord,  (UC 

Shutting  off  supply  of  gas  l)ecause  old  bills  not  paid,  547 

Subsecprent  tenant  not  liable  for  former  tenant's  gas  bill,  547 

Supplying    with    gas   gas   company   must,    520 

Title  of   landlord,   denying,  2176 

When   relation  of   landlord    and  tenant  creates,  57 

Tenant   by    Curtesy  — 

Granting   lease,   2C0a 


1180  INDEX. 

(Roforoncos    nre    to   nectlons. ) 

Tenants  in  Common  — 

Are  not  partners,  311.  31fi 
Co-tenant,  sec 

cannot   bind    liis    fellow   tenant,    C2 
Damages,   recovering  of  co-tenant,  32Ca 
Liability   of   assignee   of   part   interest   in   lease,   207 
rayment   of    rent  or   royalty    to   one    tenant,   230 
Remedy,  777,  810,  812 
Two   tracts   of   land    drained    by   one   well,   240 

Tenants   for  Liif e  — 

May  work  ojjcn  mine,  259 
Oil  wells  already  open,  may  Avork,  2G1,  2G2 
When  may  ojjcn  new  mines,  200 
may  take   out  oil  or  gas,   35 

Tennessee  — 

Statutes  concerning  oil  and  gas,  ])p.   1001  to  1005. 

Texas  — 

Statutes  concerning  oil  and  gas,  pp.    1005  to   1070 

Tiief  — 

Setting   oil    or   gas   on   fire,    381 

Title  — 

Interest   of    lessee    in   variousi  leases,   57 
Failure  of,  reimbursement  of  oil  operator,  121 
Life  tenant  severing  oil  from  premises,  269,  270 
Non-productive  well,  effect,   139 
Oil  in  tanks  or  pipe-lines,  46 
OwTier  of  land  has  to  oil  or  gas,  24,  25,  26,  27 
Severance  of  oil  or  gas  from  land,  effect,  20 
When  title  to  oil  or  gas  vests  in  lessee,  53,  54 

Trade-Mark  — 

The   term   fire   proof   oil    is   not,   740 

Transportation    of    Oil    or    Gas  — 

Carrying   gas   beyond   state   boundaries,   352 

Defective    cars    causing    fire,    005 

Early  history   of  pipe-lines,   15 

Injurv  occasioned  by  reason  of  defective  cars  or  track,  371  to  376 

Inter.state  commerce,  350  to   353,  384 

License,  city  can  require,  389a 

Limiting  that  of  oil  or  gas,  40' 

Of  oil   or  gas  a  public  use,  350 

Prohibiting   transportation   of  natural    gas    lieyond    state    Vmes,   384 


INDEX .  1181 

(References    ari>    to   sections.) 


Trees  — 

Destroyed  by  gas,  585,   0G2 
Shade    trees,    see 

Trover  — 

Lies    to    recover    oil,    27 

Tmstee  — 

To   operate   city's  gas   works,   520 

Trusts  — 

Unlawful    combinations,   see 


U 

Unlanrfnl    Combinations  — 

Between  gas   companies,   459,   755 

United  States  — 

Early    indications    of    natural    gas,    9 

May  not  prohibit  the  sale   of  naphtha,  390 

Oil  wells  in,  7 

Placer  mining,  309 

Refining  petroleum  in,   13 

Revenue  tax   added  to  cost  of  gas,  435 

Statutes  concerning  oil  and  gas,  pp.  1071  to  1081. 

Taxing  gas  plants  and  gas,   737 

Tar  iff,  see 


V 

Vegetation  — 

Destroyed  by  leaking  gas,  585 
Proof  of  effect  of  gas  ujwn,  (562 

Vemdee  — 

Fixtures  on  coal   or  mineral   lands,  575,  577 
When   entitled    to    fixtures,    570 

Vicinity  — 

Defined    in    contract    to    drill    wells,    125 

"Void"  — 

When  means  voidable,  151 

Volatile   Substance  — 

Whether  gas  is  or  not,  38 


1182        ^  INDEX. 

(Ueferencos    are   to  sections.) 

Waiver  — 

Insurance,   see 

Of  forfeiture,    159,    160 

Of   riglit   to   rent  or   royalty,   233 

(^(iiality  of  gas  or  light  may  l)e  waived,  436 

Wallachia  — 

Oil    wells,    1,    7 

'Warranty  — 

Implied  warranty  in  sale  of  illuminating  oil,  679 
In  policy  of  insurance,  700 

W^aste  — 

C.uardian  guilty  of,  may  be,  35 

Injunction  to   prevent,  35 

Lessees  as  between,  35 

Life  tenant  must  account  for,  268 

Mortgagee   committing,   346,   347 

Mortgagor  may  take  out  gas  and  oil  from  land,  344 

Natural   gas   may   be   a   nuisance,    598 

Tenant  for  life  taking  out  oil  or  gas,  35 

Wells  near  boundary   lines  are  not,  35 

Watclmian  — 

Gas  company  must  maintain   to   detect  leaks,   603 

Inspectors,   see 

Ijcaks  and  explosions,  see 

Night  watchman  to  detect   increasing  pressure  of  natural  gas,  603 

Ways  — 

Streets,  see 

■Wells  ^ 

Agreement  concerning  locating  near  boundary  lines  of  lease,  102 

Boundary   line  upon,  to   protect  territory,  91,   112 

Coal    mine,    passing  through,   369 

Completion,  what  is,   136c' 

Contract  to  drill   in   the  vicinitj',   125 

Cost  of  pumping,  754 

Damages    for   failure   to    drill,    104 

Depth,    115 

Diameter,    124 

Draining  premises  by  wells  on   adjoining  territory,   101,  102,  171,  172 

adjoining  territory,   101,   102 
Dry,  effect  on  lease,  813 


INDEX.  118:j 

(Rpfcronces    art-    to   soctlons. ) 

"Wells  —  Continucil. 

Excuse  for  not  drilling,   112,   113,   114 

First  one  drilled,  5 

Forfeiture,    recovery    of    exjjense    of    not    drilling,    137 

Gas  to   run  drilling  apparatus,  r)4!> 

Injoining,  785 

Injuries  caused  by,  GG7 

Injury  to  property  occasioned  by  shooting,  007 

Leases,  see 

Lessor   drilling  on   adjoining  premises,    100 

Lien  upon   for   supplies   furnished,   333 

Life  tenant,   sec 

right  to  drill  well,  203,  205 
Located  on  stranger's  land,  116 
Locating,   I0!> 

]Vlaliciously  drilling  to   another's   damage,  32 

Non-productive,  effect  on  title  to  leased  premises,   134,   135,   136,   139 
Nuisance,    see 

when  may  be,   59 
Number  that  must  be  drilled.    111,    112,   139 
Option,  see 

to  drill  or  to  pay  rent,   73,   242 
One  well  draining  two  tracts  of  land,  246 
Payment  of  rent  when  wells  not  drilled,  73,  242 
Payment  for  natural  gas   so  much   per  well,  223 
Plugging  natural   gas   wells,   43 

failure  to  make,  817 

state   may   require,   385 
Pollution   of   water   wells   by   gas   works,   581 

water   still  good   for    particular   purposes  no   defense,    607 
Pumping,   see 

Royalties,   two   tracts   of   land   drained   by  one  well,   division,   246 
Selection  of  site  for,  who  makes,   110 
Shooting,  117 
Site  selecting,  p.  1104 
Statutes,  see 

Test   wells,  when   need   not  be   drilled,    114 
Three  months'   cessure   of   work   upon,  i'lTect,    140 
Waste,  see 

of  gas  in  operating  oil   wells,  385,  387 
of  gas  prohibiting,  385,  387 

West  Bloomfield  — 

Gas  wells,   9 

W^est  India  Islands  — 

Oil  wells,  7 


1184  INDEX. 

(Itpfprences    are    to   soctlons.) 

"West  Virginia  — 

Karly  nil   si)rinjrs,  2 

JStatutes  conc'ornin"^  oil  and  gas,  ])p.   lOSl   to  lO".)? 

Widow  — 

When    may    drill    wells  on    dowpr   lands,   2G1 

Wild  Animals  — 

Ownership   of  oil   and   natural  gas  conii>ar('d   with   ownership  of  wild 
animals,  21,   24,  25,   29 

W^ork  — 

Celerity  witli   wliiidi   must  be  pushed,   9G 

Inability   to   begin   work,    173 

Operations,   see 

When  must  be  begun,  96 

When  must  be  completed,   175 

Wyoming  — 

Statutes  concerning  oil'and  gas,  pp.  1098  to  1101 


Zante  — 

Oil   spring,    1 


SCHOOL  OF  LAV/  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 


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